Arlen Specter

Mr. SPECTER

Mr. SPECTER. It is going to be extensive, but it is worth it. I have been a Member of this body for some time. I have never seen anyone with this kind of a resume. And I am going to ask Senator Byrd the next time I see him if he knows of anybody who has a resume which is this extensive and this impressive. When you characterize the best and the brightest, Harold Koh would be at the top of the list. It would be hard to find anybody with a better record than Dean Harold Koh. His experience in international law is extensive, as in human rights. He would be an ideal Legal Adviser to the Department of State with his background and his experience. He has judgment, and he has balance. From my personal knowledge, I have total confidence that he will apply his legal knowledge and his background in a wise and sagacious way. He testified before the Judiciary Committee when I chaired the committee and in every way is exemplary. It is a little surprising to me that it is necessary to have a cloture vote, to have 60 votes to take up the nomination of Dean Koh. But considering the politics of Washington and considering the politics of the Senate, perhaps we should not be surprised at anything. But having a very high surprise threshold, I say that I am surprised Dean Koh would require 60 votes to reach a confirmation vote. I urge anybody who has any doubts about the caliber of this man to get out their glasses, or you may need a magnifying glass to read all of his accomplishments. But certainly it would be a travesty if a man such as this was not confirmed. In an era where we are trying so hard to bring quality people into government and so many people shun government because of the hoops and hurdles someone has to go through--Dean Koh would be exhibit A of the hoops and hurdles--it would be very discouraging for anybody else applying for a position which requires Senate confirmation. As strongly as I can, I urge his confirmation. Exhibit 1 Yale Law School Employment 2004: Dean of Yale Law School 1993: Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School (Procedure, International Human Rights, International Business Transactions, Constitution and Foreign Affairs, International Trade, International Organizations, International Law and Political Science) 1998-2001: Assistant Secretary of State for Democracy, Human Rights and Labor United States Department of State; Commissioner, Commission for Security and Cooperation in Europe; U.S. Delegate or Head of Delegation to United Nations General Assembly (Third Committee), the United Nations Human Rights Commission, the Organization of American States, the Council of Europe, the Organization for Security and Cooperation in Europe, the U.N. Committee Against Torture, Inaugural Community of Democracies Meeting (Warsaw 2000); U.N. Conference on New and Restored Democracies (Cotonou, Benin 2000) 1993-1998: Director, Orville H. Schell Jr., Center for International Human Rights, Yale Law School 1996-97: Visiting Fellow, All Souls College, Oxford University and Waynflete Lecturer, Magdalen College, Oxford University 1993: Visiting Professor, Hague Academy of International Law 1990-93: Professor, Yale Law School 1990, 2002: Visiting Professor of International Law, Faculty of Law, University of Toronto (intensive courses in international business and human rights law) 1985-90: Associate Professor, Yale Law School 1983-85: Attorney-Adviser, Office of Legal Counsel, United States Department of Justice 1982-85: Adjunct Assistant Professorial Lecturer in Law, George Washington University National Law Center 1982-83: Associate, Covington & Burling, Washington, DC 1981-82: Law Clerk to Hon. Harry A. Blackmun, Associate Justice, United States Supreme Court 1980-81: Law Clerk to Hon. Malcolm Richard Wilkey, Circuit Judge, United States Court of Appeals, D.C. Circuit 1978-79: Teaching Fellow, First-Year Legal Methods Program, Harvard Law School (Contracts and Civil Procedure) Degrees 1980: Harvard Law School, J.D. cum laude Developments Editor, Harvard Law Review; Tutor, Mather House, Harvard College 1977: Magdalen College, Oxford University, Honours B.A. in Philosophy, Politics & Economics with First-Class Honours; (M.A. 1996); Marshall Scholar; Magdalen College Underhill Exhibitioner; President, Magdalen College Middle Common Room 1975: Harvard College, Harvard University A.B. in Government, Summa Cum Laude; Phi Beta Kappa; Harvard National Scholar; Charles Bonaparte Scholar (Outstanding Junior Government Major); Harvard Club of Southern Connecticut Distinguished Senior; National Merit Scholar; State of Connecticut Scholar Honorary Degrees 2009: New School for Social Research 2008: Iona College 2008: Jewish Theological Seminary 2005: University of Hartford 2005: Widener School of Law 2002: Doctor of Laws, Skidmore College 2001: Doctor of Laws, Connecticut College 2000: Doctor of Laws, University of Connecticut; Doctor of Humane Letters, Dickinson College 1999: Doctor of Laws, Suffolk Law School; Doctor of Humane Letters, Albertus Magnus College 1998: Doctor of Laws, CUNY-Queens Law School 1990: M.A., Yale University Medals 2008: Western New England School of Law 2004: Presidential Medal, Central Connecticut State College 2000: Villanova Medal, Villanova Law School 2000: Arthur J. Goldberg Award, Jacob Fuchsberg Law Center, Touro Law School Other Honors and Awards 2008: Judith Lee Stronach Human Rights Award, given for outstanding contribution to global justice by the Center for Justice and Accountability, San Francisco 7th Annual Sengbe Pieh Award, First and Summerfield United Methodist Church IRIS Human Rights Award 2007: Green Bag Award for ``exemplary writing in a long article'' Green Bag Almanac and Reader (2007) 2007, 8, 9 Lawdragon 500 Leading Lawyers in America 2007-08: Connecticut Bar Association Young Lawyers Section Diversity Award 2007: Pacific Islander, Asian, and Native American (PANA) Distinguished Service Award 2006: Philip Burton Award for Advocacy, Immigrant Legal Resource Center 2006: Boston College 75th Anniversary Celebration Law School's Distinguished Service Award Asian American Bar Association of New York Award The Asian American Law Students Association (Pace Law School) Award of Distinction 2006: Named one of the Top Connecticut Super Lawyers by Connecticut Magazine (International Law) 2005: Louis B. Sohn Award, given by the International Law Section of the American Society of International Law for Lifetime Achievement in International Law 2005: Equal Access to Justice Award, New Haven Legal Assistance 2005: Allies for Justice Award ABA National Lesbian and Gay Law Association 100 Most Influential Asian Americans of the 1990s, A Magazine 2002: Wolfgang Friedmann Award, given by Columbia Journal of Transnational Law ``to an individual who has made outstanding contributions to the field of international law'' 2002: Connecticut Bar Association Distinguished Public Service Award 2002: John Quincy Adams Freedom Award, Amistad America 2001: Korean American Coalition Public Service Award 2000: Institute for Corean-American Studies Liberty Award 1999; 1994: FACE (Facts About Cuban Exiles) Excellence Award 1997: Public Sector 45'' (45 leading American Public Sector Lawyers Under the Age of 45), American Lawyer Magazine 1997: Named one of nation's leading Asian-American Educators, Avenue Asia Magazine Asian-American Lawyer of the Year, Asian-American Bar Association of New York 1995: Trial Lawyer of the Year Award, Trial Lawyers for Public Justice (co-recipient) 1994: Cuban-American Bar Association 1994: Political Asylum Immigration Representation Project 1994: Asian-American Lawyers of Massachusetts 1994: Haiti 2004 1994: Korean-American Alliance 1993: Asian Law Caucus 1993: Asian-American Legal Defense & Education Fund, Justice in Action Award 1992: Co-recipient, American Immigration Lawyers' Association Human Rights Award 1991: Richard E. Neustadt Award, Presidency Research Section, American Political Science Association Fellowships Fellow, American Philosophical Society (2007-); Honorary Fellow, Magdalen College (2002-); Fellow, American Academy of Arts and Sciences (2000-); Guggenheim Fellow (1996-97); Twentieth Century Fund Fellow (1996-), Visiting Fellow, All Souls College, Oxford (1996-97); James Cooper Lifetime Fellow, Connecticut Bar Association (2006-) Publications Books and Monographs Transnational Litigation in United States Courts (2008) (Foundation Press) Transnational Business Problems (4th ed. 2008) (Foundation Press), with Detlev F. Vagts & William S. Dodge Foundations of International Law and Politics (with Oona A. Hathaway) The International Human Rights of Persons with Intellectual Disabilities: Different but Equal (Oxford University Press 2002) (with Stanley Herr and Lawrence Gostin, eds) Deliberative Democracy and Human Rights (with Ronald C. Slye) (Yale University Press 1999) (translated into Spanish) International Business Transactions in United States Courts, Recueil des Cours (Martinus Nijhoff 1998) (Monograph of Lectures in Private International Law at The Hague Academy of International Law) Transnational Legal Problems (with Henry Steiner & Detlev Vagts) (Foundation Press 4th ed. 1994) and Documentary Supplement (1994) The National Security Constitution: Sharing Power After the Iran-Contra Affair (Yale University Press 1990) (Winner, Richard E. Neustadt Award, awarded by the Presidency Research Section, American Political Science Association, to the best book published in 1990 that contributed most to research and scholarship on the American Presidency) Justice Harry A. Blackmun Supreme Court Oral History Project, Federal Judicial Center/Supreme Court Historical Society (Editor 1996) (public release 2004) Articles and Book Chapters Commentary in Michael W. Doyle, Striking First: Preemption and Prevention in International Conflict 99 (2008) Human Rights and National Security: Chapter in Mark Green, et al., eds, Change for America: Progressive Blueprint for the Next Administration (2008) Keynote Address: A Community of Reason and Rights, 77 Fordham L. Rev. 583 (2008) A Day in Court Denied The Washington Post, Monday, March 31, 2008 Page A19 No Torture. No Exceptions. The Washington Monthly, January/ February/March 2008 Tom Eagleton: True Senator, 52 St. Louis U. L Journal 25 (2008) Mirjan Damaska: A Bridge Between Two Cultures, in Maximo Langer, et al., Festschrift for Mirjan Damaska (2008) Sale v. Haitian Centers Council: Guantanamo and Refoulement (with Michael J. Wishnie), in Ford, Hurwitz & Satterthwaite, Human Rights Advocacy Stories (2000) Repairing America's Human Rights Reputation, 40 Cornell Int'l L.J. 635 (2007) Is there a ``New'' New Haven School of International Law? 32 Yale Law Journal 559 (2007) ``Repair America's Human Rights Reputation''--op-ed appeared in the Summer 2007 issue of the Yale Law Report as part of a collection of op-eds written by Yale Law School faculty members Filartiga v. Pena-Irala: Judicial Internalization of the Customary International Law Norm Against Torture in International Law Stories (Noyes, Dickinson & Janis, eds.; Law Stories Series, Foundation Press 2007) Tom Eagleton: True Senator, 52 SLU L. Rev. 1 (2007) Preface to Eugene Fidell, Beth Hillman & Dwight Sullivan, Military Justice: Cases and Materials (2007) Preface to William J. Aceves, The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala (2007) The Future of Lou Henkin's Human Rights, Movement, 38 Col. H.Rts Rev. 487 (2007) The Bright Lights of Freedom, NPR: THIS I BELIEVE, Jay Allison & Dan Gediman, eds., (New York: Henry Holt & Company, 2006) 141-143; paperback edition (2007) America and the World, 2020, in THE CONSTITUTION IN 2020 (Siegel & Balkin eds. 2009) In Memoriam: Robert F. Drinan, S.J. (1920-2007) 95 Georgetown Law Journal 1709 (2007) The Activist: Robert S. Drinan S.J., Stirring the Human Rights Revolution, BC Law Magazine 7 (Summer 2007) (tribute to Father Drinan) A World Drowning in Guns, INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: BRIDGING THEORY AND PRACTICE, Thomas J. Biersteker, Peter J. Spiro, Chandra Lekha Sriram, and Veronica Raffo, eds., (London: Routledge Press, 2006) 59 Louis B. Sohn: Present at the Creation, Harvard International Law Journal, 2006 Unveiling Justice Blackmun, 72 Brooklyn L. Rev. 9 (2006) Setting the World Right, 115 Yale L.J. 2350 (2006) Why Transnational Law Matters, 24 Penn State Int'l L. Rev. 745 (2006) The Healing Wisdom of Jay Katz, 6 Yale J. Health Policy, Law and Ethics 397 (Spring 2006) Harry Andrew Blackmun, in Yale Biographical Dictionary of American Law (2007) ``The New Global Slave Trade,'' Displacement, Asylum, Migration 232 (Oxford Amnesty Lectures) (Kate Tunstall ed. 2006) ``A Law Unto Itself?,'' Yale L.J. (The Pocket Part), March 2006 Tribute to President Francis Daly Fergusson, upon her retirement from Vassar College, Vassar Quarterly, ``Energy in the Executive'' ``Can the President Be Torturer in Chief?,'' Ind. L. Rev. 81:1145 (winner 2007 Green Bag Award for ``exemplary writing in a long article'' Green Bag Almanac and Reader (2007) ``Mark Janis and the American Tradition of International Law,'' Conn. J. Int'l L. ``Captured by Guantanamo'' Choosing Heroes Carefully (Tribute to John Hart Ely), 57 Stan. L. Rev. 723 (2005) ``The Bright Lights of Freedom,'' This I Believe, NPR ``The Value of Process,'' in Why Obey International Law?, 10 Int' Legal Theory 1 (2004) ``Standing Together,'' 15 Law & Sexuality, 15:1 ``Internalization Through Socialization,'' Duke L.J. 54: 975 (2005) ``Commentary: A World Drowning in Guns,'' in International Law and International Relations 59-76 (Thomas Biersteker, Veronica Raffo, Peter Spiro and Chandra Sriram, eds Routledge 2006) Preface to Jaya Ramji & Beth van Schaack, Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts The Ninth Annual John W. Hager Lecture, The 2004 Term: The Supreme Court Meets International Law, Tulsa Journal of Comparative & International Law 12: 1 (2004) ``The Wolfgang Friedmann Lecture: A World Without Torture,'' Columbia Journal of Transnational Law (2005) International Law as Part of Our Law, 98 Am. J. Int'l Law 43 (2004) Separating Myth and Reality about Corporate Responsibility Litigation, 7 J. Intl Econ. L. 263 (2004) Snatched in Sudan, Captive in Khartoum, Times Higher Education Supplement, Feb. 20, 2004 Advice to the Next High Commissioner, Columbia Human Rights L. Rev. 2003 Transnational Legal Process After September 11, 22 Berkeley J. Int'l L. (2004) Rights to Remember, Economist, November 2003 at 24 American Diplomacy and the Death Penalty (with Thomas Pickering) 80 Foreign Service Journal 19 (October 2003) ``On America's Double Standard: The Good and Bad Faces of American Exceptionalism,'' American Prospect (October 2004) ``America's Jekyll and Hyde Exceptionalism,'' chapter in Michael Ignatieff, American Exceptionalism and Human Rights (Princeton University Press 2005) On American Exceptionalism, 55 Stan. L. Rev. (2003) A World Drowning in Guns, 71 Fordham L. Rev. (2003) Why the United States should ratify the Convention for the Elimination of Discrimination Against Women (CEDAW), 34 Case W. Res. L. Rev. 258 (2002) Tribute to John Sexton, 60 Annual Survey of American Law (2003) (tribute to John Sexton) A Tribute to Tom the Frank, 35 NYU Journal Int'l L. & Pol. (2003) (tribute to Thomas Franck) The Law Under Stress After September 11, 31 Int'l Legal Info. 317 (2003) International Human Rights of Persons with Mental Disabilities, 63Md. L. Rev. 1 (2004) Wrong on Rights, Yaleglobal Online (2004) In Memoriam: Dean Eugene V. Rostow, Yale Law Report 16 (Summer 2003) Paying ``Decent Respect'' to the World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002) Paying Decent Respect to International Tribunal Rulings, 2002 Proceedings of the American Society of International Law Against Military Tribunals, Dissent Magazine 58 (Fall 2002) One Year Later, America Deserves Mixed Reviews, Yale Daily News (September 13, 2002) A Better Way to Deal with Iraq, Hartford Courant, October 20, 2002 ``Preserving Our Values: The Challenge At Home and Abroad,'' chapter 6 in The Age of Terror: America and the World After September 11 at 143 (Strobe Talbott & Nayan Chanda, eds. Basic Books 2002) ``The Spirit of the Laws,'' 43 Harv. Int'l L.J. 23 (2002) ``The 2001 Richard Childress Memorial Lecture: A United States Human Rights Policy for the 21st Century,'' 46 St. Louis U. L. J. 293 (2002) (special issue with nine commentators) ``The Case Against Military Commissions,'' 96 Am. J. Int'l L. 337 (April 2002) ``Transnational Legal Process Illuminated,'' in Transnational Legal Processes: Globalisation and Power Disparities 327 (Michael Likosky ed. Butterworths Press 2001) ``The Globalization of Freedom,'' 26 Yale J. Int'l L. 305 (2001) ``A Passion for Service,'' 45 N.Y.L.S. L. Rev. 17 (2001) (tribute to Harry Wellington) ``An Uncommon Lawyer,'' 42 Harv. Int'l L.J. 7 (2001) (tribute to Abram Chayes) ``We Have The Right Courts for Bin Laden,'' N.Y. Times, Nov. 23, 2001 at A39 Six Civil Rights Experts Weigh in on Sept. 11, Time.com, 12-1-01 ``The U.S. Can't Allow Justice to Be Another War Casualty,'' The Los Angeles Times; Dec. 17, 2001 at B11 ``The Best Defense: Article I,'' The Hartford Courant (September 16, 2001) ``America the Pariah,'' Project Syndicate (August 2001) (op ed piece published in 20 foreign newspapers) ``Estados Unidos y Europa, divididos por la pena de muerte,'' LA NACION (Argentina) July 23, 2001 ``A Dismal Record on Executing the Retarded,'' New York Times (June 14, 2001) ``A Wake Up Call on Human Rights'' Washington Post (May 8, 2001) ``A Breakthrough in North Korea,'' Washington Post (November 2, 2000) ``Complementarity Between International Organisations on Human Rights/The Rise of Transnational Networks as the ``Third Globalization,'' 21 Human Rights Journal 307 (2000) ``The Third Globalization: Transnational Human Rights Networks,'' Introduction to the 1999 Human Rights Report, U.S. Dept. of State, Country Reports on Human Rights Practices for 1999 at xv (vol. 1) (2000) ``The Right to Democracy,'' Introduction to the 1998 Human Rights Report, U.S. Dept. of State, Country Reports on Human Rights Practices for 1998 at xv (vol. 1) (1999) ``1998 Harris Lecture: How Is International Human Rights Law Enforced?'' 74 Indiana L. J. 1397 (1999) ``1998 Frankel Lecture: Bringing International Law Home,'' 35 Houston L. Rev. 623 (1998) ``Is International Law Really State Law?'', 111 Harv. L. Rev. 1824 (1998) ``Why Do Nations Obey International Law?'', 106 Yale L.J. 2599 (1997) ``Ten Lessons About Appellate Oral Argument,'' 71 Connecticut Bar Journal 218 (1997) ``Congressional Protection of International Human Rights,'' 170 Fed. R. D. 285 (1997) ``Book Review, Chayes & Chayes, The New Sovereignty,'' 91 American Journal of International Law 389 (1997) ``War and Responsibility in the Dole/Gingrich Congress,'' 50 Miami L. Rev. 1 (1996) ``Transnational Legal Process,'' 75 Neb. L. Rev. 181 (1996) ``The Constitution,'' in Encyclopedia of U.S. Foreign Relations (Oxford University Press 1996) ``A World Transformed,'' 20 Yale Journal of International Law vii (1995) ``America's Offshore Refugee Camps,'' 29 Richmond L. Rev. 139 (Allen Chair 1994) ``Refugees, The Courts, and the New World Order,'' 1994 Utah L. Rev. 999 ``The `Haiti Paradigm' in United States Human Rights Policy,'' 103 Yale L.J. 2391 (1994) ``Democracy and Human Rights in U.S. Foreign Policy?: Lessons from the Haitian Crisis,'' 48 SMU L. Rev. 189 (1994) ``The Haitian Refugee Litigation: A Case Study in Transnational Public Law Litigation,'' 18 Md. J. Int'l L & Trade 1 (1994) ``Reflections on Refoulement and Haitian Centers Council,'' 35 Harv. Int'l L.J. 1 (1994) ``Who Are the Archetypal `Good' Aliens?'' 88 American Society of International Law Proc. 450 (1994) ``Justice Blackmun and the 'World Out There','' 104 Yale

Mr. SPECTER. I yield the floor, and I suggest the asbence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to make permanent a tax credit for the production of Steel Industry Fuel, SIF. SIF is used by the domestic steel industry as a feedstock for the manufacture of coke, which is coal that has been carbonized and is used as a fuel in steel making. Last fall, Congress enacted a new tax credit under the refined coal provision of section 45 of the Internal Revenue Code for the production of this fuel product made from coal waste sludge and coal. This tax credit supports SIF projects that may not otherwise be viable due to materials, process, technology and other transaction costs. As originally enacted, the SIF credit provides for a one-year credit period. There are numerous reasons that favor extending the tax incentives for SIF: it has significant energy, environmental, and economic benefits. First, SIF recaptures the BTU content of coal waste sludge; second, its production is the preferred method of coal waste sludge disposal and is done so in a manner approved by the Environmental Protection Agency, EPA; and third, it provides the economic and financial benefits of making our domestic steel industry more competitive by lowering production and operational costs. The production of SIF is the most favorable method of disposing of coal waste sludge from an energy resource and environmental perspective. The disposal of coal waste sludge would otherwise be treated as a hazardous waste under applicable Federal environmental rules. The alternative methods of disposal are to transport the coal waste sludge off-site for incineration or to foreign countries for land-filling. Both options require the physical conveyance of a waste product, which is a dangerous, cumbersome, and expensive undertaking. The more obvious drawback is the failure to recapture the energy content of the coal waste sludge. An extension of the SIF tax incentive is of critical importance in the current economic downturn, and its sunset would have a negative impact on the industry. Steel companies and coke plant operators are incurring losses as the demand for their product has dried up. There have been significant layoffs at the major domestic integrated steel producers, impacting thousands of workers in Pennsylvania, Illinois, Indiana, Michigan, Ohio, West Virginia, Kentucky, and elsewhere. Domestic steel manufacturers have been forced to operate at low capacity utilization rates and coke batteries have been placed on ``hot idle,'' a holding pattern to prevent the bricks that comprise the coke battery from cooling and damaging the battery. An extension of the SIF credit will enable these manufacturers to mitigate their losses while the economy recovers. The current 1-year period for the SIF credit has been a significant hindrance in attracting the outside investment needed to finance SIF projects, especially in light of the prevailing economic conditions since the enactment of the credit. Steel industry fuel projects often involve lengthy negotiations to implement the transaction structure necessary to claim the SIF credit, which has effectively reduced the 1- year credit period to a lesser period for many projects. For this reason, the subsidy intended to be provided by the credit for the development of SIF projects requires a longer credit period. Included in this legislation is an important clarification on an issue that has slowed negotiations with respect to SIF projects. It is expected that, for the convenience of the parties and for environmental safety, facilities producing SIF will typically be located on land leased from a steel company or other owner of a coking operation. Such a lessor will not be treated as having an ownership interest in the SIF facility because it leases land and related facilities, sells coal waste sludge or coal feedstock, and/or buys SIF so long as such person's entitlement to rent and/or other net payments is measured by a fixed dollar amount or a fixed dollar amount per ton, or otherwise determined without reference to the profit or loss of the facility. Similarly, a licensor of technology will not be treated as having an ownership interest in the SIF facility because it is entitled to a royalty and/or other payment that is a fixed amount per ton or otherwise determined without regard to the profit or loss of the facility. Such arrangements may also cause facilities that produce SIF to operate at a loss before the credit is taken into account; however, it is intended that the occurrence of such a ``pre-tax loss'' will not affect entitlement to this credit, regardless of whether such ``pre-tax loss'' is caused by the terms of the lease, license, supply or sales contracts between the parties. To that end, the bill provides necessary flexibility for varying circumstances of ownership interests and clarifies that the existence of such arrangements will not prevent the equity owner of a facility from receiving tax credits for its sales of SIF. This provision provides greater tax certainty to potential investors in SIF projects. SIF is typically produced at facilities that are located on the premises of coke plants that are owned by integrated steel companies that are unrelated to the producer of such SIF. The SIF production facility is situated on or near conveyor belts that may be leased from the integrated steel company and production of SIF may occur while coal, and coal blended with petroleum coke, as described below, is transported on the conveyor belts. For commercial, liability, safety, environmental and other business reasons germane to the integrated steel companies that consume the SIF, SIF producers may purchase coal from the integrated steel producer, taking title and having risk of loss while such coal is transported on the conveyor belt, rather than directly purchasing the coal from the mine. The bill provides a safe harbor that establishes that the SIF producer shall be treated as the producer and seller of SIF that it manufactures from coal to which it has taken title. The bill further clarifies that the sale of SIF shall not fail to qualify as a sale to an unrelated party for purposes of the SIF credit solely because the sale is to a party that is also a ground lessor, supplier, and/or customer. The bill also establishes that SIF may also be made using coal or coal that is mixed with some petroleum coke. Such ``pet coke'' has traditionally been used by steel companies/coke operators in a blend with coal as a feedstock for coke. The bill provides that its presence in SIF does not invalidate or otherwise reduce the credit. SIF projects will expand our domestic energy resources by using what would otherwise be a hazardous waste of the coking process in a fuel product. The availability of the tax credit will attract outside investment to the steel and coke production industries and promote job growth in the domestic steel production industry and in related industries that service the steel and coke production industries. I urge my colleagues to support this legislation.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to make permanent a tax credit for the production of Steel Industry Fuel, SIF. SIF is used by the domestic steel industry as a feedstock for the manufacture of coke, which is coal that has been carbonized and is used as a fuel in steel making. Last fall, Congress enacted a new tax credit under the refined coal provision of section 45 of the Internal Revenue Code for the production of this fuel product made from coal waste sludge and coal. This tax credit supports SIF projects that may not otherwise be viable due to materials, process, technology and other transaction costs. As originally enacted, the SIF credit provides for a one-year credit period. There are numerous reasons that favor extending the tax incentives for SIF: it has significant energy, environmental, and economic benefits. First, SIF recaptures the BTU content of coal waste sludge; second, its production is the preferred method of coal waste sludge disposal and is done so in a manner approved by the Environmental Protection Agency, EPA; and third, it provides the economic and financial benefits of making our domestic steel industry more competitive by lowering production and operational costs. The production of SIF is the most favorable method of disposing of coal waste sludge from an energy resource and environmental perspective. The disposal of coal waste sludge would otherwise be treated as a hazardous waste under applicable Federal environmental rules. The alternative methods of disposal are to transport the coal waste sludge off-site for incineration or to foreign countries for land-filling. Both options require the physical conveyance of a waste product, which is a dangerous, cumbersome, and expensive undertaking. The more obvious drawback is the failure to recapture the energy content of the coal waste sludge. An extension of the SIF tax incentive is of critical importance in the current economic downturn, and its sunset would have a negative impact on the industry. Steel companies and coke plant operators are incurring losses as the demand for their product has dried up. There have been significant layoffs at the major domestic integrated steel producers, impacting thousands of workers in Pennsylvania, Illinois, Indiana, Michigan, Ohio, West Virginia, Kentucky, and elsewhere. Domestic steel manufacturers have been forced to operate at low capacity utilization rates and coke batteries have been placed on ``hot idle,'' a holding pattern to prevent the bricks that comprise the coke battery from cooling and damaging the battery. An extension of the SIF credit will enable these manufacturers to mitigate their losses while the economy recovers. The current 1-year period for the SIF credit has been a significant hindrance in attracting the outside investment needed to finance SIF projects, especially in light of the prevailing economic conditions since the enactment of the credit. Steel industry fuel projects often involve lengthy negotiations to implement the transaction structure necessary to claim the SIF credit, which has effectively reduced the 1- year credit period to a lesser period for many projects. For this reason, the subsidy intended to be provided by the credit for the development of SIF projects requires a longer credit period. Included in this legislation is an important clarification on an issue that has slowed negotiations with respect to SIF projects. It is expected that, for the convenience of the parties and for environmental safety, facilities producing SIF will typically be located on land leased from a steel company or other owner of a coking operation. Such a lessor will not be treated as having an ownership interest in the SIF facility because it leases land and related facilities, sells coal waste sludge or coal feedstock, and/or buys SIF so long as such person's entitlement to rent and/or other net payments is measured by a fixed dollar amount or a fixed dollar amount per ton, or otherwise determined without reference to the profit or loss of the facility. Similarly, a licensor of technology will not be treated as having an ownership interest in the SIF facility because it is entitled to a royalty and/or other payment that is a fixed amount per ton or otherwise determined without regard to the profit or loss of the facility. Such arrangements may also cause facilities that produce SIF to operate at a loss before the credit is taken into account; however, it is intended that the occurrence of such a ``pre-tax loss'' will not affect entitlement to this credit, regardless of whether such ``pre-tax loss'' is caused by the terms of the lease, license, supply or sales contracts between the parties. To that end, the bill provides necessary flexibility for varying circumstances of ownership interests and clarifies that the existence of such arrangements will not prevent the equity owner of a facility from receiving tax credits for its sales of SIF. This provision provides greater tax certainty to potential investors in SIF projects. SIF is typically produced at facilities that are located on the premises of coke plants that are owned by integrated steel companies that are unrelated to the producer of such SIF. The SIF production facility is situated on or near conveyor belts that may be leased from the integrated steel company and production of SIF may occur while coal, and coal blended with petroleum coke, as described below, is transported on the conveyor belts. For commercial, liability, safety, environmental and other business reasons germane to the integrated steel companies that consume the SIF, SIF producers may purchase coal from the integrated steel producer, taking title and having risk of loss while such coal is transported on the conveyor belt, rather than directly purchasing the coal from the mine. The bill provides a safe harbor that establishes that the SIF producer shall be treated as the producer and seller of SIF that it manufactures from coal to which it has taken title. The bill further clarifies that the sale of SIF shall not fail to qualify as a sale to an unrelated party for purposes of the SIF credit solely because the sale is to a party that is also a ground lessor, supplier, and/or customer. The bill also establishes that SIF may also be made using coal or coal that is mixed with some petroleum coke. Such ``pet coke'' has traditionally been used by steel companies/coke operators in a blend with coal as a feedstock for coke. The bill provides that its presence in SIF does not invalidate or otherwise reduce the credit. SIF projects will expand our domestic energy resources by using what would otherwise be a hazardous waste of the coking process in a fuel product. The availability of the tax credit will attract outside investment to the steel and coke production industries and promote job growth in the domestic steel production industry and in related industries that service the steel and coke production industries. I urge my colleagues to support this legislation.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent, on behalf of the leader, that no further points of order be in order during the pendency of the conference report to accompany H.R. 2346, and that at 4:40 p.m. the Senate proceed to vote on adoption of the conference report, with the time until then equally divided and controlled in the usual form. That is the consent request, which would have been offered earlier but a Senator had the floor so it was not. The hour of 4:40 having arrived, it is now the time specified for commencement of the vote.

Mr. SPECTER. Madam President, I ask for the yeas and nays.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I sought recognition to comment on the forthcoming proceedings on the confirmation of Judge Sotomayor for the Supreme Court of the United States. Judge Sotomayor comes to this position with an extraordinary record. Her academic standing at Princeton was summa cum laude, a graduate of the Yale Law School where she was a member of the Yale Law Journal Board of Editors. Then in her practice, she was an assistant district attorney in Manhattan, a position which gives very extensive experience in many facets of the law, something I know in my own experience years ago as an assistant district attorney. She was in private practice with a very prestigious New York law firm, then served on the U.S. District Court, and more recently on the Court of Appeals for the Second Circuit. The hearings will give Judge Sotomayor an opportunity to respond to a number of issues which have been raised about her background. I think Chairman Leahy was correct in moving the hearing dates so that the confirmation process could be concluded in time for Judge Sotomayor, if confirmed, to sit with the Court during September when the Court will decide what cases it will hear. A great deal of the important work of the Supreme Court of the United States is decided on what cases they decide not to hear. And perhaps that in some ways is as important as the cases they do hear, the cases they do decide. It is during that period of time when the decision is made of a grant of certiorari with four Justices deciding which cases to hear where the presence of a new Justice could be very important. Confirmation hearings at an early stage will give Judge Sotomayor an opportunity to respond to many questions which are highly publicized. It is a very noteworthy matter when a nominee is being considered for the Supreme Court. There is a lot of publicity, and some of it is controversial. As a matter of fairness, the earlier a nominee can have an opportunity to respond to those issues--a question has been raised about her decision on the New Haven firefighters case. Well, the nuances of disparate impact do not lend themselves too well to brief newspaper articles nor sound bites on the talk shows. They are made for Supreme Court hearings. Her decision on property rights following the Kelo decision has been subjected to certain comment. There again, the nuances require a hearing. Or her statement about ``a wise Latina woman'' has been widely commented upon. And there again, she ought to have an opportunity to speak to those issues. There have been some questions raised about her decisions under the Second Amendment, membership in the Belizean Grove, and a lot of speculation. So let's bring on the hearings where there will be an opportunity for Judge Sotomayor to present her views. Based on what I have studied in her opinions, an extensive meeting which I had with her, she is a powerful intellect and prospectively she is likely to be able to have good comments. But that is what the confirmation process is all about. So let's move forward on it to the July hearing dates so we can consider her nomination and she can have an opportunity to respond to those issues. There have been contrary views about the value of confirmation hearings. There are some who say they have outlived their usefulness, pointing historically to the fact that prior to 1955 or thereabouts there were very few confirmation hearings, only when there was some extraordinary question. In recent decades the confirmation hearings have been extensive. Having participated in some 11 of those confirmation hearings, it is my judgment that they are very worthwhile, from many points of view. It presents an opportunity to have a public focus on the appropriate role of the Supreme Court, a lot of very major questions about the respective roles on the separation of powers between the courts and Congress, on fact finding, and on the record. There are important questions on the relative authority of the executive versus the Court on the issues of detention, of habeas; important issues on the relative power of the Congress versus the executive, as exemplified by the conflict between the Foreign Intelligence Surveillance Act, and the powers of the President under article II of the Constitution as Commander in Chief. There are also hearings where it is a public focus on a civics lesson as to what the Court does, and public attention is focused on the Court. My preference would be, as I have noted on legislation I have introduced, which has been passed out of the Judiciary Committee in prior congresses, to have the proceedings of the Supreme Court televised under certain circumstances. That has not yet been approved. But I think the day will come when the Supreme Court hearings will be televised. I think they could be televised without having showboating, and real insight by the public as to what happens at the Supreme Court of the United States, just as hearings of the House of Representatives and the Senate are televised. There are a lot of quorum calls, but there are debates that go on here for the public to see, where very major matters of public policy are decided. At least the confirmation hearings do bring the role of the Court into focused hearings, I think, to a very beneficial effect. We had the hearings on Judge Bork widely commented upon, very extensive hearings on his writings, his view of original intent. There was an opportunity for the American people and the scholars to see what was involved. There has grown a myth that in that proceeding, the nominee was ``Borked,'' turning his name into a verb. My own view is that is not so; that the decision made in rejecting the confirmation of Judge Bork turned on the record, turned on what happened in the Judiciary Committee proceedings. When we took a look at original intent, it was way outside the mainstream of constitutional law, way outside the constitutional continuum. If we look to what Congress intended in 1868, when the equal protection clause was passed in the 14th amendment in this Chamber, the galleries were segregated. African Americans were on one side and Caucasians were on another. So the intent of Senators certainly could not have been that equal protection meant integration. But after Brown v. Board of Education in 1954, there was no doubt equal protection did mean integration. The confirmation proceedings of Chief Justice Rehnquist were very informative. Chief Justice Rehnquist had more than 30 votes cast against his nomination in 1986. The issue arose as to the adequacy of his answering questions as to the role of the Supreme Court contrasted with the role of Congress. Chief Justice Rehnquist had written an interesting article for the Harvard Law Record, back in 1959, when he was a young practicing attorney, criticizing the Senate for the confirmation hearings of Justice Whittaker, not asking probing questions about due process of law but only extolling Justice Whittaker's virtues because he represented both the State of Kansas and the State of Missouri, living in one State and practicing law in the other. When Chief Justice Rehnquist was asked questions about the authority of Congress to take away the jurisdiction of the Supreme Court, he answered, finally, that the Congress did not have the authority on first amendment issues but declined to answer about the fourth amendment, fifth, sixth or eighth or to answer a question as to why he would respond on the first amendment but not on others. There are some issues which are so firmly established that they are outside the respected rule that we don't ask nominees to say how they will decide upon cases that might come before them. But where we deal with issues such as Marbury v. Madison or Brown v. Board of Education or the authority of the Congress to take away jurisdiction of the Supreme Court in derogation of Marbury v. Madison, there are questions which ought to be answered. The confirmation hearings provide an opportunity to go into detail about the functioning of the Court. A few years ago, when the issue of judicial pay was before the Congress, a number of Senators were invited to confer with the Justices. It provided an opportunity for me to see the conference room. I had been a member of the bar of the Supreme Court, argued a few cases there but had never seen their conference room. Frankly, it was quite an eye-opener--a small room, plain table, modest chairs, very intimate, very austere, quite some insight as to how close the Justices are together. When we talk about diversity, how long it took to get an African American on the Court, Thurgood Marshall did not go to the Court until 1967. Justice Lewis Powell made a comment reportedly that just having Thurgood Marshall in the room made a difference in perspective. Surprising, perhaps scandalous, that it took until 1981 to have a woman on the Supreme Court. Now there have only been two. When I was asked for recommendations for the current vacancy, I recommended four women. To say that a woman's point of view is different and valuable is trite. When I was elected to the Senate in 1980, Senator Kastenbaum was the only woman in the Chamber. Senator Hawkins was elected that year. Now we have 16 and growing. It has been a very great addition and improvement to the deliberations here to have more women. Another woman on the Supreme Court would be a plus there, if Judge Sotomayor is confirmed. Also, the diversity on being a Hispanic is important. We live in a very diverse society. When one sees that small Supreme Court Chamber, they can see the intimacy and can almost visualize the intellectual discussions and the powerhouses in that room and how the big cases are decided, with the Court having the last word on life and death, a woman's right to choose, medicinal issues of attempted suicide, the death penalty in capital cases, all the cutting edge issues of our society. The confirmation proceeding of Judge Sotomayor will give us an opportunity to inquire into some very important issues on executive versus judicial authority, on the authority of the Court versus the Congress. Toward that end, I wrote a letter to Judge Sotomayor, dated June 15. I ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. As I note in the opening paragraph, our so-called courtesy call lasted more than an hour. At that time, I commented to her that I would be writing on other subjects on which I intended to comment at her hearing. She responded she would be glad to have that advance notice. The issue I focus on in this letter involves the respective authority of the Congress contrasted with the Court on the establishment of a record to warrant legislation which Congress enacts. I noted I had written to Chief Justice Roberts in a similar vein back on August 8, 2005, in advance of his confirmation hearings. I take up in my letter to Judge Sotomayor the same issue I took up with Chief Justice Roberts; that is, decisions of the Supreme Court in invalidating congressional enactments, declaring them unconstitutional, because of what the Court says is an insufficient record. I note the case of United States v. Morrison, which involved legislation to protect women against violence, where the Court was denigrating, disrespectful to Congress, where the Court said the congressional findings were rejected because of our ``method of reasoning,'' as if there is some unique quality which comes to the nominee at the time of confirmation in walking across the green between the hearing room and the Supreme Court chambers. A dissent by Justice Souter noted that the Court's judgment was ``dependent upon a uniquely judicial conference,'' as if the competence of the Congress was to a lesser extent. Justice Souter commented, in disagreeing with Chief Justice Rehnquist, who said there was an insufficient record, that ``the mountain of data assembled by Congress included a record on gender bias from a task force of 21 States, eight separate reports by the Congress.'' There was a similar finding by the Supreme Court of the United States in the case of Alabama v. Garrett, where the Supreme Court decided there was an insufficient record to support the enactment of title I of the Americans with Disabilities Act, even though there had been task force hearings in every State attended by more than 30,000 people, including thousands who had experienced discrimination, with more than 300 examples of discrimination by State Governments. Notwithstanding that, the Supreme Court in Garrett said there was an insufficient record. In dissent, Justice Scalia called the test of congruence and proportionality a flabby test, a test that was ``an invitation to judicial arbitrariness and policy-driven decisionmaking.'' When we look to a standard of congruence and proportionality, it is very vague. Sharp divergence from the standard that Justice Harlan articulated in Maryland v. Wirtz in 1968, whether there was a rational basis for the congressional decision. So that as Justice Scalia noted in his dissent in Tennessee v. lane, the standard of congruence and proportionality was flabby. Justice Scalia went on to say: Worse still, it casts this Court in the role of Congress's task master. Under it the courts--and ultimately, this Court--must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy constitutional and proportional. In the confirmation hearings of Chief Justice Roberts, he responded in a way very supportive of the role of Congress, where the Court should be deferential to the Congress. In response to a question by Senator DeWine, he said the Supreme Court ought to defer to congressional findings, and the answer will be in the Record with this letter. In response to my questioning, Chief Justice Roberts said: And I appreciate very much the difference in institutional competence between the judiciary and the Congress, when it comes to basic questions of fact finding, development of a record and also the authority to make the policy decisions about how to act on the basis of a particular record. It is not just disagreement over a record. It is a question of whose job it is to make a determination based on the record. As a judge, that you are beginning to transgress into the area of making a law is when you are in a position of reevaluating legislative findings, because that doesn't look like a judicial function. There, the Chief Justice comes to grips with the dominant role of the Congress that ought to be deferred to and says, when the court takes over, it is judicial lawmaking, which is something which is generally recognized to be in an area which ought not to be transgressed. ``Transgression'' is Chief Justice Roberts' word, that it is up to Congress to make the laws and up to the Court to interpret them. In a hearing on the Voting Rights Act on April 29, 2009, Northwest Austin Municipal Utility District v. Holder, on the issue of the sufficiency of the record, here we have 16,000 pages of testimony, 21 different hearings, 10 months of action. Congress, in 2006, reauthorized the Voting Rights Act. In listening to the Supreme Court argument and reading the record--you cannot draw any conclusions totally--but it looks very much as if the Court may be on the verge of finding the record insufficient. Chief Justice Roberts had this to say in the course of the argument on the Voting Rights Act: . . . one-twentieth of one percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to address the intentional discrimination under the Fifteenth Amendment. That's like the old elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work. I mean, if you have 99.98 percent of those being precleared, why isn't that reaching too broadly? We will all be watching very closely to see what the Supreme Court of the United States does in the voting rights case and especially the opinion of Chief Justice Roberts, who has testified so emphatically at his confirmation hearing as to the role of the Congress being dominant, and it was, as he put it: ``. . . as a judge that you may be beginning to transgress into the area of making a law . . . '' So those are issues which I am going to be addressing to Judge Sotomayor in the course of the confirmation hearings. I am not going to ask her how she is going to decide a case. That is outside the bounds. But I think it is fair to inquire as to what is the standard. Is it the Justice Harlan standard of rational basis or is it a standard of congruent and proportional--a standard which is of recent vintage in the City of Boerne v. Flores case, and having been applied in cases where it is very difficult to understand the conclusions of the Court, if you take Tennessee v. Lane, where one article of the Americans with Disabilities Act was upheld and contrast it with the Alabama v. Garrett case, where it was stricken. Justice Scalia, in the argument of the voting rights case, took issue with the Congress on a 98-to-0 decision, suggesting if it is 98 to 0, it must not have been too carefully thought through. It reminds me of the 98-to-0 vote Justice Scalia got on his confirmation and the many unanimous decisions of the Supreme Court. I will ask to have printed in the Record a group of recent cases--10 or more--where Justice Scalia decided cases 9 to 0. So if this legislative body--the Senate--votes 98 to 0 in favor of renewing the Voting Rights Act, relying upon the extensive record, which I have cited, that is not a sign of weakness. That is not a sign that the Senate does not know what it is doing with a 98-to-0 vote. So the questions which I have posed for Judge Sotomayor are these: First: Would you apply the Justice Harlan rational base standard or the congruent and proportionality standard? Second: What are your views on Justice Scalia's characterization that the ``congruence and proportionality standard'' is a flabby test and an ``invitation to judicial arbitrariness and policy-driven decisionmaking,'' where Justice Scalia says that is the way for the courts to make law on a standard which is so vague? Third: Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's ``method of reasoning''? And fourth: Do you agree with the division of constitutional authority between Congress and the Supreme Court as articulated by Chief Justice Roberts in his responses, cited in this letter, to questions posed at his hearing by Senator DeWine and myself? I do believe there will be an opportunity for very important issues to be presented to the nominee. Based on what I have seen of her, in reviewing her record, and the meeting I had with her--I have noted her excellent resume--I am looking forward to giving her an opportunity to answer the many questions that have been raised in the press, where she will have more of an opportunity than to have a sound bite but to give commentary on her record in support of her nomination. I ask unanimous consent to have printed in the Record the material to which I referred.

Mr. SPECTER. I thank the Chair and yield the floor. Exhibit 1 U.S. Senate, Washington, DC, June 15, 2009. Hon. Sonia Sotomayor, The Department of Justice, Washington, DC. Dear Judge Sotomayor: When we concluded our meeting which lasted more than an Hour, I commented that I would be writing to you on other subjects which I intended to cover at your hearing, and I appreciated your response that you would welcome such advance notice. In the confirmation hearing for Chief Justice Roberts, there was considerable discussion about the adequacy of congressional fact finding to support legislation. This issue is again before the Supreme Court on the re-authorization of the Voting Rights Act where the legislation is challenged on the ground that there is an insufficient factual record. At our hearing, I would uphold like your views on what legal standards you would apply in evaluating the adequacy of a Congressional record. In the 1968 case Maryland v. Wirtz, Justice Harlan's rationale would uphold an act of Congress where the legislature had a rational basis for reaching a regulatory scheme. In later cases, the Court has moved to a ``congruence and proportionality standard.''. In advance of the hearing for Chief Justice Roberts by letter dated August 8, 2005. I wrote him in part: ``members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress's competence. In U.S. v. Morrison, Chief Justice Rehnquist, speaking for five members of the Court, rejected Congressional findings because of ``our method of reasoning''. As the dissent noted, the Court's judgment is ``dependent upon a uniquely judicial competence'' which implicitly criticizes a lesser quality of Congressional competence. In Morrison, there was an extensive record on evidence establishing the factual basis for enactment of the Violence Against Women legislation. In dissent. Justice Souter noted . . . the mountain of data assembled by Congress here showing the effects of violence against women on interstate commerce,'' and added: ``The record includes reports on gender bias from task forces in 21 states and we have the benefit of specific factual finding in eight separate reports issued by Congress and its committees over the long course leading to its enactment.'' In a subsequent letter to Chief Justice Roberts dated August 23, 2005, I wrote concerning Alabama v. Garrett where Title I of the Americans with Disabilities Act was based on task force field hearings in every state attended by more than 30,000 people including thousands who had experienced discrimination with roughly 300 examples of discrimination by state governments. Notwithstanding those findings, the Garrett Court concluded in a five to four decision: ``The legislative record of the Americans with Disabilities Act, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.'' In another five to four decision, the Court in Lane v. Tennessee concluded Title II of the Americans with Disabilities Act met the ``congruence and proportionality standard''. There, Justice Scalia dissented attacking the ``congruence and proportionality standard'' calling it a ``flabby test'' and ``invitation to judicial arbitrariness and policy driven decision making'': ``Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy constitutional and proportional. As a general matter, we are ill-advised to adopt or adhere to constitutional rules that bring us into conflict with a coequal branch of Government.'' During the confirmation hearing of Chief Justice Roberts, he testified extensively in favor of the Court's deferring to Congress on fact finding. In response to questions from Senator DeWine, he testified: ``. . . The reason that congressional fact finding and determination is important in these cases is because the courts recognize that they can't do that, Courts can't have, as you said, whatever it was, the 13 separate hearings before passing particular legislation. Courts--the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record. Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made''. . . `We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact finding that is made. It's institutional competence. The courts don't have it. Congress does. It's constitutional authority. It's not our job. It is your job. So the defense to congressional findings in this area has a solid basis.'' In response to my questioning, Chief Justice Roberts said: ``And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding development of a record, and also the authority to make the policy decisions about how to act on the basic of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record' . . . as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re-evaluating legislative findings, because that doesn't look like a judicial function.'' The Supreme Court heard oral argument in Northwest Austin Municipal Utility District v. Holder on April 29, 2009 involving the sufficiency of the Congressional record on reauthorizing the Voting Rights Act. While too much cannot he read into comments by justices at oral argument, Chief Justice Roberts' statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing. Referring to the argument that ``. . . action under Section 5 has to be congruent and proportional to what it's trying to remedy,'' Justice Roberts said that: ``. . . one-twentieth of l percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment.'' Chief Justice Roberts went to say: ``Well, that's like the old--you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. well, there are no elephants, so it must work. I mean if you have 99.98 percent of these being precleared, why isn't that reaching far too broadly.'' As a factual basis for the 2007 Voting rights Act, Congress heard from dozens of witnesses over ten months in 21 different hearings. Applying the approach from Chief Justice Roberts' confirmation hearing, that would appear to satisfy the ``congruence and proportionality standard''. My questions are: 1. Would you apply the Justice Harlan ``rational basis'' standard or the ``congruence and proportionality standard''? 2. What are your views on Justice Scalia's characterization that the ``congruence and proportionality standard'' is a ``flabby test'' and ``an invitation to judicial arbitrariness and policy driven decision making''? 3. Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's ``method of reasoning''? 4. Do you agree with the division of constitutional authority between Congress and the Supreme Court articulated by Chief Justice Roberts in his responses cited in this letter to questions posed at his hearing by Senator DeWine and me? Sincerely, Arlen Specter.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce The Patient Access to Critical Lab Tests Act. The legislation would modernize Medicare billing rules to improve beneficiary access to important, life-saving advanced diagnostic technologies. Mapping the human genome has enabled revolutionary advances in understanding a wide variety of diseases, and ushered in an era where treatments can be tailored to individual patients based on their DNA and specific molecular character of their disease. Complex diagnostic laboratory tests make such ``personalized medicine'' possible. By understanding the molecular nature of disease, these new technologies increasingly allow clinicians and patients to pick individualized treatment options, rather than basing treatment choices on broad assessments of what works best for a population. Unfortunately Medicare payment, coding and coverage practices are harming Medicare beneficiary access to specialized diagnostic tests. In particular is the Centers for Medicare and Medicaid Services, CMS, Medicare ``date of service'' regulation. Under the regulation, any test furnished within 14 days after the patient's discharge from a hospital is deemed to have been performed on the day of collection, when the patient was in or at the hospital, even though the patient may no longer be at the hospital when the test is ordered, and the test is not used to guide treatment during the patient's hospital encounter. A laboratory test that is deemed to coincide with the date on which the patient was a hospital patient becomes a service furnished by the hospital, even though the hospital may have nothing to do with the ordering, performance, or use of the test. The combination of these rules creates a host of administrative and financial disincentives for hospitals to embrace these tests. Hospitals are required to exercise professional responsibility over these services, but are unwilling to do so for tests that are not offered by the hospital, and which are, in fact, offered by laboratories that are otherwise unaffiliated with and unfamiliar to the hospital. Hospitals are required to bill for the service; the laboratories may not bill Medicare directly, and instead must bill the hospital for the services they provide, which means the hospital assumes the financial risk that the service is covered and that Medicare will pay for it. In light of these administrative and financial disincentives, hospitals are encouraging physicians to delay ordering the tests until after the 14 days; others are cancelling orders altogether. These disincentives create obstacles for physicians and their patients, and genuine barriers to access these beneficial tests. These rules also create substantial hardship for the laboratories that are seeking to develop these tests. In order for the tests to be covered, hospitals must enter into agreements with the laboratories furnishing the tests. It is administratively overwhelming for these small laboratories to seek to enter into agreements with all potential originating hospitals, which may number in the thousands when considering sites where tissue may be stored. The legislation that I am introducing today with Senator Wyden would require CMS to take a small, but important step toward facilitating Medicare beneficiary access to innovative, life-saving diagnostic tests by updating the ``date of service'' regulation. Specifically, the Patient Access to Critical Lab Tests Act would permit independent laboratories offering complex diagnostic laboratory tests to bill Medicare directly for tests performed anytime following a patient's hospital stay, without forcing the hospital into an unnecessary middleman role. Given the promise of these new technologies, it is important that all regulatory regimes keep pace with the rapidly evolving world of science and technology, and operate to promote innovation. Out-dated regulations and calcified regulatory agencies can stifle innovation and prevent new life-saving diagnostics and therapies from ever coming to market. They can also serve as a drag on our economy. Fixing this rule is a matter of critical importance to Medicare beneficiaries, as well as to the laboratories developing these technologies. I encourage colleagues to join Senator Wyden and me in cosponsoring this bill. I likewise urge Senators Baucus and Grassley to consider this important measure as part of health care reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER. Mr. President, I have sought recognition today to introduce legislation that will help ensure Medicare beneficiaries' access to cancer drugs provided by community-based cancer clinics. Cancer takes a great toll on our families, friends, and our Nation. On average, one American dies from cancer each minute and the overall cost of cancer to the U.S. is $220 billion annually. While these statistics are daunting, the rate of cancer deaths in the U.S. has decreased since 1993. This decrease is the result of earlier detection and diagnosis, more effective and targeted cancer therapies, and greater accessibility to quality care provided by oncologists. These vital services have allowed millions of individuals to lead healthy and productive lives after successfully battling cancer. Leading the treatment against cancer, community cancer clinics treat 84 percent of Americans with cancer. Community cancer clinics are freestanding outpatient facilities that provide comprehensive cancer care in physician's office settings located in patients' communities. These clinics are especially critical in rural areas where access to larger cancer clinics is not available. In 2003, the Medicare Prescription Drug Improvement and Modernization Act was signed into law. This legislation contained numerous provisions that were beneficial to America's seniors and medical facilities; however, it also provided a reduction in Medicare's reimbursement for cancer treatment. The new Medicare drug reimbursement rates, based on average sales price or ASP, are artificially lowered by the inclusion of prompt payment discounts. These discounts are provided by the pharmaceutical manufacturer to the distributor and are a financing mechanism between the manufacturer and the distributor for prompt payment of invoices. As such, they are not passed on to community oncology clinics, which purchase drugs from distributors. However, pharmaceutical manufacturers are required by statute to include all discounts and rebates in the calculation of ASP, including prompt payment discounts that are not provided to community oncology clinics. The inclusion of these prompt payment discounts results in the artificially lowering of Medicare drug reimbursement rates by approximately 2 percent. Community cancer clinics are reporting that they are finding more cancer drugs reimbursed by Medicare at a rate less than their cost. The Congressional Budget Office estimated that Medicare reimbursements to oncologists would be reduced by $4.2 billion from 2004-2013. PricewaterhouseCoopers estimated that reductions will reach $14.7 billion over that time. This increased reduction will have a debilitating effect on oncologists' ability to provide cancer treatment to Medicare beneficiaries, especially those in the community setting. This legislation will remove manufacturer to distributor prompt payment discounts from the calculation of ASP to provide a more appropriate Medicare drug reimbursement and will help ensure Medicare beneficiaries' access to community-based cancer treatment. I encourage my colleagues to work with me to move this legislation forward promptly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce The Patient Access to Critical Lab Tests Act. The legislation would modernize Medicare billing rules to improve beneficiary access to important, life-saving advanced diagnostic technologies. Mapping the human genome has enabled revolutionary advances in understanding a wide variety of diseases, and ushered in an era where treatments can be tailored to individual patients based on their DNA and specific molecular character of their disease. Complex diagnostic laboratory tests make such ``personalized medicine'' possible. By understanding the molecular nature of disease, these new technologies increasingly allow clinicians and patients to pick individualized treatment options, rather than basing treatment choices on broad assessments of what works best for a population. Unfortunately Medicare payment, coding and coverage practices are harming Medicare beneficiary access to specialized diagnostic tests. In particular is the Centers for Medicare and Medicaid Services, CMS, Medicare ``date of service'' regulation. Under the regulation, any test furnished within 14 days after the patient's discharge from a hospital is deemed to have been performed on the day of collection, when the patient was in or at the hospital, even though the patient may no longer be at the hospital when the test is ordered, and the test is not used to guide treatment during the patient's hospital encounter. A laboratory test that is deemed to coincide with the date on which the patient was a hospital patient becomes a service furnished by the hospital, even though the hospital may have nothing to do with the ordering, performance, or use of the test. The combination of these rules creates a host of administrative and financial disincentives for hospitals to embrace these tests. Hospitals are required to exercise professional responsibility over these services, but are unwilling to do so for tests that are not offered by the hospital, and which are, in fact, offered by laboratories that are otherwise unaffiliated with and unfamiliar to the hospital. Hospitals are required to bill for the service; the laboratories may not bill Medicare directly, and instead must bill the hospital for the services they provide, which means the hospital assumes the financial risk that the service is covered and that Medicare will pay for it. In light of these administrative and financial disincentives, hospitals are encouraging physicians to delay ordering the tests until after the 14 days; others are cancelling orders altogether. These disincentives create obstacles for physicians and their patients, and genuine barriers to access these beneficial tests. These rules also create substantial hardship for the laboratories that are seeking to develop these tests. In order for the tests to be covered, hospitals must enter into agreements with the laboratories furnishing the tests. It is administratively overwhelming for these small laboratories to seek to enter into agreements with all potential originating hospitals, which may number in the thousands when considering sites where tissue may be stored. The legislation that I am introducing today with Senator Wyden would require CMS to take a small, but important step toward facilitating Medicare beneficiary access to innovative, life-saving diagnostic tests by updating the ``date of service'' regulation. Specifically, the Patient Access to Critical Lab Tests Act would permit independent laboratories offering complex diagnostic laboratory tests to bill Medicare directly for tests performed anytime following a patient's hospital stay, without forcing the hospital into an unnecessary middleman role. Given the promise of these new technologies, it is important that all regulatory regimes keep pace with the rapidly evolving world of science and technology, and operate to promote innovation. Out-dated regulations and calcified regulatory agencies can stifle innovation and prevent new life-saving diagnostics and therapies from ever coming to market. They can also serve as a drag on our economy. Fixing this rule is a matter of critical importance to Medicare beneficiaries, as well as to the laboratories developing these technologies. I encourage colleagues to join Senator Wyden and me in cosponsoring this bill. I likewise urge Senators Baucus and Grassley to consider this important measure as part of health care reform. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce legislation that will help ensure Medicare beneficiaries' access to cancer drugs provided by community-based cancer clinics. Cancer takes a great toll on our families, friends, and our Nation. On average, one American dies from cancer each minute and the overall cost of cancer to the U.S. is $220 billion annually. While these statistics are daunting, the rate of cancer deaths in the U.S. has decreased since 1993. This decrease is the result of earlier detection and diagnosis, more effective and targeted cancer therapies, and greater accessibility to quality care provided by oncologists. These vital services have allowed millions of individuals to lead healthy and productive lives after successfully battling cancer. Leading the treatment against cancer, community cancer clinics treat 84 percent of Americans with cancer. Community cancer clinics are freestanding outpatient facilities that provide comprehensive cancer care in physician's office settings located in patients' communities. These clinics are especially critical in rural areas where access to larger cancer clinics is not available. In 2003, the Medicare Prescription Drug Improvement and Modernization Act was signed into law. This legislation contained numerous provisions that were beneficial to America's seniors and medical facilities; however, it also provided a reduction in Medicare's reimbursement for cancer treatment. The new Medicare drug reimbursement rates, based on average sales price or ASP, are artificially lowered by the inclusion of prompt payment discounts. These discounts are provided by the pharmaceutical manufacturer to the distributor and are a financing mechanism between the manufacturer and the distributor for prompt payment of invoices. As such, they are not passed on to community oncology clinics, which purchase drugs from distributors. However, pharmaceutical manufacturers are required by statute to include all discounts and rebates in the calculation of ASP, including prompt payment discounts that are not provided to community oncology clinics. The inclusion of these prompt payment discounts results in the artificially lowering of Medicare drug reimbursement rates by approximately 2 percent. Community cancer clinics are reporting that they are finding more cancer drugs reimbursed by Medicare at a rate less than their cost. The Congressional Budget Office estimated that Medicare reimbursements to oncologists would be reduced by $4.2 billion from 2004-2013. PricewaterhouseCoopers estimated that reductions will reach $14.7 billion over that time. This increased reduction will have a debilitating effect on oncologists' ability to provide cancer treatment to Medicare beneficiaries, especially those in the community setting. This legislation will remove manufacturer to distributor prompt payment discounts from the calculation of ASP to provide a more appropriate Medicare drug reimbursement and will help ensure Medicare beneficiaries' access to community-based cancer treatment. I encourage my colleagues to work with me to move this legislation forward promptly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise today to speak on the Department of Agriculture's decision to end the Philadelphia School District's Universal Feeding Pilot Program and to introduce legislation extending the program. While changes to the Philadelphia program may be necessary, the appropriate time to consider these changes is during congressional reauthorization of the Child Nutrition Act. Senator Casey and I are seeking to extend the program through the 2012-13 school year. This extension is necessary to ensure that thousands of children in Philadelphia's poorest schools are not deprived of the nutritional assistance they have relied on for over 17 years. Recognizing the value of proper nutrition to successful learning, Congress, in 1946, passed the Richard B. Russell National School Lunch Act. This act provides the authority for the School Lunch Program, as well as several other child nutrition initiatives. In 1966 Congress expanded on its commitment to child nutrition by passing the Child Nutrition Act, which authorized the School Breakfast Program. These programs have continued to evolve through changing times and changing technologies to ensure that the goal of providing nutrition assistance to our Nation's school children is met. In 1991 the Department of Agriculture worked with the Philadelphia School District to develop a more streamlined method of reimbursing the School District for meals served under the National School Breakfast and School Lunch Program, and ensuring all eligible students receive free meals. This new method eliminated paper applications for free school meals, and replaced them with a socioeconomic survey based method of determining reimbursement rates and eligibility. Paper applications are costly, and parents too often fail to return them. The socioeconomic survey based approach was chosen because it reduced administrative overhead costs and is thought to better ensure that all eligible students are accounted for. In addition, by providing Universal Service the stigma associated with receiving a free or reduced price school meal is eliminated. Indeed, during the first year of the Universal Feeding Pilot Program, the Philadelphia School District saw a 14 percent increase in lunch participation in elementary schools, a 45 percent increase in middle schools and a 180 percent increase in high schools. The Philadelphia Universal Feeding Pilot Program has successfully increased student participation in the school meal program. Should this program be ended, as the Department of Agriculture would have it, children in the Philadelphia School District will have their ability to learn undermined by Washington, DC, bureaucrats. The students and parents in 200 of Philadelphia's poorest schools have not filled out paper applications for free and reduced priced school meals in over seventeen years. It is almost certain that some parents will fail to return paper applications to the school district, resulting in the underreporting of eligible students. In fact, the Secretary of Agriculture tacitly acknowledges the ineffectiveness of paper applications by offering outreach assistance to the Philadelphia School District. A decrease in the amount of students claiming free or reduced lunches will lower the Department of Agriculture's reimbursement rate to the Philadelphia School District. Reducing the school meal reimbursement rate will not only cause the Philadelphia School District budgetary problems in relation to the school meals program, but because other grant funding is often based on the percentage of low income students in a district, as determined by participation rates in the school meal program, the District could potentially lose millions of dollars in other state and Federal grant funding. Federal E-rate funding, for example, which is used for educational technology, is based directly on school meal program eligibility percentages. Congress is expected to take up the Child Nutrition Act reauthorization later this year. Universal Feeding and the National School Breakfast and Lunch Program will be a part of this debate, and this is an appropriate time and place to consider changes to the program. We know from experience that Congressional action is not always as swift as planned, and that the legislative calendar changes from week to week if not from day to day. Therefore, Senator Casey and I introduce legislation today to extend the Philadelphia School District's Universal Feeding Pilot Program through the close of the 2012-2013 school year to ensure that Philadelphia school children receive the necessary nutritional assistance until Congress can enact a new policy.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise today to speak on the Department of Agriculture's decision to end the Philadelphia School District's Universal Feeding Pilot Program and to introduce legislation extending the program. While changes to the Philadelphia program may be necessary, the appropriate time to consider these changes is during congressional reauthorization of the Child Nutrition Act. Senator Casey and I are seeking to extend the program through the 2012-13 school year. This extension is necessary to ensure that thousands of children in Philadelphia's poorest schools are not deprived of the nutritional assistance they have relied on for over 17 years. Recognizing the value of proper nutrition to successful learning, Congress, in 1946, passed the Richard B. Russell National School Lunch Act. This act provides the authority for the School Lunch Program, as well as several other child nutrition initiatives. In 1966 Congress expanded on its commitment to child nutrition by passing the Child Nutrition Act, which authorized the School Breakfast Program. These programs have continued to evolve through changing times and changing technologies to ensure that the goal of providing nutrition assistance to our Nation's school children is met. In 1991 the Department of Agriculture worked with the Philadelphia School District to develop a more streamlined method of reimbursing the School District for meals served under the National School Breakfast and School Lunch Program, and ensuring all eligible students receive free meals. This new method eliminated paper applications for free school meals, and replaced them with a socioeconomic survey based method of determining reimbursement rates and eligibility. Paper applications are costly, and parents too often fail to return them. The socioeconomic survey based approach was chosen because it reduced administrative overhead costs and is thought to better ensure that all eligible students are accounted for. In addition, by providing Universal Service the stigma associated with receiving a free or reduced price school meal is eliminated. Indeed, during the first year of the Universal Feeding Pilot Program, the Philadelphia School District saw a 14 percent increase in lunch participation in elementary schools, a 45 percent increase in middle schools and a 180 percent increase in high schools. The Philadelphia Universal Feeding Pilot Program has successfully increased student participation in the school meal program. Should this program be ended, as the Department of Agriculture would have it, children in the Philadelphia School District will have their ability to learn undermined by Washington, DC, bureaucrats. The students and parents in 200 of Philadelphia's poorest schools have not filled out paper applications for free and reduced priced school meals in over seventeen years. It is almost certain that some parents will fail to return paper applications to the school district, resulting in the underreporting of eligible students. In fact, the Secretary of Agriculture tacitly acknowledges the ineffectiveness of paper applications by offering outreach assistance to the Philadelphia School District. A decrease in the amount of students claiming free or reduced lunches will lower the Department of Agriculture's reimbursement rate to the Philadelphia School District. Reducing the school meal reimbursement rate will not only cause the Philadelphia School District budgetary problems in relation to the school meals program, but because other grant funding is often based on the percentage of low income students in a district, as determined by participation rates in the school meal program, the District could potentially lose millions of dollars in other state and Federal grant funding. Federal E-rate funding, for example, which is used for educational technology, is based directly on school meal program eligibility percentages. Congress is expected to take up the Child Nutrition Act reauthorization later this year. Universal Feeding and the National School Breakfast and Lunch Program will be a part of this debate, and this is an appropriate time and place to consider changes to the program. We know from experience that Congressional action is not always as swift as planned, and that the legislative calendar changes from week to week if not from day to day. Therefore, Senator Casey and I introduce legislation today to extend the Philadelphia School District's Universal Feeding Pilot Program through the close of the 2012-2013 school year to ensure that Philadelphia school children receive the necessary nutritional assistance until Congress can enact a new policy.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to address the subject of health care reform. I support President Obama's call for health care reform legislation this year. It has long been obvious that there is a need for health care reform in the United States. There are some 47 million people, perhaps more--the precise figure is not known-- who do not have health insurance or who are underinsured. I have prepared an extensive statement outlining some of the issues which I think ought to be addressed, and I have sought recognition this afternoon to summarize those comments briefly. I ask unanimous consent that, at the conclusion of my statement, the full text of my statement be included in the Record as if read in full.

Mr. SPECTER. Mr. President, the question of health care coverage has long been debated in the Congress. There is a general consensus that we need to cover all Americans who, as I say, either have no insurance or are underinsured. In my capacity as ranking member or chairman of the Appropriations Subcommittee on Labor, Health, Human Services, and Education for more than a decade, I have taken the lead, along with Senator Tom Harkin-- then on a bipartisan basis, where we, as we have said frequently, have shifted the gavel seamlessly--to provide for a great deal of health care coverage. During that time, the issue of funding for the National Institutes of Health has received special attention, where that figure has been raised from some $12 billion to $30 billion; and with the recent stimulus package, an additional $10 billion has been added. In addition to extensive coverage and increased funding for the National Institutes of Health, which resulted in very substantial improvements in the health of Americans on items such as stroke and cancer and heart disease, that subcommittee has taken the lead on many other health care issues, which I will not take time now to enumerate. I have cosponsored the legislation proposed on a bipartisan basis by Senator Wyden, Democrat of Oregon, and Senator Bennett, Republican of Utah. I have had a series of discussions with Senator Baucus, chairman of the Finance Committee, and discussed the issue with Senator Enzi, ranking member on the Health, Education, Labor, and Pension Committee, and have directed my staff to work with the staffs of all the other Senators. I have noted the comment made by Senator Grassley when he came from a meeting at the White House of the interest in a bipartisan approach, and noted Senator Enzi's statement that it was his hope we would have a consensus for perhaps as many as 80 Senators, which I think is the objective. But one way or another, I do support what the President has said about moving forward health care insurance at this time. It is my preference, my position, that we rely principally on the private sector. I think it is undesirable to put a massive bureaucracy between the doctor and the patient. I am open to some intervention on a public plan, as I delineate in my formal written statement. Pennsylvania has a plan where, when the insurance was unavailable on medical liability, the State stepped in with an insurance plan. And then, when the insurance was available, the plan was to have it phased out. I have noted with interest the suggestions made by Senator Schumer to have a public sector for a number of dimensions. One is to cover areas where there are no private plans. Certainly that is something that ought to be considered so that everyone has the availability of health care coverage. Senator Schumer's proposal further delineates the standing of a public plan to be on a level playing field with the private sector, and has specified a number of issues where that level playing field would be maintained, and they are specified in some detail in my written statement, although not exhaustively. Here again, it is a matter for discussion and deliberation. Health care reform is an opportunity for the United States Senate to verify and confirm its standing as the world's greatest deliberative body. All of these ideas are in their formative stages, and plans are being worked on. We have the Wyden-Bennett model. I joined that plan, not that I thought it was perfect--and in my floor statement adding my cosponsorship I specified the concerns I had--but I thought it was highly desirable. At that time there were some 14 Senators, equally divided between the two parties, which provided a critical mass, and I thought that was a good start to give impetus. Of course, with President Obama's emphasis, with his convening a forum on health care, where I was invited to attend and did participate, we are moving forward. I think it is very important to focus on items where we may have savings within the existing health care system. We have had very substantial Federal involvement in the TARP program proposed by President Bush last fall, which is very expensive. We have had very substantial Federal expenditures on President Obama's stimulus package, of which we all know the cost. And at a time when there is a substantial deficit and a very substantial national debt, we ought to look for ways for savings, and I think there are some very specific and concrete ways where savings can be obtained. I begin that analysis with the National Institutes of Health. What better way to cut down on health care costs than to prevent illness. What better way than to have scientific research provide the ways to prevent illness. I have introduced specific legislation recently--again delineated in some detail in my written statement--on a Cures Acceleration Network, an effort to bring the research from the National Institutes of Health, from the laboratory, to the bedside--as it is summarized, from bench to the bedside. The advances in medical research, statistics--and again they are delineated in my formal written statement--specify the tremendous improvements in health, where mortality has gone up and prolonged or saved lives in so many fields-- cancer, heart disease, stroke, et cetera. When you have a program for health care, then I think there are realistic ways to save money; where people who develop chronic ailments, which are very expensive, can be ameliorated or perhaps even prevented, but holding down health care costs. A separate item, which has received considerable attention, and which I spoke about at the President's health forum, is lifestyle, on exercise and on diet. Those are items which I have always been concerned about, being a squash player almost on a daily basis, and more recently taking up weight training as a result of an experience I have had with Hodgkin's and with some of the efforts to bring back balance. I feel that exercise is very important. My wife has always been very consistent on dietary considerations. There are some programs I recently heard a presentation on by the chief executive officer of Safeway on exercise and health, and there is a correlation along some lines in reducing health care premiums depending on people avoiding smoking, exercising, and care for their diet. I do believe there are very substantial savings that are involved. It would be my hope that the Congressional Budget Office could quantify some of these savings-- savings on NIH, savings on lifestyle, savings on advanced directives. And in presenting a health care reform plan to the American people, I believe it would be enormously beneficial to be able to point to these savings as offsets to whatever the cost may be. On the subject of advanced directives and living wills, there is a great deal to be saved. One study showed as much as 27 percent of Medicare costs in the last few days, few months, or the last year of a person's life. No one ought to say to anybody else what their directive should specify in terms of what kind of care they want under those circumstances, but I think it is fair to ask people to focus on it, to think about it, and to make a directive in that respect--revocable, they can change it but not leave it to the family in some extremist situation when they are in the hospital and the passion is all in one direction or another. On the subcommittee on Labor, Health, Human Services and Education, we took the lead on including information in the ``Medicare and You'' handbook to encourage people to have advanced directives and living wills, so that is an item where a savings could be attained. Another line for possible savings would be a toughening up of criminal penalties for people who cheat on Medicare and Medicaid. From my experience as district attorney of Philadelphia, I saw very concrete examples about the effectiveness of jail sentences on deterrence. If we are dealing with a domestic dispute or dealing with a barroom drunken knife brawl, tough sentences are not going to deter anybody. But if we talk about white collar crime, talk about people who are thoughtful in the way they may engage in Medicare fraud or Medicaid fraud, jail sentences would be effective. This is a subject I have taken up with the Attorney General and with the Assistant Attorney General in the Criminal Division. It will be the subject of a hearing this Wednesday afternoon, the day after tomorrow, when we will bring in experts in the field of Medicare and Medicaid and get into the issue as to what kind of savings might be available. That is a brief summary of the longer written statement I have. I will conclude by emphasizing my thought that all Americans need to be covered with adequate health care assurance, and this is a matter of the highest priority. It is President Obama's No. 1 priority, as I understand it, and I think properly so. I am prepared, as I said before, to put my shoulder to the wheel to try to get this job done. The experience in the Subcommittee on Appropriations for Health and Human Services provides some insights and some guidance, and it is something I think we ought to accomplish. I have already asked consent my full statement be printed in the Record. I would ask the stenographer to print it out exactly as if I read it. Sometimes it appears in smaller type, so I would like it in big type and, with the explanation I have given, people will understand why there is some repetition between these extemporaneous comments and the written text. Mr. President, there is no doubt America is in need of major health care reform. With a reported 47 million people without health insurance the status quo is not acceptable. Additionally, there are millions more Americans who are underinsured, with health insurance that is inadequate to cover their needs. Families are forced to make tough sacrifices in order to pay medical expenses or make the agonizing choice to go without health care coverage. There are far too many Americans whose financial and physical health is jeopardized by the rising costs of health care. In the coming weeks and months Congress will consider health care reform which seeks to address the health care crisis, by addressing access to quality care, wellness programs and payment improvements. We need to agree on a balanced, common sense solution that reins in costs, protects the personal doctor-patient relationship and shifts our focus to initiatives in preventive medicine and research. I believe that ensuring all Americans have access to quality, affordable health care coverage is essential for the health and future of our Nation. The creation of an insurance pooling system, such as the one established in Massachusetts in 2006, could serve as a model to provide health insurance to all individuals. The Massachusetts program created a connector which allowed individuals to group together to improve purchasing power to achieve affordable, quality coverage for the entire population and to equitably share risk. However, Congress must be mindful of the cost of providing this care and reforms should not affect those who want to maintain their current insurance through their employer. Health reform legislation should include health benefit standards that promote healthy lifestyles, wellness programs and provide preventive services and treatment needed by those with serious and chronic diseases. Health care coverage must be affordable with assistance to those who do not have the ability to pay for health care. While I am concerned about a requirement to obtain health insurance, I understand that without it, health providers are forced to write off expensive, uncompensated care that we all pay in the form of higher premiums. In reforming health care we must work to ensure equity in health care access, treatment, and resources to all people and communities regardless of geography, race or preexisting conditions. The effort to improve health care should improve care in underserved communities in both urban and rural areas. The effect of these reforms on employers and providers must be kept in mind. Affordable and predictable health costs to businesses and employers and effective cost controls that promote quality, lower administrative costs and long-term financial sustainability should be a part of these reforms. Payment reforms for physicians and other health providers should reflect the cost of providing health care so that there will be providers in the future. This legislation will present an opportunity to address a number of other health related issues, including fraud and abuse in the health care industry, advanced directives, medical research and Medicare reforms. These ideas are an outline for health care reform legislation, which I believe can benefit all Americans. I am eager to discuss these ideas and look forward to hearing from constituents, colleagues and interested parties on all aspects of health care reform. On March 5, 2009, at the request of President Obama, I participated in the White House Forum on Health Reform. During this forum, my colleagues from the Senate and House of Representatives and other health care interest representatives shared priorities and concerns for health care reform. This open process helped flush out ideas and develop a path for reform. Since that time, regional forums have been held throughout the country so more voices can be heard on this important issue and President Obama has worked closely with those representing all health care sectors to find common ground on reform. This effort was highlighted on May 12, 2009, by an agreement with executives of a number of groups, including the Service Employees International Union and PhRMA, to provide $2 trillion in health care savings. While the White House Health Forum was a bipartisan event, I am concerned that the passage of health reform legislation could be lost to partisanship. The effort to bring about health reform can and should be a bipartisan effort. As a cosponsor of the Healthy Americans Act, introduced by Senators Wyden and Bennett and cosponsored by seven Democrats and four Republicans, I have firsthand experience with finding common ground on health care. From the outset, the goal for passage of this legislation should be to have 80 Senators vote in support of it. Recently Senator Grassley, after a lunch with President Obama, noted that ``the White House prefers a bipartisan agreement.'' While some people have indicated they would prefer a bill passed by 51 percent, the White House's sentiments are encouraging. We have to try to get as broad a base as possible to get a bill passed. The most talked about issue to date is that of a public plan or Government-operated program competing against private plans in the insurance market. A starting point for discussion on this issue could be the proposal made by Senator Schumer on May 4, 2009, which seeks to maintain a level playing field between the private sector and any public plan. The proposal holds that any public program should comply with all the rules and standards by which the private insurers must abide. The principles include that the public plan should be self- sustaining through premiums and co-pays. Further, the public plan should not be subsidized by Government funds and must maintain a reserve fund as private insurers do; not require health care providers to participate because they participate in Medicare and payments to providers must be higher than Medicare; be required to offer the same minimum benefits as private plans; and be managed by different officials than those regulating the insurance market. I recently spoke with Senator Enzi about this issue and he raised some concerns regarding fair competition between private and public plans. Specifically, he was concerned that there wouldn't be a level playing field as the Government doesn't have to make a profit, whereas private companies do. Further, if the public plan becomes insolvent will the Government intervene? I agree that competition lies at the heart of any successful market economy and these concerns and others need to be addressed as we discuss and consider a public plan option. There are many variations in which a public plan could be brought forward, including offering it as a fallback if no private insurers are willing to provide coverage in a region. In Pennsylvania, a State administered insurance program for doctors and hospitals was established to provide access to medical malpractice insurance. This program could be phased out if the insurance commissioner certifies, pursuant to annual review, that sufficient private insurance capacity exists. These principles could be extended to a public plan offered to individuals. Whereby a public plan could be put into place subject to annual certification by the Secretary of Health and Human Services that a public plan is necessary to provide stable and affordable health insurance; if it isn't needed then the Government plan shall be privatized or eliminated. This issue will be hotly debated as health reform moves forward. As we begin, let me be clear that I am opposed to placing a giant bureaucracy between a doctor and patient regarding health decisions. Americans should be able to get treatment when they need it, and I will work to protect this right as we move forward. As I have stated, I am open to discussing the best method in which to cover all Americans, including considering a public plan option and look forward to examining all of the options with my colleagues as the legislation progresses. Another issue that will be the focus of great debate will be the cost of the legislation. Until bill language is produced by the Finance and HELP Committees, it will be difficult to determine the cost of health reform. A recent estimate of this reform is $120 billion per year, which is, by all standards, a large sum. However, the cost of inaction may be far greater. The United States spent approximately $2.2 trillion on health care in 2007, or $7,421 per person. This comes to 16.2 percent of gross domestic product, nearly twice the average of other developed nations. Every effort to find cost saving proposals that can also bring improvements to health reform should be included in this legislation. The National Institutes of Health--NIH--is the crown jewel of the Federal Government and is responsible for enormous strides in combating the major ailments of our society including heart disease, diabetes, cancer, Alzheimer's, and Parkinson's diseases. I believe continued funding for the NIH and medical research should be another tenet of the health care debate. The NIH provides funding for biomedical research at our Nation's universities, hospitals, and research institutions. I along with Senator Harkin led the effort to double funding for the NIH from 1998 through 2003. When I became chairman of the Labor, Health and Human Services and Education Appropriations Subcommittee in 1996, funding for the NIH was $12 billion; in fiscal year 2009 funding was increased to $30 billion. Regrettably, Federal funding for NIH has steadily declined from the $3.8 billion increase provided in 2003, when the 5-year doubling of NIH ended. To jumpstart the funding in NIH, I worked to include a provision in the American Recovery and Reinvestment Act to increase NIH funding by a total of $10 billion. NIH research has provided tremendous benefits to many individuals with diseases. The following are examples of the cost of and success in reducing cancer deaths and cardiovascular disease. Cancer: The NIH estimates overall costs of cancer in 2007 at $219.2 billion: $89 billion for direct medical costs; $18.2 billion for lost productivity due to illness; and $112 billion for loss of productivity due to premature death. Breast Cancer: Breast cancer death rates have steadily decreased in women since 1990. The 5-year relative survival for localized breast cancer has increased from 80 percent in the 1950s to 98 percent today. If the cancer has spread regionally, the current 5-year survival is 84 percent. Childhood cancer: For all childhood cancers combined, 5-year relative survival has improved markedly over the past 30 years, from less than 50 percent before the 1970s to 80 percent today. Leukemia: Death rates have decreased by about 0.8 percent per year since 1995. For acute lymphocytic leukemia, the survival rate has increased from 42 percent in 1975-1977 to 65 percent in 1996-2003. Lymphoma: The 5-year survival rates for Hodgkin's lymphoma has increased dramatically from 40 percent in 1960-1963 to more than 86 percent in 1996-2003. For non-Hodgkin's lymphoma, the survival rates have increased from 31 percent in 1960-1963 to 63.8 percent in 1996- 2003. Prostate Cancer: Over the past 25 years, the 5-year survival rate has increased from 69 percent to almost 99 percent. Cardiovascular disease: According to the American Heart Association, the estimated direct and indirect cost of cardiovascular disease in the United States in 2008 was $448.5 billion. Coronary artery disease: Between 1994 and 2004, the number of deaths from coronary artery disease declined by 18 percent. Stroke: Between 1995 and 2005, the number of stroke deaths declined 13.5 percent. These are tremendous accomplishments and more must be done to build on our advancements. We ought to include the $10 billion in stimulus money in the NIH base funding level to see to it that the funding was not just a one-time shot. The $10 billion that was provided in the stimulus package for NIH was for a 2-year period; however, I feel that that $10 billion should be added to the $30 billion already appropriated in fiscal year 2009. I support a funding level of $40 billion for fiscal year 2010 which would require raising the appropriation by another $5 billion. Scientists have approached me with stories of how NIH grant applications have skyrocketed since the NIH funding increase in the American Recovery and Reinvestment Act and that the boost has encouraged a new generation of scientists to dedicate themselves to medical research. The effort to increase NIH funding should also be matched by an effort to translate scientific discoveries in the laboratory to the patient's bedside. To meet this need, I introduced S. 914, to establish the cures acceleration network--CAN. This $2 billion network would be a separate independent agency and would not take research dollars away from the NIH. The network would make research awards to promising discoveries. The grant projects would also have a flexible expedited review process to get funds into the hands of scientists as quickly as possible. Drugs or devices that were funded by the CAN--would benefit from a streamlined FDA review to speed up the approval process for patient use. Implementing this legislation as part of health reform would enhance the important research of NIH by bridging the chasm between a basic scientific discovery and new health care treatments. The issue of end of life treatment is such a sensitive subject and no one should decide for anyone else what decision that person should make for end-of-life medical care. Advanced directives give an individual an opportunity to make the very personal decision as to the nature of care a person wants at the end of their life. That is, to repeat, a highly personalized judgment for the individual. Advanced directives should be examined because of the great expense of end of life care. Statistics show that 27 percent of Medicare expenditures occur during a person's last year of life. Beyond the last year of life, a tremendous percentage of medical costs occur in the last month, weeks and days. It has been estimated that the use of advanced directives could save 6 percent of all Medicare spending or $24 billion in 2008. Individuals should have access to information about advanced directives. As part of a public education program, I included an amendment to the Medicare Prescription Drug and Modernization Act of 2003, which directed the Secretary of Health and Human Services to include in its annual ``Medicare and You'' handbook, a section that specifies information on advanced directives, living wills, and durable powers of attorney. As the former ranking member and chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I worked to ensure that this information continues to be published in the ``Medicare and You'' handbook. There are many ways which have been discussed to improve the use of advanced directives. One approach could be to increase education for beneficiaries. It has also been suggested that filling out an advanced directive could be a requirement for joining Medicare. Another suggestion I received was to provide a discount on Medicare Part B premiums for those who fill out an advanced directive. While efforts to inform beneficiaries have improved, including a requirement that the issue be discussed at the beneficiaries' introductory Medicare exam, more must be done to increase usage of advanced directives. On this front, I am eager to explore and analyze the range of possibilities while ensuring that individuals and their families' sensitivities surrounding the end of life care receive paramount priority. Some of the most prevalent diseases of today can be prevented by small changes in people's behavior. For example, 30 minutes of moderate physical activity each day, the equivalent of a brisk walk, can reduce the risk of a heart attack by up to 50 percent. Increasing one's fruit and vegetable consumption can reduce the risk of colon cancer by up to 50 percent. Obese and overweight individuals suffering metabolic syndrome and Type 2 diabetes showed health improvements after only 3 weeks of diet and moderate exercise. Health care reform should include policies that encourage people to make responsible decisions about their health and create environments to do so. The health benefits are real, achievable, measurable, and cost effective. One way in which to encourage healthy behavior is through health education in schools, which is proven to reduce the prevalence of health risk behaviors among young people. For example, health education resulted in a 37 percent reduction in the onset of smoking among 7th graders. In addition, obese girls in the 6th and 8th grades lost weight through a health education program, and students who attended a school- based life-skills training program were less likely than other students to smoke or use alcohol or marijuana. Funding community-based health programs could also be a tenet of health reform. In July 2008, the Trust for America's Health stated that an investment of $10 per person per year in proven community-based programs to increase physical activity, improve nutrition, and prevent smoking and other tobacco use could save the country more than $16 billion annually within 5 years. This is a return of $5.60 for every $1 invested. Opportunities to save money on the cost of health care through education and proactive community based prevention programs should be included in health reform legislation. Surveying recent caselaw reveals that individual criminals convicted of health care fraud can be sentenced to anywhere from 5 to 13 years in prison, substantial penalties and supervised release for a period of years. In any health care reform proposal, I believe we must address the significant potential for people of ill will and profit motives to defraud the Government at the expense of the taxpayers. Therefore, I will push hard for enhanced sentences with real jail time for white collar fraudsters. As the chairman of the Crime and Drug Judiciary Subcommittee, I will push for consideration of sentencing enhancements as at least one alternative and, where appropriate, lengthy jail sentences where the financial losses to the Government are great. It would be intolerable for criminals to defraud the Government of millions of dollars only to have to pay a fine that amounts to the cost of doing business. According to the National Insurance Crime Bureau and the National Health Care Anti-Fraud Association, the annual loss from health fraud is 10 percent of the $2.2 trillion spent annually on health care, or $220 billion. This amount of fraud must be identified and warrants real jail time, which should be taken up in this reform. Health care reform provides an opportunity to correct a longstanding problem in the Medicare payment system. In determining the payments to hospitals for services, Medicare takes into account the location of a hospital and how much those employees are paid. It is understandable that some areas of the country, where the cost of living is higher, should be reimbursed at higher levels. However, the current system has led to many imbalances that have left some areas of the country disadvantaged. In Pennsylvania, for example, the Scranton--Wilkes-Barre area and Allegheny Valley have received decreasing Medicare payments, which have forced a pay reduction to employees and a reduction in services to patients that rely on them. Last year, the Medicare Payment Advisory Commission--MedPAC--released a report calling for the system to be reformed. The commission stated that the current system created ``cliffs'' in payments, which resulted in arbitrary changes in payments in neighboring areas. These disparities can affect competition for employees and will harm services to Medicare beneficiaries. This legislation must include the reforms supported by MedPAC to correct this serious problem of inequity. The health care crisis in our country endangers the health of our people, our economic viability and our future stability. Now, more so than ever before, it is critical that we pass legislation to ensure all Americans have access to quality and affordable health care. This undertaking requires prompt and effective action. I remain open to ideas on how to accomplish this exceptional task and look forward to working with my colleagues to determine the best path to do so. In the absence of any Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, the bill that I am introducing today would authorize the establishment of the Cures Acceleration Network, CAN. This new $2 billion agency would provide funds to translate research discoveries from the bench to the bedside and would operate as an independent agency. It would not be part of the Department of Health and Human Services. The CAN would make awards outside of the traditional funding stream to accelerate the development of cures and treatments including but not limited to drugs, devices, and behavioral therapies. The CAN would have a flexible expedited review process to get monies into the hands of the grantees as quickly as possible. These development funds would complement the research dollars provided to the National Institutes of Health, NIH, and would not compete or take monies away from the NIH. The bill also would raise the authorization level of the National Institutes of Health to $40 billion in fiscal year 2010, elevate the Center for Minority Health and Health Disparities to Institute status, and implement a new conflict-of-interest provision. While the NIH funds much of the basic biomedical research at universities across the country, the CAN would take those findings found through basic research and provide funding to fill the gap between laboratory discoveries and life-saving medical therapies. This funding gap--often referred to as ``the valley of death'' arises after Federal basic-science support ends and before investors are willing to commit to a promising discovery. Very often finding funds to fill this gap is a daunting challenge, especially during a period of economic downturn, when investors have fewer resources to invest. This has had a severe impact on America's biotechnology industry. The need for the CAN is clear: Capital raised by America's biotechnology companies fell 55 percent in 2008 compared to 2007. Also relative to 2007, 90 percent of small public biotechnology companies are now operating with less than 6 months of cash on hand. In the last 5 months alone, at least 24 U.S. public biotech companies have either placed drug development programs on hold or cut programs altogether. These companies have postponed clinical trials to treat melanoma, cervical cancer, lupus, chemotherapy side effects for breast cancer patients, multiple sclerosis, diabetes and atherosclerosis, drug trials to treat non-Hodgkin's lymphoma, testing of pandemic flu vaccine, trials to treat plaque psoriasis and heart disease, and a treatment for mesothelioma. In short, without adequate funding--these companies will be unable to take these products to the development stage, the basic research done by the NIH will be lost, and many patients will die waiting for drugs and devices to give them a better quality of life. The CAN would fund two types of grant awards, each with an authorization of $1 billion in the first year and additional funds in succeeding fiscal years. The Cures Acceleration Grant Awards will provide grant awards of up to $15 million per year per project with out-year funding available. These awards would be available to applicants who do not have access to private matching funds. The Cures Acceleration Partnership Awards also would provide grants for up to $15 million per year per project with additional funds available in the out-years. However, grant awards would require a match of three Federal dollars to one grantee dollar, as a way to partially offset development costs. For both grant types, the CAN Board may waive the award limitation as well as modify the matching requirement. Eligible grantees would include public or private entities such as institutions of higher education, medical centers, biotechnology companies, universities, patient advocacy organizations, pharmaceutical companies and academic research institutions. To provide for expedited FDA approval, the grantees must also establish protocols that comply with FDA standards to meet regulatory requirements at all stages of development, manufacturing, review, approval and safety surveillance of a medical product. The provisions of the Bayh-Dole Act would apply. The CAN grant proposals would be evaluated by a 24-member board comprised of experienced individuals of distinguished achievement, and representative of a broad range of disciplinary interests including: venture capitalists and business executives with experience in managing scientific enterprises; scientists with expertise in the fields of basic research, biopharmaceuticals, drug discovery, drug delivery of medical products, bioinformatics, gene therapy or medical instrumentation, regulatory review and approval of medical products; and representatives of patient advocacy organizations. The Chairman and Vice Chairman of the CAN shall be appointed by the President with the advice and consent of the Senate. The term of office of each member of the Board shall be 2 years. The CAN board also will include ex-officio members representing the National Institutes of Health, the Food and Drug Administration and the Department of Defense, the Department of Veterans Affairs and the National Science Foundation. The CAN board will meet four times each calendar year, with 12 board members and representatives of the ex-officio members present at each meeting. The board will be supported by an executive director and other employees that the Board deems necessary to ensure efficient operation of the CAN. The Chairman of the CAN shall have authority to enter into an interagency agreement with the Center for Scientific Review at the National Institutes of Health to utilize advisory panels to review applications, and to make recommendations to the CAN. The increases that have been made in medical research over the past 20-30 years have dramatically improved the survival rates for many diseases--deaths from coronary artery disease declined by 18 percent between 1994 and 2004. Stroke deaths also fell by 24.2 percent during that same time period. The five-years survival rates for Hodgkin's lymphoma have increased from 4 percent in the 1960s to more than 86 percent today. Survival rates for localized breast cancer have increased from 80 percent in the 1950s to 98 percent today. Over the past 25 years, survival rates for prostate cancer have increased from 69 percent to almost 99 percent. So we are seeing real progress. But for many other maladies, the statistics are not so good. These medical advances do not happen overnight. It takes time and money for research institutions to develop scientists skilled in the latest research techniques and to develop the costly infrastructure where research takes place. Regrettably, Federal funding for NIH has steadily declined from the $3.8 billion increase provided in 2003--when the 5-year doubling of that agency was completed. Had we provided sustained increases of $3.5 billion per year, plus inflation since 2003, we would have $23 billion more in funding for today. The shortfall due to inflationary costs alone is $5.2 billion. This flagging investment in medical research, many believe, served to discourage bright young investigators from entering this field of study. The $10 billion for the National Institutes of Health that was included in stimulus package provided an immediate infusion of new research dollars for medical research. While these funds will only make up for a portion of what was lost since 2003, it is a step in the right direction. But much remains to be done. Additional dollars must be found for the 2010 appropriation and beyond. The $40 billion contained in the legislation that I am introducing today will help to re-energize our investment in medical research, support a new generation of young scientists and invest in the health of our Nation. The bill also contains a provision which requires the Director of NIH to enforce conflict-of-interest policies, requiring primary investigators with financial interests to provide a detailed report how the grant recipient will manage the investigator's conflict-of- interest. The legislation also elevates the National Center for Minority Health and Health Disparities to Institute status, a designation that will lead to more resources to address the health status of minority and other medically underserved communities. While some might argue that at a time when our economy is struggling we cannot afford to invest more in medical research. The fact is that research offers the only hope of saving lives, allowing our citizens to lead longer, more productive lives and saving billions of dollars in health care cost. To those critics I would say we cannot afford not to invest in medical research. This is not simply good social policy; it is good economic policy as well. Mr. President, I ask unanimous consent that the text of the bill and a list of supporters be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, the bill that I am introducing today would authorize the establishment of the Cures Acceleration Network, CAN. This new $2 billion agency would provide funds to translate research discoveries from the bench to the bedside and would operate as an independent agency. It would not be part of the Department of Health and Human Services. The CAN would make awards outside of the traditional funding stream to accelerate the development of cures and treatments including but not limited to drugs, devices, and behavioral therapies. The CAN would have a flexible expedited review process to get monies into the hands of the grantees as quickly as possible. These development funds would complement the research dollars provided to the National Institutes of Health, NIH, and would not compete or take monies away from the NIH. The bill also would raise the authorization level of the National Institutes of Health to $40 billion in fiscal year 2010, elevate the Center for Minority Health and Health Disparities to Institute status, and implement a new conflict-of-interest provision. While the NIH funds much of the basic biomedical research at universities across the country, the CAN would take those findings found through basic research and provide funding to fill the gap between laboratory discoveries and life-saving medical therapies. This funding gap--often referred to as ``the valley of death'' arises after Federal basic-science support ends and before investors are willing to commit to a promising discovery. Very often finding funds to fill this gap is a daunting challenge, especially during a period of economic downturn, when investors have fewer resources to invest. This has had a severe impact on America's biotechnology industry. The need for the CAN is clear: Capital raised by America's biotechnology companies fell 55 percent in 2008 compared to 2007. Also relative to 2007, 90 percent of small public biotechnology companies are now operating with less than 6 months of cash on hand. In the last 5 months alone, at least 24 U.S. public biotech companies have either placed drug development programs on hold or cut programs altogether. These companies have postponed clinical trials to treat melanoma, cervical cancer, lupus, chemotherapy side effects for breast cancer patients, multiple sclerosis, diabetes and atherosclerosis, drug trials to treat non-Hodgkin's lymphoma, testing of pandemic flu vaccine, trials to treat plaque psoriasis and heart disease, and a treatment for mesothelioma. In short, without adequate funding--these companies will be unable to take these products to the development stage, the basic research done by the NIH will be lost, and many patients will die waiting for drugs and devices to give them a better quality of life. The CAN would fund two types of grant awards, each with an authorization of $1 billion in the first year and additional funds in succeeding fiscal years. The Cures Acceleration Grant Awards will provide grant awards of up to $15 million per year per project with out-year funding available. These awards would be available to applicants who do not have access to private matching funds. The Cures Acceleration Partnership Awards also would provide grants for up to $15 million per year per project with additional funds available in the out-years. However, grant awards would require a match of three Federal dollars to one grantee dollar, as a way to partially offset development costs. For both grant types, the CAN Board may waive the award limitation as well as modify the matching requirement. Eligible grantees would include public or private entities such as institutions of higher education, medical centers, biotechnology companies, universities, patient advocacy organizations, pharmaceutical companies and academic research institutions. To provide for expedited FDA approval, the grantees must also establish protocols that comply with FDA standards to meet regulatory requirements at all stages of development, manufacturing, review, approval and safety surveillance of a medical product. The provisions of the Bayh-Dole Act would apply. The CAN grant proposals would be evaluated by a 24-member board comprised of experienced individuals of distinguished achievement, and representative of a broad range of disciplinary interests including: venture capitalists and business executives with experience in managing scientific enterprises; scientists with expertise in the fields of basic research, biopharmaceuticals, drug discovery, drug delivery of medical products, bioinformatics, gene therapy or medical instrumentation, regulatory review and approval of medical products; and representatives of patient advocacy organizations. The Chairman and Vice Chairman of the CAN shall be appointed by the President with the advice and consent of the Senate. The term of office of each member of the Board shall be 2 years. The CAN board also will include ex-officio members representing the National Institutes of Health, the Food and Drug Administration and the Department of Defense, the Department of Veterans Affairs and the National Science Foundation. The CAN board will meet four times each calendar year, with 12 board members and representatives of the ex-officio members present at each meeting. The board will be supported by an executive director and other employees that the Board deems necessary to ensure efficient operation of the CAN. The Chairman of the CAN shall have authority to enter into an interagency agreement with the Center for Scientific Review at the National Institutes of Health to utilize advisory panels to review applications, and to make recommendations to the CAN. The increases that have been made in medical research over the past 20-30 years have dramatically improved the survival rates for many diseases--deaths from coronary artery disease declined by 18 percent between 1994 and 2004. Stroke deaths also fell by 24.2 percent during that same time period. The five-years survival rates for Hodgkin's lymphoma have increased from 4 percent in the 1960s to more than 86 percent today. Survival rates for localized breast cancer have increased from 80 percent in the 1950s to 98 percent today. Over the past 25 years, survival rates for prostate cancer have increased from 69 percent to almost 99 percent. So we are seeing real progress. But for many other maladies, the statistics are not so good. These medical advances do not happen overnight. It takes time and money for research institutions to develop scientists skilled in the latest research techniques and to develop the costly infrastructure where research takes place. Regrettably, Federal funding for NIH has steadily declined from the $3.8 billion increase provided in 2003--when the 5-year doubling of that agency was completed. Had we provided sustained increases of $3.5 billion per year, plus inflation since 2003, we would have $23 billion more in funding for today. The shortfall due to inflationary costs alone is $5.2 billion. This flagging investment in medical research, many believe, served to discourage bright young investigators from entering this field of study. The $10 billion for the National Institutes of Health that was included in stimulus package provided an immediate infusion of new research dollars for medical research. While these funds will only make up for a portion of what was lost since 2003, it is a step in the right direction. But much remains to be done. Additional dollars must be found for the 2010 appropriation and beyond. The $40 billion contained in the legislation that I am introducing today will help to re-energize our investment in medical research, support a new generation of young scientists and invest in the health of our Nation. The bill also contains a provision which requires the Director of NIH to enforce conflict-of-interest policies, requiring primary investigators with financial interests to provide a detailed report how the grant recipient will manage the investigator's conflict-of- interest. The legislation also elevates the National Center for Minority Health and Health Disparities to Institute status, a designation that will lead to more resources to address the health status of minority and other medically underserved communities. While some might argue that at a time when our economy is struggling we cannot afford to invest more in medical research. The fact is that research offers the only hope of saving lives, allowing our citizens to lead longer, more productive lives and saving billions of dollars in health care cost. To those critics I would say we cannot afford not to invest in medical research. This is not simply good social policy; it is good economic policy as well. Mr. President, I ask unanimous consent that the text of the bill and a list of supporters be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation that will mandate Supreme Court review of challenges to the warrantless wiretapping program authorized by President Bush after 9/ 11, commonly known as the Terrorist Surveillance Program or TSP. While the Supreme Court generally exercises discretion as to whether it will review a case or grant ``certiorari,'' there are precedents for Congress to direct Supreme Court review on constitutional issues-- including the statutes forbidding flag burning and requiring Congress to abide by Federal employment laws--and the gravity of this issue merits Congressional action. In August 2006, Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan issued a 43-page opinion finding the TSP unconstitutional. At the time, many applauded and many others criticized her decision, but we have yet to see appellate review on the merits. Instead, in July 2007, the U.S. Court of Appeals for the 6th Circuit overturned the district court's decision on other grounds. By a 2-1 vote, in ACLU v. NSA, it declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit. The Supreme Court then declined to hear the case, even though the doctrine of standing has enough flexibility, as demonstrated by the dissent in the 6th Circuit, to have enabled it to take up this fundamental clash between Congress and the President. With the Supreme Court abstaining, another lone district judge took a stand. In In re National Security Agency Telecommunications Records Litigation, Chief Judge Vaughn Walker in the Northern District of California considered a case brought by an Islamic charity that claims to have been a subject of the surveillance program. In a 56-page opinion he held that Congress's enactment of the Foreign Intelligence Surveillance Act of 1978, FISA, had constrained the President's inherent authority--if any--to conduct warrantless wiretapping: ``Congress appears clearly to have intended to--and did--establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities.'' Nevertheless, this finding is preliminary. Whatever Chief Judge Walker ultimately decides, my bill will permit any party who is disaffected by a subsequent decision in the Ninth Circuit to have the case heard by the Supreme Court by eliminating discretionary review. Under my bill, the Supreme Court would also have to review appeals concerning the constitutionality or legality of: the Terrorist Surveillance Program writ large; the statutory immunity for telecommunications providers created by Title II of the FISA Amendments Act of 2008; and any other intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending at such time as the activity was approved by a Federal court. Relying on similar precedents, the bill requires the High Court to expedite its consideration of such cases. The bill, however, is limited to circumstances where the Court has not previously decided the question at issue. Thus, it does not create a permanent right of review for all similarly situated parties, but it does require the Court to take up the matter in the first instance. Congress clearly has the power to require appellate review by the Supreme Court under Article III, Section 2 of the Constitution, and it has exercised this prerogative. For example, 28 U.S.C. Sec. 3904 provides for direct appeal to the Supreme Court of decisions ``upon the constitutionality'' of the Congressional Accountability Act if the Court ``has not previously ruled on the question'' and requires the Court to ``expedite the appeal.'' Congress used nearly identical language to provide for direct appeal and expedited Supreme Court review of the constitutionality of a ban on flag burning in 18 U.S.C. Sec. 700. I propose similar action here. It is hard to conceive of a better case to have finally decided in the Supreme Court than one which challenges the legality of warrantless wiretapping--or the constitutionality of the retroactive statutory defenses passed by Congress last year. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent to proceed for up to 10 minutes as in morning business.

Mr. SPECTER. I have sought recognition to introduce three bills relating to limiting Executive power. Because of the past period of time since 9/11, we have seen enormous expansion of Executive power. We have seen the President, during President George W. Bush's administration, use signing statements extensively. We have seen President Obama use a signing statement already in his short tenure, which, in effect, nullifies what the Congress has done. The Constitution is plain that there is a presentment of legislation to the President and he either signs it or vetoes it. What we have found is that Presidents are now cherry-picking the parts they like and the parts they don't like. So I am submitting legislation on Presidential signing statements. The second issue of concern involves the immunity for the telephone companies which would deprive Federal jurisdiction for some 40 cases. I believe telephone companies have been good citizens in providing very important information. I believe there is a way to maintain the jurisdiction of the Federal courts and still not subject the telephone companies to litigation or possible damages by having the Government substituted as the party defendant. I am introducing legislation on that subject. Third, I am introducing legislation that would establish a requirement that the Supreme Court of the United States take jurisdiction on all appeals involving the terrorist surveillance program. That program has caused a great deal of controversy because of the issue as to whether the President has authority under article II to ignore the explicit provisions of the Foreign Intelligence Surveillance Act. The terrorist surveillance program, was declared unconstitutional by a Federal court in Detroit. An appeal taken to the Sixth Circuit was dismissed for reasons of lack of standing. The forceful dissenting opinion in that case showed that there was sufficient basis for standing--a very flexible judicial doctrine. The Supreme Court of the United States denied certiorari, so at this point, we don't know whether the President's exercise of authority there under article II of the Constitution is correct. Certainly, if the President has that constitutional authority, it supercedes the statute. But that is a matter which should have been decided a long time ago by the Supreme Court, and the Supreme Court has avoided moving on that subject. Today, I have an article I have offered on executive power. It appears today in the New York review of books, where I outline my intent to introduce these pieces of legislation. The article comes from a longer floor statement I had prepared. It has been reduced somewhat in size. In the 7\1/2\ years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, in derogation of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new President will support. First, I intend to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion as to whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues--including the statutes forbidding flag burning and requiring Congress to abide by Federal employment laws--and I will follow those. Second, I will reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008, this issue may yet be successfully revisited since the courts have not yet ruled on the legality of the immunity provision. My legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded. Further, I will reintroduce my legislation from 2006 and 2007--the Presidential Signing Statements Act--to prohibit courts from relying on, or deferring to, Presidential signing statements when determining the meaning of any act of Congress. These statements, sometimes issued when the President signs a bill into law, have too often been used to undermine congressional intent. Earlier versions of my legislation went nowhere because of the obvious impossibility of obtaining two-thirds majorities in each House to override an expected veto by President Bush. Nevertheless, in the new Congress, my legislation has a better chance of mustering a majority vote and being signed into law by President Obama. To understand why these steps are so important, one must appreciate an imbalance in our ``checks and balances'' that has become increasingly evident in recent years. I witnessed firsthand, during many of the battles over administration policy since September 11, how difficult it can be for Congress and the courts to rally their members against an overzealous executive. The Terrorist Surveillance Program--Act I As chairman of the Senate Judiciary Committee from 2005 to 2007, I led the effort to reauthorize and improve the 2001 USA PATRIOT Act, which was originally set to expire at the end of 2005. Indeed, after intensive bipartisan negotiations, the Judiciary Committee succeeded-- to the surprise of most observers--in approving a revised bill by unanimous vote. The full Senate then approved the bill by unanimous consent, but the conference report negotiated with the House of Representatives faced stiffer opposition. Nevertheless, after days of floor debate, I awoke on December 16, 2005, fully expecting to finish Senate action on the long-delayed reauthorization. So, I was startled--really shocked--to read the lead story in the New York Times that morning, titled ``Bush Lets US Spy on Callers Without Courts,'' which revealed that our intelligence agencies had been engaged in warrantless wiretapping since shortly after September 11, in flat violation of the Foreign Intelligence Surveillance Act--FISA--of 1978. This is James Risen and Eric Lichtblau, ``Bush Lets U.S. Spy on Callers Without Courts,'' the New York Times, December 16, 2005. The news caused the Senate to delay passage of the PATRIOT Act reauthorization for months. Senator Charles Schumer expressed the sentiments of many: ``I went to bed last night unsure of how to vote on this legislation. . . . Today's revelation that the Government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote.'' More importantly, the disclosure in the Times launched a fierce debate about the extent of Presidential authority in the war on terror that has yet to be fully resolved. That day, I assured my colleagues the reports would be a ``matter for oversight by the Judiciary Committee . . . a very high priority item.'' When Congress reconvened in January 2006, I made good on my promise: I held multiple hearings into the program the Times revealed, later dubbed the Terrorist Surveillance Program. As acknowledged by President Bush, this highly classified program launched in the weeks after September 11 purported to authorize the National Security Agency to intercept phone calls between terror suspects overseas and persons inside the United States. Critics like me argued that the President's program violated FISA. After all, the law declared the procedures set up by FISA to be the ``exclusive means'' by which such surveillance of telephone calls and other communications could be conducted. FISA also made criminal all domestic electronic surveillance designed to obtain foreign intelligence ``except as authorized by statute.'' Although the law defined limited exceptions in emergencies, reports in the press made it clear that none of them applied to the warrantless wiretapping that was done in the Terrorist Surveillance Program. I recognized that, as administration supporters argued, the President might have inherent power to disregard FISA and to conduct unfettered foreign intelligence surveillance under article II of the Constitution, the section that defines his authority as Commander in Chief. I was not, however, sympathetic to the administration's further argument that Congress had implicitly authorized the President to carry out programs such as the Terrorist Surveillance Program when it authorized the use of military force against terrorists in September 2001. I was also convinced that President Bush's failure to notify Congress of the secret program violated provisions of the National Security Act of 1947. That statute requires the President to ``ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States.'' But the administration informed only eight legislators of the Terrorist Surveillance Program: the chairman and ranking members of the Senate and House Intelligence Committees, and the two top leaders in the majority and minority of both Houses, leaving out both me and Senator Patrick Leahy as chair and ranking member of the Judiciary Committee, despite the fact that when FISA was enacted in 1978, it went through both the Intelligence and Judiciary Committees. While the law explicitly permits notice to this limited ``Gang of 8'' for certain covert operations--such as efforts to influence political conditions abroad without disclosing the U.S. role--the Terrorist Surveillance Program did not fit this exception. Indeed, those notified were very uneasy about the arrangement. Senator Jay Rockefeller, then ranking member on the Intelligence Committee, sent a secret handwritten letter to the Vice President saying the administration's surveillance activities ``raised profound oversight issues'' on which, owing to the arrangement, Rockefeller could not ``consult staff or counsel.'' A sealed copy of the letter had to be stored in a classified Senate area for over 2 years until knowledge of the Terrorist Surveillance Program became public. Once the story broke, Representative Jane Harman, who as ranking member of the House Intelligence Committee was another Gang of 8 member, informed President Bush that she believed ``the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947.'' I raised this issue in a January 24, 2006, letter sent to Attorney General Alberto Gonzales in advance of the first Judiciary Committee hearing on the Terrorist Surveillance Program. Gonzales replied: ``It has for decades been the practice of both Democratic and Republican administrations to inform only the Chair and Ranking Members of the intelligence committees about certain exceptionally sensitive matters. The attorney general added that, according to the Congressional Research Service, the leaders of the intelligence committees had acquiesced in this practice. In my view, Gonzales's argument could appeal only to those unacquainted with the ways the executive branch has, in practice, dealt with the intelligence committees. Administrations of both parties have sometimes told the chair and ranking member that they have important information to disclose, but insisted that they will reveal this information only to some group within the committee and the top congressional leadership, such as the ``Gang of 8.'' In many cases, the offer is accepted as the only way of getting the information--at least in a timely manner. To the extent the administration relied on such precedents to justify notifying only the ``Gang of 8,'' it should have informed me and Senator Leahy as well. Indeed, administration officials briefed both of us on the Terrorist Surveillance Program when they later sought comprehensive FISA reform. It is quite glaring, then, that they neglected to brief us in 2005, even as we were considering reauthorization of the PATRIOT Act, which was central to the administration's counterterrorism efforts. In the spring of 2006, new allegations about the government's surveillance activities surfaced--not at congressional hearings, but again through leaks to the press. On May 11, 2006, USA Today reported that the National Security Agency had been ``secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.'' This is Leslie Cauley, ``NSA Has Massive Database of American's Phone Calls,'' USA Today, June 11, 2006. Although the records reportedly included only data like telephone numbers, rather than the contents of calls, the revelations stirred new controversy. One month later, on June 22, the Chicago Sun-Times reported that AT&T had changed its privacy policy to make customer data a ``business record the company owns,'' one that ``can be disclosed to [the] government. . . .'' This is Associated Press, AT&T Says it Can Disclose Account Data on Net, TV Clients, Chicago Sun Times, June 22, 2006, at 25. I was very interested in the legal basis for this assertion of ownership and what relationship it had, if any, to the reported disclosures of communications data to the government. As luck would have it, that very day, the Judiciary Committee's Antitrust Subcommittee was holding an unrelated hearing on the proposed merger of AT&T and BellSouth, featuring the firms' respective CEOs, Edward Whitacre Jr. and Duane Ackerman. I could not let the presence of these CEOs pass without confronting them on the surveillance program. I asked Mr. Whitacre whether his ``company provide[d] information to the Federal Government.'' He kept repeating that they ``follow the law''--a comment that I told him was ``contemptuous of this committee,'' because I was asking a factual question and he was offering a legal conclusion. Mr. Whitacre defended his answer on the grounds that he had spoken to a number of attorneys who advised him he could say nothing more. The episode did not go unnoticed. For example, under the headline ``Privacy flap engulfs hearing,'' the Atlanta Journal-Constitution detailed that ``a Senate hearing Thursday intended to explore the consumer impact of a proposed AT&T-BellSouth merger instead turned into a contentious face-off over phone privacy.'' (see Marilyn Geewax, AT&T Bellsouth Merger; Privacy Flap Engulfs Hearing; Panel Wonders About Use of Phone Records, Atlanta Journal-Constitution, June 23, 2006, at 4G. In truth, the matter merited its own hearing, but my efforts to hold one were thwarted by Vice President Cheney. Soon after the story broke, I announced my intention to schedule a hearing with the CEOs of the named carriers. I planned to either subpoena the companies or arrange a hearing closed to the public, which the telephone companies had agreed to attend without receiving a subpoena. Unfortunately, Vice President Cheney went behind my back to persuade all of the other Republicans on the committee not to support the subpoena and to boycott the session I had called to discuss a possible private hearing. In the face of this opposition, I had little choice but to agree to a proposal by Senator Orrin Hatch for a brief delay to give him an opportunity to solicit the administration's views on my bill to permit court oversight of the Terrorist Surveillance Program. When I announced this course of action at the executive session, a highly contentious debate ensued. Senator Leahy, long at odds with the Vice President, opined that since we were not going to ``find out independently'' what the government sought from the telecoms and instead wait ``for Dick Cheney to tell us what we should know'' that we might as well ``just recess for the rest of the year.'' On the other hand, Senator Dianne Feinstein reported that she would not vote for the subpoenas because the ``telephone companies who are trying to be a good citizen should not be held out to dry.'' As a member of both the Judiciary and Intelligence Committees, she added that ``it is very difficult for this committee to legislate without knowing the program'' and therefore the Intelligence Committee was the appropriate venue for legislation on the matter. Senator Dick Durbin, noting the absence of many Republicans, complained, ``I thought there would be a conversation about this, but apparently there will not be.'' He continued that the ``fortitude and strength [I] had shown in this committee, leading up through the month of May has ended in a June swoon.'' When this uncomfortable meeting--and the accompanying slings-- concluded, I drafted what I refer to as a ``lawyer's letter'' to the Vice President. I wrote: I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions en route from the buffet to my table. I concluded with a solemn warning: If an accommodation cannot be reached with the administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement. This spat proved great fodder for the editors. The lurid details were splashed across the pages of national newspapers around the country. The Los Angeles Times confided that the ``unusually public rupture between a senior GOP lawmaker and the White House'' provided ``a rare public glimpse of the tactics employed by a vice president who prefers to operate behind the scenes.'' It said I ``lashed out'' in a letter in an ``unusually harsh attack.'' This is Gregg Miller, Specter Says Cheney Tried to Derail Hearings, Los Angeles Times, June 8, 2006, at A6. The front page headline of The Hill screamed ``Specter Rebukes Cheney,'' and the Washington Post averred that the ``simmering tensions'' over the ``administrations tight-lipped position on the programs'' had finally ``boiled over.'' see Alexander Bolton, Specter Rebukes Cheney, The Hill, June 8, 2006, at 1; Michael A. Fletcher, Cheney Plays Down Dispute With Specter, Washington Post, June 9, 2006, at A4. Someone in Cheney's office must have been up all night, because I had my reply by mid-morning the next day. The White House, he said, was willing to negotiate in good faith. Extensive discussions culminated with a compromise bill and a July 11, 2006, meeting with President Bush in the Oval Office. The President agreed to submit the surveillance program to judicial review, but was insistent that the Senate not alter the agreed-upon terms. Usually, after securing such an agreement, one walks out of the Oval Office to the cameras and advertises it, but I chose to make the announcement at the committee's next executive session on July 13. My bill of 2006 to expand and revise FISA gave jurisdiction to the Foreign Intelligence Surveillance Court--the Intelligence Court--which was set up by the original FISA law to rule on surveillance requests by Federal agencies--to review the legality of the Terrorist Surveillance Program. Determining the constitutionality of the program would turn upon submissions to the Intelligence Court by the attorney general about its function and procedures, with particular attention to safeguards to ensure that the Terrorist Surveillance Program targeted suspected terrorists and not innocent Americans. The bill further required the attorney general to inform the House and Senate Intelligence Committees of all surveillance programs and created a new criminal offense for misuse of intercepted information. In return, the government was given additional flexibility with respect to the issuance and duration of emergency warrants. And in a nod to the administration, the bill also acknowledged that the president, as commander in chief, retains certain authority inherent in article II of the Constitution, although it left decisions about the scope of that authority to the courts. Some complained that I had ``sold out'' in making this deal. See, e.g., Jonathan Mahler, After the Imperial Presidency, N.Y. Times, November 9, 2008, Magazine, at MM42. These critics fail to appreciate the disadvantage Congress faces in resisting expansions of executive power. The Terrorist Surveillance Program was put into effect when President Bush signed a secret order in 2001. He did not need to hold any hearings or convince any colleagues. Vice President Cheney could rely on the fractious nature of the Senate, and the great influence of the executive, to easily kill the prospects for my planned subpoenas of the telephone companies. The administration's damage control, like the initial action, was swift and unilateral. By contrast, on the legislative side, we could not begin to act until we established a factual record through a series of hearings and secured consensus on a path forward. As committee chairman, I was battered by Senators on both sides in my efforts for oversight. On the right, there were members who touted Article II and party loyalty. They were inclined, at a minimum, to accept the strained arguments that the Authorization for Use of Military Force had authorized the Terrorist Surveillance Program, and that the failure to notify the full intelligence committees did not actually violate the National Security Act. On the left, there was genuine outrage at some administration tactics, but they were also in no hurry for compromise, no matter how favorable the terms. They were very cognizant of the fact that the longer they let the friction between the branches drag on, the worse it looked for Republicans and the better for them and their allies. For example, as the New York Sun reported in June 2006, ``[f]ear of government excess in the war on terror ha[d] driven membership rolls'' in the ACLU ``to more than 550,000 from less than 300,000,'' and the group's fundraising had ``surged.'' See Josh Gerstein, For ACLU's Anthony Romero, These Should Be Best Times, New York Sun, June 27, 2006. Ultimately, the Judiciary Committee approved my FISA reform bill on September 13, 2006, but in contrast to the bipartisan vote on the PATRIOT Act reauthorization a year earlier, there was a 10-8 party-line vote. A final vote on the Senate floor was never taken, largely because the House had settled on a different approach to the Terrorist Surveillance Program that did not authorize court review of the program. Once again, the inherent constraints on the bicameral legislative branch served to benefit the executive, as the President's surveillance program continued unabated throughout our internal debates. The courts fared no better at reining in the Terrorist Surveillance Program. In August 2006, Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan issued an opinion in ACLU v. NSA, finding the program unconstitutional. Almost a year later, in July 2007, the U.S. Court of Appeals for the Sixth Circuit overturned her decision. On a 2-1 vote, it declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit. The Supreme Court then declined to hear the case, even though the doctrine of standing has enough flexibility for the Court to have acted. My bill to mandate Supreme Court review of this and other cases therefore seems all the more necessary to resolve the question. With the Supreme Court abstaining, another lone district judge took a stand. In In re National Security Agency Telecommunications Records Litigation, Chief Judge Vaughn Walker in the Northern District of California considered a case brought by an Islamic charity that claims to have been a subject of the surveillance program. In a 56-page opinion he wrote: Congress appears clearly to have intended to--and did--establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities. As detailed further below, the hurdles faced by the few judges willing to examine the Terrorist Surveillance Program, and the snails' pace of appellate review, make my bill to mandate Supreme Court review of this and other cases all the more necessary to resolve the question. Shortcomings of the Legislative and Judicial Branches as Checks on Executive Power. The courts, including the Supreme Court, have admittedly been more effective than Congress in restraining executive excesses, but both have been too slow. This failure is exemplified by the judicial and legislative efforts to address the administration's treatment of detainees in the war on terror. In Hamdi v. Rumsfeld, decided on June 28, 2004, nearly 3 years after September 11, the Supreme Court ruled that a U.S. citizen being held as an enemy combatant must be given an opportunity to contest the factual basis for his detention before a neutral magistrate. In a stern rebuke of executive overreaching, Justice O'Connor's opinion declared, ``We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens.'' The same day, the Court held in Rasul v. Bush that detainees at Guantanamo Bay were entitled to challenge their detention by filing habeas corpus petitions--the time honored legal action used to contest the basis for government confinement. Two years later, on June 29, 2006, the Court announced in Hamdan v. Rumsfeld that the President could not conduct military commission trials under procedures that had not been authorized by Congress and that failed to satisfy the obligations of the Geneva Conventions' Common article III and the Uniform Code of Military Justice. Instead of fully embracing these decisions, however, Congress responded with the Detainee Treatment Act and the Military Commissions Act of 2006, both of which eliminated detainees' right to habeas corpus review on grounds that foreign terrorist suspects did not have the same rights as others in U.S. custody. During debate on the Military Commissions Act, I offered an amendment that would have guaranteed habeas corpus for detainees. In the face of sharp criticism from my own party, I argued that I was not speaking ``in favor of enemy combatants.'' Rather, I was ``trying to establish . . . a course of judicial procedure'' to determine whether the accused were in fact enemy combatants. I pointed out that my fight to preserve habeas rights was, in essence, a struggle to defend ``the jurisdiction of the federal courts to maintain the rule of law.'' I concluded with a plea for the Senate not to deny ``the habeas corpus right which would take us back some 900 years and deny the fundamental principle of the Magna Charta imposed on King John at Runnymede.'' Despite these entreaties, my amendment narrowly lost on a 48-51 vote. I had lost the battle, but was not prepared to surrender. On January 18, 2007, Attorney General Gonzales testified before the Judiciary Committee and argued that proposals to restore habeas corpus, such as a bill Senator Leahy and I had introduced, were ``ill-advised and frankly defy common sense.'' I was astounded at his claim that ``there is no express grant of habeas in the Constitution.'' I asked him: ``The constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there is an invasion or rebellion?'' He replied, ``The constitution does not say every individual in the United States or every citizen is hereby granted or assured the right to habeas. . . . It simply says the right of habeas corpus shall not be suspended.'' I protested, ``You may be treading on your interdiction and violating common sense, Mr. Attorney General.'' This exchange received notice in a number of papers, as my position gained momentum. The Detroit Free Press, for example, editorialized: The moment when Alberto Gonzales proved he was just wrong for the job of U.S. attorney general came . . . after Sen. Arlen Specter, R-Pa., asked him about the constitutional guarantee of criminal due process, known as habeas corpus. See Editorial, Gonzales Twisted Rule of Law Too Well, Detroit Free Press, August 28, 2007. That September, I made a second attempt to restore habeas corpus jurisdiction with an amendment to the Defense Department's authorization bill. This time, a majority of Senators voted for it, including seven Republicans. Unfortunately, the 56-43 majority was insufficient because, in the face of a filibuster threat, Senate procedure required sixty votes to pass. Ironically, a procedural tool that protects Senate minorities had become a shield for the executive branch. Thus, yet again, it was left to the Supreme Court to beat back the encroachment of executive power, which it finally did on June 12, 2008. In Boumediene v. Bush, the Court held that detainees held at Guantanamo Bay ``are entitled to the privilege of habeas corpus to challenge the legality of their detention.'' Because the Combatant Status Review Tribunals established by the Defense Department in 2004, following the Hamdi and Rasul decisions, and the limited procedural review permitted before the DC Circuit failed to constitute an adequate and effective substitute for habeas corpus, the Court held that the Military Commissions Act had effected ``an unconstitutional suspension of the writ.'' As satisfying as it was to be vindicated, I was frustrated that Congress had left the task of reining in the executive to slow-paced and incomplete judicial review. While the Boumediene decision ensured habeas rights for detainees, it took 7 years; and even then the Court almost failed to take on the case. All along, the Court's rulings were piecemeal and avoided taking strong stands on controversial constitutional questions. The result was a protracted process that delayed justice for detainees and left important areas of constitutional law murky. Indeed, the Supreme Court actually denied Boumediene's initial petition for review on April 2, 2007. Then, on June 29, in a highly unusual move, the Court reconsidered and agreed to hear the case. The justices gave no reason for the reversal, but some speculate that they were moved by intervening disclosures concerning the military commissions. In particular, a military officer and lawyer who had been involved in overseeing the tribunals said that the process was flawed and that prosecutors had been pressured to label detainees as enemy combatants. As much time as it took in these cases, at least the Supreme Court eventually ruled on the merits in Boumediene. The same cannot be said for Supreme Court review, or even substantive appellate review, of President Bush's warrantless wiretapping program. Thus far, only individual judges in the district courts of Michigan and California have been willing to take a strong stand on the Terrorist Surveillance Program. Like many in the legislature, it appears the courts are reluctant to act. They do not want the responsibility. Only after significant time has passed, and it is relatively safe, do they finally consider such issues on the merits. I have proposed legislation in the past to require expedited review of certain important cases, including the challenges by civil liberties organizations and other plaintiffs to the Terrorist Surveillance Program, and I will do so again in the new Congress. Signing Statements Even where Congress manages to negotiate its internal checks and to act decisively against expansions of executive power, presidents have used signing statements that override the legislative language and defy congressional intent. There was an explosion in the use of signing statements during the Bush administration. The Boston Globe reported in 2006 that President Bush ``has used signing statements to claim the authority to disobey more than 750 statutes--more laws than all previous presidents combined.'' This is Charlie Savage, In Proposed Iran Deal, Bush Might Have to Waive Law: '05 Statute Forbids Providing Reactor, Boston Globe, June 8, 2006. Two prominent examples make the point. As detailed earlier, I spearheaded the delicate negotiations on the PATRIOT Act Reauthorization which included months of painstaking efforts to balance national security and civil liberties, disrupted by the dramatic disclosure of the Terrorist Surveillance Program. The final version of the bill to reauthorize the PATRIOT Act featured a carefully crafted compromise, which was necessary to secure its passage in 2006. Among other things, it included several oversight provisions designed to ensure that the FBI did not abuse special terrorism-related powers permitting it to make secret demands for business records. President Bush signed the measure into law, only to enter a signing statement insisting that he could withhold from Congress any information required by the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.'' The second example arose in 2005. Congress overwhelmingly passed Senator John McCain's amendment to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held by the United States. There was no ambiguity in Congress's intent; in fact, the Senate approved the proposal 90-9. However, after signing the bill into law, the President quietly issued a signing statement asserting that his administration would construe it ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'' Many understood this signing statement to undermine the legislation. In a January 4, 2006, article titled ``Bush Could Bypass New Torture Ban: Waiver Right Is Reserved,'' the Boston Globe cited an anonymous ``senior administration official,'' according to whom ``the president intended to reserve the right to use harsher methods in special situations involving national security.'' These signing statements are outrageous, intruding on the Constitution's delegation of ``all legislative powers'' to Congress, but it is even more outrageous that Congress has done nothing to protect its constitutional powers. The legislation I introduced in 2006 would have given Congress standing to challenge the constitutionality of these signing statements, but has until now failed to muster the veto-proof majority it would surely require. The executive branch operates free of such internal dissent. Although John McCain promised to drop signing statements altogether, Barack Obama, while deploring Bush's practice, said during the campaign that ``no one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives.'' Here again, the President does not need to convince any colleagues to issue a signing statement, he needs only put pen to paper. Indeed, 2 days after criticizing President Bush's signing statements, President Obama issued one of his own regarding the Omnibus Appropriations Act of 2009. Citing among others his ``commander in chief'' and ``foreign affairs'' powers, he refused to be bound by at least 11 specific provisions of the bill including one longstanding rider to appropriations bills designed to aid congressional oversight. As I told the Wall Street Journal, ``We're having a repeat of what Democrats bitterly complained about under President Bush,'' and if President Obama ``wants to pick a fight, Congress has plenty of authority to retaliate.'' The Terrorist Surveillance Program--Act II Many of the issues surrounding the Terrorist Surveillance Program and executive authority resurfaced in 2008. FISA reform legislation, which began making its way through the Senate in February of last year, included a controversial provision giving retroactive immunity to the telecommunications companies for their alleged cooperation with the Terrorist Surveillance Program. Throughout, my chief concern was to keep the way to the courts open as a means to check executive excesses. I offered an amendment, both in committee and on the floor, to substitute the U.S. Government for the telephone companies facing lawsuits related to the Terrorist Surveillance Program. Instead of immunity, my amendment would have put the government in the place of the companies, so the cases could go forward without posing a legal threat to the companies themselves. When this proposal was defeated, I proposed yet another amendment, which would have required a federal district court to determine that the surveillance itself was constitutional before granting immunity. I also cosponsored an amendment that would have delayed the retroactive immunity for the telephone companies until a mandatory inspector general's report on the Terrorist Surveillance Program had been issued. I tried to impress upon my colleagues the importance of our actions: We are dealing here with a matter that is of historic importance. I believe that years from now, historians will look back on this period from 9/11 to the present as the greatest expansion of Executive authority in history-- unchecked expansion of authority . . . The Supreme Court of the United States has gone absent without leave on the issue, in my legal opinion. When the Detroit Federal judge found the terrorist surveillance program unconstitutional, it was [reversed] by the Sixth Circuit on a 2-to-1 opinion on grounds of lack of standing. Then the Supreme Court refused to review the case. But the very formidable dissenting opinion laid out all of the grounds where there was ample basis to grant standing. Now we have Chief Judge Walker declaring the act unconstitutional. The Congress ought to let the courts fulfill their constitutional function. . . . Although I am prepared to stomach this bill, if I must, I am not yet ready to concede that the debate is over. Contrary to the conventional wisdom, I don't believe it is too late to make this bill better. The date was July 7 and the Senate had just returned from recess, which allowed me to close with a flourish: Perhaps the Fourth of July holiday will inspire the Senate to exercise its independence from the executive branch now that we have returned to Washington. Despite my fight to keep the courts open, in the end all my amendments were defeated. Nevertheless, as I said I would, I ultimately voted for the FISA reform bill. I chose not to reject the entire package--which had the support of nearly seventy senators, including both presidential candidates--not only because my classified briefings on the surveillance program convinced me of its value, but also because of the important oversight provisions it imposed on future surveillance programs. The FISA reform bill required prior court review of the government's procedures for surveillance of foreign targets, except in exigent circumstances. It also required that the Intelligence Court determine whether procedures for foreign targeting satisfy fourth amendment protections against unreasonable searches. In addition, before monitoring U.S. citizens outside the country, it required individualized court orders based on probable cause. Finally, the bill mandated a comprehensive review of the Terrorist Surveillance Program by several inspectors general. Indeed, the final bill had many elements in common with my earliest efforts to place the Terrorist Surveillance Program under FISA--it just took years to get there. And Congress and the courts may yet need to correct its flaws. A Plan for the Future These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances. The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the national security arena, especially as we cede more and more authority over our economy to government officials.'' As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of deja vu is the Washington Post's report that the new administration has reasserted the ``state secrets'' privilege to block lawsuits challenging controversial policies like warrantless wiretapping: ``Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.'' Government lawyers are now asserting that the trial court lacks authority to compel disclosure of secret documents, and ``warning'' that the government might ``spirit away'' the material before the court can release it to the litigants. This is Carrie Johnson, ``Handling of `State Secrets' at Issue: Like Predecessor, New Justice Dept. Claiming Privilege,'' The Washington Post, March 25, 2009. As the article notes, I have reintroduced legislation this year with Senators Leahy and Kennedy to reform the state secrets privilege. I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens. (The further remarks of Mr. Specter pertaining to the introduction of S. 875, S. 876 and S. 877 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today on behalf of myself, Senator Grassley and Senator Tester, to offer the Presidential Signing Statements Act of 2009. The purpose of this bill is to regulate the use of Presidential Signing Statements in the interpretation of Acts of Congress. This bill is similar in substance to two prior versions of this legislation: the Presidential Signing Statements Act of 2007, which I introduced on June 29, 2007; and the Presidential Signing Statements Act of 2006, which I introduced on July 26, 2006. As I have stated before, I believe that this legislation is necessary to protect our constitutional system of checks and balances. This bill achieves that goal in the following ways. First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing federal and state courts not to rely on, or defer to, presidential signing statements as a source of authority when determining the meaning of any Act of Congress. Second, it grants Congress the power to participate in any case where the construction or constitutionality of any Act of Congress is in question and a presidential signing statement for that Act was issued by allowing Congress to file an amicus brief and present oral argument in such a case; instructing that, if Congress passes a joint resolution declaring its view of the correct interpretation of the statute, the Court must admit that resolution into the case record; and providing for expedited review in such a case. Since the days of President James Monroe, Presidents have issued statements when signing bills. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law or to explain to the public the likely effect of a law. There may be a host of other legitimate uses. It is clear, however, that the President cannot use a signing statement to rewrite the words of a statute, nor can he use a signing statement to selectively nullify those provisions he does not like. This much is clear from our Constitution. The Constitution grants the President a specific, defined role in enacting legislation. Article I, section 1 of the Constitution vests ``all legislative powers . . . in a Congress.'' Article I, section 7 of the Constitution provides that, when a bill is presented to the President, he may either sign it or veto it with his objections. He may also choose to do nothing, thus rendering a so-called pocket veto. But the President cannot veto part of a bill--he cannot veto certain provisions he does not like. The Framers had good reason for constructing the legislative process as they did. According to The Records of the Constitutional Convention, the veto power was designed to protect citizens from a particular Congress that might enact oppressive legislation. However, the Framers did not want the veto power to be unchecked, and so, in Article I, section 7, they balanced it by allowing Congress to override a veto by 2/3 vote. As I stated when I initially introduced this legislation in 2006, this is a finely structured constitutional procedure that goes straight to the heart of our system of checks and balances. Any action by the President that circumvents this procedure is an unconstitutional attempt to usurp legislative authority. If the President is permitted to re-write the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by the Framers. The Supreme Court has affirmed that the Constitutional process for enacting legislation must be safeguarded. As the Court explained in INS v. Chahda, ``It emerges clearly that the prescription for legislative action in Article I, Section 1 and 7 represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'' 462 U.S. 919, 951, 1982. It is well within Congress's power to enact rules of statutory interpretation intended to preserve this constitutional structure. This power flows from Article I, section 8, clause 18 of the Constitution, which gives Congress the power ``To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the U.S., or in any department or officer thereof.'' Rules of statutory interpretation are ``necessary and proper'' to execute the legislative power. Several scholars have agreed: Jefferson B. Fordham, a former Dean of the University of Pennsylvania Law School said, ``[I]t is within the legislative power to lay down rules of interpretation for the future;'' Mark Tushnet, a Professor at Harvard Law School explained, ``In light of the obvious congressional power to prescribe a statute's terms (and so its meaning), congressional power to prescribe interpretive methods seems to me to follow;'' Michael Stokes Paulsen, an Associate Dean of the University of Minnesota Law School noted, ``Congress is the master of its own statutes and can prescribe rules of interpretation governing its own statutes as surely as it may alter or amend the statutes directly.'' Finally, J. Sutherland, the author of the leading multi- volume treatise for the rules of statutory construction has said, ``There should be no question that an interpretive clause operating prospectively is within legislative power.'' Indeed, recent experience shows why such legislation is ``necessary.'' The use of signing statements has risen dramatically in recent years. President Clinton issued 105 signing statements; President Bush issued 161. What is more alarming than the sheer numbers, is that President Bush's signing statements often raised constitutional concerns and other objections to several provisions of a law. The President used those statements in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced. Even where Congress managed to negotiate checks on executive power, the President used signing statements to override the legislative language and defy congressional intent. Two prominent examples make the point. In 2006, I spearheaded the delicate negotiations on the PATRIOT Act Reauthorization, which included months of painstaking efforts to balance national security and civil liberties, disrupted by the dramatic disclosure of the Terrorist Surveillance Program. The final version of the bill featured a carefully crafted compromise necessary to secure the act's passage. Among other things, it included several oversight provisions designed to ensure that the FBI did not abuse special terrorism-related powers permitting it to make secret demands for business records. The President dutifully signed the measure into law, only to then enter a signing statement insisting he could withhold any information from Congress required by the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.'' The second example arose in 2005. Congress overwhelmingly passed Senator John McCain's amendment to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held by the United States. There was no ambiguity in Congress's intent; in fact, the Senate approved it 90 to 9. However, after signing the bill into law, the President quietly issued a signing statement asserting that his Administration would construe it ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'' Many understood this signing statement to undermine the legislation. In a January 4, 2006 article titled, ``Bush could bypass new torture ban: Waiver right is reserved,'' the Boston Globe cited an anonymous ``senior administration official'' as saying, ``the president intended to reserve the right to use harsher methods in special situations involving national security.'' As outrageous as these signing statements are, intruding on the Constitution's delegation of ``all legislative powers'' to the Congress, it is even more outrageous that Congress has done nothing to protect its constitutional powers. In 2006 and 2007, the legislation I introduced giving Congress standing to challenge the constitutionality of these signing statements failed to muster the veto-proof majority it would have surely required. With a new administration, I believe the time has come to pass this important legislation. This bill does not seek to limit the President's power, and it does not seek to expand Congress's power. Rather, this bill simply seeks to safeguard our Constitution. In this Congress, it has a better chance of mustering a majority vote and being signed into law by the new President. That said, two days after criticizing President Bush's signing statements, President Obama issued one of his own regarding the Omnibus Appropriations Act of 2009. Citing among others his ``commander in chief'' and ``foreign affairs'' powers, he refused to be bound by at least eleven specific provisions of the bill including one long- standing rider to appropriations bills designed to aid congressional oversight. As I told The Wall Street Journal, ``We are having a repeat of what Democrats bitterly complained about under President Bush.'' I hope this will be the exception rather than the rule. In the meantime, this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.