Trent Lott

Mr. LOTT

Mr. LOTT. I will give the Senator a direct answer. Senator Stevens indicated that is what he wanted. I understand there are extenuating circumstances with those two areas in Alaska. That varies from State to State. In some States, they want contract towers for a particular site, and in others not. I agree with the Senator on that. I think we should not have excluded them.

Mr. LOTT. Mr. President, for the sake of a flow back and forth, I yield 5 minutes of our remaining time to the chairman of the full committee.

Mr. LOTT. I yield 5 minutes to the Senator from Arizona.

Mr. LOTT. Mr. President, before he leaves the Chamber, I thank the Senator from West Virginia for his work on the Commerce Committee, and specifically for his work and his cooperation on the development of this legislation, both at the subcommittee and full committee level and here in the Chamber of the Senate, and also for the tone of his remarks. He wants to get this done and that is the attitude we should all have. In fact, that has been my goal. I am trying to find a way we can get a bill completed that has $60 billion in it, billions of dollars for security for our airports and for the airline industry as a whole and that the President will sign. Is this about trying to win the point--the congressional position will prevail and the President's position will prevail? How about finding a position we can both live with? That is, fortunately or unfortunately, how it works sometimes in a legislative body. That has always been my attitude. I am not interested in making statements. We came here to get things done. We need to get this legislation completed. That is why we have been working feverishly to try to come to a conclusion. With regard to contract towers, we have one in Tupelo, MS. It works fine. I believe the record will show that the Senator from New Jersey has over the years supported the concept of contract towers. As a matter of fact, when he was chairman of the Transportation Appropriations Subcommittee, in 1994, the number of contract towers grew from 14 in 1987 to 59 at the end of 1994--an increase of 300 percent while he was subcommittee chairman. I repeat again something I said: This is not a Republican idea. I am not even sure it is a Democrat idea. But it is an idea that was used effectively during Democratic administrations and Republican administrations. The 1994 Senate report says: In light of the recent recommendations in the ``Report of the National Performance Review'' which calls for converting level I control towers to contract operations, the Committee has provided an additional $1 million above the amount requested for this program. That was in the Transportation Appropriations Subcommittee report in 1994. Here is the most important language from the subcommittee chairman, Senator Lautenberg. The Committee believes this public/private sector program (contract towers) has provided significant safety and economic benefits to smaller communities at a reduced cost to the Federal Government since its inception in 1982. The Committee urges FAA to expand the programs where appropriate. Now, all of a sudden, contract towers are something really heinous. What is the difference in 1994 and 2003? We have done a lot more--I think over 200 of them. I think most of them work just fine. I do not know. We are doing a little revisionist history here. I emphasize this: There is no language in this conference report that would identify contract towers for Alaska, in or out. We took that out. It is not here. We also had language in the conference report that said we would not have privatization of the air traffic control system. Declare victory? Oh, no. That was a problem because it didn't apply to all parts and all unions involved in FAA. That is what this is really all about. It is about making sure that every one of the unions that are involved in the Federal Aviation Administration are excluded. Again, we are, I guess, looking for the perfect here. All the talk is about air traffic controllers, but as a matter of fact, it involves the Federal Flight Weather Service people, it involves maintenance, it involves everybody. We can't have privatization of any part of the FAA, would be the attitude of some. I just do not understand that language here. So it is very important that we realize what is actually in this conference report and what is not. My guess is, Can you accept victory? Can you accept victory? The administration has said they will put it in writing; they would have supported it in legislation; no privatization of air traffic control systems. I ask the Senator from New Jersey. He addressed a question to me. I address a question to the Senator from New Jersey. Will he accept a commitment of a 1-year moratorium of no privatization of the air traffic controllers?

Mr. LOTT. That is my point.

Mr. LOTT. Mr. President, I reserve the remainder of my time.

Mr. LOTT. Mr. President, I yield whatever time remains to Senator McCain who will wrap up. Any time he doesn't use I would like to retain.

Mr. LOTT. I ask unanimous consent that the letter to which Senator McCain referred a moment ago from administrator Marion C. Blakely be printed in the Record.

Mr. LOTT. Let me read from part of that letter. She acknowledges the letter the bipartisan group sent her last week, dated November 13, regarding contracting out functions performed by the Federal Aviation Administration employees. It is unfortunate that the recent debate on FAA's pending reauthorization bill, Vision 100--the Century of Aviation Reauthorization Act has led to some confusing maintaining the status quo of FAA's Contract Tower Program with privatizing our nation's air traffic control system. Let me be absolutely clear: The Administration has no plans to privatize the nation's air traffic control system. I welcome and respect the Committee's duty to perform oversight of the FAA. I look forward to participating in the hearings you describe, as there are many misconceptions as to the FAA's plans with respect to competitive sourcing that I would like to correct. In the meantime, if the legislation is enacted in its current form, you have my commitment that during the current fiscal year the FAA will not contract out any air traffic separation and control function currently performed by the FAA. Further, during that period, the FAA will not convert any Visual Flight Rule (VFR) tower to a contract tower. What more can you ask? This is a letter from the Administrator, responding to our letter assuring us of those things we have been asking. They are not going to contract the air traffic control system, and they are not going to convert the visual flight rule tower to a contract tower. I urge my colleagues, for the safety of the American people, for the importance of jobs in the economy, to vote for cloture. Let's pass this legislation and move it to the President for his signature. Have the yeas and nays been ordered?

Mr. LOTT. I yield the floor. cloture motion

Mr. LOTT

Mr. LOTT. I object.

Mr. LOTT. Under that agreement, I am glad to yield such time as he may consume to the distinguished senior Senator from my great State of Mississippi, Mr. Cochran.

Mr. LOTT. Mr. President, I thank my distinguished colleague from Mississippi for his comments. He has shown, once again, he is a student of the Constitution and of the law. I hope our colleagues found his speech to be informative, and I keep hoping and praying that there will be a change of heart and mind in how we deal with this issue. Mr. President, the debate that has been taking place for nearly 24 hours is the culmination of 9 months of obstructionism by a minority of Senators who have subverted the Constitution's advice and consent provisions and undermined the very fundamental tenets of democracy. It is an elementary principle of democratic government that the majority determines the outcome of political questions. Certainly the minority has a right to state it's case and have input into the issues. But at the end of the day, when the final decision is at hand, a majority decides the outcome. Yet in the 108th Congress we have seen an unprecedented attack on this core principle of democracy. Instead of majority rule as our governing principle, we have the rule of the minority. Four nominees to the Courts of Appeal are supported by a clear majority of Senators. Yet a minority of Senators refuses to allow the Senate to vote on these nominations. The Founding Fathers well recognized the dangers inherent in granting a minority a veto over the will of the majority. James Madison, in Federalist 58 pointed out that the Constitutional Convention explicitly rejected the idea that Congress be required to adopt a supermajority quorum to transact business. He warned that the ``fundamental principle of free government would be reversed,'' if we allowed a minority to overrule the majority. Why is majority rule the ``fundamental principle of free government?'' Simply stated, Mr. President, if the will of the majority is not the prevailing principle, then it is legitimate for one person, whether a king, or autocrat, to determine the fate of political society. Our Founding Fathers rejected that idea and all of American society has rejected that concept since 1776. Unfortunately, what we have witnessed over the past 9 months in connection with the nominations of Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering is a hijacking of the Senate's constitutional responsibility to advise and consent on the President's nomination and to accept the idea of majority rule. A minority of Senators have literally rewritten the Constitution to engraft a supermajority rule into the confirmation process, a requirement that completely contradicts the intent, spirit and language of the Constitution. The Founding Fathers believed there were a few extraordinary instances where supermajorities are necessary and they spelled them out in the Constitution: Ratification of a Treaty; override of a presidential veto; conviction in a case of impeachment; passage of a constitution amendment; and expulsion of a Member. Amendments to the Constitution have added two other supermajority requirements--one, a post-Civil War disqualification rule for serving in Congress; and another regarding a determination of whether a President is disabled. But now a minority in the Senate has effectively rewritten the Constitution to demand a supermajority vote on some Presidential nominations. That completely contravenes the Constitution. When the members of the Constitutional Convention considered the appointment power, they first debated placing the appointment power in the Senate. However, that idea was rejected because the members of the Convention believed the Senate was ``too numerous and too little// personally responsible, to ensure a good choice,'' according to Madison. The convention also considered giving the President the sole authority of appointment. In an effort at compromise, Madison suggested that the power of appointment be given to the President with the Senate able to veto the choice only if two-thirds of Senators opposed the nomination. Ultimately, the Convention allowed for a simple majority vote on the President's nominations. The Founders were so confident that the power of judicial appointment is primarily an executive function that they wrote into the Constitution a provision that allowed Congress to pass a law giving the President exclusive authority to appoint all judges below the Supreme Court. In addition, the President was granted the power to make temporary appointments when the Senate is in recess. You can search the historical record and not find a single shred of evidence to suggest that the Framers of the Constitution ever envisioned a scenario where a minority of the Senate could cause the rejection of a Presidential nominee. But that is exactly the situation we face today. On 7 different occasions, as many as 55 of 100 Senators voted in favor of ending debate on the nomination of Miguel Estrada. But the minority obstructing his nomination refused to allow an up or down vote and ultimately Mr. Estrada withdrew his nomination. Fifty three Senators voted to end debate on the nomination of Priscilla Owen. But the minority refused to allow an up or down vote. Fifty three Senators voted to end debate on the nomination of William Pryor. Again, the minority refused to allow an up or down vote. And just 2 weeks ago, a majority of 54 Senators voted to end debate on the nomination of Charles Pickering. And once again, the minority prevented us from bringing this vote to a conclusion. This undemocratic obstructionism threatens to destroy the integrity of this institution. I have heard it said by some who are blocking the President's nominations, that there is nothing wrong with the confirmation process. They say we've confirmed 168 of the President's nominees; why is there a problem just because we block four nominees? 168-4 is a pretty good record, they say. I would like to bring to the Senate's attention another statistic: The number of President Clinton's judges that were blocked by Senate filibusters. 0. No a single Clinton nominee who was brought to the floor was blocked by a filibuster. Cloture petitions were filed on 5 of President Clinton's nominees. But every single one of those nominees was given a straight up or down vote. Every one of them. So if we are comparing records, here is the record that matters: Four of President Bush's nominations blocked by filibuster and none of President Clinton's nominees blocked by filibuster. This is not baseball or basketball; this is the responsibility of the Senate to live up to its Constitutional responsibilities. And what a minority of Senators have done is to create a double standard for judicial nominations. They say for some judges, we accept the constitutional mandate of a majority vote. But for other nominees, we have created an extra-constitutional higher standard. For nominees Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering, a constitutional majority is not good enough. You have to garner a supermajority. That's a standard that is not fair, yet that is precisely what a group of Senators in the minority have demanded. And as a result, they are failing to fulfill their constitutional responsibility to provide advice and consent. For those who say there is nothing wrong with the confirmation process, I say look at this chart. Up until 1968 there was never a filibuster of a judicial nominee. In some instances, cloture was filed twice and even when cloture was not invoked, every single nominee whose name had not been withdrawn was given an up or down vote. We have had an unprecedented 7 cloture votes on Miguel Estrada and 3 on Priscilla Owen. In both cases, a majority of the Senate voted in support of the nominees. But a minority of Senators refuse to give these nominees straight up or down votes as required by the Constitution. I believe that establishing a rule that if a nominee cannot garner a supermajority of 60, the nominee will not be entitled to a vote is a very dangerous precedent that will haunt this chamber for decades to come. We have never in 214 years established such a rule. Even in the case of the most controversial nominees in recent memory--Robert Bork and Clarence Thomas--the Senate carried out its constitutional responsibility by giving each of them an up or down vote. In June, I chaired a Rules Committee hearing on judicial nominations where one of the witnesses claimed that in the 19th Century, there were several instances where a minority of Senators prevented the Senate from considering judicial nominees. I would like to take a few moments to clarify the record on this issue. In December, 1828, lame duck President John Quincy Adams nominated John Crittenden to the Supreme Court. In February 1829, a month before Andrew Jackson was to be sworn is as President, the Senate voted 23-17 to postpone the nomination until Jackson came into office. Clearly, in this instance a minority was not blocking the will of the majority. In June, 1844, President John Tyler nominated Ruben Walworth and Edward King to fill Supreme Court vacancies. The Senate, by votes of 27-20 and 29-18, voted to postpone the nominations. After Tyler was defeated in the 1844 election, he resubmitted the Walworth and King nominations. The Senate refused to vote on the nominations submitted by the lame duck. John Meredith Read was also nominated by lame duck President Tyler. A month before Tyler's successor was to be sworn into office, the Senate voted to adjourn rather than consider the Read nomination. Obviously, the will of the majority was not thwarted by the minority when the Senate voted to adjourn. In the summer of 1852, President Millard Fillmore nominated Edward Bradford to the Supreme Court. The nomination was made just before the Senate was already planning to adjourn. It adjourned before considering Bradford's nomination. When the Senate reconvened, Franklin Pierce had won the 1852 Presidential election. And Fillmore did not renominate Bradford. Instead, in early 1853, lame duck Fillmore nominated George Badger to the Supreme Court. The Senate voted 26-25 to postpone consideration of Badger's nomination. Fillmore then nominated William Micou, but the Senate refused to act on the lame duck nomination. There is no evidence that a majority supported Micou. Finally, Mr. President, in January 1881, the lame duck President, Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on the Supreme Court. The nomination never was reported from the Judiciary Committee. When President Garfield took office in March, he renominated Matthews. After 2 months of debate, Matthews was confirmed by a vote of 24-23. I have taken the Senate's time to provide details of these 19th century nominations to make the point that there is no evidence that any of the controversial justices nominated in those years was blocked by a minority of Senators. In every instance, a majority voted to delay or defer consideration. And in most of these instances, they involved nominations made after a sitting President was defeated for re-election. They have absolutely no relationship to the situation that has confronted President Bush throughout this year. As my colleagues are well aware, historically, the Senate has demonstrated a great reluctance to tamper with the Rules that govern this body, especially the rules that govern debate. However, when a minority of Senators have repeatedly abused the filibuster, the Senate has acted to change its rules. After a minority of Senators blocked efforts to have an up or down vote on a proposal to arm merchant ships during World War I, the Senate adopted its first cloture rule. The cloture rule was larger changed in 5 separate occasions, most recently in 1986. The last attempt to change the cloture rule occurred in 1995 when Senators Harkin and Lieberman proposed a cloture rule nearly identical to the majority leader's proposal, but broader in scope because it applied to legislation as well as nominations. On a motion to table, that effort failed by a vote of 76-15. I voted against that proposal because I agreed with Senator Byrd that the biggest abuse of the filibuster had occurred in connection with Motions to Proceed and that the Rules of the Senate, in particular Paragraph 2 of rule VIII, provided an adequate remedy to address this problem. However, it has become apparent that there is no remedy in the current Senate rules to address the obstructive practices of a minority of Senators to block Presidential nominations. And that is why I cosponsored the majority leader's resolution, S. Res. 138. This resolution was reported favorably from the Committee on Rules on June 26, of this year. The majority leader's resolution that will return the advice and consent responsibility to what the founding fathers intended. Our resolution would give the opponents of a nomination more than a fair opportunity to express their reasons for opposing a nominee. But it would not allow a minority of members to avoid their constitutional responsibility to have a final yes or no vote on a nomination. Under our approach, cloture on a nomination could not be filed until the Senate has considered the nomination for at least 12 hours. On the first cloture vote, 60 votes would be necessary to invoke cloture. On a second vote, cloture could be invoked by 57 votes. If a third vote was necessary, 54 votes could bring cloture. And if a fourth cloture vote was necessary, then, and only then, a majority of Senators voting and present would be all that is needed to invoke cloture. What our proposal does is give the opponents of a nomination 12 hours to first express their opposition. And then they will have as many as 8 days to speak against a nomination. And then, if cloture is invoked on the fourth cloture vote, the opponents will still have 30 hours in which to speak. In other words, Senators would have as many as 234 hours to speak for or against any Presidential nomination. I think that is more than enough time for the Senate to fully consider a President's nominations. The Republican cosponsors of this resolution are making a very simple statement--no matter whether the occupant of the White House is a Republican or a Democrat, we believe that a nominee reported from committee is entitled to a confirmation vote on the Senate floor. We believe it is unconscionable and constitutionally infirm for a minority of Senators to have the capacity to prevent the Senate from carrying out it's advice and consent functions. Filibusters by a minority of members to prevent a vote on a nomination should have no place in the Senate. Whether a cabinet choice, a district court judge or a Supreme Court Justice, Presidential nominees are entitled to a vote. That is what the founding fathers anticipated and that is what our resolution would achieve. I would prefer that we could break this impasse without changing Senate Rules. But if this action stands, if a minority of Senators can obstruct the will of the majority and prevent the President's nominees from having a vote, the Rules of the Senate must be changed. I wish to talk about how I feel personally touched and involved in what we are dealing with here. In my 15 years in the Senate in a variety of positions as a new Member, as a member of the leadership, both as secretary of the conference and as whip and leader, I have experienced a lot of what has gone on with confirmations personally and firsthand. I have been involved in a lot of them. I must say, without it being aimed at just one party or the other, this process has been on a slippery slope down that whole time. I believe it goes back to the nomination of Judge Bork before I actually got to the Senate. The pattern continued with John Tower who was nominated to be Secretary of Defense in my first year in the Senate, and it continued to slide down with the nomination of Justice Clarence Thomas. And throughout the Clinton years, we had difficulty in this area. I just wonder how much further downward can it go. I think we have reached the bottom. We are trying now to abuse the rules of the Senate, to ignore the Constitution, and set in place a new precedent to block good, qualified men, women, and minorities to the Federal judiciary. We have to stop it. We should stop it here and begin to go back up into a more positive approach in how we deal with Presidential nominees. I was involved with President Clinton's first Cabinet. I was selected by then-minority leader Bob Dole to work through the nominations and see if there were problems. As a matter of fact, I want the record to show that we confirmed every one of his nominees by the day he was inaugurated. It was not easy. Some nominees had some problems. We got the job done. He was the President. These were his Cabinet selectees. They deserved to be confirmed. During my years as majority leader, we had a lot of discussions back and forth over how the process worked, how judicial nominees were treated when they got to committee, and when they got to the floor. I remember a lot of those debates. I remember the Senator from Maryland was involved in those debates in March and in December of 1997. I didn't always like the process. I wasn't always proud of how we treated these nominees. But I will tell you this: On my watch, not one Clinton nominee was filibustered. Zero. None. If you want to use the numbers game--this is not baseball or basketball, but that is an important statistic--during the Clinton years, from 1993 to 2001, no judge was defeated by a filibuster. By the way, it was attempted a few times. I had to file cloture several times, but usually we were able to set it aside and, in every instance, we confirmed the nominee. On one occasion, I remember late in the afternoon--actually the Senate voted not to invoke cloture, not to cut off the filibuster on a judge--I took this spot in the Senate and said we cannot let that stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said the same thing. And before the night was over, we backed away from that position. Zero in the Clinton years; 4 already in the Bush years. It has been just this year that this new abuse of procedure has started--the American people understand that. The American people understand there is something innately unfair about dragging out an up- or-down vote on these men, women, and minorities. So four already, and at least two more are threatened. I don't know where it is going to end, but I do think that it is important the people understand this is not insignificant. This is very important. We are about to set this precedent, something the Senate did not do before this year. We did not do it in the 214-year history of this country, and now we are about to set this new precedent. What do my colleagues on the other side of the aisle think is going to happen if the tables are reversed? What if there should be in some far off, distant future time a Democratic President and a Republican majority? Do they think if this precedent has been set that the tables won't be turned and there won't be filibusters of liberal judges on the other side? I will be opposed to that if I am here, as I have been in the past. That is another number we ought to look at: 214 years, and no judges were defeated by a filibuster. I feel very personal about this point. I have gone back, in addition to looking at the number of years, and looked at occasions when there were attempted filibusters, when Presidents late in their terms made nominations and there were subsequent votes. I want to show you the list of what has happened over the years where there have been attempted filibusters. This shows what happened in 1968, 1971, through the eighties and nineties. We can see there were some attempted filibusters, and cloture motions to cut off this extended debate were filed. But in every case but one, they were all confirmed. Justice Fortas, in 1969, had his nomination withdrawn by President Johnson when it was revealed that he did have some serious ethical problems. Over all these years, even though there were filibusters and cloture motions, they were all confirmed. There are a couple of nominations on this chart about which I feel very strongly. There was an attempt to hold up in a variety of ways two nominees to the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon. Their filibusters were offered. I had great concerns about these judges, but I voted against the filibusters. I voted to invoke cloture, and they went to a straight up-or-down vote. I voted against them, but they were confirmed. I was under intense pressure to not let that happen, but I refused to let that precedent be set on my watch because I didn't think it was fair at all. I also feel personally and, I admit, emotionally involved because of the very unfair treatment that Judge Charles Pickering of Mississippi received over the last 2\1/2\ years. This is a good man, a good judge. He has had his reputation besmirched. This is a man who was confirmed unanimously by the Senate 13 years ago. Now he is being filibustered by the Senate. It is so unfair. I hear a lot of talk about the human aspects of unemployment. What about the human aspects that these men, women, and minorities have had to go through? Their career is in limbo. They don't know whether they should stay with their law firm, stay on a State supreme court; are they going to be confirmed; how do they explain, how do they answer questions from the press? They have a very personal problem, too. In the limited time we have, I don't want to just complain about what is going on here, I want to talk about the solution, how we get out of this situation, how we get off this limb onto which we have worked ourselves. We know this is wrong. Both sides of the aisle know this is wrong, and there has to be some concern about what the long-term impact will be. It has contributed to the overall atmosphere we are now dealing with in the Senate. Here is what we can do. First of all, we can bring up the nominations of these good people. Justice Owen from Texas is a brilliant, impressive woman on the Texas Supreme Court. She is being filibustered. Why? Is she not qualified? Does she not have the proper education? Does she not have impressive credentials in her experience? Is she not sitting on the highest court in Texas? What is the problem? The answer is that she is a conservative woman, that is all, a mainstream conservative woman. They try to let on there is something wrong with her philosophy and how she has ruled. I looked at a lot of these rulings. This is an eminently qualified woman. Yet she is being blocked by a filibuster. How do we get out of this situation? First of all, we try to give our colleagues on the other side of the aisle an opportunity to stop doing this filibustering. We bring up nominations of the judges. Apparently, they are not going to stop. At the end of this week, we will probably have three men and three women, including minorities, all blocked by filibusters--Hispanic, African American, women, men, it doesn't make any difference. I don't understand what is happening here. What do we do next? We have a debate like we are doing now. Some people say: Why are you doing this? The Federal judiciary has a huge influence in what happens in this country. So these lifetime appointments are very important. We are trying to put the American people on notice as to how dangerous this is and what is going on, and it is getting some additional coverage. People are now calling in and saying: I didn't know that was going on. Why are you doing this? Give us an opportunity to highlight the unfairness and the precedent we are setting and allow the people to weigh in a little bit. That is step 2. Step 3: As chairman of the Rules Committee, I worked with the majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we came up with a process that could stop these filibusters. It is an elongated process, but one to which surely nobody could object. After 12 hours of debate, we would have a cloture vote. It would require 60 votes. Then after a period of time, there would be a second vote. Fifty-seven votes would be required. A third vote would then occur with 54 votes required, and finally, only on the fourth cloture vote, would we get down to 51. We would have the 12 hours initially. Then we would have 30 hours after the fourth cloture vote to speak. All total, it could take as long as 234 hours. It is not a perfect process, but at least it is a process. A similar proposal was made a few years ago by two current Senators on the Democratic side of the aisle. We should perhaps have a vote on that proposal. Last but not least, at some point I feel very strongly we are going to have to make it clear through some process--and I won't go through it now--that says judges will be confirmed with 51 votes--only 51 votes. That is what the Founding Fathers intended. Senator Cochran made the historical point, and so have I. That is what it should be. We can go back and vote on these nominees. They might not be confirmed, but I think the American people understand the fairness of voting them up or voting them down. Justice for judges. Do whatever the Senate's will is, but don't use a procedural technique requiring 60 votes to defeat these good men, women, and minorities. This is an important issue. It is worth taking time to debate. I am very pleased we are debating this issue. I see Senator Sarbanes on the floor of the Senate. He has been on the House Judiciary Committee. I was on the Judiciary Committee with him way back in the seventies. He is a lawyer. He has looked at these issues. I know he has been involved in them. We have had some discussion back and forth over the years. In March 1997, he rose on the floor of the Senate and spoke in support of the nomination of Merrick Garland to be on the district court. He said: It is not whether you let the President have his nominees confirmed. You will not even let them be considered by the Senate for an up-or-down vote. That is the problem today. In other words, the other side-- The Republicans-- will not let the process work so these nominees can come before the Senate for judgment. Some may come before the Senate for judgment and be rejected. That is OK. But at least let the process work so the nominees have an opportunity and the judiciary has an opportunity to have these vacant positions filled so the court system does not break down because of the failure to confirm new judges. . . . These judges along the way were being slow-walked or they had problems or they got to the floor and we had other legislation we wanted to consider. We did not always get them up, but here is an important point: During that time I was the majority leader, we confirmed Merrick Garland. It happened. He got confirmed. He is on the bench today. Senator Sarbanes was right, give them an up-or-down vote, and that is what we are calling for today. I see Senator Graham of South Carolina is in the Chamber and prepared to speak. I may want to have a final statement later on today, but before I yield to Senator Graham, let me wrap it up this way: I plead with my colleagues in the Senate. This is not a good thing for us. It is not good for the institution. It is not good for our country. It is not good for our relationships. It is not good in terms of getting our work done and making sure we have a judiciary that is occupied by good men and women. We should stop rejecting these judges just on the basis of their philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not agree with her decisions. I did not agree with her philosophically across the board, but by education, demeanor, qualifications, and experience, she should have been confirmed. I voted for her. I ask no less of my colleagues on the Democratic side of the aisle. Let's stop this, and then let's get back to making sure we pass energy legislation, pass aviation legislation, get a prescription drug plan for our elderly people. This discussion is not delaying that. Work is being done on it right now. We can get this process corrected and then we can pass these substantive bills. I yield the remainder of my time to the Senator from South Carolina.

Mr. LOTT. Parliamentary inquiry, Mr. President: I believe there will now be another hour, 30 minutes to the Republican side of the aisle, followed by 30 minutes to the Democratic side of the aisle.

Mr. LOTT. Reserving the right to object, I ask consent that the Senator modify his request so that just prior to proceeding the requested 3 cloture votes be vitiated and the Senate immediately proceed to three consecutive votes on the confirmation of the nominations, with no intervening action or debate.

Mr. LOTT. Does the Senator object to the modification?

Mr. LOTT. In view of that, I object.

Mr. LOTT

Mr. LOTT. Mr. President, I rise to day to introduce, along with my colleagues Senator Smith from Oregon, the multiemployer Pension Plan Procedural Fairness Act of 2003. The purpose of this legislation is to provide a modest amount of procedural fairness with respect to claims filed against former employers under the multiemployer pension plan (MEPPA) rules. By way of background, MEPPA makes an employer that completely or partially withdraws from participation in a multiemployer pension fund liable for the employer's share of the plans' unfunded vested benefits. That liability is referred to as ``withdrawal liability'' and can be collected from any member of the controlled group of employers that included the withdrawing employer. The process of collecting withdrawal liability can become quite unfair when the pension fund attempts to assert liability against a former employer or a former member of a controlled group of employers that, as a result of a legitimate business separation, such as a sale or spin-off transaction, ceased to be associated with the withdrawing employer several years before the compete or partial withdrawal occurred. MEPPA provides that a former employer or former member of a controlled group can still be liable if ``a principal purpose'' of the business separation transaction was ``to evade or avoid'' withdrawal liability. The legislative history indicates that the ``evade or avoid'' provision was designed to prevent unscrupulous employers from dumping a distressed subsidiary in order to evade or avoid withdrawal liability. I firmly believe that unscrupulous companies that attempt to evade withdrawal liability should be held liable. However, companies that engage in legitimate transactions should be able to defend against withdrawal liability claims that arose from events which occurred many years after the business separation. The simplest way to understand the issue is with an illustration. Assume that a parent company operates a subsidiary that makes contributions to a multiemployer plan. Assume further that, for valid business reasons, the parent company disposes of the subsidiary via a bona fide ``spin-off'' transaction. At the time of the spin-off, the subsidiary was current on all of its required contributions to the multiemployer pension fund, and the subsidiary continues to make contributions to the multiemployer plan after the spin-off. To complete the example, assume that several years after the spin-off, the spun-off subsidiary goes out of business and ceases to make contributions to the multiemployer pension fund. Under this scenario, the MEPPA rules allow the pension fund to claim that a principal purpose of the transaction was to evade or avoid withdrawal liability. Because the MEPPA rules do not provide any time restrictions for making these claims, a former parent company may be forced to defend against such a claim years, if not decades after the transaction in question. By contrast, the single- employer plan rules provide a 5-year safe harbor rule that protects employers against such claims. While multiemployer plans should certainly be able to pursue claims against unscrupulous employers, there are two procedural rules in MEPPA that severely and unfairly hinder an employer's ability to defend itself against a claim for withdrawal liability under the evade or avoid standard when the transaction in question occurred several years before the date of a complete or partial withdrawal. The first rule is referred to as the ``pay to play'' rule, and the second rule involves the burden of proof borne by the employer. Under MEPPA, if the pension fund makes a claim for withdrawal liability against the former parent company under the ``evade or avoid'' standard, the claim is sent to arbitration. However, the parent company must begin making payments to the multiemployer pension plan within 60 days after receiving a demand solely based upon the plan's unilateral decision to assert a withdrawal liability claim and long before any neutral third party finds that ``a principal purpose'' of the challenged transaction was to ``evade or avoid'' withdrawal liability. As a result, a company that engaged in a bona fide business transaction many years before the withdrawal occurred is forced to begin paying on the claim based on nothing more than the plan's demand. According to the legislative history, this unique ``pay to play'' rule was enacted in response to what Congress perceived to be inefficient, cumbersome and costly procedures for collecting delinquent contributions from employers. Simple collection actions were converted into complex litigation through defenses that were unrelated to the multiemployer plan's entitlement to the contribution. However, the relevant MEPPA language is not limited to collection actions. While it may be appropriate to require a contesting employer to commence payments while the claim is being litigated, it is not fair to require prepayment in the case of an ``evade or avoid'' claim when the transaction in question occurred many years before the complete or partial withdrawal occurred. The second procedural unfairness involves the burden of proof that an employer faces in rebutting a claim under the ``evade or avoid'' standard. MEPPA provides that a plan sponsor's determination is presumed correct, unless the contesting party shows by a preponderance of evidence that the determination is incorrect. The impetus behind Congress's decision to include such a presumption was the need to avoid a perceived potential for conflict and delay over the soundness of actuarial determinations of liability. Specifically, the presumption was crafted in order to prevent ``the likelihood of dispute and delay over technical actuarial matters with respect to which there are often several equally `correct' approaches. Without such a presumption, a plan would be helpless to resist dilatory tactics by a withdrawing employer--tactics that could, and could be intended to, result in prohibitive collection costs to the plan.'' However, the MEPPA presumption language is not limited to actuarial determinations, but reaches liability determinations as well. Even if this presumption is appropriate when withdrawal liability is triggered shortly after a transaction occurs, it is unfair to apply the presumption when the transaction in question occurred several years before the withdrawal took place. In this situation, a company that engages in a bona fide transaction may be forced to prove a negative-- namely that a principal purpose of a transaction that occurred many years ago was not to evade or avoid withdrawal liability. To summarize, under the MEPPA rules, an employer may find itself in a position where it has to respond to claims regarding a legitimate business transaction that occurred many years earlier. Furthermore, in defending against the claim, the employer must 1. prove that a principal purpose of the transaction was not to evade or avoid withdrawal liability, and 2. prepay the contested amount of the liability well in advance of any final determination of liability. This is patently unfair. Our legislation is a modest attempt to inject some notions of procedural fairness in this situation. Our bill does not change the present-law rules regarding the determination of liability with respect to a complete or partial withdrawal from a multiemployer pension plan. However, it does change the procedural rules applicable to such a determination, but only with respect to a transaction that occurred five years or more before the date of the complete or partial withdrawal. Under our bill, when a determination of an employer's withdrawal liability is based on a finding by the plan sponsor that a principal purpose of a transaction was to evade or avoid liability, and the transaction in question occurred five years or more before the date of the complete or partial withdrawal, the following rules would apply: 1. the determination by the plan sponsor is not presumed to be correct, and the plan sponsor has the burden to establish, by a preponderance of the evidence, each and every element of the claim for withdrawal liability, and 2. if an employer contests the plan sponsor's determination either through arbitration or through a claim brought in court, the employer is not obligated to make any withdrawal liability payments until a final decision in the arbitration, or in court, upholds the plan sponsor's determination. Our bill would apply to any employer that receives a notification after October 31, 2003. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LOTT

Mr. LOTT. Mr. President, I rise to day to introduce, along with my colleagues Senator Smith from Oregon, the multiemployer Pension Plan Procedural Fairness Act of 2003. The purpose of this legislation is to provide a modest amount of procedural fairness with respect to claims filed against former employers under the multiemployer pension plan (MEPPA) rules. By way of background, MEPPA makes an employer that completely or partially withdraws from participation in a multiemployer pension fund liable for the employer's share of the plans' unfunded vested benefits. That liability is referred to as ``withdrawal liability'' and can be collected from any member of the controlled group of employers that included the withdrawing employer. The process of collecting withdrawal liability can become quite unfair when the pension fund attempts to assert liability against a former employer or a former member of a controlled group of employers that, as a result of a legitimate business separation, such as a sale or spin-off transaction, ceased to be associated with the withdrawing employer several years before the compete or partial withdrawal occurred. MEPPA provides that a former employer or former member of a controlled group can still be liable if ``a principal purpose'' of the business separation transaction was ``to evade or avoid'' withdrawal liability. The legislative history indicates that the ``evade or avoid'' provision was designed to prevent unscrupulous employers from dumping a distressed subsidiary in order to evade or avoid withdrawal liability. I firmly believe that unscrupulous companies that attempt to evade withdrawal liability should be held liable. However, companies that engage in legitimate transactions should be able to defend against withdrawal liability claims that arose from events which occurred many years after the business separation. The simplest way to understand the issue is with an illustration. Assume that a parent company operates a subsidiary that makes contributions to a multiemployer plan. Assume further that, for valid business reasons, the parent company disposes of the subsidiary via a bona fide ``spin-off'' transaction. At the time of the spin-off, the subsidiary was current on all of its required contributions to the multiemployer pension fund, and the subsidiary continues to make contributions to the multiemployer plan after the spin-off. To complete the example, assume that several years after the spin-off, the spun-off subsidiary goes out of business and ceases to make contributions to the multiemployer pension fund. Under this scenario, the MEPPA rules allow the pension fund to claim that a principal purpose of the transaction was to evade or avoid withdrawal liability. Because the MEPPA rules do not provide any time restrictions for making these claims, a former parent company may be forced to defend against such a claim years, if not decades after the transaction in question. By contrast, the single- employer plan rules provide a 5-year safe harbor rule that protects employers against such claims. While multiemployer plans should certainly be able to pursue claims against unscrupulous employers, there are two procedural rules in MEPPA that severely and unfairly hinder an employer's ability to defend itself against a claim for withdrawal liability under the evade or avoid standard when the transaction in question occurred several years before the date of a complete or partial withdrawal. The first rule is referred to as the ``pay to play'' rule, and the second rule involves the burden of proof borne by the employer. Under MEPPA, if the pension fund makes a claim for withdrawal liability against the former parent company under the ``evade or avoid'' standard, the claim is sent to arbitration. However, the parent company must begin making payments to the multiemployer pension plan within 60 days after receiving a demand solely based upon the plan's unilateral decision to assert a withdrawal liability claim and long before any neutral third party finds that ``a principal purpose'' of the challenged transaction was to ``evade or avoid'' withdrawal liability. As a result, a company that engaged in a bona fide business transaction many years before the withdrawal occurred is forced to begin paying on the claim based on nothing more than the plan's demand. According to the legislative history, this unique ``pay to play'' rule was enacted in response to what Congress perceived to be inefficient, cumbersome and costly procedures for collecting delinquent contributions from employers. Simple collection actions were converted into complex litigation through defenses that were unrelated to the multiemployer plan's entitlement to the contribution. However, the relevant MEPPA language is not limited to collection actions. While it may be appropriate to require a contesting employer to commence payments while the claim is being litigated, it is not fair to require prepayment in the case of an ``evade or avoid'' claim when the transaction in question occurred many years before the complete or partial withdrawal occurred. The second procedural unfairness involves the burden of proof that an employer faces in rebutting a claim under the ``evade or avoid'' standard. MEPPA provides that a plan sponsor's determination is presumed correct, unless the contesting party shows by a preponderance of evidence that the determination is incorrect. The impetus behind Congress's decision to include such a presumption was the need to avoid a perceived potential for conflict and delay over the soundness of actuarial determinations of liability. Specifically, the presumption was crafted in order to prevent ``the likelihood of dispute and delay over technical actuarial matters with respect to which there are often several equally `correct' approaches. Without such a presumption, a plan would be helpless to resist dilatory tactics by a withdrawing employer--tactics that could, and could be intended to, result in prohibitive collection costs to the plan.'' However, the MEPPA presumption language is not limited to actuarial determinations, but reaches liability determinations as well. Even if this presumption is appropriate when withdrawal liability is triggered shortly after a transaction occurs, it is unfair to apply the presumption when the transaction in question occurred several years before the withdrawal took place. In this situation, a company that engages in a bona fide transaction may be forced to prove a negative-- namely that a principal purpose of a transaction that occurred many years ago was not to evade or avoid withdrawal liability. To summarize, under the MEPPA rules, an employer may find itself in a position where it has to respond to claims regarding a legitimate business transaction that occurred many years earlier. Furthermore, in defending against the claim, the employer must 1. prove that a principal purpose of the transaction was not to evade or avoid withdrawal liability, and 2. prepay the contested amount of the liability well in advance of any final determination of liability. This is patently unfair. Our legislation is a modest attempt to inject some notions of procedural fairness in this situation. Our bill does not change the present-law rules regarding the determination of liability with respect to a complete or partial withdrawal from a multiemployer pension plan. However, it does change the procedural rules applicable to such a determination, but only with respect to a transaction that occurred five years or more before the date of the complete or partial withdrawal. Under our bill, when a determination of an employer's withdrawal liability is based on a finding by the plan sponsor that a principal purpose of a transaction was to evade or avoid liability, and the transaction in question occurred five years or more before the date of the complete or partial withdrawal, the following rules would apply: 1. the determination by the plan sponsor is not presumed to be correct, and the plan sponsor has the burden to establish, by a preponderance of the evidence, each and every element of the claim for withdrawal liability, and 2. if an employer contests the plan sponsor's determination either through arbitration or through a claim brought in court, the employer is not obligated to make any withdrawal liability payments until a final decision in the arbitration, or in court, upholds the plan sponsor's determination. Our bill would apply to any employer that receives a notification after October 31, 2003. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LOTT

Mr. LOTT. I thank the Senator from Texas for coordinating the opportunity today for us to honor our veterans. ``Greater love hath no man than this, that he lay down his life for his friends,'' or in this case his country. This quotation embodies my sentiment on this Veteran's Day, as we honor those men and women who have laid down their lives for our great country, and those who stand ready in her defense. I stand today to render my sharpest salute to the selfless, brave professionals who epitomize the most noble of citizens. How can we express our gratitude and overflowing pride for our service men and women who have paid the ultimate price for their country, and those friends and family members who have endured the loss of their loved ones? How can we ever truly appreciate the comfort and safety that the soldier, airman, or seaman affords us through his or her daily dedication to duty? Perhaps there are lessons to be learned from the strong, silent, tall soldier whose steely eyes well up with tears at the sounding of our National Anthem. Perhaps we could stand to learn some things from the weathered, silver haired, proud veteran who stands taller and breathes deeply as he hears another painful round of Taps. Today we all stand in solemn remembrance of those Americans who gave their lives so that others may be free. Today I would like to remind everyone that those lives lost were not in vain. Because of these individual sacrifices we are able today to remain the greatest free nation in the world. I would like to mention my personal pride for the men and women from Mississippi who so bravely currently serve and have served their nation in defense. During the Vietnam War, 637 Mississippians gave their lives. In the Korean Conflict, from 1950 to 1957, 412 of our statesmen made the ultimate sacrifice. Since the horrific day that will forever be remembered, September 11, 2001, Mississippi has lost nine soldiers during Operations Enduring Freedom and Iraqi Freedom. More than 3000 of Mississippi's sons and daughters have responded to this Nations latest call for arms in the global war on terrorism, and operations in Afghanistan in Iraq. Unlike previous wars, the veterans of these latest operations will probably not have battle names to remember like Leyte Gulf or Vicksburg. As the President has said, the global war on terror is a different kind of war, where some operations would be visible and others would not be. In this global war, our troops are supporting freedom and democracy around the globe, and fighting terrorism in the homelands of the terrorists and those who support them. The war on terrorism will be a long war, and it will call for the endurance and perseverance of every American. In the end, there probably won't be a truce or surrender document signed aboard a great battleship. What there will be is stability, peace, and representative government in places where terrorism used to breed--where dictators no longer use poison gas on their own people, or have mass executions. And on this Veterans Day we should remember all veterans, including those who continue to serve in this different kind of war. And it is most appropriate to honor and salute those Mississippians who have lost their lives in Iraq and Afghanistan. They are: Kenneth Bradley, Army Staff Sergeant of Jackson, MS; Henry L. Brown, Army Corporal, of Natchez, MS; Larry K. Brown, Army Specialist, of Jackson, MS; James Anderson Chance III, Army Specialist, of Kokomo, MS; Therrel S. Childers, Marine Corps 2nd Lieutenant, of Harrison, MS; John K. Klinesmith, Jr., Army Specialist, of Carriere, MS; Jonathan W. Lambert, Marine Corps Sergeant, of Newsite, MS; Vincent Parker, Navy Engineman First Class, of Preston, MS; Joe N. Wilson, Army Staff Sergeant, of Crystal Springs, MS. In the words of Boyd Lewis: The tranquility we enjoy was purchased dearly. May we never forget.

Mr. LOTT

Mr. LOTT. Mr. President, I thank the distinguished chairman of the Intelligence Committee for yielding me this time. I will adhere to the 4 minutes because I know that he wants to wrap this up, too. First, I want to thank the chairman for his diligence in trying to make sure the Intelligence Committee does its job and does its job in a nonpartisan, bipartisan way. I went on the Intelligence Committee this year because I believe it was one of the most important committees in the Senate. I like the fact that while the committee's work is always difficult, the committee worked together in a bipartisan way and has not become a political tool. I have also expressed myself that I am concerned about the intelligence that we have received before going into Iraq, and the intelligence that is available even today. So I am not one who is going around trying to make excuses for the intelligence community. But my approach is different. I think we need to find out where our problems are, where we need more assistance, and how we can do a better job in the future. It should not be about the blame game. It should not be about politics. It should not be about trying to find a way to blame it on the President or the Vice President or anybody else, even though obviously there will be some criticism directed at one place or another. The thing we need to do is to make sure we have the intelligence that our officials need and our military men and women need, and that should be the focus. This memorandum outlines a political plan of attack in the Intelligence Committee. Our adversaries around the world must be smiling this morning. They must be enjoying watching us fight among ourselves instead of focusing on doing what we need to do to get the kind of intelligence we require to do the job against the terrorists around the world. This memorandum is a very sad commentary. While I am not quite sure of its origin, whether it was written by a particular Senator or by a staff member at the direction of a Senator, it clearly is something that a Democrat staff member, working with some members of the Intelligence Committee, drafted. When you start talking about castigating the majority or pulling the trigger on an independent investigation, or an independent commission, the Senate voted on that just a week ago and overwhelmingly defeated the idea that we kick the football over to somebody else, let somebody else do our job. I say we should do our job, do it here, and do it in a constructive, aggressive, nonpartisan, bipartisan way. This is a very debilitating thing that we have seen. One might say, well, maybe we are protesting too much, that this does not necessarily reflect all of the Democrat members of the Intelligence Committee. But already the London Telegraph in London is quoting Democrats in the Senate Intelligence Committee using some of the exact words in the memorandum. We want to know whether the administration put pressure on the agencies to come up with certain kinds of information. If the Republican leadership of the Senate Intelligence Committee is determined to protect the administration at any cost . . . I have watched the chairman aggressively pursue information and insist that the administration provide information to this committee. We have not been shrinking violets. We are doing our job. To have this attack plan come out and make it totally political is one of the most disquieting things I have seen in recent months in the Senate. We should not proceed in this way. I hope the Democrats will disavow this whole approach and say that is not their political plan, that is not their intent. The alternative is chaos in the committee that is so critical to making sure we have what we need in terms of intelligence. Just this week I proposed that we make the membership permanent on the Senate Intelligence Committee. I know there has been an argument that permanent membership on the committee could impact objectivity, but what I want are members who are experienced enough to do the job. I thank the chairman for yielding me this time, and I am looking forward to hearing Democrats assure us that this is not what is going on.

Mr. LOTT. Mr. President, will the Senator yield for a question?

Mr. LOTT. I appreciate that because I believe Senator Roberts did respond to your question. I didn't mention any names quoted in this London Telegraph article. But, Senator Durbin, you are quoted as saying that a public split and new inquiry is inevitable. I hope that is not a quote from you.

Mr. LOTT. Because to prejudge----

Mr. LOTT

Mr. LOTT. Mr. President, for clarification for those of us who have an interest in the proceedings from this point forward, if I could inquire, do we have anything scheduled now other than morning business?