Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President. I have sought recognition to recognize the contributions of the Pennsylvania National Guard in service to Pennsylvania and the Nation. Pennsylvania units have taken part in every conflict America has faced since the Revolutionary War, and contributions made by the men and women of the Pennsylvania National Guard to our Nation's security continue to be nothing short of outstanding. The citizen soldiers and airmen who serve in the Guard have answered the call to serve their Nation both at home and abroad time and time again. I am honored to stand before you to recount some of the Pennsylvania National Guard's recent accomplishments. With approximately 20,000 soldiers and airman in its ranks, the Pennsylvania National Guard is one of the largest National Guards in the Nation. It has the largest Army National Guard and the fourth largest Air National Guard. I commend the Adjutant General of Pennsylvania, Major General Jessica Wright, and Deputy Adjutant Generals, Major General Stephen Sischo and Brigadier General Joseph De Paul, for ably leading this force that has armories or airbases in 90 communities throughout the Commonwealth. Since September 11, 2001, over 17,000 Pennsylvania National Guard soldiers and airmen have deployed to over 30 worldwide locations, and the Guard is currently supporting the largest deployment of Pennsylvania Guardsmen since World War II. I regret that I do not have time to list all of the Pennsylvania National Guard's accomplishments and accolades. I will briefly highlight accomplishments of individual units within the Pennsylvania National Guard that attest to the impressive quality of the whole. Currently, the 56th Stryker Brigade Combat Team, an element of the 28th Infantry Division, is deployed in Iraq. The unit, which is the only unit in the National Guard to field the Stryker vehicle, traces its lineage to 1747, when Benjamin Franklin organized the ``Associated Regiment of Foot'', currently 1-111th Infantry, in Philadelphia. Pennsylvania's Army Aviation Flight Facility at Fort Indiantown Gap is the first and only Army National Guard facility in the Nation to achieve the Occupational Safety and Health Administration Voluntary Protection Program ``STAR Award'' for exhibiting exceptional safety management principles and accident-free flying hours, and effectively demonstrating the implementation of these principles during years-long intensive inspections. The Pennsylvania Air National Guard's 171st Air Refueling Wing, based in Coraopolis and commanded by Brigadier General Roy E. Uptegraff III, flew over 5,800 flying hours with more than 1,600 sorties flown in 2008, representing an 85 percent mission effectiveness rate. The Pennsylvania Air National Guard's 193rd Special Operations Wing, based in Harrisburg and commanded of Brigadier General Eric G. Weller, flew over 3,000 hours and over 1,000 sorties in 2008 and is the only unit in the entire Armed Forces with an airborne psychological operations broadcasting platform. The Pennsylvania Air National Guard's 111th Fighter Wing, based in Willow Grove and commanded by Colonel Paul Comtois, flew over 675 close-air support missions and provided more than 2,000 hours of on- station time to coalition forces in Iraq and Afghanistan. The soldiers and airmen from Pennsylvania's Counterdrug Program supported 575 cases that resulted in the seizure of over $27 million in illegal narcotics, money, weapons, property and vehicles directly related to illegal drug sales in 2008. The accomplishments I have enumerated are but a few of the many that the Pennsylvania National Guard can claim to its credit. Whether through deployments overseas, the deployment of 2,500 Pennsylvania Army and Air National Guard members to support hurricane disaster relief efforts along the Gulf Coast following Hurricane Katrina, or service within the Commonwealth of Pennsylvania, the men and women of the Pennsylvania National Guard have repeatedly answered the call to duty. Their performance has been in keeping with the finest traditions of the military and has reflected great credit upon themselves, the Pennsylvania National Guard, and the United States Military. I will continue to do all that I can in the United States Senate to ensure that the Pennsylvania National Guard has the necessary equipment, training and facilities to accomplish the missions it is called on to perform both for the Commonwealth and the Nation.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent I may speak for 10 minutes as in morning business.

Mr. SPECTER. I have sought recognition to comment about the pending bill. As I reflect on it, I am speaking on the bill and do not need to put it in morning business. It is on the bill itself. I note the majority leader has filed a motion for cloture and it is scheduled for 9:30 tomorrow. We may vote on it today. But whenever we vote on it, there are some observations I have. I want to give my thinking on the issue. My current inclination is to vote against cloture because there has been insufficient time to offer amendments. This omnibus bill contains most of the budget process and there are a great many amendments pending. I compliment the majority leader for moving from the position of blocking all amendments. We have had considerable discussion last year, and even before that, about a practice of majority leaders taking procedural steps known as--there is an arcane procedure, inside-the-beltway talk--filling the tree, stopping amendments being offered and then moving to cloture. I have opposed cloture and have urged that regular order be followed in allowing amendments to be offered. The unique feature about the Senate is that any Senator can offer virtually any amendment at virtually any time on virtually any bill. That, plus unlimited debate, makes this a very extraordinary body where we can focus public attention on important matters of public policy and acquaint the public with what is going on and seek to improve our governance. The majority leader has objected to quite a number of amendments coming up. Looking over the list, there are quite a number of amendments which I believe merit consideration. Senator Grassley has tried to advance amendment No. 628. He did again this morning. There was an objection raised to it. Senator Sessions has sought to offer amendment No. 604 and he has been blocked on four occasions from offering this amendment on the economic stimulus. Senator Vitter has a number of amendments, one of which is amendment No. 636, involving drug reimportation from Canada. Senator Ensign has amendment No. 615, cosponsored by Senator Voinovich, Senator Kyl, Senator DeMint, Senator Brownback, and Senator Cornyn, which would deal with a subject where they are seeking to have a vote. I do not necessarily agree with all of these amendments. In fact, as I review them, there are some I disagree with. But I believe Senators ought to have an opportunity to offer amendments. Yesterday the Senate voted on an issue involving Emmett Till, and many Senators voted against that amendment, as I understand it, to avoid having an amendment agreed to on the omnibus which would require a conference with the House of Representatives. I think it is something we ought to decide on the merits, as to the amendment, without respect to having a conference. Regular order under our legislative process is to exercise our judgment on amendments. Then, if the Senate bill is different from the House bill, if an amendment is agreed to, then you have a conference. That is the way we do business. That is regular order. To determine how you are going to vote on an amendment in order to avoid a conference seems to me to be beside the point. If there were some emergency, some reason to avoid a conference, perhaps so. But there is time to have a Senate bill which disagrees with the House bill and to have a conference and iron it out on regular order. Whenever we depart from regular order, it seems to me, we run into potential problems. The institutions of the Senate have been crafted over centuries. The Senate is smarter than I am, certainly, and perhaps smarter than other Senators. But I think we ought to follow the regular order. That is why I am disinclined to vote for cloture. I know the majority leader wants to move this bill, but we have time to take up these amendments. If we move on into additional sessions of the Senate later this week, later tonight, later next week, then I think that is what ought to be done and Senators ought to have an opportunity to offer these amendments. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise to introduce--the ``Stem Cell Research Enhancement Act similar to legislation that I have sponsored in the last two Congresses with Senators Harkin, Hatch, Kennedy, Feinstein, and Smith. I believe medical research should be pursued with all possible haste to cure the diseases and maladies affecting Americans. In my capacity as ranking member and at times chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I have backed up this belief by supporting increases in funding for the National Institutes of Health. I have said many times that the NIH is the crown jewel of the Federal Government--perhaps the only jewel of the Federal Government. When I came to the Senate in 1981, NIH spending totaled $3.6 billion. In fiscal year 2009, NIH will receive approximately $29 billion to fund its pursuit of lifesaving research. The successes realized by this investment in NIH have spawned revolutionary advances in our knowledge and treatment for diseases such as cancer, Alzheimer's disease, Parkinson's disease, mental illnesses, diabetes, osteoporosis, heart disease, ALS, and many others. It is clear to me that Congress's commitment to the NIH is paying off. This is the time to seize the scientific opportunities that lie before us and to ensure that all avenues of research toward cures--including stem cell research--are open for investigation. I first learned of the potential of human embryonic stem cells in November of 1998 upon the announcement of the work by Dr. Jamie Thomson at the University of Wisconsin and Dr. John Gearhart at Johns Hopkins University. I took an immediate interest and held the first congressional hearing on the subject of stem cells on December 2, 1998. These cells have the ability to become any type of cell in the human body. Another way of saying this is that the cells are pluripotent. The consequences of this unique his legislation is property of stem cells are far reaching and are key to their potential use in therapies. Scientists and doctors with whom I have spoken--and that have since testified before the Labor-HHS Appropriations Subcommittee at 20 stem cell-related hearings--were excited by this discovery. They believed that these cells could be used to replace damaged or malfunctioning cells in patients with a wide range of diseases. This could lead to cures and treatments for maladies such as juvenile diabetes, Parkinson's disease, Alzheimer's disease, cardiovascular diseases, and spinal cord injury. In all, well over 100 million Americans could benefit from stem cell research. Embryonic stem cells are derived from embryos that would otherwise have been discarded. During the course of in vitro fertilization, IVF, therapies, sperm, and several eggs are combined in a laboratory to create 4 to 16 embryos for a couple having difficulty becoming pregnant. The embryos grow in an incubator for 5 to 7 days until they contain approximately 100 cells. To maximize the chances of success, several embryos are implanted into the woman. The remaining embryos are frozen for future use. If the woman becomes pregnant after the first implantation, and does not want to have more pregnancies, the remaining frozen embryos are in excess of clinical need and can be donated for research. Embryonic stem cells are derived from these embryos. The stem cells form what are called ``lines'' and continue to divide indefinitely in a laboratory dish. In this way, the 21 lines currently available for Federal researchers were obtained from 21 embryos. The stem cells contained in these lines can then be made into almost any type of cell in the body--with the potential to replace cells damaged by disease or accident. At no point in the derivation process are the embryos or the derived cells implanted in a woman, which would be required for them to develop further. The process of deriving stem cell lines results in the disruption of the embryo and I know that this raises some concerns. During the course of our hearings in this subject, we have learned that over 400,000 embryos are stored in fertility clinics around the country. If these frozen embryos were going to be used for in vitro fertilization, I would be the first to support it. In fact, I have included $2,000,000 in the HHS budget each year since 2002 to create and continue an embryo adoption awareness campaign. But the truth is that most of these embryos will be discarded. I believe that instead of just throwing these embryos away, they hold the key to curing and treating diseases that cause suffering for millions of people. President Bush opened the door to stem cell research on August 9, 2001. His policy statement allowed limited Federal funding of human embryonic stem cell research for the first time. There is a real question as to whether the door is open sufficiently. A key statement by the President related to the existence of approximately 60 eligible stem cell lines--then expanded to 78. In the intervening 5 years, it has become apparent that many of the lines cited are not really viable, robust, or available to federally funded researchers. The fact is there are only 21 lines now available for research. Perhaps, most fundamental is the issue of therapy. It was not addressed in the President's statement, but it came to light in the first weeks after the President's announcement that all of the stem cell lines have had nutrients from mouse feeder cells and bovine serum. Under FDA regulations, these lines will face intense regulatory hurdles before being useful in human therapies. In the intervening years, new technology has been developed so that mouse feeder cells are no longer necessary for the growth of stem cells. It only makes sense that our Nation's scientists should have access to the latest technology. Since August 9, 2001, new facts have come to light and the technology has moved forward to the extent that the policy is holding back our scientists and physicians in their search for cures. I have a friend and constituent in Pittsburgh named Jim Cordy who suffers from Parkinson's. Whenever I see Jim, he carries an hourglass, to remind me that the sands of time are passing and that the days of his life are slipping away. That is a pretty emphatic message from the hourglass. So it seems to me that this is the kind of sense of urgency which ought to motivate Congress and the biomedical research community. On March 19, 2007, Dr. Elias Zerhouni, President Bush's appointee to lead the National Institutes of Health, testified before the Senate Labor-HHS-Education Appropriations Subcommittee regarding the NIH budget and stem cells. At that time he stated, ``It is clear today that American science would be better served and the nation would be better served if we let our scientists have access to more cell lines . . . To sideline NIH in such an issue of importance, in my view, is shortsighted. I think it wouldn't serve the nation well in the long run.'' His testimony clearly shows that the time has come to move forward. The Stem Cell Research Enhancement Act lifts the August 9, 2001, date restriction, thus making stem cell lines eligible for federally funded research regardless of the date on which they were derived. Expanding the number of stem cell lines would accelerate scientific progress towards cures and treatments for a wide range of diseases and debilitating health conditions. The bill puts in place strong ethical requirements on stem cell lines that are funded with Federal dollars. In fact, several stem cell lines currently funded with Federal dollars would not be eligible under the policies put in place by this bill. The requirements include: embryos used to derive stem cells were originally created for fertility treatment purposes and are in excess of clinical need; the individuals seeking fertility treatments for whom the embryos were created have determined that the embryos will not be implanted in a woman and will otherwise be discarded; the individuals for whom the embryos were created have provided written consent for embryo donation; and the donors can not receive any financial or other inducements to make the donation. When President Bush's Council on Bioethics reported on several theoretical methods for deriving stem cells without destroying embryos, I immediately scheduled a hearing to investigate these ideas. On July 12, 2005, the Labor-HHS Subcommittee heard testimony from five witnesses describing several theoretical techniques for deriving stem cells without destroying embryos. The stem cells would theoretically have the key ability to become any type of cell. The techniques discussed included single cell derivation of stem cells; altered nuclear transfer; deriving stem cells from so-called ``dead'' embryos; and, perhaps the most promising, turning adult cells back into stem cells. Legislation, which I first introduced with Senator Rick Santorum in the 109th Congress, was meant to encourage these alternative methods for deriving stem cells without harming human embryos. That legislation has been incorporated into the current bill, which amends the Public Health Service Act by inserting a section that: 1, Mandates that the Secretary of Health & Human Services shall support meritorious peer-reviewed research to develop techniques for the derivation of stem cells without creating or destroying human embryos. 2, Requires the Secretary to issue guidelines within 90 days to implement this research and to identify and prioritize the next research steps. 3, Requires the Secretary to consider techniques outlined by the President's Council on Bioethics--such as altered nuclear transfer and single cell derivation. 4, Requires the Secretary to report yearly on the activities carried out under this authorization. 5, Includes a ``Rule of Construction'' stating: Nothing in this section shall be construed to affect any policy, guideline, or regulation regarding embryonic stem cell research, human cloning by somatic cell nuclear transfer, or any other research not specifically authorized by this section. 6, Define ``human embryo'' by reference to the latest definition contained in the appropriations act for the Department of Health & Human Services. 7, Authorizes ``such sums as may be necessary'' for fiscal year 2010 through 2012. Knowing that scientists are never certain exactly which research will lead to the next great cure; I have always supported opening as many avenues of research as possible. Based on that line of reasoning, I have always supported human embryonic, adult, and cord blood stem cell research. My goal is to see cures for the various afflictions that lower the quality of life--or end the lives--of Americans. I believe this bill implements this philosophy by opening of embryonic stem cell research and encouraging alternatives. Importantly, the bill does not allow Federal funds to be used for the derivation of stem cell lines--the step in the process where the embryo is destroyed. Also, the bill does not address the subject of cloning, which continues to be banned in the appropriations bills for Health & Human Services. President Barack Obama has indicated that he will overturn the current restrictions. I feel it is important to codify this important policy change so that the policy does not ping-pong back and forth with each successive President. This uncertainty slows the progress of science. Young scientists rightly avoid fields of science for which funding may come and go due to political whim rather than scientific and medical merit. A temporary end to the current restrictions is an incomplete and ultimately self-defeating solution. I strongly believe that the funding provided by Congress should be invested in the best research to address diseases based on medical need and scientific opportunity. Politics has no place in the equation. Throughout history there are numerous examples of politics stifling science in the name of ideology. Galileo was imprisoned for his theory that the planets revolve around the Sun. The Institute of Genetics of the Soviet Academy of Sciences opposed the use of hybrid varieties of wheat because it was based on the science of the West. Instead, they supported a doctrine called ``acquired characteristics,'' which was made the official Soviet position. This resulted in lower yields for Soviet wheat throughout the former Soviet Union in the first half of the 20th century. These historical examples teach us that we must make these decisions based on sound science, not politics. I urge this body to support the Stem Cell Research Enhancement Act so that this Congress does not look as foolish in hindsight as these examples.

Mr. SPECTER

Mr. SPECTER. Mr. President, I rise to introduce--the ``Stem Cell Research Enhancement Act similar to legislation that I have sponsored in the last two Congresses with Senators Harkin, Hatch, Kennedy, Feinstein, and Smith. I believe medical research should be pursued with all possible haste to cure the diseases and maladies affecting Americans. In my capacity as ranking member and at times chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I have backed up this belief by supporting increases in funding for the National Institutes of Health. I have said many times that the NIH is the crown jewel of the Federal Government--perhaps the only jewel of the Federal Government. When I came to the Senate in 1981, NIH spending totaled $3.6 billion. In fiscal year 2009, NIH will receive approximately $29 billion to fund its pursuit of lifesaving research. The successes realized by this investment in NIH have spawned revolutionary advances in our knowledge and treatment for diseases such as cancer, Alzheimer's disease, Parkinson's disease, mental illnesses, diabetes, osteoporosis, heart disease, ALS, and many others. It is clear to me that Congress's commitment to the NIH is paying off. This is the time to seize the scientific opportunities that lie before us and to ensure that all avenues of research toward cures--including stem cell research--are open for investigation. I first learned of the potential of human embryonic stem cells in November of 1998 upon the announcement of the work by Dr. Jamie Thomson at the University of Wisconsin and Dr. John Gearhart at Johns Hopkins University. I took an immediate interest and held the first congressional hearing on the subject of stem cells on December 2, 1998. These cells have the ability to become any type of cell in the human body. Another way of saying this is that the cells are pluripotent. The consequences of this unique his legislation is property of stem cells are far reaching and are key to their potential use in therapies. Scientists and doctors with whom I have spoken--and that have since testified before the Labor-HHS Appropriations Subcommittee at 20 stem cell-related hearings--were excited by this discovery. They believed that these cells could be used to replace damaged or malfunctioning cells in patients with a wide range of diseases. This could lead to cures and treatments for maladies such as juvenile diabetes, Parkinson's disease, Alzheimer's disease, cardiovascular diseases, and spinal cord injury. In all, well over 100 million Americans could benefit from stem cell research. Embryonic stem cells are derived from embryos that would otherwise have been discarded. During the course of in vitro fertilization, IVF, therapies, sperm, and several eggs are combined in a laboratory to create 4 to 16 embryos for a couple having difficulty becoming pregnant. The embryos grow in an incubator for 5 to 7 days until they contain approximately 100 cells. To maximize the chances of success, several embryos are implanted into the woman. The remaining embryos are frozen for future use. If the woman becomes pregnant after the first implantation, and does not want to have more pregnancies, the remaining frozen embryos are in excess of clinical need and can be donated for research. Embryonic stem cells are derived from these embryos. The stem cells form what are called ``lines'' and continue to divide indefinitely in a laboratory dish. In this way, the 21 lines currently available for Federal researchers were obtained from 21 embryos. The stem cells contained in these lines can then be made into almost any type of cell in the body--with the potential to replace cells damaged by disease or accident. At no point in the derivation process are the embryos or the derived cells implanted in a woman, which would be required for them to develop further. The process of deriving stem cell lines results in the disruption of the embryo and I know that this raises some concerns. During the course of our hearings in this subject, we have learned that over 400,000 embryos are stored in fertility clinics around the country. If these frozen embryos were going to be used for in vitro fertilization, I would be the first to support it. In fact, I have included $2,000,000 in the HHS budget each year since 2002 to create and continue an embryo adoption awareness campaign. But the truth is that most of these embryos will be discarded. I believe that instead of just throwing these embryos away, they hold the key to curing and treating diseases that cause suffering for millions of people. President Bush opened the door to stem cell research on August 9, 2001. His policy statement allowed limited Federal funding of human embryonic stem cell research for the first time. There is a real question as to whether the door is open sufficiently. A key statement by the President related to the existence of approximately 60 eligible stem cell lines--then expanded to 78. In the intervening 5 years, it has become apparent that many of the lines cited are not really viable, robust, or available to federally funded researchers. The fact is there are only 21 lines now available for research. Perhaps, most fundamental is the issue of therapy. It was not addressed in the President's statement, but it came to light in the first weeks after the President's announcement that all of the stem cell lines have had nutrients from mouse feeder cells and bovine serum. Under FDA regulations, these lines will face intense regulatory hurdles before being useful in human therapies. In the intervening years, new technology has been developed so that mouse feeder cells are no longer necessary for the growth of stem cells. It only makes sense that our Nation's scientists should have access to the latest technology. Since August 9, 2001, new facts have come to light and the technology has moved forward to the extent that the policy is holding back our scientists and physicians in their search for cures. I have a friend and constituent in Pittsburgh named Jim Cordy who suffers from Parkinson's. Whenever I see Jim, he carries an hourglass, to remind me that the sands of time are passing and that the days of his life are slipping away. That is a pretty emphatic message from the hourglass. So it seems to me that this is the kind of sense of urgency which ought to motivate Congress and the biomedical research community. On March 19, 2007, Dr. Elias Zerhouni, President Bush's appointee to lead the National Institutes of Health, testified before the Senate Labor-HHS-Education Appropriations Subcommittee regarding the NIH budget and stem cells. At that time he stated, ``It is clear today that American science would be better served and the nation would be better served if we let our scientists have access to more cell lines . . . To sideline NIH in such an issue of importance, in my view, is shortsighted. I think it wouldn't serve the nation well in the long run.'' His testimony clearly shows that the time has come to move forward. The Stem Cell Research Enhancement Act lifts the August 9, 2001, date restriction, thus making stem cell lines eligible for federally funded research regardless of the date on which they were derived. Expanding the number of stem cell lines would accelerate scientific progress towards cures and treatments for a wide range of diseases and debilitating health conditions. The bill puts in place strong ethical requirements on stem cell lines that are funded with Federal dollars. In fact, several stem cell lines currently funded with Federal dollars would not be eligible under the policies put in place by this bill. The requirements include: embryos used to derive stem cells were originally created for fertility treatment purposes and are in excess of clinical need; the individuals seeking fertility treatments for whom the embryos were created have determined that the embryos will not be implanted in a woman and will otherwise be discarded; the individuals for whom the embryos were created have provided written consent for embryo donation; and the donors can not receive any financial or other inducements to make the donation. When President Bush's Council on Bioethics reported on several theoretical methods for deriving stem cells without destroying embryos, I immediately scheduled a hearing to investigate these ideas. On July 12, 2005, the Labor-HHS Subcommittee heard testimony from five witnesses describing several theoretical techniques for deriving stem cells without destroying embryos. The stem cells would theoretically have the key ability to become any type of cell. The techniques discussed included single cell derivation of stem cells; altered nuclear transfer; deriving stem cells from so-called ``dead'' embryos; and, perhaps the most promising, turning adult cells back into stem cells. Legislation, which I first introduced with Senator Rick Santorum in the 109th Congress, was meant to encourage these alternative methods for deriving stem cells without harming human embryos. That legislation has been incorporated into the current bill, which amends the Public Health Service Act by inserting a section that: 1, Mandates that the Secretary of Health & Human Services shall support meritorious peer-reviewed research to develop techniques for the derivation of stem cells without creating or destroying human embryos. 2, Requires the Secretary to issue guidelines within 90 days to implement this research and to identify and prioritize the next research steps. 3, Requires the Secretary to consider techniques outlined by the President's Council on Bioethics--such as altered nuclear transfer and single cell derivation. 4, Requires the Secretary to report yearly on the activities carried out under this authorization. 5, Includes a ``Rule of Construction'' stating: Nothing in this section shall be construed to affect any policy, guideline, or regulation regarding embryonic stem cell research, human cloning by somatic cell nuclear transfer, or any other research not specifically authorized by this section. 6, Define ``human embryo'' by reference to the latest definition contained in the appropriations act for the Department of Health & Human Services. 7, Authorizes ``such sums as may be necessary'' for fiscal year 2010 through 2012. Knowing that scientists are never certain exactly which research will lead to the next great cure; I have always supported opening as many avenues of research as possible. Based on that line of reasoning, I have always supported human embryonic, adult, and cord blood stem cell research. My goal is to see cures for the various afflictions that lower the quality of life--or end the lives--of Americans. I believe this bill implements this philosophy by opening of embryonic stem cell research and encouraging alternatives. Importantly, the bill does not allow Federal funds to be used for the derivation of stem cell lines--the step in the process where the embryo is destroyed. Also, the bill does not address the subject of cloning, which continues to be banned in the appropriations bills for Health & Human Services. President Barack Obama has indicated that he will overturn the current restrictions. I feel it is important to codify this important policy change so that the policy does not ping-pong back and forth with each successive President. This uncertainty slows the progress of science. Young scientists rightly avoid fields of science for which funding may come and go due to political whim rather than scientific and medical merit. A temporary end to the current restrictions is an incomplete and ultimately self-defeating solution. I strongly believe that the funding provided by Congress should be invested in the best research to address diseases based on medical need and scientific opportunity. Politics has no place in the equation. Throughout history there are numerous examples of politics stifling science in the name of ideology. Galileo was imprisoned for his theory that the planets revolve around the Sun. The Institute of Genetics of the Soviet Academy of Sciences opposed the use of hybrid varieties of wheat because it was based on the science of the West. Instead, they supported a doctrine called ``acquired characteristics,'' which was made the official Soviet position. This resulted in lower yields for Soviet wheat throughout the former Soviet Union in the first half of the 20th century. These historical examples teach us that we must make these decisions based on sound science, not politics. I urge this body to support the Stem Cell Research Enhancement Act so that this Congress does not look as foolish in hindsight as these examples.

Mr. SPECTER

Mr. SPECTER. Yes.

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

Mr. SPECTER. Mr. President, I have participated this afternoon in the summit held by President Obama to examine the financial status of the Nation. When the President spoke, as did the Vice President and other economists, the emphasis was on the large deficit which our Nation faces. The President spoke about his plans to cut the deficit in half by the year he finishes his first term. There were then breakout sessions. I participated in a session which dealt with the subject of health care. There was a consensus among those present at the session that the cost of health care imposed the greatest problem for the deficit as we look to the future years. My suggestions related to savings which I think are possible on our health care system beginning with the cost of Medicare. A study shows that some 27 percent of health care costs are incurred in the last few hours, few days, few weeks of a person's life. No one should tell anyone else what to do with respect to terminal health care costs, but I do believe it is fair to ask people to think about that and to make a decision in a living will. Another suggestion on health care costs would involve prosecutions on white-collar crimes which involve health care, where there is a real opportunity for deterrence. My experience as a district attorney showed me that you cannot deal with deterrence when you are talking about domestic violence, but if you are talking about white-collar crime, you can. While on the Judiciary Committee, I have raised the issue on a number of occasions about the need to carry forward white-collar prosecutions looking toward jail sentences instead of fines. There was recently a case involving Siemens which was not a medical issue but a case involving a $1.7 billion fine which seems large, except when measured against an $87 billion income stream. The point is that fines are a license to do business and to violate the public trust, but jail sentences could serve as a deterrent. Beyond those suggestions on savings, the increase in the National Institutes of Health, which has been raised from about $12 billion to almost $30 billion in the decade between the mid-1990s and the first half of the decade of this century, showed tremendous savings which have been registered on stroke, on cancer, from the reduction in the death rate. The additional $10 billion added recently is a further effort along the promotion of those savings. Beyond the issue of research and savings through the National Institutes of Health, there is the benefit of savings from lifestyle. Recently with a bout of Hodgkin's, I have even modified further the exercise pattern I have had for decades as a squash player, eliminated sugar from the diet, looking for antioxidants. This is an issue where there could be a modest investment by the Federal Government which could pay great dividends. The final suggestion I had was on trying to use the Wyden-Bennett plan which has 14 cosponsors, equally divided between Democrats and Republicans, to utilize Wyden-Bennett as a starting point for a serious discussion in the Senate to cover the 47 million-plus Americans who are now not covered, modeled after the Massachusetts plan put in by former Governor Romney, with the Federal assistance for those at the lower end of the economic brackets. Tribute to Former Senator Joe Biden Mr. President, Senator Biden was one of the participants at the economic summit. Seeing and talking to him brought to mind recollections of his outstanding career in public life. When there were comments on the Senate floor last month about Senator Biden in recognition of his 36 years in the Senate, I was engaged in the proceedings on the confirmation of Attorney General Holder and did not have an opportunity to participate. I thought it appropriate, having just come from conversations with Senator Biden, to comment on his extraordinary career. I first knew of Senator Biden when he ran for the Senate back in 1972. I was very much impressed with many facets of Senator Biden's resume, but one caught my attention; that is, that he was 29 years old in 1972 when he ran for the Senate, and I knew that the Constitution placed the minimum age at 30. Senator Biden was elected, but he turned 30 between election day and inauguration day. That started a phenomenal Senate career. My first direct contact with Senator Biden came in a curious way. Shortly after coming to the Senate on a Friday, I had made plans to catch the 6 o'clock train, thinking that the Senate would be adjourned by that time. But the final vote did not begin until 8 minutes to 6. I called up my executive secretary Sylvia Nolde and said: Will you change my ticket to the 7 o'clock train. She responded, having been secretary to Senator Javits for many years, that she could hold the train for 5 minutes. I did not know that was a possible problem under Federal law, but the statute has run so I can speak freely about it at this point. I went to the train station, got on the 6 o'clock train a little late, and a few minutes later, a huffing and puffing Senator Joe Biden walked into the car and approached me and said: I ran the three blocks from the Senate to Union Station. Running through the lobby, I hurdled a few baby carriages. I do not think he knocked down anybody, but they were at risk. He jumped over the barrier and was running down the track to the train when a conductor stopped him, threw up his hand and said: Slow down, bud, there is a Senator coming. Senator Biden then said to me: You have been in the Senate about 8 days, I have been here 8 years. How did you figure out how to catch the train in this manner? Senator Biden and I, on the Judiciary Committee, have worked on a great many sensitive issues together. I cosponsored his landmark legislation protecting women against violence. We worked together on the Second Chance Act, which was signed into law last year, which provides for realistic rehabilitation for first offenders, juveniles, and second offenders, to try to stop the revolving door of recidivism. We have worked together on supporting special funding for the so-called COPS Program for putting more police on the street; have worked together on many civil rights issues, and many of the programs to support Amtrak. When I was elected in 1980 and we faced our first budget resolution, there was an effort made to zero out Amtrak. Senator Howard Baker, who was then the majority leader, scheduled a meeting with David Stockman, the Director of the Office of Management and Budget. A fair number of Senators from the Northeast Corridor met him at that time, Senator D'Amato and Senator Heinz and quite a few of us who were regulars on the Amtrak line, and knew of its importance. When David Stockman advanced the argument that we could deal without the Amtrak subsidy, I pointed out that we would not be able to get through the Baltimore tunnels without Amtrak, you would not be able to land at National Airport. We kept the funding going. Largely over the years we were in a collaboration, and Senator Biden was a key participant. During his work on the Judiciary Committees as chairman, he presided at landmark hearings in a very dignified and professional way. During the hearings on Judge Robert Bork for the Supreme Court back in 1987, Senator Biden was the chairman. One Friday afternoon we were not quite finished with the hearing. That was on September 18. I remember the day, because the day before I traveled with President Reagan to Philadelphia for the 200th anniversary of the signing of the Constitution. The Constitution was signed on September 17, 1787. The 200th anniversary had occurred the day before. I had not had a chance to question Judge Bork on that day. Senator Biden approached me late in the afternoon and asked me how much more time I needed. He was not going to be there the next day and had delegated the chairmanship, or asked Senator Kennedy to take over the chairmanship responsibilities--I should not say delegated; Senator Kennedy himself had been chairman. When he asked me how much time I needed, I paused for a minute, and he said: Well, how about a half hour? I continued to pause, thinking about it. Taking time to think about it sometimes is viewed as a violation of Senate ethics. He said: OK, how about an hour? I still paused. He said: How about an hour and a half? I said: OK, that should do it. Then Senator Thurmond, who was the ranking Republican, came over to me, and in Strom Thurmond's inimitable Southern accent--while it is inimitable, I will try to imitate it--he said: You want an hour and a half on Bork. Translated, means: Do you want an hour and a half on Bork? And I said: No, sir, I do not want an hour and a half on Bork, I want to question him until I finish. OK, you can have your hour and a half on Bork. Translated: OK, you can have your hour and a half on Bork. The next day, I took the hour and a half. Senator Biden did another professional job in many of the hearings, but again I particularize the one on Justice Clarence Thomas. There was a question as to whether the Judiciary Committee ought to have access to the Thomas rentals from the video store, and Senator Biden took the position that that was not an appropriate matter for inquiry. Then we had a second witness who came up at the very last minute, and Senator Biden presided over the very delicate matter of making a determination as to whether that witness ought to be called at the last minute. I notice my distinguished colleague, Senator Casey, has arrived for a little proceeding as to William T. Coleman, Jr. Since it is now 4 o'clock, when he was scheduled to arrive, I will terminate within the next few minutes. Senator Biden had a very serious health problem with an aneurysm, very serious operations in the early 1990s. When I had a serious operation on a mengionoma, a brain tumor, I returned to the Senate with a big bandage on my head for the confirmation hearing of Justice Ginsburg. Senator Biden was chairman and greeted me with a welcome to the entry of the cracked head club, rather a unique distinction to be called out on the so-called cracked head club. Senator Biden was elected to a sixth term last November. It is quite a record to be a six-term Senator, 36 years in the Senate, at the age of 66. His tenure on that term was very short. He was sworn in on January 4 and left 16 days later to become Vice President, where he now serves with distinction. I believe his years in the Senate will add greatly to the stature and competency of the Office of Vice President. His work as chairman of the Foreign Relations Committee will stand the country in very good stead as he travels around the world, supplementing the work of Secretary of State Hillary Clinton, another former colleague, and the work of the special envoys, as well as his detailed knowledge of the inner workings of Government from his very distinguished service. I am glad to have a few minutes on the Senate floor to extoll the virtues of a very good friend, an outstanding colleague, and a great Senator. He will be a great Vice President. I yield the floor.

Mr. SPECTER. Madam President, I compliment my distinguished colleague for the remarks he made about William T. Coleman, Jr. I further compliment him for scheduling a symposium later this afternoon on the distinguished career of Mr. Coleman. Noting Black History Month, it is very important to recognize the great accomplishments of African Americans in society and the reference to the 200th birthday of President Lincoln is most appropriate since President Lincoln presided over the Civil War, issued the Emancipation Proclamation, and began the series of historical events leading to the 13th amendment which prohibited slavery, the 14th amendment which provided for equal protection of the law and due process of law, providing the legal framework, although it took a long time, to overcome Plessy v. Ferguson shortly before the turn of the 20th century and then Brown v. Board of Education in 1954. We are still making major efforts to defeat racism. There are periodic calls for a discussion on racism. Beyond any question, it remains in our society. The problem is substantially ameliorated today but still there is a great deal more to be done. I recollect on my tenure in public service running for district attorney back in 1965. I had the opportunity to meet Dr. Martin Luther King, Jr., at a reception in Philadelphia, receiving advice from him on the problem of police brutality in Philadelphia and elsewhere and the necessity to have a police advisory board, a civil advisory board, some of the issues I worked on with Robert Casey, Sr., Senator Casey's father, at that time auditor general of Pennsylvania when I was district attorney, later Governor of the State of Pennsylvania. Those recollections are very appropriate as we pay honor to the illustrious career of Bill Coleman. I knew Bill Coleman when I was a beginning lawyer in Philadelphia in 1956. At that time, Bill Coleman had already been to New York City, where he went to get a job, after finishing at the top of his class at the Harvard Law School, clerking for Justice Frankfurter, as Senator Casey has already noted, and came back to Philadelphia to be a partner in the Dilworth office--a very distinguished law firm, and he was a very distinguished addition to it. I got to know Bill Coleman better and best when he and I were assistant counsel on the Warren Commission investigating the assassination of President Kennedy. The Warren Commission staff was divided into two groups--the seniors and juniors--and Bill Coleman was one of the senior lawyers and I one of the junior lawyers, although when the masthead was finished, we were all assistant counsel. The one thing I never understood about Bill Coleman's assignment on the Warren Commission was how he avoided being assigned the ``single bullet theory.'' And certainly I would have yielded that to Bill, but he managed to avoid it. He was on another area of the investigation. I read that when Bill Coleman helped Thurgood Marshall prepare the briefs in Brown v. the Board of Education, he put in a full day at the New York law firm. That was probably about 14 hours, the way the New York law firms worked, and then he went to do his work helping Thurgood Marshall--later Justice Marshall--preparing that brief. His work with the Warren Commission was about the same. His law firm agreed to let him go do the work, but he took the 5 o'clock plane on Friday and went back to Philadelphia on Monday to put in his full 5 days with the Dilworth law firm. There are a lot of fascinating stories about Bill Coleman and his work in public service. One story he tells is about President Lyndon Johnson trying to persuade him to become a circuit court of appeals judge for the Third Circuit, and I think President Johnson had the right idea, he just had the wrong court. But, at any rate, as Bill Coleman tells the story, he told President Johnson he really could not undertake that job because he had very heavy financial responsibilities with his family. And, as Bill described it, President Johnson put his right arm--maybe it was his left arm--over the credenza and pulled over some papers and started to rustle some papers and said: Yes, I know what a financial sacrifice it would be. Now, I do not think President Johnson was looking at his tax returns because that would have been questionable under Federal law. But, at any rate, that was an interesting vignette Bill told. In the mid-1980s--I think after the 1984 election--Bill Coleman told me he had a very bright young fellow he wanted me to meet who would help us rebuild the Republican Party, something which we are still working on; we haven't been very successful at that either. I said: Well, come. We will have lunch in the Senate Dining Room. And the young man's name was Clarence Thomas. He had been with the EEOC, I think. But, at any rate, he was Bill Coleman's nominee to help rebuild the Republican Party. We outlined a long agenda, a long list of things to do, and I was glad to pay for the lunch to promote this young man's efforts on rebuilding the Republican Party. Nothing happened for a year, so I invited him back to lunch. I said this time Clarence Thomas was going to have to pay for lunch. I was only kidding about that. But Clarence Thomas moved on to other lines of endeavor. More recently, Bill Coleman has been an activist for judicial pay increases--something that still remains to be accomplished. But that is the kind of public service he gets into. Last month, he was an active participant for promoting the nomination of Eric Holder to be Attorney General of the United States. When Bill Coleman makes a recommendation, it is given very substantial weight. So I am glad to join my distinguished colleague, Senator Casey, on this event to pay tribute to Bill Coleman. I ask unanimous consent, Madam President, to have the full text of my prepared statement printed in the Congressional Record at this point, with the introduction that it is a prepared statement so the repetition between that and some of my earlier comments will be understood if anyone should ever read the Congressional Record.

Mr. SPECTER. Madam President, I thank the Chair and yield the floor. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER. Madam President, on an unrelated item, I note there is on the desk S. 160, ``a bill to provide the District of Columbia a voting seat and the State of Utah an additional seat in the House of Representatives.'' I would like to be added as an additional cosponsor, with a very brief statement that I think it is long past due to have a voting seat for the District of Columbia with its 700,000 population. As a matter of basic democratic fairness, they ought to be represented in the U.S. House. So I ask unanimous consent that I be added as an original cosponsor.

Mr. SPECTER. I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to reintroduce the Attorney-Client Privilege Protection Act of 2009, which is nearly identical to S. 3217, a bill I introduced in July of 2008 under the same name. This legislation continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by Deputy Attorney General Mark Filip in August 2008, erode the attorney-client relationship by allowing prosecutors to continue considering the provision of privileged information in order for corporations to receive cooperation credit. To their credit, the Filip guidelines preclude prosecutors from asking for privilege waivers in nearly all circumstances. However, as evidenced by the numerous versions of the Justice Department's corporate prosecution guidelines over the past decade, the Filip reforms cannot be trusted to remain static. Moreover, unlike Federal law--which requires the assent of both houses and the President's signature or a super-majority in Congress--the Filip guidelines are subject to unilateral executive branch modification. Therefore, to avoid a recurrence of prosecutorial abuses and attorney-client privilege waiver demands, legislation is necessary. Like my previous bills, this bill will protect the sanctity of the attorney-client relationship by statutorily prohibiting Federal prosecutors and investigators across the executive branch from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement. The bill makes many subtle improvements over earlier iterations, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill further makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).'' Though an improvement over past guidelines, there is no need to wait to see how the Filip guidelines will operate in practice. There is similarly no need to wait for another Department of Justice or executive branch reform that will likely fall short and become the sixth policy in the last 10 years. Any such internal reform may prove fleeting and might not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice, thus allowing in through the window what isn't allowed through the door. As I said when I introduced my first bill on this subject, the right to counsel is too important to be passed over for prosecutorial convenience or Executive Branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client. In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty, or Filip memorandum. As in my prior bills designed to protect the attorney-client privilege, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement. This legislation is needed to ensure that constitutional protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.

Mr. SPECTER. Mr. President, once more I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the High Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Court noted that a public trial belongs not only to the accused but to the public and the press as well and recognized that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own initiative, televise its proceedings but has chosen not to do so. This presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings-- some of which now hang in my office. Today, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. Although the internet has made the Court's transcripts, and even more recently, audio recordings, more widely accessible, the public is still deprived of the real time transmission of audio and video feeds from the Court. I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices. I think the American people will gain a greater respect for the way in which our High Court functions if they are able to see oral arguments. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system.'' When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' I have continued to reiterate those sentiments in September of 2005 and in January of 2007 when I re-introduced identical bills. Today, I continue to support this legislation because I believe that it is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about 132 arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: ``Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capitol. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our Federal Government.'' In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.'' Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there was, in the views of many, simply a difference of opinion as to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives and liberties of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade, 1973, the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg, 1997, the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia, 1972, the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many States to amend their death penalty statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sandford, 1857--better known as the Dred Scott decision--the Supreme Court held that Dred Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States, 1971--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul, Roper, and Boumediene--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. In Boumediene v. Bush, 2008, the Court held that, subsequent to Hamdan v. Rumsfeld and regardless of Congress' attempts to strip federal courts of jurisdiction to consider pending habeas corpus petitions from Guantanamo detainees, the detainees nonetheless were not barred from seeking the writ and procedures under the Detainee Treatment Act were not an adequate substitute for it. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions, such as Boumediene, have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Since the beginning of its October 2005 term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued 45 decisions with a 5-4 split, not including the current October 2008 term, in which I understand there are additional 5-4 decisions within the few cases that have already been decided. It has also issued six 5- 3 decisions in which one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part, and in the October 2007 term, two 4-4 ties. In sum, since the beginning of its October 2005 term and not counting the current term, the Supreme Court has issued 52 decisions establishing the law of the land in which only 5 justices explicitly concurred. Many of these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 52 thinly decided cases but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans. The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders. In this case the Court considered ``the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury's weighing process.'' A majority of the Court held that henceforth in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined. In November 2006, the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices. Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer, June 26, 2006; LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act, June 28, 2006; Kansas v. Marsh, concerning the Eighth and Fourteenth Amendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise, April 25, 2006; Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense, June 29, 2006; Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, May 30, 2006; and District of Columbia v. Heller, June 26, 2008, which found that Washington, D.C.'s gun laws were unconstitutionally restrictive of rights afforded under the Second Amendment. The justices have split 5-3 six times since October 2005. In Georgia v. Randolph, March 22, 2006, a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all of the nuance that only cameras could capture and convey. In House v. Bell, a 5-3 opinion authored by Justice Kennedy, June 12, 2006, the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially- established procedural default rules, he could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default. In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts took no part, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite recent enactment of the Detainee Treatment Act. A thin majority of the justices supported the decision despite knowledge that the DTA explicitly provides ``no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In deciding the merits, the Court went on to hold that the President lacked authority to establish a military commission to try Hamdan or others without enabling legislation passed by both houses of Congress and enacted into law. This case was one of a handful of recent cases in which the Supreme Court released audiotapes of oral arguments almost immediately after they occurred. Yet it would have been vastly preferable to watch the parties' advocates grapple with the legal issues as the justices peppered them with jurisdictional, constitutional and merits-related questions from the High Court's bench. In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, the Supreme Court considered whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision. Though Jones v. Flowers involved the Due Process Clause of the Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one could draw interesting analogies to the Court's controversial 2005 decision in Kelo v. City of New London. In Kelo, a majority of the justices held that a city's exercise of eminent domain power in furtherance of a privately initiated economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Four justices dissented in Kelo and public opinion turned sharply against the decision immediately after it was issued. It's possible, though merely speculative, that the public ire aimed at Kelo informed what became a majority of justices in Jones v. Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.'' Not only lawyers but all homeowners could benefit from knowing how the Court grapples with legal issues governing the rights to their houses. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these. From his perch on the High Court one justice has been heard to contend that most Americans could care less about the arcane legal issues argued before the Court. But as elected representatives of the people we must endeavor to view America from a bottoms-up, rather than a top-down perspective. Regardless of one's view concerning the merits of these decisions, it is clear that they frequently have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. Given the enormous significance of each vote cast by each justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: ``Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence} contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.'' To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: ``Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.'' However, in the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, the late Judge Edward R. Becker, then- Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005.'' During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation. The notable exception was the Honorable Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of problems particularly at the trial level, where witnesses who appear uncomfortable because of cameras might seem less credible to jurors. I note, however, that appellate courts do not appear susceptible to this criticism because there are no witnesses or jurors present for appellate arguments. The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor. Again, in the 110th Congress, I introduced this legislation, and it was reported out of the Judiciary Committee by a vote of 11-7. During their confirmation hearings over the past two years, Chief Justice John Roberts stated he would keep an open mind on the issue and Justice Alito stated that as a circuit judge he unsuccessfully voted, in the minority, to permit televised open proceedings in the Third Circuit. I applaud the fact the new Chief Justice has taken steps to make the Court more open and to ensure the timely publication of audio recordings of the arguments as well as the written transcripts. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the original jurisdiction of the Court, it provides that appellate jurisdiction exists ``with such exceptions and under such regulations as the Congress shall make.'' Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor ensure that Supreme Court justices would undertake through television appearances. Also, any concerns could be mitigated by focusing only on the attorneys presenting arguments. There is no requirement that the justices permit the cameras to focus on the bench. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the all Americans. I urge my colleagues to support this bill.

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation to amend Section 162 of the Internal Revenue Code to permit attorneys to deduct expenses and court costs incurred on behalf of contingency fee clients as an ordinary and necessary business expense in the year such expenses are sustained. I introduced the same legislation in the 110th Congress, and the bill attracted bipartisan support. My bill simply clarifies the law to make certain that attorneys who take on contingency fee cases are able to enjoy the same tax benefits as virtually every other small business in the country. Contingency agreements between attorneys and clients are very common in personal injury, medical malpractice, product liability, Social Security disability, workers compensation, civil liberties, and employment cases. Under these agreements, an attorney pays all out-of- pocket costs associated with a case before any conclusion to the case. Such expenses include costs for expert witnesses, depositions, medical records, and court fees. Contingency agreements have numerous benefits to clients; in particular, indigent individuals who might otherwise be unable to afford legal services. The obvious benefit to clients of contingency fee arrangements is that they do not have to incur out-of-pocket expenses for attorneys' fees. This may be particularly valuable to clients who do not have the ability to pay attorneys by the hour to advance their case. The arrangement also benefits the client by effectively spreading the risk of litigation. An hourly-rate payment agreement requires the client to assume all of the risk because the attorneys' fees are a sunk cost. However, under a contingent-fee arrangement, the attorney shares that risk and is only paid a fee if he wins the case or obtains a settlement. Currently, the Internal Revenue Service, IRS, treats expenses and court costs on behalf of contingency clients as loans to the client. As a result, the IRS does not permit any deduction by the attorney until the litigation is resolved, sometimes many years after the attorney has incurred the expenses on behalf of their client. The IRS treats the expenses and court costs as a loan despite the fact that no interest is charged and the lawyer only recoups costs if the case is won or settled. Not only is the IRS's position illogical, but it is contrary to a ruling by the United States Court of Appeals for the 9th Circuit. In Boccardo v. Commissioner, 56 F.3d 1016, 9t Cir. 1995, the 9th Circuit held that because the firm had a ``gross fee'' contract with the client, the firm incurred ordinary and necessary business expenses in the payment of costs and charges in connection with its clients' litigation. Consequently, litigation costs such as filing fees, witness fees, travel expenses, and medical consultation fees were deductible as ordinary and necessary business expenses in the year the costs were incurred on behalf of the clients. In a ``gross fee'' contract, the client is only obligated to pay their attorney a percentage of the amount recovered and is not expressly responsible for specific repayment of costs. While the Boccardo court contrasted ``gross fee'' contracts with ``net fee'' contracts, such a distinction is trivial for tax purposes. In both agreements, the attorney takes a considerable business risk to incur significant costs on behalf of a client and only recoups the expenses if a recovery is won. Despite the Boccardo court's ruling in favor of attorneys, the IRS continues to treat the out-of-pocket costs related to contingency fee cases as loans. Lawyers who make the decision to deduct these costs are exposed to potential audit and litigation. Over the past 13 years, taxpayers have had to proceed at their own peril--Ninth Circuit taxpayers risk a conflict with the IRS on this matter despite the case law, and taxpayers outside of the Ninth Circuit have no guidance at all since they cannot directly rely on Boccardo. My bill reverses an unfair IRS position by treating these businesses the same as all other small businesses. It does so by allowing attorneys with contingency fee clients to deduct their expenses and costs in the year that they are paid. My legislation does not give attorneys anything above and beyond that which is currently enjoyed by virtually every other small business in our country. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation to amend Section 62(a)(20) of the Internal Revenue Code to allow taxpayers to subtract from their taxable gross income the attorneys' fees and court costs paid by the taxpayer in connection with an award or settlement of monetary damages in a civil claim. Such a deduction is commonly referred to as an ``above-the-line'' deduction. Under current law, there is an inequity in the tax code that results in the double taxation of attorneys' fees and costs in certain circumstances. In addition, attorneys' fees paid by individuals in recovering a taxable award in certain civil claims are only deductible as miscellaneous itemized deductions. As such, they are subject to a reduction equal to two percent of the individual's adjusted gross income and subject to a complete disallowance when calculating the alternative minimum tax. Consequently, many plaintiffs end up incurring significant tax liability beyond the amount they actually bring home after winning or settling a case. Congress partially corrected the problem in 2004, when we passed, and President Bush signed, the American Jobs Creation Act of 2004, Jobs Act. The Jobs Act allows an above-the-line deduction for amounts attributable to attorneys' fees and costs received by individuals based on claims brought under certain statutes, including the False Claims Act, 1862(b)(3)(A) of the Social Security Act, or unlawful discrimination claims. Prior to enactment of the Jobs Act, the Internal Revenue Code already excluded from income awards arising out of claims relating to physical injury and sickness. However, attorneys' fees paid in the pursuit and collection of punitive awards, awards for libel, slander, or other awards in cases not involving a physical injury or a claim of discrimination are still not subtracted from gross income. In 2005, the United States Supreme Court added further confusion to the issue. In Commissioner v. Banks, 543 U.S. 426 (2005), the Court attempted to resolve a circuit split on the Federal income tax treatment of attorneys' fees. In an 8-0 opinion, the Court held that when a litigant's recovery constitutes income, the litigant's income includes the portion of the recovery paid to the attorney as a contingent fee. Consequently, for those claims not excluded from gross income in the Jobs Act, attorneys' fees are subjected to double taxation; subjected to a reduction equal to two percent of the individual's adjusted gross income when listed as a miscellaneous itemized deduction; and subjected to a complete disallowance when calculating the alternative minimum tax. My legislation corrects the problem by permitting taxpayers to subtract from their taxable gross income the attorneys' fees and court costs paid by the taxpayer in connection with an award or settlement of monetary damages in all civil claims. The legislation would ensure more uniform treatment of contingency fees in all types of litigation, not just the limited categories of litigation as specified in the Jobs Act. Importantly, this change does not affect the requirement that attorneys pay federal income tax on legal fees they receive. The legislation does eliminate the inequity of the client also paying taxes on attorneys' fees despite not receiving the funds under the terms of a contingency fee contract. I encourage my colleagues to join me in this effort to bring fairness to the tax code. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER. Mr. President, I sought recognition to introduce the Free Flow of Information Act of 2009. I am honored to be joined in my efforts by Senators Schumer, Lugar and Graham, who are original cosponsors. Some 242 years ago, on January 16, 1767, Thomas Jefferson remarked in a letter to Col. Edward Carrington, ``Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.'' We take our free press for granted because it is so ingrained in our history. But we need only look at free press movements in fledgling democracies to appreciate how sometimes fragile and easily chilled freedom of press truly is. The Free Flow of Information Act protects the public interest by ensuring an informed citizenry. In the past three years the Department of Justice has provided inconsistent numbers of subpoenaed journalists to the Judiciary Committee. We know from the public record, however, that at least 19 journalists have been subpoenaed by federal and special prosecutors for confidential source information since 2001 claim. Among them are Judith Miller, Matt Cooper, Tim Russert, Lance Williams, Mark Fainaru-Wada, and Philip Shenon. We also know 4 journalists have been imprisoned at the request either of the DoJ, U.S. Attorneys, or special prosecutors since 2000. Josh Wolf, Judith Miller, Jim Taricani, Vanessa Leggett. Collectively, these journalists have spent over 19 months imprisoned. Journalists who are not jailed for failing to comply with subpoenas still suffer the prospect of being held in contempt. Several have suffered this fate: Toni Locy, James Stewart, Walter Pincus, Jim Taricani. In addition to the subpoenas from special prosecutors mentioned above, more than a dozen reporters have received subpoenas in civil suits, such as the Wen Ho Lee and Hatfill privacy lawsuits against the government. A preliminary report on the 2007 Media Subpoena Survey conducted by Professor RonNell Andersen Jones at the Law College Foundation at the University of Arizona states: 761 responding news organizations reported receiving a total of 3,602 subpoenas seeking information or material relating to newsgathering activities in calendar year 2006. Of these, 335 were subpoenas arising out of proceedings that took place in a federal forum. Sixty-four percent of responding newsroom leaders believe the frequency of media subpoenas to be greater than it was five years ago. Fifty percent of the media companies believe the risk of their own organization receiving a subpoena is greater than it was five years ago, while only 5 percent believe the risk to be less. This bipartisan legislation would establish a qualified reporters' privilege protecting them from being compelled to identify confidential source information. The bill seeks to reconcile reporters' need to maintain confidentiality, in order to ensure that sources will speak openly and freely with the media, with the public's right to effective law enforcement and fair trials. The situation in the United States today is that journalists are subject to a compulsory process to disclose confidential informants--at least in Federal courts. At the State level, there are many laws providing qualified privileges for journalists. Prior versions of this bill garnered the support of numerous bipartisan cosponsors, as well as 39 media organizations, including the Washington Post, The Hearst Corporation, Time Warner, ABC Inc., CBS, CNN, The New York Times Company, and National Public Radio. In 2005 I cosponsored two prior bills and was principle author of yet another. In the 110th Congress, I introduced S. 1035 the Free Flow of Information Act of 2007, along with Senator Schumer, and Senators Lugar, Graham, and Dodd other senators to join as cosponsors were Senators Leahy, Johnson, Boxer, Klobuchar, Salazar, Obama, Clinton, Dole, Murray, Landrieu, Webb, Tester, Lieberman, Durbin, Baucus, and Lautenberg. On October 4, 2007, the Committee on the Judiciary favorably reported S.2035 out of committee by a 15-4 vote, which marked the first time a reporters' privilege bill had ever passed out of the Senate Judiciary Committee. On March 6, 2008, I, along with Senator Leahy, sent a letter to Majority Leader Reid and Minority Leader McConnell asking that S. 2035 receive floor time for full Senate consideration. They answered our call. On July 30, 2008, the Senate entertained a cloture vote on the motion to proceed to the measure that failed by a vote of 51-43. Nonetheless, the bill continues to enjoy broad bipartisan support-- including the pledged support of former Senator, now--President Barack Obama. I urge all of my colleagues to join me in passing the Free Flow of Information Act of 2009, its high time we stop jailing or holding in contempt reporters who, in good faith, protect their confidential sources even in the face of a government subpoena. There has been a growing consensus that we need to establish a Federal journalists' privilege to protect the integrity of the news gathering process, a process that depends on the free flow of information between journalists and whistleblowers, as well as other confidential sources. Under my chairmanship, the Judiciary Committee held three separate hearings on this issue at which we heard from 20 witnesses, including prominent journalists like William Safire and Judith Miller, current and former Federal prosecutors, including former Deputy Attorney General Paul McNulty, and First Amendment scholars. These witnesses demonstrated that there are two vital, competing concerns at stake. On one hand, reporters cite the need to maintain confidentiality in order to ensure that sources will speak openly and freely with the news media. The renowned William Safire, former columnist for the New York Times, testified that ``the essence of news gathering is this: if you don't have sources you trust and who trust you, then you don't have a solid story--and the public suffers for it.'' Reporter Matthew Cooper of Time Magazine said this to the Judiciary Committee: ``As someone who relies on confidential sources all the time, I simply could not do my job reporting stories big and small without being able to speak with officials under varying degrees of anonymity.'' On the other hand, the public has a right to effective law enforcement and fair trials. Our judicial system needs access to information in order to prosecute crime and to guarantee fair administration of the law for plaintiffs and defendants alike. As a Justice Department representative told the Committee, prosecutors need to ``maintain the ability, in certain vitally important circumstances, to obtain information identifying a source when a paramount interest is at stake. For example, obtaining source information may be the only available means of preventing a murder, locating a kidnapped child, or identifying a serial arsonist.'' As Federal courts have considered these competing interests, they adopted rules that went in several different directions. Rather than a clear, uniform standard for deciding claims of journalist privilege, the Federal courts currently observe a ``crazy quilt'' of different judicial standards. The confusion began 36 years ago, when the Supreme Court decided Branzburg v. Hayes. The Court held that the press' First Amendment right to publish information does not include a right to keep information secret from a grand jury investigating a criminal matter. The Supreme Court also held that the common law did not exempt reporters from the duty of every citizen to provide information to a grand jury. The Court reasoned that just as newspapers and journalists are subject to the same laws and restrictions as other citizens, they are also subject to the same duty to provide information to a court as other citizens. However, Justice Powell, who joined the 5-4 majority, wrote a separate concurrence in which he explained that the Court's holding was not an invitation for the Government to harass journalists. If a journalist could show that the grand jury investigation was being conducted in bad faith, the journalist could ask the court to quash the subpoena. Justice Powell indicated that courts might assess such claims on a case-by-case basis by balancing the freedom of the press against the obligation to give testimony relevant to criminal conduct. In attempting to apply Justice Powell's concurring opinion, Federal courts have split on the question of when a journalist is required to testify. In more than three decades since Branzburg, the Federal courts are split in at least three ways in their approaches to Federal criminal and civil cases. With respect to Federal criminal cases, five circuits apply Branzburg so as to not allow journalists to withhold information absent governmental bad faith. Four other circuits recognize a qualified privilege, which requires courts to balance the freedom of the press against the obligation to provide testimony on a case-by-case basis. The law in the District of Columbia Circuit is unsettled. With respect to Federal civil cases, 9 of the 12 circuits apply a balancing test when deciding whether journalists must disclose confidential sources. One circuit affords journalists no privilege in any context. Two other circuits have yet to decide whether journalists have any privilege in civil cases. Meanwhile, 49 States plus the District of Columbia have recognized some form of reporters' privilege within their own jurisdictions. Thirty-one States plus the District of Columbia have passed some form of reporter's shield statute, and 18 States have recognized a privilege at common law. There is little wonder that there is a growing consensus concerning the need for a uniform journalists' privilege in Federal courts. This system must be simplified. Today, we move toward resolving this problem by introducing the Free Flow of Information Act of 2009. The purpose of this bill is to guarantee the flow of information to the public through a free and active press, while protecting the public's right to effective law enforcement and individuals' rights to the fair administration of justice. The bill provides a qualified privilege for reporters to withhold from Federal courts, prosecutors, and other Federal entities, confidential source information and documents and materials obtained or created under a promise of confidentiality. However, the bill recognizes that, in certain instances, the public's interest in law enforcement and fair trials outweighs a source's interest in remaining anonymous through the reporter's assertion of a privilege. Therefore, it allows courts to require disclosure where certain criteria are met. Under the legislation, in most criminal investigations and prosecutions, the Federal entity seeking the reporter's source information must show that there are reasonable grounds to believe that a crime has occurred, and that the reporter's information is essential to the prosecution or defense. In criminal investigations and prosecutions of leaks of classified information, the Federal entity seeking disclosure must additionally show that the leak caused significant, clear, and articulable harm to national security. In noncriminal actions, the Federal entity seeking source information must show that the reporter's information is essential to the resolution of the matter. In all cases and investigations, the Federal entity must demonstrate that nondisclosure would be contrary to the public interest. In other words, the court must balance the governmental need for the information against the public interest in newsgathering and the free flow of information. Further, the bill ensures that Federal Government entities do not engage in ``fishing expeditions'' for a reporter's information. The information a reporter reveals must, to the extent possible, be limited to verifying published information and describing the surrounding circumstances. The information must also be narrowly tailored to avoid compelling a reporter to reveal peripheral or speculative information. Finally, the Free Flow of Information Act adds layers of safeguards for the public. Reporters are not allowed to withhold information if a Federal court concludes that the information is needed for the defense of our Nation's security, as long as it outweighs the public interest in newsgathering and maintains the free flow of information to citizens, or to prevent an act of terrorism. Similarly, journalists may not withhold information reasonably necessary to stop a kidnapping or a crime that could lead to death or physical injury. Also, the bill ensures that both crime victims and criminal defendants will have a fair hearing in court. Under this bill, a journalist who is an eyewitness to a crime or tort or takes part in a crime or tort may not withhold that information on grounds of the qualified privilege. Journalists should not be permitted to hide from the law by writing a story and then claiming a reporter's privilege. It is time for Congress to clear up the ambiguities journalists and the Federal judicial system face in balancing the protections journalists need in providing confidential information to the public with the ability of the courts to conduct fair and accurate trials. I urge my colleagues to support this legislation and help create a fair and efficient means to serve journalists and the news media, prosecutors and the courts, and most importantly the public interest on both ends of the spectrum.

Mr. SPECTER. Mr. President. I am introducing the Free Speech Protection Act of 2009 to address a serious challenge to one of the most basic protections in our Constitution. American journalists and academics must have the freedom to investigate, write, speak, and publish about matters of public importance, limited only by the legal standards laid out in our First Amendment jurisprudence, including precedents such as New York Times v. Sullivan. Despite the protection for free speech under our own law, the rights of the American public, and of American journalists who share information with the public, are being threatened by the forum shopping of libel suits to foreign courts with less robust protections for free speech. These suits are filed in, and entertained by, foreign courts, despite the fact that the challenged speech or writing is written in the United States by U.S. journalists, and is published or disseminated primarily in the United States. The plaintiff in these cases may have no particular connection to the country in which the suit is filed. Nevertheless, the U.S. journalists or publications who are named as defendants in these suits must deal with the expense, inconvenience and distress of being sued in foreign courts, even though their conduct is protected by the First Amendment. An example of why the legislation is necessary is found in litigation involving Dr. Rachel Ehrenfeld, a U.S. citizen and Director of the American Center for Democracy, whose articles have appeared in the Wall Street Journal, the National Review, and the Los Angeles Times. She has been a scholar with Columbia University, the University of New York School of Law, and Johns Hopkins, and has testified before Congress. Dr. Ehrenfeld's 2003 book, ``Funding Evil: How Terrorism is Financed and How to Stop It'', which was published solely in the United States by a U.S. publisher, alleged that a Saudi Arabian subject and his family financially supported Al Qaeda in the years preceding the attacks of September 11. He sued Ehrenfeld for libel in England, although only 23 books were sold there. Why? Because under English law, it is not necessary for a libel plaintiff to prove falsity or actual malice as is required in the United States. Dr. Ehrenfeld did not appear, and the English court entered a default judgment for damages, an injunction against publication in the United Kingdom, a ``declaration of falsity'', and an order that she and her publisher print a correction and an apology. Dr. Ehrenfeld sought to shield herself with a declaration from both federal and state courts that her book did not create liability under American law, but jurisdictional barriers prevented both the Federal and New York State courts from acting. Reacting to this problem, the Governor of New York, on May 1, 2008, signed into law the ``Libel Terrorism Protection Act.'' Congress must now take similar action. I note that the person who sued Dr. Ehrenfeld has filed dozens of lawsuits in England, and there is a real danger that other American writers and researchers will be afraid to address this crucial subject of terror funding and other important matters. Other countries should be free to have their own libel law, but so too should the United States. Venues that have become magnets for defamation plaintiffs from around the world permit those who want to intimidate our journalists to succeed in doing so. The stakes are high. The United Nations in 2008 noted the importance of free speech and a free press, and the threat that libel tourism poses to the world. Following the New York example, the legislation my co-sponsors and I introduce today confers jurisdiction on federal courts to bar enforcement of foreign libel judgments if the material at issue would not constitute libel under U.S. law. Significantly, it also deters foreign suits in the first place by permitting American defendants to countersue from the moment papers are served on them. Damages available in the countersuit include the amount at issue in the foreign libel suit as well as treble damages if the foreign suit is part of a scheme to suppress a U.S. person's first amendment rights. This deterrent mechanism is critical because those who bring these foreign libel suits are more interested in intimidating the authors than in actually collecting damages. They know that even if a foreign judgment cannot be enforced in the United States, the cost of defending the suit and the penalty for taking a default judgment can have a chilling effect on American writers and publishers. In particular, under English law a contempt citation may issue against authors or publishers who fail to satisfy default judgments, pursuant to which their property may be seized and they may be imprisoned. What is worse, defendants can no longer skirt the consequences merely by avoiding contact with England. Under recent European Commission regulations, default judgments for monetary claims are enforceable in all EU countries except Denmark. The potentially severe ramifications of a default judgment make clear that merely barring enforcement of a foreign libel judgment in U.S. courts is entirely insufficient particularly for publishers with European offices. While it is important to bar enforcement, in the words of a New York Times editorial, that does ``not go as far as it could.'' I often remark that the Senate is the world's greatest deliberative body and all the facts and arguments ought to be examined before it acts. Accordingly, I must address a letter in opposition to this bill from a prominent British libel lawyer and explain why his arguments are unpersuasive. He notes that a ``U.S. citizen . . . knocked down by the negligent driving'' of a London taxi driver is ``just as entitled as any British citizen'' to sue in England for damages. Why should a U.S. citizen ``not be entitled on the same basis, like any other UK citizen, to sue for damages to his reputation?'' The answer, of course, is that the analogy is inapt. In that hypothetical, the plaintiff sues the defendant in the defendant's jurisdiction for a harm committed and suffered there, an injury that is universally recognized as a tort. By contrast, the plaintiff in a foreign libel action purposely avoids suing in the jurisdiction where the defendant journalist writes and publishes, a jurisdiction where the material is not libelous. The proper analogy would be if the injured American had sued the taxi driver in the United States instead of England because the driver's conduct would not constitute negligence under English law. That hardly seems fair play. Our bill is designed specifically to prevent such forum shopping. That essay also asks whether ``legislators will extend their intervention'' to commercial matters such as contracts and debts and warns that such extension could trigger ``retaliatory action on the part of UK legislators.'' Actually, such extension has already happened, but at the hands of British legislators not American ones. In the antitrust context, British law bars enforcement of foreign judgments for treble damages such as those awarded by U.S. courts. In addition, it allows a British corporation, against whom a judgment for treble damages was entered in a foreign court, to recover from the plaintiff any excess over actual damages. In any event, this bill is confined to the narrow area of core First Amendment rights. ``Perhaps of most significance'' he continues in his letter, is that to his knowledge ``very few of these claims have actually come before UK courts.'' But it is the chilling effect and the mere threat of litigation that suffices to silence authors; there is no need to try the cases. In 2004, fear of a lawsuit forced Random House UK to cancel publication of ``House of Bush, House of Saud,'' a best seller in the U.S. that was written by an American author. Similarly, in 2007, the threat of a lawsuit compelled Cambridge University Press to apologize and destroy all available copies of ``Alms for Jihad,'' a book on terrorism funding by American authors. Indeed, an October 2008 study reported in The Guardian found that ``[m]edia companies are becoming less willing to fight defamation court cases all the way to a verdict. . . . With the burden of proof effectively resting on the defendant'' and attorneys' fees paid by the loser, defendants ``are forced to enter into settlement negotiations.'' Numerous organizations have endorsed the bill we offer today, including the ACLU and the Anti-Defamation League, as well as numerous journalists and publishers groups. Op-eds and editorials supporting our efforts have run in national papers, including the New York Times on September 15, 2008 and the New York Sun on July 28, 2008. Also drawing attention to the issue was an op-ed Senator Lieberman and I penned that ran in the Wall Street Journal on July 14, 2008. Freedom of speech, freedom of the press, freedom of expression of ideas, opinions, and research, and freedom of exchange of information are all essential to the functioning of a democracy. They are also essential in the fight against terrorism. I thank Senators Lieberman and Schumer, as well as Congressman Pete King and his cosponsors for working with me on this important bill.

Mr. SPECTER

Mr. SPECTER. I thank the Chairman. economically distressed communities

Mr. SPECTER. Mr. President, I seek recognition to clarify a provision in the American Recovery and Reinvestment Act. It is my view that our national transportation policy should promote a balance between the highway and rail freight shipment modes. In promoting this concept of modal balance, I have particular interest in the well-being of the 500 short lines and regional railroads of America. I am advised that these railroads operate 50,000 miles of line, nearly 20 percent of the entire system. They connect communities and entire rural regions of the country to the mainline rail network. These carriers provide essential economic and environmental benefits primarily in rural regions of the country, including those in my State. Pennsylvania has 54 small railroads that operate over 3,000 miles of line. It is estimated that if these railroads are abandoned, Pennsylvania highway users would sustain additional pavement damage of $87 million annually. This alone, in addition to the documented environmental and congestion relief benefits of freight rail, is a notable public benefit to highway users. In 2007, Congress enacted Public Law 110-140, the Energy Act of 2007, and chapter 223 created a new program of capital grants to class II and III railroads to preserve this essential service. I believe that this provides an authorization and public interest justification for funding small rail projects with stimulus appropriations. There are two programs within the American Recovery and Reinvestment Act that are of particular applicability. They are both adopted from the Senate version of the bill. First, the Senate bill included a $5.5 billion discretionary program that could be used for highway, transit, as well as freight and passenger rail projects. The conference report funds this at $1.5 billion. There is a threshold that the projects must be between $20 million and $500 million. I am informed that this is too high a threshold for most short line rail projects. Fortunately, the conference report stipulates that the Secretary may waive the requirement for smaller cities and regions. It is my understanding that these investments may include short-line railroad projects that meet public benefit tests such as those stipulated in the Energy Act of 2007 and provide a benefit to highway users. Second, the conference report includes $27.5 billion for highways and surface transportation infrastructure. The conference report explicitly states that grants may be for passenger and freight rail transportation projects. The flexibility criteria states that a project must be eligible under Section 133 of title 23 601(a)(8) which reads in part ``for a public freight rail facility or a private facility providing public benefit for highway users.'' My understanding is that short line rail projects that ``provide a benefit to highway users'' are be eligible for this funding. I would ask the distinguished chair of the Transportation, Housing and Urban Development and Related Agencies Appropriations Subcommittee if I am correct in my understanding that the Secretary may waive the $20 million minimum requirement under the discretionary grant program and that short line and other freight rail projects that provide a benefit to highway users are eligible under the $27.5 billion highway infrastructure investment.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation to amend Section 162 of the Internal Revenue Code to permit attorneys to deduct expenses and court costs incurred on behalf of contingency fee clients as an ordinary and necessary business expense in the year such expenses are sustained. I introduced the same legislation in the 110th Congress, and the bill attracted bipartisan support. My bill simply clarifies the law to make certain that attorneys who take on contingency fee cases are able to enjoy the same tax benefits as virtually every other small business in the country. Contingency agreements between attorneys and clients are very common in personal injury, medical malpractice, product liability, Social Security disability, workers compensation, civil liberties, and employment cases. Under these agreements, an attorney pays all out-of- pocket costs associated with a case before any conclusion to the case. Such expenses include costs for expert witnesses, depositions, medical records, and court fees. Contingency agreements have numerous benefits to clients; in particular, indigent individuals who might otherwise be unable to afford legal services. The obvious benefit to clients of contingency fee arrangements is that they do not have to incur out-of-pocket expenses for attorneys' fees. This may be particularly valuable to clients who do not have the ability to pay attorneys by the hour to advance their case. The arrangement also benefits the client by effectively spreading the risk of litigation. An hourly-rate payment agreement requires the client to assume all of the risk because the attorneys' fees are a sunk cost. However, under a contingent-fee arrangement, the attorney shares that risk and is only paid a fee if he wins the case or obtains a settlement. Currently, the Internal Revenue Service, IRS, treats expenses and court costs on behalf of contingency clients as loans to the client. As a result, the IRS does not permit any deduction by the attorney until the litigation is resolved, sometimes many years after the attorney has incurred the expenses on behalf of their client. The IRS treats the expenses and court costs as a loan despite the fact that no interest is charged and the lawyer only recoups costs if the case is won or settled. Not only is the IRS's position illogical, but it is contrary to a ruling by the United States Court of Appeals for the 9th Circuit. In Boccardo v. Commissioner, 56 F.3d 1016, 9t Cir. 1995, the 9th Circuit held that because the firm had a ``gross fee'' contract with the client, the firm incurred ordinary and necessary business expenses in the payment of costs and charges in connection with its clients' litigation. Consequently, litigation costs such as filing fees, witness fees, travel expenses, and medical consultation fees were deductible as ordinary and necessary business expenses in the year the costs were incurred on behalf of the clients. In a ``gross fee'' contract, the client is only obligated to pay their attorney a percentage of the amount recovered and is not expressly responsible for specific repayment of costs. While the Boccardo court contrasted ``gross fee'' contracts with ``net fee'' contracts, such a distinction is trivial for tax purposes. In both agreements, the attorney takes a considerable business risk to incur significant costs on behalf of a client and only recoups the expenses if a recovery is won. Despite the Boccardo court's ruling in favor of attorneys, the IRS continues to treat the out-of-pocket costs related to contingency fee cases as loans. Lawyers who make the decision to deduct these costs are exposed to potential audit and litigation. Over the past 13 years, taxpayers have had to proceed at their own peril--Ninth Circuit taxpayers risk a conflict with the IRS on this matter despite the case law, and taxpayers outside of the Ninth Circuit have no guidance at all since they cannot directly rely on Boccardo. My bill reverses an unfair IRS position by treating these businesses the same as all other small businesses. It does so by allowing attorneys with contingency fee clients to deduct their expenses and costs in the year that they are paid. My legislation does not give attorneys anything above and beyond that which is currently enjoyed by virtually every other small business in our country. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation to amend Section 62(a)(20) of the Internal Revenue Code to allow taxpayers to subtract from their taxable gross income the attorneys' fees and court costs paid by the taxpayer in connection with an award or settlement of monetary damages in a civil claim. Such a deduction is commonly referred to as an ``above-the-line'' deduction. Under current law, there is an inequity in the tax code that results in the double taxation of attorneys' fees and costs in certain circumstances. In addition, attorneys' fees paid by individuals in recovering a taxable award in certain civil claims are only deductible as miscellaneous itemized deductions. As such, they are subject to a reduction equal to two percent of the individual's adjusted gross income and subject to a complete disallowance when calculating the alternative minimum tax. Consequently, many plaintiffs end up incurring significant tax liability beyond the amount they actually bring home after winning or settling a case. Congress partially corrected the problem in 2004, when we passed, and President Bush signed, the American Jobs Creation Act of 2004, Jobs Act. The Jobs Act allows an above-the-line deduction for amounts attributable to attorneys' fees and costs received by individuals based on claims brought under certain statutes, including the False Claims Act, 1862(b)(3)(A) of the Social Security Act, or unlawful discrimination claims. Prior to enactment of the Jobs Act, the Internal Revenue Code already excluded from income awards arising out of claims relating to physical injury and sickness. However, attorneys' fees paid in the pursuit and collection of punitive awards, awards for libel, slander, or other awards in cases not involving a physical injury or a claim of discrimination are still not subtracted from gross income. In 2005, the United States Supreme Court added further confusion to the issue. In Commissioner v. Banks, 543 U.S. 426 (2005), the Court attempted to resolve a circuit split on the Federal income tax treatment of attorneys' fees. In an 8-0 opinion, the Court held that when a litigant's recovery constitutes income, the litigant's income includes the portion of the recovery paid to the attorney as a contingent fee. Consequently, for those claims not excluded from gross income in the Jobs Act, attorneys' fees are subjected to double taxation; subjected to a reduction equal to two percent of the individual's adjusted gross income when listed as a miscellaneous itemized deduction; and subjected to a complete disallowance when calculating the alternative minimum tax. My legislation corrects the problem by permitting taxpayers to subtract from their taxable gross income the attorneys' fees and court costs paid by the taxpayer in connection with an award or settlement of monetary damages in all civil claims. The legislation would ensure more uniform treatment of contingency fees in all types of litigation, not just the limited categories of litigation as specified in the Jobs Act. Importantly, this change does not affect the requirement that attorneys pay federal income tax on legal fees they receive. The legislation does eliminate the inequity of the client also paying taxes on attorneys' fees despite not receiving the funds under the terms of a contingency fee contract. I encourage my colleagues to join me in this effort to bring fairness to the tax code. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to reintroduce the Attorney-Client Privilege Protection Act of 2009, which is nearly identical to S. 3217, a bill I introduced in July of 2008 under the same name. This legislation continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by Deputy Attorney General Mark Filip in August 2008, erode the attorney-client relationship by allowing prosecutors to continue considering the provision of privileged information in order for corporations to receive cooperation credit. To their credit, the Filip guidelines preclude prosecutors from asking for privilege waivers in nearly all circumstances. However, as evidenced by the numerous versions of the Justice Department's corporate prosecution guidelines over the past decade, the Filip reforms cannot be trusted to remain static. Moreover, unlike Federal law--which requires the assent of both houses and the President's signature or a super-majority in Congress--the Filip guidelines are subject to unilateral executive branch modification. Therefore, to avoid a recurrence of prosecutorial abuses and attorney-client privilege waiver demands, legislation is necessary. Like my previous bills, this bill will protect the sanctity of the attorney-client relationship by statutorily prohibiting Federal prosecutors and investigators across the executive branch from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement. The bill makes many subtle improvements over earlier iterations, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill further makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).'' Though an improvement over past guidelines, there is no need to wait to see how the Filip guidelines will operate in practice. There is similarly no need to wait for another Department of Justice or executive branch reform that will likely fall short and become the sixth policy in the last 10 years. Any such internal reform may prove fleeting and might not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice, thus allowing in through the window what isn't allowed through the door. As I said when I introduced my first bill on this subject, the right to counsel is too important to be passed over for prosecutorial convenience or Executive Branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client. In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty, or Filip memorandum. As in my prior bills designed to protect the attorney-client privilege, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement. This legislation is needed to ensure that constitutional protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.

Mr. SPECTER

Mr. SPECTER. Mr. President, once more I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the High Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Court noted that a public trial belongs not only to the accused but to the public and the press as well and recognized that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own initiative, televise its proceedings but has chosen not to do so. This presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings-- some of which now hang in my office. Today, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. Although the internet has made the Court's transcripts, and even more recently, audio recordings, more widely accessible, the public is still deprived of the real time transmission of audio and video feeds from the Court. I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices. I think the American people will gain a greater respect for the way in which our High Court functions if they are able to see oral arguments. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system.'' When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' I have continued to reiterate those sentiments in September of 2005 and in January of 2007 when I re-introduced identical bills. Today, I continue to support this legislation because I believe that it is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about 132 arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: ``Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capitol. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our Federal Government.'' In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.'' Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there was, in the views of many, simply a difference of opinion as to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives and liberties of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade, 1973, the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg, 1997, the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia, 1972, the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many States to amend their death penalty statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sandford, 1857--better known as the Dred Scott decision--the Supreme Court held that Dred Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States, 1971--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul, Roper, and Boumediene--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. In Boumediene v. Bush, 2008, the Court held that, subsequent to Hamdan v. Rumsfeld and regardless of Congress' attempts to strip federal courts of jurisdiction to consider pending habeas corpus petitions from Guantanamo detainees, the detainees nonetheless were not barred from seeking the writ and procedures under the Detainee Treatment Act were not an adequate substitute for it. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions, such as Boumediene, have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Since the beginning of its October 2005 term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued 45 decisions with a 5-4 split, not including the current October 2008 term, in which I understand there are additional 5-4 decisions within the few cases that have already been decided. It has also issued six 5- 3 decisions in which one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part, and in the October 2007 term, two 4-4 ties. In sum, since the beginning of its October 2005 term and not counting the current term, the Supreme Court has issued 52 decisions establishing the law of the land in which only 5 justices explicitly concurred. Many of these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 52 thinly decided cases but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans. The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders. In this case the Court considered ``the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury's weighing process.'' A majority of the Court held that henceforth in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined. In November 2006, the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices. Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer, June 26, 2006; LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act, June 28, 2006; Kansas v. Marsh, concerning the Eighth and Fourteenth Amendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise, April 25, 2006; Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense, June 29, 2006; Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, May 30, 2006; and District of Columbia v. Heller, June 26, 2008, which found that Washington, D.C.'s gun laws were unconstitutionally restrictive of rights afforded under the Second Amendment. The justices have split 5-3 six times since October 2005. In Georgia v. Randolph, March 22, 2006, a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all of the nuance that only cameras could capture and convey. In House v. Bell, a 5-3 opinion authored by Justice Kennedy, June 12, 2006, the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially- established procedural default rules, he could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default. In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts took no part, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite recent enactment of the Detainee Treatment Act. A thin majority of the justices supported the decision despite knowledge that the DTA explicitly provides ``no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In deciding the merits, the Court went on to hold that the President lacked authority to establish a military commission to try Hamdan or others without enabling legislation passed by both houses of Congress and enacted into law. This case was one of a handful of recent cases in which the Supreme Court released audiotapes of oral arguments almost immediately after they occurred. Yet it would have been vastly preferable to watch the parties' advocates grapple with the legal issues as the justices peppered them with jurisdictional, constitutional and merits-related questions from the High Court's bench. In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, the Supreme Court considered whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision. Though Jones v. Flowers involved the Due Process Clause of the Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one could draw interesting analogies to the Court's controversial 2005 decision in Kelo v. City of New London. In Kelo, a majority of the justices held that a city's exercise of eminent domain power in furtherance of a privately initiated economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Four justices dissented in Kelo and public opinion turned sharply against the decision immediately after it was issued. It's possible, though merely speculative, that the public ire aimed at Kelo informed what became a majority of justices in Jones v. Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.'' Not only lawyers but all homeowners could benefit from knowing how the Court grapples with legal issues governing the rights to their houses. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these. From his perch on the High Court one justice has been heard to contend that most Americans could care less about the arcane legal issues argued before the Court. But as elected representatives of the people we must endeavor to view America from a bottoms-up, rather than a top-down perspective. Regardless of one's view concerning the merits of these decisions, it is clear that they frequently have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. Given the enormous significance of each vote cast by each justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: ``Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence} contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.'' To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: ``Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.'' However, in the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, the late Judge Edward R. Becker, then- Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005.'' During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation. The notable exception was the Honorable Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of problems particularly at the trial level, where witnesses who appear uncomfortable because of cameras might seem less credible to jurors. I note, however, that appellate courts do not appear susceptible to this criticism because there are no witnesses or jurors present for appellate arguments. The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor. Again, in the 110th Congress, I introduced this legislation, and it was reported out of the Judiciary Committee by a vote of 11-7. During their confirmation hearings over the past two years, Chief Justice John Roberts stated he would keep an open mind on the issue and Justice Alito stated that as a circuit judge he unsuccessfully voted, in the minority, to permit televised open proceedings in the Third Circuit. I applaud the fact the new Chief Justice has taken steps to make the Court more open and to ensure the timely publication of audio recordings of the arguments as well as the written transcripts. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the original jurisdiction of the Court, it provides that appellate jurisdiction exists ``with such exceptions and under such regulations as the Congress shall make.'' Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor ensure that Supreme Court justices would undertake through television appearances. Also, any concerns could be mitigated by focusing only on the attorneys presenting arguments. There is no requirement that the justices permit the cameras to focus on the bench. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the all Americans. I urge my colleagues to support this bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I sought recognition to introduce the Free Flow of Information Act of 2009. I am honored to be joined in my efforts by Senators Schumer, Lugar and Graham, who are original cosponsors. Some 242 years ago, on January 16, 1767, Thomas Jefferson remarked in a letter to Col. Edward Carrington, ``Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.'' We take our free press for granted because it is so ingrained in our history. But we need only look at free press movements in fledgling democracies to appreciate how sometimes fragile and easily chilled freedom of press truly is. The Free Flow of Information Act protects the public interest by ensuring an informed citizenry. In the past three years the Department of Justice has provided inconsistent numbers of subpoenaed journalists to the Judiciary Committee. We know from the public record, however, that at least 19 journalists have been subpoenaed by federal and special prosecutors for confidential source information since 2001 claim. Among them are Judith Miller, Matt Cooper, Tim Russert, Lance Williams, Mark Fainaru-Wada, and Philip Shenon. We also know 4 journalists have been imprisoned at the request either of the DoJ, U.S. Attorneys, or special prosecutors since 2000. Josh Wolf, Judith Miller, Jim Taricani, Vanessa Leggett. Collectively, these journalists have spent over 19 months imprisoned. Journalists who are not jailed for failing to comply with subpoenas still suffer the prospect of being held in contempt. Several have suffered this fate: Toni Locy, James Stewart, Walter Pincus, Jim Taricani. In addition to the subpoenas from special prosecutors mentioned above, more than a dozen reporters have received subpoenas in civil suits, such as the Wen Ho Lee and Hatfill privacy lawsuits against the government. A preliminary report on the 2007 Media Subpoena Survey conducted by Professor RonNell Andersen Jones at the Law College Foundation at the University of Arizona states: 761 responding news organizations reported receiving a total of 3,602 subpoenas seeking information or material relating to newsgathering activities in calendar year 2006. Of these, 335 were subpoenas arising out of proceedings that took place in a federal forum. Sixty-four percent of responding newsroom leaders believe the frequency of media subpoenas to be greater than it was five years ago. Fifty percent of the media companies believe the risk of their own organization receiving a subpoena is greater than it was five years ago, while only 5 percent believe the risk to be less. This bipartisan legislation would establish a qualified reporters' privilege protecting them from being compelled to identify confidential source information. The bill seeks to reconcile reporters' need to maintain confidentiality, in order to ensure that sources will speak openly and freely with the media, with the public's right to effective law enforcement and fair trials. The situation in the United States today is that journalists are subject to a compulsory process to disclose confidential informants--at least in Federal courts. At the State level, there are many laws providing qualified privileges for journalists. Prior versions of this bill garnered the support of numerous bipartisan cosponsors, as well as 39 media organizations, including the Washington Post, The Hearst Corporation, Time Warner, ABC Inc., CBS, CNN, The New York Times Company, and National Public Radio. In 2005 I cosponsored two prior bills and was principle author of yet another. In the 110th Congress, I introduced S. 1035 the Free Flow of Information Act of 2007, along with Senator Schumer, and Senators Lugar, Graham, and Dodd other senators to join as cosponsors were Senators Leahy, Johnson, Boxer, Klobuchar, Salazar, Obama, Clinton, Dole, Murray, Landrieu, Webb, Tester, Lieberman, Durbin, Baucus, and Lautenberg. On October 4, 2007, the Committee on the Judiciary favorably reported S.2035 out of committee by a 15-4 vote, which marked the first time a reporters' privilege bill had ever passed out of the Senate Judiciary Committee. On March 6, 2008, I, along with Senator Leahy, sent a letter to Majority Leader Reid and Minority Leader McConnell asking that S. 2035 receive floor time for full Senate consideration. They answered our call. On July 30, 2008, the Senate entertained a cloture vote on the motion to proceed to the measure that failed by a vote of 51-43. Nonetheless, the bill continues to enjoy broad bipartisan support-- including the pledged support of former Senator, now--President Barack Obama. I urge all of my colleagues to join me in passing the Free Flow of Information Act of 2009, its high time we stop jailing or holding in contempt reporters who, in good faith, protect their confidential sources even in the face of a government subpoena. There has been a growing consensus that we need to establish a Federal journalists' privilege to protect the integrity of the news gathering process, a process that depends on the free flow of information between journalists and whistleblowers, as well as other confidential sources. Under my chairmanship, the Judiciary Committee held three separate hearings on this issue at which we heard from 20 witnesses, including prominent journalists like William Safire and Judith Miller, current and former Federal prosecutors, including former Deputy Attorney General Paul McNulty, and First Amendment scholars. These witnesses demonstrated that there are two vital, competing concerns at stake. On one hand, reporters cite the need to maintain confidentiality in order to ensure that sources will speak openly and freely with the news media. The renowned William Safire, former columnist for the New York Times, testified that ``the essence of news gathering is this: if you don't have sources you trust and who trust you, then you don't have a solid story--and the public suffers for it.'' Reporter Matthew Cooper of Time Magazine said this to the Judiciary Committee: ``As someone who relies on confidential sources all the time, I simply could not do my job reporting stories big and small without being able to speak with officials under varying degrees of anonymity.'' On the other hand, the public has a right to effective law enforcement and fair trials. Our judicial system needs access to information in order to prosecute crime and to guarantee fair administration of the law for plaintiffs and defendants alike. As a Justice Department representative told the Committee, prosecutors need to ``maintain the ability, in certain vitally important circumstances, to obtain information identifying a source when a paramount interest is at stake. For example, obtaining source information may be the only available means of preventing a murder, locating a kidnapped child, or identifying a serial arsonist.'' As Federal courts have considered these competing interests, they adopted rules that went in several different directions. Rather than a clear, uniform standard for deciding claims of journalist privilege, the Federal courts currently observe a ``crazy quilt'' of different judicial standards. The confusion began 36 years ago, when the Supreme Court decided Branzburg v. Hayes. The Court held that the press' First Amendment right to publish information does not include a right to keep information secret from a grand jury investigating a criminal matter. The Supreme Court also held that the common law did not exempt reporters from the duty of every citizen to provide information to a grand jury. The Court reasoned that just as newspapers and journalists are subject to the same laws and restrictions as other citizens, they are also subject to the same duty to provide information to a court as other citizens. However, Justice Powell, who joined the 5-4 majority, wrote a separate concurrence in which he explained that the Court's holding was not an invitation for the Government to harass journalists. If a journalist could show that the grand jury investigation was being conducted in bad faith, the journalist could ask the court to quash the subpoena. Justice Powell indicated that courts might assess such claims on a case-by-case basis by balancing the freedom of the press against the obligation to give testimony relevant to criminal conduct. In attempting to apply Justice Powell's concurring opinion, Federal courts have split on the question of when a journalist is required to testify. In more than three decades since Branzburg, the Federal courts are split in at least three ways in their approaches to Federal criminal and civil cases. With respect to Federal criminal cases, five circuits apply Branzburg so as to not allow journalists to withhold information absent governmental bad faith. Four other circuits recognize a qualified privilege, which requires courts to balance the freedom of the press against the obligation to provide testimony on a case-by-case basis. The law in the District of Columbia Circuit is unsettled. With respect to Federal civil cases, 9 of the 12 circuits apply a balancing test when deciding whether journalists must disclose confidential sources. One circuit affords journalists no privilege in any context. Two other circuits have yet to decide whether journalists have any privilege in civil cases. Meanwhile, 49 States plus the District of Columbia have recognized some form of reporters' privilege within their own jurisdictions. Thirty-one States plus the District of Columbia have passed some form of reporter's shield statute, and 18 States have recognized a privilege at common law. There is little wonder that there is a growing consensus concerning the need for a uniform journalists' privilege in Federal courts. This system must be simplified. Today, we move toward resolving this problem by introducing the Free Flow of Information Act of 2009. The purpose of this bill is to guarantee the flow of information to the public through a free and active press, while protecting the public's right to effective law enforcement and individuals' rights to the fair administration of justice. The bill provides a qualified privilege for reporters to withhold from Federal courts, prosecutors, and other Federal entities, confidential source information and documents and materials obtained or created under a promise of confidentiality. However, the bill recognizes that, in certain instances, the public's interest in law enforcement and fair trials outweighs a source's interest in remaining anonymous through the reporter's assertion of a privilege. Therefore, it allows courts to require disclosure where certain criteria are met. Under the legislation, in most criminal investigations and prosecutions, the Federal entity seeking the reporter's source information must show that there are reasonable grounds to believe that a crime has occurred, and that the reporter's information is essential to the prosecution or defense. In criminal investigations and prosecutions of leaks of classified information, the Federal entity seeking disclosure must additionally show that the leak caused significant, clear, and articulable harm to national security. In noncriminal actions, the Federal entity seeking source information must show that the reporter's information is essential to the resolution of the matter. In all cases and investigations, the Federal entity must demonstrate that nondisclosure would be contrary to the public interest. In other words, the court must balance the governmental need for the information against the public interest in newsgathering and the free flow of information. Further, the bill ensures that Federal Government entities do not engage in ``fishing expeditions'' for a reporter's information. The information a reporter reveals must, to the extent possible, be limited to verifying published information and describing the surrounding circumstances. The information must also be narrowly tailored to avoid compelling a reporter to reveal peripheral or speculative information. Finally, the Free Flow of Information Act adds layers of safeguards for the public. Reporters are not allowed to withhold information if a Federal court concludes that the information is needed for the defense of our Nation's security, as long as it outweighs the public interest in newsgathering and maintains the free flow of information to citizens, or to prevent an act of terrorism. Similarly, journalists may not withhold information reasonably necessary to stop a kidnapping or a crime that could lead to death or physical injury. Also, the bill ensures that both crime victims and criminal defendants will have a fair hearing in court. Under this bill, a journalist who is an eyewitness to a crime or tort or takes part in a crime or tort may not withhold that information on grounds of the qualified privilege. Journalists should not be permitted to hide from the law by writing a story and then claiming a reporter's privilege. It is time for Congress to clear up the ambiguities journalists and the Federal judicial system face in balancing the protections journalists need in providing confidential information to the public with the ability of the courts to conduct fair and accurate trials. I urge my colleagues to support this legislation and help create a fair and efficient means to serve journalists and the news media, prosecutors and the courts, and most importantly the public interest on both ends of the spectrum.