Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, I wish to talk about a different bill, a bill we thought was finally put to bed yesterday. When we say ``put to bed,'' what we conferees mean is the conference is over and that all of the members of the conference have signed the conference sheets, the signature sheets which signify that document that is attached to those sheets is the final version and that then will be presented to both Houses for their consideration. Senator Warner came to the Chamber last night to express his dismay with what we understand now has happened in the House, and that is that the House leadership is apparently toying with the idea, considering the possibility of trying to insert in that conference report a totally unrelated bill that is not part of either the House or the Senate Defense authorization bill, which is totally unrelated to the subject matter of the Defense Authorization Act. To me, it is not important what the substance of the bill is that the House Republican leadership wants to attach. The principle is important. The principle is one of the fundamental principles under which we operate in this body and in this Congress, and that is, once a conference report is agreed to, once those signature sheets have been attached, nothing can just be inserted, unless, of course, the conference report is rejected or the report is referred back to conference. There are rules that the House gets the conference report first, and that allows that body to return a conference report for further consideration. But what is happening here is not that there was going to be a conference report taken up in the House with a motion to refer back to conference to consider other material. Here, apparently, from what we understand, the House leadership was attempting to find some way to add significant legislation to a conference report on which the signature sheet had already been signed by all of us. Senator Warner came to the Chamber last night to express his dismay with this process. As always, Senator Warner is extraordinarily honorable. For him, it is not important what the subject matter of this added legislation is. It is the principle involved. It is the process involved. We cannot possibly operate under a procedure where after a conference is over and the signature sheets are signed that then there is an effort made without, I guess, the body reopening the conference by sending it back to conference for reconsideration but just simply looking for a mechanism to add legislation to a conference report which had already been signed. Senator Warner said something last night that I concur in 1,000 percent. In fact, everything he said last night I concur in 1,000 percent because he is a Senate man. He is an institution man. He loves this institution. And the idea that we could have a process where a conference report is signed and then, somehow or other, through some mysterious mechanism or means, additional legislation is added to it without that conference being reorganized and the House, the first body that receives this conference report, referring it back to conference, is a totally unacceptable process. The chairman of our committee, Senator Warner, last night said he was not going to accept this process. He would filibuster his own bill if it contained material we had not considered and was now showing up in a conference report. And I would join him in that filibuster. He would exercise the rules of this body to ask the Chair to rule that there is out-of-scope material in this conference report, and I would join him in asking the Chair to make such a ruling. This is separate and apart from whether he or I agree with the material which was proposed to be added. By the way, for whatever relevance it has, I think probably both of us would be inclined to support the material which was intended to be added if it ever came to the floor in a proper way. I don't want to commit myself to that position because I haven't seen the actual material proposed to be added, but what I know of the subject matter, it would be the type of change in our law which I probably would support and, without speaking for Senator Warner, I think he is probably inclined to support, too. That is not the issue. We can't treat our colleagues that way. This is a controversial matter which is proposed to be added. There is a very strong debate over the subject matter. Regardless of what our position is, as the chairman and ranking member of this committee, we cannot bring back from the conference a document which contains material which had never been discussed in conference, never the subject of debate in either the House or the Senate, was not in the House or the Senate bill, and is totally nongermane to the subject matter of the conference report. We all know there are items added to conference reports that were not in either bill. That happens. But under our rule, the only way it now happens is if it is material to which everybody agrees. It cannot be material which is not in agreement by the Members of the two bodies. We cannot possibly, as a matter of principle, have a process where a conference report comes back containing material not germane, not relevant, not material to the conference, not the subject of either bill that passed either House, and which is added after the signature sheets have been signed. I wanted to come to the Chamber and say what has happened because we heard this effort was being considered--just being considered--by the House Republican leadership. Senator Warner and I asked our staff to go over to the House and retrieve our signature sheets.

Mr. LEVIN

Mr. LEVIN. Sure.

Mr LEVIN

Mr LEVIN. Mr. President, although we will miss him greatly in the Senate, I join my colleagues in congratulating Senator Jon Corzine on his election as Governor of New Jersey. It has been a pleasure to serve with Jon on the Intelligence Committee and to work with him on issues of corporate accountability. He has been a strong and determined leader here, and I know he will continue to make the people of New Jersey proud in his new position. Jon Corzine has led a distinctly American life. He grew up on a family farm. He served his country in the Marine Corps Reserves. He had extraordinary success in business as a self-made man. And he has continued to serve his country in public life, first as a Senator and soon as a Governor. Jon loves America and fights for what he believes is best for our people. In the Senate, Jon has used the financial expertise he gained at Goldman Sachs to become a singularly credible voice for corporate reform. He was a driving force on the landmark Sarbanes-Oxley legislation, which cracked down on corporate abuses such as those that led to the Enron and WorldCom scandals. He has been a leader on strengthening oversight of the mutual fund industry and on protecting the financial privacy of Americans. Jon has also been at the forefront of promoting financial literacy, so that Americans can manage their personal finances wisely. Working with Jon on the Intelligence Committee, I have seen Jon's piercing mental acumen and commitment to protecting our country. Following the September 11 attacks, which took a heavy toll on his State, Jon recognized the weakness of our system of chemical plant security. He seized that issue and did not let go. In October, Congress finally passed mandatory security requirements at chemical plants based on Jon's work. That this necessary improvement in our security will be substantially improved is due to his tenacity. On every issue, Jon has been outspoken in support of policies that benefit working Americans. He has fought for universal health care, for expanded student aid, and for full funding for education programs. Jon has also been a passionate voice for human rights around the world. Just last month, the Senate approved the Darfur Peace and Accountability Act, which Jon sponsored with Senator Brownback, to help stop the genocide in the Sudan. During his short time in the Senate, Jon Corzine has made a big impact. His is a unique voice that will be personally missed. I join my colleagues in saluting Jon on his election as Governor and in wishing him well in his new position.

Mr. LEVIN

Mr. LEVIN. I thank my friend from Vermont. Mr. President, when this bill left the Senate, under the leadership of Senators Specter and Leahy, we had a balanced bill with provisions which protected both our security and our liberty. We are all very much in their debt for the bill that left the Senate a few months ago. But what now has come back to the Senate is a bill which contains provisions which could sweep into the net of a fishing expedition the most private records of innocent Americans. The conference report amends section 215 of the PATRIOT Act. This is one of many examples, and 3 minutes only allows one example. Section 215 permits the Government to seek court orders, to compel the production of any tangible thing, including library and medical records, in foreign intelligence investigations. Under the new provision, the Government need not describe, much less identify, a particular person to whom the records relate. The PATRIOT Act's standard in the conference report fails to narrow the scope of records that the Government can subpoena to less than the entire universe of records of people who, for instance, patronize the library or visit a doctor's office. One example of that: The Government could seek all of a doctor's records, if it has an allegation that some unidentified patient of the doctor was sending money to an organization in the Middle East that was being looked at as part of a foreign intelligence investigation and the government thought that reviewing all of the records of that doctor might help identify that unidentified person. Therefore, the Government argues, all of that doctor's records are relevant to a foreign intelligence investigation. The same thing with library records; all of a library's records would be subject to being turned over to the Government if the Government has an allegation that somebody, one unidentified person, is using that library for some purpose; for instance, its computer, to have access to some organization in the Middle East that is involved in a terrorist organization. Everybody's library records would be swept into that net. When this bill left the Senate, it had protective provisions against that. There had to be a showing, not just of relevance to a foreign intelligence investigation, there had to be a showing that the records sought were relevant and either pertained to a foreign power or an agent of a foreign power, were relevant to the activities of a suspected agent of a foreign power who is the subject of an authorized investigation, or pertained to an individual in contact with or known to be a suspected agent. In other words, the order had to be linked to some identifiable individual or suspected agent. Those protections are missing. This is not the first time that Congress has addressed this issue. For instance, the Internal Revenue Code places limitations on what it calls ``John Doe'' summons for the production of certain taxpayer records. Under 26 U.S.C. 2709 any summons which: Does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that-- (1) the summons relates to the investigation of a particular person or ascertainable group or class of persons, (2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and (3) the information sought to be obtained from the examination of the records or testimony (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources. Some kind of narrowing language should be included in the Patriot Act for 215 orders. Without it, the PATRIOT Act authorizes the rankest kind of fishing expedition. In addition to the problem with the standard for issuing 215 order, a gag order can be imposed by the FBI to prevent the library from telling people that their records were turned over. That means innocent Americans might never know that the government was looking into their reading habits or medical records. Further, while some argue that the recipient of a gag order could challenge that gag order in court, the conference report is not at all clear on this point. During staff negotiations, language that would have clarified the right to challenge a gag order was rejected. The idea of a permanent, unreviewable restraint on the First Amendment rights of American citizens is deeply troubling. To add insult to injury, if the library wanted to seek legal advice, this conference report requires the library to tell the government who it had consulted even if the lawyer consulted had turned down the case. The conference report is similarly flawed in its treatment of National Security Letters or NSLs. NSLs compel phone companies and banks, for example, to turn over certain customer records. The government can issue an NSL without going to court. And, like 215 court orders, NSLs can be issued without identifying anyone in particular that the government suspects is a terrorist or spy. Again, the government does not have to show any connection between the records sought and a person who the government thinks is a terrorist or spy. And like 215 orders, the government can impose a gag order on the recipient of an NSL. While the conference report does permit recipients of NSLs to challenge gag orders in court, it severely constrains the court's discretion to review the gag order, potentially rendering the review meaningless. Under the conference report, if the Attorney General or another specified senior official certifies that disclosure may endanger national security or harm diplomatic relations, the court may modify or set it aside it only if it finds ``bad faith'' on behalf of the government. And, like 215 court orders, if the recipient of an NSL wanted to seek legal advice before turning over records, the conference report would require the recipient to tell the government who they had consulted. Also troubling about the NSL authority is that there is no requirement that the government destroy records acquired with an NSL that are irrelevant to the investigation under which they've been gathered. These are records that relate to innocent Americans. The government should be required to destroy them if they contain no relevant material. I outlined many of my concerns in a December 7th letter to the Chairman and Ranking member of the Senate Judiciary Committee. I'd ask consent that a copy of that letter be placed in the record. As I and my fellow Senate Democratic conferees said in a December 8th letter to the Chairmen of the House and Senate Judiciary Committees, the conference report falls short of what the American people have every reason to expect Congress to achieve in defending their rights while advancing their security. Congress should not rush ahead to enact flawed legislation to meet a deadline that is within our power to extend. We owe it to the American people to get this right. If three more months are needed to make this an acceptable bill, then we should take and prudently use that time. I ask unanimous consent to have printed in the Record a letter dated December 7, 2005.

Mr. LEVIN

Mr. LEVIN. Mr. President, tragedies involving children and guns continue to repeat themselves with alarming frequency around the country. According to local police, at least five Detroit children have been accidentally shot and killed this year alone. Just last week a three year old boy in Detroit nearly lost his life when he accidentally shot himself in the chest with his father's gun. Following that shooting, Detroit police spokesman James Tate said, ``It appears this could have been prevented if a gun lock was on and the gun was secured. It's unfortunate that we end up responding to these types of scenes when there are free gun locks readily available around the city.'' One source of free gun locks is Project ChildSafe, the Nation's largest firearm safety education program. This program has provided more than 35 million ``firearm safety kits'' to gun owners around the country, including more than 517,500 in Michigan this year. Each firearm safety kit includes a free gun lock and materials to educate firearms owners about safe gun storage practices. Free gun locks from Project ChildSafe are available year round through many local police departments. According to Project ChildSafe, if a local law enforcement agency does not have safety kits available for residents who request them, that agency may contact their governor's office to receive a supply. In addition, Project ChildSafe representatives attend a number of major public events including State fairs, sportsmen's festivals, and community safety days to distribute firearm safety kits. More information on safe gun storage practices and how to acquire a free gun lock can be found on the Project ChildSafe website at www.projectchildsafe.org. The Project ChildSafe website also includes information concerning a number of safe gun storage practices to reduce the risk of unintentional shooting. In addition to using a gun lock, Project ChildSafe suggests locking up ammunition in a location separate from the firearm. Statistics show this additional precaution can have a dramatic impact on the risk of unintentional shooting. A study published earlier this year in the Journal of the American Medical Association found that the risk of unintentional shooting or suicide by minors using a gun is reduced by as much as 61 percent when ammunition in the home is locked up. Simply storing ammunition separately from the gun reduces such occurrences by more than 50 percent. Common sense alone tells us that safe firearms storage practices, including the use of gun locks, reduces the risk of accidental shootings. I hope that firearms owners in Michigan and around the country join those who have already chosen to take advantage of the free gun locks and educational materials provided by Project ChildSafe so that fewer children are killed and seriously injured in accidental shootings.

Mr. LEVIN

Mr. LEVIN. Mr. President, it gives me great pride to congratulate the Grand Valley State University football team on winning the Division II National Championship. This is the Lakers' third championship in the past 4 years, and it crowns a perfect 13-to-0 season. I particularly salute the Lakers' coach, Chuck Martin, who is in his second season with the team. The Lakers' championship victory came in a game that was thrilling to the end. After finishing the first half down 14-to-7, the Lakers fought back against Northwest Missouri State. A stunning 82-yard scoring drive in the fourth quarter gave the Lakers their first lead of the game with just over 4 minutes left to play. Northwest Missouri mounted an impressive drive of its own, but the Lakers' defense stopped the Bearcats at the 4-yard line as time expired. In this stirring finish, the Lakers showed the skill and poise of true national champions. Grand Valley is now one of only three schools, including North Dakota State and North Alabama, that have won three or more Division II National Championships in football. And the seniors on the Laker team have tied the NCAA record for the most wins in a 4-year period. Winning is becoming a tradition at Grand Valley. The volleyball team recently won the Division II championship. The water polo team won a national club title in November. And Mandi Long-Zemba recently won the Division II individual cross-country title as the cross-country team placed second overall. Congratulations to all of the magnificent athletes at Grand Valley State University on a tremendous year, and best of luck for continued success. Go Lakers.

Mr. LEVIN

Mr. LEVIN. Mr. President, statistics released last month by the Department of Justice indicate that the 1994 Brady Act has had a meaningful impact on keeping firearms out of the hands of criminals. The annual Bureau of Justice Statistics bulletin titled ``Background Checks for Firearms Transfers'' reveals that nearly 126,000 firearm transactions to prohibited individuals were prevented in 2004 alone. As my colleagues know, the 1994 Brady Act requires individuals seeking to acquire guns from a federally licensed firearms dealer to undergo a background check. This process requires the applicant to provide a variety of personal information, which is not retained longer than 4 days unless the person is prohibited by law from receiving or possessing firearms. The primary factors that disqualify individuals from receiving firearms include felony or domestic violence convictions, identification as a fugitive or illegal alien, substance abuse, and serious mental illness. Unfortunately, membership in a known terrorist organization does not automatically disqualify an applicant from receiving or possessing a firearm under current law. This is one of the loopholes in our gun safety laws that should be addressed by Congress. The Department of Justice reports that since enactment of the 1994 Brady Act, more than 1.2 million applications for firearms transfers have been rejected because disqualifying information was uncovered during a background check of the applicant. Of the applications that were rejected in 2004, 44 percent were rejected because the applicant had been convicted of or was under indictment for a felony offense. In addition, 16 percent were rejected because of domestic violence convictions or a related restraining order. According to the Department of Justice statistics, almost 80 percent of the rejected applicants in 2004 had a serious criminal history, had been involved in domestic violence, or were identified as a fugitive. This means that nearly 100,000 times last year, criminals and known domestic abusers were denied access to dangerous firearms because of background checks required by the 1994 Brady Act. Unfortunately, not all firearms transactions are subject to a background check. The law requires background checks only for those transactions that involve a federally licensed firearms dealer. According to the Coalition to Stop Gun Violence ``two out of every five guns acquired in the United States; including guns bought at gun shows, through classified ads, and between individuals; change hands without a background check.'' The Coalition to Stop Gun Violence also estimates that ``extending criminal background checks to all gun transactions in the United States could prevent nearly 120,000 additional illegal gun sales every year.'' It is important that we do not infringe on the rights of law-abiding citizens. However, with those rights in mind and protected, we should not allow those with a violent or serious criminal record to acquire dangerous firearms. I urge my colleagues to join me in support of commonsense gun safety legislation, such as the 1994 Brady Act, that will make our nation safer.

Mr. LEVIN

Mr. LEVIN. Mr. President, I am offering this amendment with my colleague, Senator Coleman. I understand portions of our amendment have been cleared by both sides of the aisle and will be included. I thank Senators Grassley and Baucus for accepting this toughening of the penalties on those who promote abusive tax shelters or aid and abet tax evasion. Senators Grassley and Baucus have been battling abusive tax shelters for years now, and it is a privilege to have had them as allies in this fight. Tax dodging costs the Government between $300 and $350 billion every year. A significant portion of this ``tax gap'' results from abusive tax shelters and tax havens. Mr. President, $350 billion is more than the Government spends on Medicare annually and is close to the size of this year's deficit. For 3 years, we have had an indepth subcommittee investigation into abusive tax shelters developed, marketed, and carried out by accounting firms, banks, investment advisors, and lawyers. We found that tax advisors cooked up one complex scheme after another, packaged them as generic ``tax products'' and then peddled the products to thousands of taxpayers across the country. This investigative work provides the foundation for our amendment today. Tax chiseling is undermining the integrity of our tax system. It hurts middle income Americans by forcing them to pay for more than their fair share and constricting resources for essential government programs. The Levin-Coleman provision that the managers have agreed to will increase penalties to 100 percent on persons who promote abusive tax shelters or knowingly aid or abet taxpayers to understate their tax liability. Currently, promoters face only a 50 percent penalty. Think about this. Why should anyone who illegally pushes an abusive tax shelter get to keep half of the profits? Even worse, the current penalty for those who knowingly aid and abet a taxpayer in understating its tax obligation face a maximum penalty of $1,000, or $10,000 for a corporation. But this penalty applies only to tax return preparers. It leaves out those who design, market and carry out the tax shelter, unless they also prepared the taxpayer's return. When law firms are getting $50,000 for each cookie-cutter opinion letter they issue, the possibility of a $10,000 penalty provides no deterrent whatsoever. That fine is like a jaywalking ticket for robbing a bank. I am pleased that today we have reached this agreement to toughen the current penalties, but I hope that eventually we can enact penalties that cause wrongdoers to not only disgorge their ill-gotten gains, but also pay a monetary fine on top of that. Doing so would be fair and would provide a meaningful deterrent. The Levin-Coleman amendment also prevented abusive tax shelters by getting banks out of the business and authorizing Federal agencies to share information to strengthen abusive tax shelter enforcement. I understand that Senator Grassley is willing to consider these provisions for inclusion in a future bill, and I look forward to working with the chairman and Senator Baucus and having our staffs work together on these issues.

Mr. LEVIN. Mr. President, for too many years now, the administration and the majority in Congress have been pursuing an irresponsible fiscal policy of giving tax cuts mainly to the wealthiest Americans among us. By generating revenue less than we are spending, our Nation is falling deeper into the debt ditch. The increase in our debt threatens us with rising long-term interest rates. At a time when so many Americans have variable-rate mortgages, car loans, and other debts, rising interest rates that are predicted to accompany our swelling deficits will have a very real and immediate impact on many American families. And we will be passing this increased debt on to our children and grandchildren. This tax reconciliation bill contains a number of good provisions. In particular, the provision to ``patch'' the alternative minimum tax, AMT, is critical. Congress originally created the AMT to make sure that the wealthiest Americans paid at least a minimum amount of tax; however, it is now catching many more taxpayers than Congress intended. The ``fix'' in the bill before us today would once again implement a temporary increase in the exemption level of the AMT by indexing it for inflation, thus saving many middle-income taxpayers from being affected by the AMT and having their Federal taxes increased. Today's bill also includes an expansion and extension on the research and development tax credit. R&D provides strength for our economy. It creates American jobs and improves the competitiveness of U.S. companies in the global marketplace. I am pleased that it will be extended. I am also glad that this bill would establish an itemized deduction for the mortgage insurance on qualified personal residence and incentives for donations to charitable organizations, as well as extend tax incentives for many important programs, including a deduction for tuition payments and related expenses, a continuation of the new markets tax credit, deductions for teachers who make out-of-pocket payments for classroom expenses. However, while these tax cuts are well targeted, it would be unconscionable to support their passage without paying for them. To start with, I wish we had adopted Senator Feinstein's amendment. Her amendment would have maintained two little known but important provisions known as ``PEP'' and ``Pease''. The personal exemption phase out, PEP, reduces a taxpayer's total personal exemption for incomes exceeding $218,950 for married couples, $145,950 for individuals. The ``Pease'' provision, which is named after the late Representative Don Pease, reduces certain itemized deductions for higher income taxpayers. There is currently a repeal scheduled to start next year on both of these, which does little for the economy beyond further increasing the deficit. Keeping PEP and Pease could reduce the deficit by an estimated $31 billion over 5 years. That is enough to pay for the entire AMT fix. Senator Feinstein's amendment also would have rolled back the Bush tax cuts on capital gains rates, dividend rates, and income tax rates for millionaires. I supported this amendment, which unfortunately was defeated. In closing, I support many of the tax provisions in this bill, but I cannot support passing then without paying for them. On balance this fiscally irresponsible bill will leave our country worse off.

Mr. LEVIN

Mr. LEVIN. Mr. President, I rise to pay tribute to Michigan State University as they continue their 150th anniversary celebration. Throughout its history, Michigan State has made a tremendous contribution to the State of Michigan and to our Nation as a whole. Michigan State University, or the Agricultural College of the State of Michigan as it was originally known, was created in 1855 by an act of the Michigan Legislature authorizing the creation of a school of higher education for agriculture. Two years later, Michigan State welcomed its first class of 63 students. Nearly 100 years ago, President Teddy Roosevelt visited Michigan State and delivered a commencement speech to more than 20,000 students, faculty, and family of the graduates. In his speech, he stated ``The fiftieth anniversary of the founding of this college is an event of national significance, for Michigan was the first State in the Union to found this, the first agricultural college in America.'' While Michigan State was the first agricultural college in the United States, the curriculum studied by its students went far beyond agriculture and included classes in English, philosophy, and economics. This multifaceted approach to higher education produced well-rounded graduates and became the foundation of the educational philosophy later employed by the land grant colleges created by Congress in 1862. In addition, this philosophy marked an important change in the way higher education was perceived around the country. No longer was a college degree available only to society's elite, but also to the less privileged who made use of the practical education they received to improve their own standard of living as well as that of their family, community, and our Nation as a whole. The significance of this shift in thinking cannot be overstated and remains as important today as it was in the mid-1800s. Of course, President Roosevelt's commencement address was only one of many significant events in the history of Michigan State University. The University welcomed its first female students in 1870 and presented 22 degrees to women by 1895. Michigan State's color barrier was broken in the early 1900s when it awarded its first degrees to an African- American man, William Thompson, in 1904 and an African-American woman, Myrtle Craig, in 1907. Among the nearly 400,000 Michigan State Alumni worldwide are 16 Rhodes Scholars, a Pulitzer Prize winner, a Grammy award winner, two former Michigan Governors, a former U.S. Senator and Secretary of Energy, and the first women to represent the State of Michigan in the U.S. Senate, my colleague and friend, Debbie Stabenow. Michigan State now offers more than 200 programs of study and serves almost 45,000 current students from all 50 States and more than 120 foreign countries. Among many other things, researchers at Michigan State University are credited with the development of leading cancer fighting drugs and the process of milk homogenization. Michigan State is currently home to the National Superconducting Cyclotron Laboratory, the leading rare isotope research facility in the country. The nuclear science research taking place at this facility is improving our knowledge of the elements that make up the world around us and could provide new medical breakthroughs, including new tools for the treatment of cancer. This research, primarily funded by the National Science Foundation and the university, has made Michigan State's nuclear physics doctoral program one of the most prestigious in the Nation. I know my colleagues will join me in congratulating Michigan State University on 150 years of contributions to Michigan and the Nation as a whole. I would also like to wish Michigan State University, its students, faculty, alumni, and supporters good luck and continued success as they work to make the next 150 years as productive and full of accomplishment as previous 150 have been.

Mr. LEVIN

Mr. LEVIN. Mr. President, the issues addressed in this pension bill are complex. We are treading into a swamp of technical terms and complicated plans. But the core issues are simple matters of fairness. Will retirees receive the benefits they were promised? And will the companies who are trying to do right by their workers be encouraged rather than unfairly penalized? About half of all private sector workers participate in one of two general types of employer-sponsored retirement plans: a defined- contribution plan or a defined-benefit plan. Defined-contribution plans, such as a 401(k) plan, are much like individual savings accounts into which employers and employees contribute. These funds are then usually invested into stocks and bonds with the hope that the investment will grow as the worker approaches retirement. When the worker does retire, the balance of the account is available for him or her to withdraw. Defined-benefit pensions, by contrast, guarantee an employee a certain amount of retirement benefits, typically based on years of service and salary level. To pay these promised benefits, the employer sets aside money in a combined pension fund, which is then invested. The employer decides how that fund is invested and retains control over the funds until dispersed to the retirees. It is this second category, defined-benefit pensions, that are facing a crisis today. Due to swings in the stock market, complex funding rules, changes in the business climate, or unforeseen developments, companies' defined-benefit pension plans are underfunded. Some companies have declared bankruptcy to get out of their pension obligations, and there is reason to worry that this disturbing trend will continue. When a company sloughs off its pension obligations in bankruptcy, the Federal pension insurance agency, the Pension Benefit Guaranty Corporation PBGC, steps in to ensure retirees receive benefits, up to a maximum of about $46,000 per year for employees who retire at age 65. The PBGC is self-funded through insurance premiums and fees paid by companies with defined-benefit plans. With the PBGC taking on more companies' pension obligations, however, there is less money coming into the PBGC and more money going out. The PBGC announced just yesterday that it is running a deficit of $22.8 billion. Ultimately, if the long-term health of the PBGC continues to decline, many people are concerned that only a taxpayer-financed bailout would allow retirees to receive the benefits they were promised. We need to strengthen the defined-benefit system so that that does not happen. We must encourage the recovery, rather than the termination, of underfunded and vulnerable pension plans. If we can shore up these plans without doing undue harm to the companies, the concerns about PBGC's fiscal problems will be addressed. To do so, companies should be required to adequately back up the promises they have made to their workers. And changes in Federal pension policy should help them. For example, we need to reduce uncertainties for employers making a good faith effort to meet their obligations. We also need to ensure that we do not give incentives to employers who offer hybrid pension plans to either jettison their retirement plans entirely or offer only defined- contribution plans. In this way, I believe it is possible to improve retirement security while also reducing the long-term exposure of the PBGC. However, I have serious concerns that the bill before us today will do some significant harm in the effort to do positive things. One provision of particular concern would require the pension plans of companies with plans that are less than 93 percent funded who also have declining credit ratings to be considered ``at-risk.'' Once considered ``at- risk,'' companies must use different actuarial assumptions that require them to sock away significantly more money into their pension trusts. That provision alone could require companies to put unnecessarily high amounts of additional dollars into their pension plans. These are dollars that could otherwise be used to boost research and development or doing other activities that could create jobs. Another provision of concern deals with an actuarial method known as ``smoothing.'' Under current law, how much money companies have to put into their plans is determined by using a 4-year weighted average of the values of pension assets and/or liabilities. It is generally recognized that 4-year smoothing has led plans to become underfunded by masking the diminished current fair market value of a plan's assets. The original bill from the Health, Education, Labor, and Pensions Committee would have shortened smoothing to 3 years. The House Ways and Means Committee and House Education and Workforce Committee bills also allow 3 years. The HELP/Finance Committee compromise, however, takes a 12-month average. Three years is a fair approach that would tighten current law but still allow some necessary cushion against volatility for employers; twelve months would significantly increase the volatility and unpredictability for employers. This shorter time frame would unwisely add significant volatility for companies when they are determining how much money they need to set aside for the pension plans. For months, Senators Mikulski and DeWine have been urging an amendment that would have addressed these two problems. The amendment they wanted to offer, which I co-sponsored, would have adopted the HELP Committee's 3-year position on smoothing. Their amendment also would have replaced the use of credit ratings in determining whether a company has to abide by ``at-risk'' funding requirements and would instead measure ``at-risk'' by how well-funded the pension plan is. I am disappointed that we were not able to vote on the DeWine- Mikulski amendment. I am hopeful, however, that these problems with the Senate bill will be adequately addressed in conference. I hope the conferees will come back with what the House committees adopted on those issues. I am also concerned about the overall effect that the bill will have on the defined-benefit plan system. Some of the actuarial changes that may be appropriate on their own may become problematic when packaged together. The changes required by this bill would require companies to fund their long-term pension obligations somewhat too quickly, and would make the amounts of their required contributions fluctuate unpredictably. The short-term financial impact might push companies with underfunded plans to terminate the plans, rather than working to bring their funding levels up. A survey of chief investment officers for large pension plans found that 60 percent thought significant and rapid changes, such as those in the House or Senate bills, would lead to benefit reductions or plan termination. I also hope that in the final conference report the Senate's position on credit balances prevails over the unwise House provision. The House bill would penalize companies that prefunded their plans, by making additional, non-required contributions, to subtract these prefunded amounts from the calculations of their plans' assets. This change would trigger unfair financial penalties for the companies and would deter future prefunding, which we should encourage, not discourage. On a positive note, I am pleased that this bill will give airlines extra time to fund their plans. In the wake of Northwest and Delta airlines declaring bankruptcy, Congress must help companies do the right thing and keep their plans when they emerge from bankruptcy, rather than turning their obligations over to the PBGC. Also, I am pleased that Senator Stabenow's work to address problems with the multiemployer pension plan system is reflected in this bill. These multiemployer plans provide millions of employees of small firms with the opportunity to be covered by a defined benefit plan. Finally, I am pleased that this bill protects older workers in cash balance plan conversions, and that it gives guidance regarding some of the uncertainties surrounding hybrid plans. Legal questions surrounding hybrids like cash balance and pension equity plans should not stand in the way of companies offering the best pension plans that they can. Pension reform is a critical issue for Michigan. Michigan's manufacturing workers have always planned for the future by forgoing some short-term wages in order to provide for themselves and their families when they are no longer working. Likewise, those in other industries, including employees of Northwest Airlines, also rely on defined-benefit pension plans. The retirement security of Michigan workers and workers across the country would be significantly weakened if we drive guaranteed benefit pension plans out of business, and that is what I am concerned that this bill could do. I will vote no on this bill, because on balance it does not ensure that companies striving to do the right thing are not unfairly penalized and because workers in those companies must also receive the retirement benefits they were promised. I truly hope the final bill reported by the conference committee will repair the defects I have identified.

Mr. LEVIN

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEVIN. I move to reconsider the vote.

Mr. LEVIN. Mr. President, I intend to vote for the Warner amendment because it represents change, not as much change as we would have liked, and we have debated that and argued that. But there are significant changes that are being proposed in this amendment which we have worked very hard to put in our amendment and we think would represent an improvement. We need to have 2006 be a year of transition. We need to have the administration lay out a strategy. We need to state what our military states, which is that the Iraqis have to solve their political problems and come together and unify if that insurgency is going to be defeated. This amendment continues to say to the administration they need to tell that to the Iraqis. This amendment also sets up a schedule for conditions that are goals we hope to be achieved on the ground. That ``schedule,'' which is the word that remains in this amendment, is an important schedule that needs to be retained, and it is retained. It needs to be met, and if it is not met, we need to be told what has changed so that it can be met. I support the Warner amendment as the second-best approach, but it continues to keep the purpose, to clarify and recommend changes to the policy of the United States on Iraq. Keeping that purpose is critical.

Mr. LEVIN. Mr. President, this amendment represents a significant change in the course that we are on and so does the Republican amendment. The title of both amendments is ``To clarify and recommend changes to the policy of the United States on Iraq. . . .'' That is the purpose of my amendment. It is a purpose which is retained in the Warner amendment. We lay out what those changes are. We agree on almost all of the changes, that ``2006 should be a period of significant transition,'' that there should be ``phased redeployment of United States forces.'' That is on page 2. That is not paragraph 7. They accept the idea that we should create the conditions for phased redeployment. They accept my idea and our idea that the United States ``should tell the leaders of all groups and political parties in Iraq that they need to make the compromises necessary'' for a broad-based political settlement. We need that political settlement. Our military leaders tell us, if there is any chance of a military victory, you have to have a political settlement. So we endorse paragraph 7. Senator Feingold read it. I have read it. We totally endorse it for what it says. It is not cut and run. It is not a statement that we are going to withdraw on a fixed date.

Mr. LEVIN. Mr. President, is that an additional minute above the time allotted to us?

Mr. LEVIN. Mr. President, how much time is remaining on both sides?

Mr. LEVIN. Mr. President, I yield a minute to the Senator from Rhode Island.

Mr. LEVIN. How much time remains?

Mr. LEVIN. Mr. President, the Graham amendment, which the Senate approved last Thursday, includes a prohibition on Federal courts having jurisdiction to hear habeas petitions brought by aliens outside the United States who are detained by the Defense Department at Guantanamo Bay, Cuba. The Graham-Levin-Kyl amendment would make three significant improvements to the underlying Graham amendment. The habeas prohibition in the Graham amendment applied retroactively to all pending cases--this would have the effect of stripping the Federal courts, including the Supreme Court, of jurisdiction over all pending case, including the Hamdan case. The Graham-Levin-Kyl amendment would not apply the habeas prohibition in paragraph (1) to pending cases. So, although the amendment would change the substantive law applicable to pending cases, it would not strip the courts of jurisdiction to hear them. Under the Graham-Levin-Kyl amendment, the habeas prohibition would take effect on the date of enactment of the legislation. Thus, this prohibition would apply only to new habeas cases filed after the date of enactment. The approach in this amendment preserves comity between the judiciary and legislative branches. It avoids repeating the unfortunate precedent in Ex parte McCardle, in which Congress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court. The Graham amendment would provide for direct judicial review only of status determinations by combat status review tribunals, not to convictions by military commissions. The Graham-Levin-Kyl amendment would provide for direct judicial review of both status determinations by CSRTs and convictions by military commissions. The amendment does not affirmatively authorize either CSRTs or military commissions; instead, it establishes a judicial procedure for determining the constitutionality of such processes. The Graham amendment would provide only for review of whether a tribunal complied with its own standards and procedures. The Graham-Levin-Kyl amendment would authorize courts to determine whether tribunals and commissions applied the correct standards, and whether the application of those standards and procedures is consistent with the Constitution and laws of the United States. This amendment is not an authorization of the particular procedures for the military commissions; rather it is intended to set a standard-- consistent with our Constitution and laws--with which any procedures for the military commissions must conform.

Mr. LEVIN. I yield 5 minutes to the Senator from Delaware.

Mr. LEVIN. Mr. President, the majority leader has railed against language which does not exist in our amendment. Repeating over and over again a cut-and-run strategy is wrong, he tries to create the impression that that is what paragraph 7 proposes. It does not by its own terms. By repeating cutting and running enough I guess the hope is that people who don't read this language will believe that that is the language in paragraph 7. It is not. What we propose in paragraph 7 is that there be estimated dates, estimated dates if the conditions on the ground are met as the Republican and Democratic amendment both propose occur. Then give us estimated dates for a phased redeployment--estimated dates--if those conditions are met and with the understanding that unexpected contingencies may arise. That cannot be fairly characterized the way the majority leader repeatedly characterized it.

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 2518

Mr. LEVIN

Mr. LEVIN. Mr. President, we would not be at this point in our deliberations, we could not have arrived at this point on the road without our chairman, Senator John Warner, who is not only a person who is eminently fair--he is invariably that, fair--he is unflappable. Despite his passion for the men and women of the military, he is unflappable when it comes to getting things done in a very calm, deliberative, and bipartisan manner. I am proud to serve in this Senate for many reasons but not the least of them is being able to be a friend and colleague of John Warner of Virginia, truly a gentleman. Our staff, as he has pointed out, has made it possible for us to be here as well. We function on a bipartisan basis. We obviously have disagreements at times. We are always able to work those out in an agreeable way or disagree in an agreeable way. We have been able to bring the bill to the floor again with the help of our bipartisan staff. We are glad Charlie Abell is back on our side of the Potomac again where he belongs. Dick DeBobes, as the chairman pointed out, leads our minority staff with distinction. I probably should not single out any other member of our staff, but I want to mention Peter Levine because of the unusual circumstance we found ourselves in where his particular expertise made it possible for us to resolve this issue relative to detainees. It is most needed and appreciated by all of us. I think I can speak for both Senator Warner and myself when I say that our staffs not only work together, as Senator Warner has indicated, but make it possible for us to reach the point where we are. I wanted to add my thanks, and now on to conference, which is always fun. We have had more bumps on the road this year than I can remember in any prior year for an authorization bill. We were on the floor, off the floor, on the floor, off the floor for various reasons which we don't need to recount. Hopefully, the road ahead of us will be smoother and we can come out of conference, I guess now would be early in the next year.

Mr. LEVIN. Mr. President, if I may very briefly respond.