Arlen Specter

Mr. SPECTER

Mr. SPECTER. I thank the Chair for sitting late. It is not easy to come in on a Monday afternoon. The distinguished Senator from Utah, a senior Republican on the Judiciary Committee, has performed extraordinary service. I thought it not unfitting that I should cite his report on class action cases since he was the author of those pearls of wisdom I quoted. I believe that concludes our business. I yield the floor.

Mr. SPECTER. Mr. President, I have sought recognition to comment about the legislation which is due to come to this Chamber tomorrow. I thought it might be useful to focus on a Dear Colleague letter which I sent out last week, which reads as follows: A key point of controversy on legislation now pending in the Senate is whether patients will be permitted to collect damages from insurance companies without a statutory limitation. Under more than 200 years of common law precedents, a harmed plaintiff has been able to recover compensation as set by a jury for economic losses and pain and suffering when a defendant is negligent and punitive damages for gross, malicious or intentional misconduct. The McCain-Edwards-Kennedy Bill, of which I am a co- sponsor, provides for Federal court jurisdiction on the issue of whether a claim is covered by the contractual provisions of a health care plan and for state court jurisdiction on medical malpractice claims. Serious concerns have been raised to that bill because of a history of very high verdicts in state courts on personal injury claims which could significantly raise the cost of health care in the United States. There is substantial experience that Federal court trials result in a more reasoned and judicious result in malpractice cases. I intend to offer a compromise amendment which would maintain Federal court jurisdiction under McCain-Edwards- Kennedy for coverage claims (which have also been referred to as quantity or eligibility decisions) and extend Federal court jurisdiction, excluding state court jurisdiction, on medical malpractice claims (which have also been referred to as quality or treatment decisions) which would preserve plaintiffs' traditional common law remedies in a more reasoned judicial setting. The consequences of ERISA have been extremely complicated. Enacted in the early 1970s, it has been held in many, many cases to bar plaintiffs from recovering for personal injuries. Cases brought under ERISA, section 502, are governed by the doctrine of complete preemption, which applies when Congress so completely preempts a particular area of law that any civil complaint raising this select group of claims is necessarily Federal in character. Under section 514, a plaintiff's claim is barred if the claim relates to an employee benefit plan. If a plaintiff's claim does not relate to an employee benefit plan, then the claim is not barred and is heard in State courts. There is a growing line of cases finding that State causes of action, States' Patients' Bill of Rights, do not relate to an employee benefit plan and, therefore, are not preempted if they address the quality of services to be provided. There have been many cases in this complicated field, and they are referred to by the Court of Appeals for the Fifth Circuit in a case decided slightly less than a year ago on June 20, 2000, in a case captioned Aetna Health Plans of Texas, Inc., v. the Texas Department of Insurance. There the Fifth Circuit noted that the courts have ``repeatedly struggled with the open-ended character of the preemption provisions of ERISA'' and also the Federal Employees Health Benefits Act. The Fifth Circuit goes on to say: The courts have faithfully followed the Supreme Court's broad reading of ``relate to'' preemption under 502(a), in its opinions decided during the first twenty years after ERISA's enactment. Since then, in a trilogy of cases, the [Supreme] Court has confronted the reality that if ``relate to'' is taken to the furthest stretch of its indeterminacy, preemption will never run its course, ``for really universal relations stop nowhere.'' There has been a succinct summary of the key issues raised by ERISA preemption in a case decided earlier this year on March 27, 2001, by the United States Court of Appeals for the Third Circuit, captioned Pryzbowski v. United States Health Care Incorporated. In Pryzbowski, the court noted prior Third Circuit opinions where the court distinguished between claims directed to the quality of the benefits the plaintiff received versus claims that the plans erroneously withheld benefits, that is, claims that seek to enforce plaintiff's rights under the terms of their respective plans or to clarify their rights to future benefits. In Pryzbowski the Third Circuit went on to say that: We stated that claims that merely attack the quality of benefits do not fall within the scope of section 502(a)'s enforcement provisions and are not completely preempted, whereas claims challenging the quantum of benefits due under an ERISA-regulated plan are completely preempted under section 502(a)'s civil enforcement scheme. The Third Circuit then went on to note: Though the quality-quantity distinction was helpful in those cases, we have acknowledged that the distinction would not always be clear. From Pryzbowski and other cases, it is apparent that if a Patients' Bill of Rights is enacted which gives the Federal courts jurisdiction over the scope of the plan, or the so-called quantity decision, and the State courts jurisdiction over the quality or the treatment decision, then there will be a plethora of nearly endless litigation as to what belongs in which court. The court decisions are replete with cases where the facts have been analyzed. It is frequently very difficult to distinguish between the two categories, quantity or quality, and it often ends up with the case remanded for other facts to be determined. It is my suggestion that the Federal court retain total jurisdiction over both category of cases, whether they are the quantity decisions, which relate to eligibility decisions, or the quality decisions, which relate to treatment decisions. My suggestion is that it would be much preferable to have exclusive jurisdiction vested in the Federal courts. There is considerable concern about excessive verdicts in State courts when contrasted with the more judicious decisions in the Federal courts. What my compromise suggests is that by giving exclusive jurisdiction to the Federal courts, traditional plaintiff's damage claims could be retained without so-called caps or limitations. There has been enormous concern about what would happen if the Patients' Bill of Rights refers to the State courts these medical malpractice cases without any limitation on damages. Last year, the Judiciary Committee considered amending diversity jurisdiction in class action cases because diversity jurisdiction was so easily defeated when a class of plaintiffs would sue a defendant. If there was a single plaintiff residing in the same State as the defendant, then diversity was defeated. This legislation, which amended diversity jurisdiction and was passed out of the Judiciary Committee, was sought by so many defendants who felt unfairly treated by State court decisions. The report of the Judiciary Committee on the Class Action Fairness Act of 2000 (S.R. 106- 420) contains some statements which are relevant to consideration of having medical malpractice cases tried solely in the Federal courts rather than the State courts. This is what the Judiciary Committee report said at page 15: The ability of plaintiffs' lawyers to evade Federal diversity jurisdiction has helped spur a dramatic increase in the number of class actions litigated in State courts--an increase that is stretching the resources of the State court systems. Then on page 16, the Judiciary Committee majority report goes on to point out the concern of unfairness in State court actions saying: The Committee finds, however, that one reason for the dramatic explosion of class actions in State courts is that some State court judges are less careful than their Federal court counterparts about applying the procedural requirements that govern class actions. Many State court judges are lax about following the strict requirements of rule 23 (or the State's governing rule), which are intended to protect the due process rights of both unnamed class members and defendants. In contrast, Federal courts generally do scrutinize proposed settlements much more carefully and pay closer attention to the procedural requirements for certifying a matter for class treatment. Then the Judiciary Committee majority report goes on at page 17 to point out: A second abuse that is common in State courts class actions is the use of the class device as ``judicial blackmail.'' Because class actions are such a powerful tool, they can give a class attorney unbounded leverage. Such leverage can essentially force corporate defendants to pay ransom to class attorneys by settling--rather than litigating--frivolous lawsuits. The majority report then goes on to say: State court judges often are inclined to certify cases for class action treatment not because they believe a class trial would be more efficient than an individual trial, but because they believe class certification will simply induce the defendant to settle the case without trial. Now, in citing these references to the Judiciary Committee report, I do not seek to impugn all State court judges because most State court judges are careful and judicious and follow settled principles. But there have been a considerable number of these certifications of class actions, and there have been many cases which involve forum shopping, judge shopping, which seek to go to specific counties or specific States where there are excessive verdicts. By contrast, the Federal courts have an established reputation where there is different selection of judges. In many States, judges are elected--my own State of Pennsylvania. Here, again, I am not intending any broad condemnation, but in the Federal courts, where judges are selected for life tenure, it is fair to say that the caliber of the judiciary is superior. That, again, is a generalization. Again, there are many fine State court judges. But the experience in the State courts, as illustrated by this class action report, gives grave concern to many who are worried that if the Patients' Bill of Rights is enacted and there are unlimited damages possible in State court (medical malpractice cases), which is now the provision under the McCain-Edwards-Kennedy bill, that there will be widespread abuses. Those same concerns are not found with respect to these malpractice cases in the Federal courts. We are about to enter on to a difficult and protracted debate on a Patients' Bill of Rights. It is my view, and has been, as reflected in the votes I have cast on the Senate floor for several years now, that America needs a Patients' Bill of Rights and that the traditional remedies not be capped or limited. But a good tradeoff, in my judgment, would be that exclusive jurisdiction would be vested in the Federal courts. This is not really a problem for plaintiffs of ``forum non conveniens''--the Latin phrase which means an inconvenient court-- because there are underlying Federal questions on ERISA. And even when cases are brought in the State court, invariably, they end up on removal actions in the Federal court. When you start to try to make distinctions under ERISA 502, ERISA 514, trying to distinguish between the quantity of coverage versus the quality of coverage, they necessarily overlap; and it will be a saving of judicial resources if all of those cases are heard in the Federal court. I ask my colleagues to consider this. I ask unanimous consent at this time that the full text of my Dear Colleague letter, dated June 13, be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. I ask unanimous consent that my deputy, Tom Swanton, on leave from the Department of Justice, be granted floor privileges for the course of this debate in consideration of the Patients' Bill of Rights.

Mr. SPECTER

Mr. SPECTER. I thank the Chair and suggest the absence of a quorum.

Mr. SPECTER. Madam President, in the last colloquy I stated my intention to withdraw the amendment. I did not use the magic words, which I now use. I withdraw my amendment.

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

Mr. SPECTER. Madam President, I thank my colleague from Massachusetts. I just add one note. There are very serious issues of religious freedom involved here with the Amish having the right under the Constitution not to have education beyond the age of 14, and those will be considered in due course. Let me thank my distinguished colleague from Louisiana for yielding so that we could have this brief colloquy. I thank my colleagues and yield the floor.

Mr. SPECTER. Madam President, I seek recognition to discuss my amendment, which briefly stated, would simply permit Amish youths, aged 14 to 18, to be able to work in sawmills. The issue has arisen as to the safety of these sawmills. The Appropriations subcommittee which has jurisdiction over the Department of Labor which I had chaired held a hearing on this subject. It is appropriate and necessary that the full Committee on Health, Education, Labor, and Pensions have a hearing. We have consulted with experts who have given us a formula to provide for what we think is the requisite safety. I have had a brief discussion with the Senator from Massachusetts about my withdrawing this amendment and having a hearing so that due consideration could be given to this issue by his committee. This amendment is designed to permit certain youths--those exempt from attending school--between the ages of 14 and 18 to work in sawmills under special safety conditions and close adult supervision. I introduced identical measures in the 105th and 106th Congresses. Similar legislation introduced by my distinguished colleague, Representative Joseph R. Pitts, has already passed in the House twice before. I am hopeful the Senate will also seriously consider this important issue. As chairman of the Labor, Health and Human Services and Education Appropriations Subcommittee, I have strongly supported increased funding for the enforcement of the important child safety protections contained in the Fair Labor Standards Act. I also believe, however, that accommodation must be made for youths who are exempt from compulsory school-attendance laws after the eighth grade. It is extremely important that youths who are exempt from attending school be provided with access to jobs and apprenticeships in areas that offer employment where they live. The need for access to popular trades is demonstrated by the Amish community. In 1998, I toured an Amish sawmill in Lancaster County, PA, and had the opportunity to meet with some of my Amish constituency. In December 2000, Representative Pitts and I held a meeting in Gap, PA, with over 20 members of the Amish community to hear their concerns on this issue. Most recently, I chaired a hearing of the Labor, Health and Human Services and Education Appropriations Subcommittee to examine these issues. At the hearing the Amish explained that while they once made their living almost entirely by farming, they have increasingly had to expand into other occupations as farmland has disappeared in many areas due to pressure from development. As a result, many of the Amish have come to rely more and more on work in sawmills to make their living. The Amish culture expects youth, upon the completion of their education at the age of 14, to begin to learn a trade that will enable them to become productive members of society. In many areas, work in sawmills is one of the major occupations available for the Amish, whose belief system limits the types of jobs they may hold. Unfortunately, these youths are currently prohibited by law from employment in this industry until they reach the age of 18. This prohibition threatens both the religion and lifestyle of the Amish. Under my amendment, youths would not be allowed to operate power machinery, but would be restricted to performing activities such as sweeping, stacking wood, and writing orders. My amendment requires that the youths must be protected from wood particles or flying debris and wear protective equipment, all while under strict adult supervision. The Department of Labor must monitor these safeguards to insure that they are enforced. The Department of Justice has raised serious concerns under the establishment clause with the House legislation. The House measure conferred benefits only to a youth who is a ``member of a religious sect or division thereof whose established teachings do not permit formal education beyond the eighth grade.'' By conferring the ``benefit'' of working in a sawmill only the adherents of certain religions, the Department argues that the bill appears to impermissibly favor religion to ``irreligion.'' In drafting my amendment, I attempted to overcome such an objection by conferring permission to work in sawmills to all youths who ``are exempted from compulsory education laws after the eighth grade.'' Indeed, I think a broader focus is necessary to create a sufficient range of vocational opportunities for all youth who are legally out of school and in need of vocational opportunities. I also believe that the logic of the Supreme Court's 1972 decision in Wisconsin versus Yoder supports my bill. In Yoder, the Court held that Wisconsin's compulsory school attendance law requiring children to attend school until the age of 16 violated the free exercise clause. The Court found that the Wisconsin law imposed a substantial burden on the free exercise of religion by the Amish since attending school beyond the eighth grade ``contravenes the basic religious tenets and practices of the Amish faith.'' I believe a similar argument can be made with respect to Amish youth working in sawmills. As their population grows and their subsistence through an agricultural way of life decreases, trades such as sawmills become more and more crucial to the continuation of their lifestyle. Barring youths from the sawmills denies these youths the very vocational training and path to self- reliance that was central to the Yoder Court's holding that the Amish do not need the final two years of public education. This is a matter of great importance and I urge my colleagues to work with me to provide relief for the Amish community.

Mr. SPECTER. Madam President, I call up amendment No. 420.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to commend the dedication and courage of the members of the 65th Infantry Division of the United States Army who fought in World War II. The 65th Infantry Division was activated on August 16, 1943 at Camp Shelby, Mississippi under Major General Stanley E. Reinhart. Like many newly formed divisions in 1943, the men of the 65th Division traveled to different bases training in preparation for their participation in the battles across Europe during World War II. On January 10, 1945, the 65th Infantry Division departed New York, and they arrived in Le Havre, France on January 21, 1945. On March 9, 1945, the division assembled near Ennery to relieve the 26th Infantry Division, defending Saarlautern Bridgehead from Orscholz to Wadgassen. On March 13, 1945, the 261st Infantry Regiment crossed the Saar River near Menningen to clear the German defenders near the town of Merzig. On March 17, 1945, the 261st Infantry Regiment cleared the heights south of Merzig, and took the town of Killingen the following day. The rest of the division fought its way out of the bridgehead as the 259th Infantry Regiment captured the town of Fraulautern and the 260th Infantry Regiment seized Saarlauten on March 19, 1945. Then, the division fought its way through the West Wall and captured the town of Neunkirchen on March 21, 1945. It then assembled near Ottweiler for rest and rehabilitation. After 10 days of rest, the 65th Infantry Division connected with the 6th Armored Division. Closing into the Schwabenheim area, the division crossed the Rhine River with both the 260th and 261st Infantry Regiments during the night of March 29, 1945. It attacked across the Fulda River on April 2 and reached the Reichensachen-Langenhain line on April 3, 1945. There the two divisions split. The same day the 259th Infantry Regiment crossed the Werra River, and continued to the Greuzberg area on April 4, 1945. The division assaulted the town of Langensalza, which fell on April 6, 1945, but a German counterattack overran a battalion of the 261st Infantry Regiment at Struth on April 7, 1945. The division restored the situation with air support and went into reserve on April 8, 1945, moving to the town of Berka on April 10, 1945. The division moved to the town of Waltershausen on April 11, 1945 and then onto Arnstadt. On April 17, 1945 it assembled in the town of Bamberg and attacked toward Altdorf with the 259th and 260th Infantry Regiments the next day. The town of Neumarket was taken on April 23, 1945 and the division drove to the Rhine River against crumbling German resistance. The division established a bridgehead across the Danube River southwest of Regensburg despite strong opposition, especially against the 261st Infantry Regiment on April 26, 1945. The bridgehead was expanded allowing the 13th Armored Division to pass through. The 260th Infantry Regiment took Regensburg on April 27, 1945. The division followed the Armored Division and crossed the Isar River at Platting on May 1, 1945. The 261st Infantry Regiment reached the Inn River at Passau on May 2, 1945 and assaulted across it at the town of Neuhaus. The town of Passau fell the next day and the 261st Infantry Regiment reached the Enns River and overran the town of Enns. The division crossed the Enns River on May 6, 1945, and made contact with the advancing Soviet Army in the vicinity of Strengberg. The 65th Infantry Division reached Austria on May 4, 1945 and remained in Austria, under Brigadier General John E. Copeland until disbanded on August 31, 1945. Two hundred and thirty three men of the 65th Infantry Division were killed in action. Nine hundred and twenty- seven men were wounded in action. In August of this year, the members of the 65th Infantry Division will gather for their 48th annual reunion in Pennsylvania. During their reunion, the men will be honored for their service with the dedication of a monument stone by the Freedoms Foundation at Valley Forge. The members of the 65th Infantry Division deserve this special recognition for their service, and I am pleased to be able to commend them on the floor of the United States Senate. I ask unanimous consent to have printed in the Record the list of the names of the members of the 65th Infantry Division.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am on my way to a meeting with Senator Lott on the reorganization of the Senate, but I passed through the Senate Chamber en route. It is always a great thrill to come to the Chamber of the Senate, and a great privilege to be a Senator. Seeing the distinguished President pro tempore, the distinguished chairman of the Appropriations Committee, presiding, I decided to exchange a few moments of pleasantries and ask how a man of his prominence and importance could be presiding over the empty Senate. Senator Byrd exchanged philosophical comments and referred to the people here as ``auditors'' of the Government of the United States. I hope that is not inappropriate, in terms of referring to people in the gallery. I know we cannot acknowledge people. I breached the rule once when Penn State won the national championship and acknowledged the presence of the Penn State football team in the gallery. Senator Byrd, in a very gentle, kindly way reminded me of the Senate rule. However, I think we are being audited, and the Senate of the United States has important oversight responsibilities on the Federal Government. The people of the United States are our overseers, our oversight committee of 270 million, and they are auditing here today in the Senate. When Senator Byrd made the comments about auditors, I reflected for a moment about the profound nature of that comment because we are the servants of the people of America. Senator Byrd has delivered many, many erudite presentations, we might call them lectures, perorations on this floor, and they have been put into volumes on the history of the Senate. I made a comment to Senator Byrd, as pleased as we are to have his talents in the Senate in the year 2001, he may have been born 2,000 years too late; that had he been a Roman senator, the heroes whom he speaks about and lionizes would have even been a greater Roman senate. The Senate is a greater Senate because of the presence of Senator Byrd who is our historian and mentor. I thank the Chair. I yield the floor, and I suggest the absence of a quorum.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, in what I have had to say here, I have said it as carefully as I can. I have written it all down and I read it. I think it may be the first speech I have ever read on the Senate floor in the 20 years and 5 months I have been here. I wanted to be very precise. I believe Senator Jeffords is a man of the highest principle and integrity. I have enormous respect for all of what he has done, including the statement made in Vermont on Thursday morning. When the Senator from Illinois comments about the change in parties of others, what he says is true. I have said in the prepared text that Senator Gramm went to the unusual extent of actually resigning. Senator Gramm told me, as I recounted, that his last vote in early 1983 was for the Speaker of the House of Representatives. He voted for Congressman Tip O'Neill. I think Senator Gramm said he was elected as a Democrat. I think the examples of Senators Shelby, Campbell, Thurmond, and then-Congressman Phil Gramm/now Senator Gramm are really irrelevant to what happened here. This is really a very, extraordinary matter. As the Senator from Illinois knows, we have had a change in the governance of the Senate, and each of us can attest to how hard it is to get to the Senate, and then how hard it is to get party control of the Senate. With that historical election and a 50/50 balance, any one of the Senators on either side could tip the balance. Republicans had control by virtue of the Vice Presidency. When Senator Jeffords made a switch for organizational purposes, he affected the governance of the country. The ability to set the agenda here is of enormous consequence. To have the Democrat as the majority leader, he gets the first recognition. Then you have the President's agenda. Some people are glad that the President's agenda will not have an advocate in the Senate and the majority leader as a Republican to put that agenda forward. The Senate chairmanships we need not focus on too long. But there were people in the Senate family who were weeping--staffers who are going to lose their jobs. I said on the ``Jim Lehrer Show'' that what happened was ``seismic.'' Senator Dorgan agreed with me that it was an ``earthquake''. So in seeking a limitation on organizational change, I am not moving to the point to say that if a Senator wants to change parties, there ought to be any rule against that. He can find his peace with his electorate, where there may be a political price to pay or there may not be. But when so many others pay a price, it is my very firm view that the rule ought to be changed, and I will be submitting an appropriate rule shortly. I thank my colleague from Illinois and I yield the floor.

Mr. SPECTER. Mr. President, I will formulate it as a unanimous consent request that I may reply very briefly, retaining the status of the Senator's right to the floor.

Mr. SPECTER. Mr. President, my response is not really a question, although it can always be articulated in the form of a question which is our custom. The Senator from Illinois has the floor, and I appreciate his yielding to me. I just have a brief comment to make without any articulation of a question, if I may, reserving the Senator's right to the floor.

Mr. SPECTER. Will the Senator yield?

Mr. SPECTER. That number is growing, I say to the Senator.

Mr. SPECTER. That is true. And one of the concerns which Senator Jeffords had, as expressed to a number of us, was his term limitation. But if I might respond to an earlier point by Senator Reid, I saw Senator Reid on the floor. He is the assistant majority leader. Perhaps, I might have said to Senator Reid: ``I am about to mention your name.'' I did so really to accommodate his statement that there was no quid pro quo. There had been a statement that there was nothing done in exchange for something. So that in saying that, it was not said in any condemnatory, derogatory, or critical manner.

Mr. SPECTER. I am a little surprised to hear the Senator from Nevada expressing some concern about the statement which this Senator has just made. This is the floor of the U.S. Senate and these are matters of grave concern for the Senate. I have spoken with great modulation on a subject where a great deal more could have been said by me and by others.

Mr. SPECTER. I have been very careful in my selection of words. I have not said anybody did anything wrong.

Mr. SPECTER. Mr. President, I have sought recognition this morning to comment on Senator Jeffords' announcement that he will vote with the Democrats on organization of the Senate. I have delayed in expressing these thoughts to further reflect upon them and perhaps avoid saying something that I would later regret. I have written them down, which is unusual for me because I believe that floor statements, as speeches generally, are best made from the heart rather than text. When I first heard last Tuesday that Senator Jeffords was considering this move, I told the news media: ``It shouldn't happen--it won't happen--it can't happen.'' Well, I was wrong. When Senator Jeffords confirmed that he was about to vote with the Democrats, I joined five other Senators who tried to dissuade him in a morning meeting last Wednesday. The group reconvened for an afternoon meeting, with some ten other Senators and Senator Jeffords. Between the two meetings, we conferred with the Republican leadership on what suggestions we could make to Senator Jeffords to keep him in the fold. For 13 years, Jim Jeffords has been one of my closest friends in the Senate and he still is. We have had lunch together every Wednesday for years. First, with Senator John Chafee, and later with Senator Olympia Snowe, Senator Susan Collins, and Senator Lincoln Chafee. He had never given any hint to me of such a move. Before discussing the suggestions which would be made to Senator Jeffords, we first pleaded with him, saying his change would disrupt the Senate, it would change the balance of power in the Federal Government generally, it would severely weaken the Republican Party--of which he was a lifelong member, it would hurt his Senate friends, and likely cost many staffers to lose their jobs. Senator Jeffords replied that he was opposed to the party's policies on many items and believed he could do more for his principles by organizing with the Democrats. We then told Senator Jeffords that we were authorized by the Republican leadership to tell him that if he stayed, the term limits on his chairmanship would be waived, he would have a seat at the Republican leadership table as the moderate's representative, and IDEA, special education, would become an entitlement which would enrich that program by billions of dollars for children across America. At the end of our second long meeting, I felt we had a significant chance to keep him. On Thursday morning, I was deeply disappointed by his announcement that he would organize with the Democrats. My immediate response to the news media was that it felt as if there had been a death in the family. Other Senators from our close-knit group were, candidly, hurt and confused. For some, that has turned to anger. Most of the Republican Senate caucus has had little to say, trying to put the best face on what is really a devastating loss. The full impact has yet to sink in. It will undoubtedly be the topic of much contemporaneous columnist comment and beyond that for the historians. Well, the question now arises, Where do we go from here? The Senate leadership, notwithstanding Senator Jeffords' departure from our caucus, has created a moderate seat at the leadership table to address some of Senator Jeffords' concerns. More needs to be done. And I think more will be done. How should these issues be handled by the Senate for the future? I intend to propose a rule change which would preclude a future recurrence of a Senator's change in parties, in midsession, organizing with the opposition, to cause the upheaval which is now resulting. I take second place to no one on independence voting. But, it is my view that the organizational vote belongs to the party which supported the election of a particular Senator. I believe that is the expectation. And certainly it has been a very abrupt party change, although they have occurred in the past with only minor ripples, none have caused the major dislocation which this one has. When I first ran in 1980, Congressman Bud Shuster sponsored a fundraiser for me in Altoona where Congressman Jack Kemp was the principal speaker. When some questions were raised as to my political philosophy, Congressman Shuster said my most important vote would be the organizational vote. From that day to this, I have believed that the organizational vote belonged to the party which supported my election. When the Democrats urged me to switch parties some time ago, I gave them a flat ``no.'' I have been asked in the last several days if I intended to switch parties. I have said absolutely not. Senator Phil Gramm faced this issue when he decided to switch parties. He resigned his seat, which he had won as a Democrat, and ran for reelection as a Republican. As he told me, his last vote in January 1983 was for the Speaker of the House of Representatives, and he voted for Tip O'Neill with the view that he was elected as a Democrat and should vote that way on organizational control. Even though, he intended to become a Republican and would have preferred another person to be Speaker. To repeat, I intend to propose a Senate rule which would preclude a change in control of the Senate when a Senator decides to vote with the opposing party for organizational purposes. One other aspect does deserve comment, and that is the issue of personal benefit to a changing Senator. In our society, political arrangements avoid the consequences of similar conduct in other contexts. For example, if company A induces a competitor's employee to break his contract with company B and join company A, company B can collect damages for company A's wrongful conduct. If A gives a benefit to an employee of B to induce the employee to breach a duty, that conduct can have serious consequences in other contexts which are not applied to political arrangements. On the Lehrer news show on Thursday night, the day before yesterday, Senator Harry Reid and I sparred over this point. I expressed my concern about reliable reports that Democrats had told Senator Jeffords that Senator Reid would step aside so Senator Jeffords could become chairman of the Environment and Public Works Committee. Senator Reid replied that there was no quid pro quo, an expression I had not used. Accepting Senator Jeffords' decision was based on principle for the reasons he gave at his news conference on Thursday morning, a question still remains as to whether any such inducement was offered and whether it played any part in Senator Jeffords' decision. Questions on such offers and counteroffers should be considered by Senators and by the Senate in an ethical context, but at this moment I do not see any way to effect such conduct by rulemaking or legislation. This week's events raise very profound questions for the governance of our country as well as the operation of the Senate. I intend to press a rule change which would preclude a recurrence of this situation and will be discussing with my colleagues the whole idea of inducements as an incentive for a party switch. I thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank my colleague from Alabama for yielding time to me. I have sought recognition to support the nomination of Theodore Olson to be Solicitor General of the United States. Mr. Olson comes to this position with an excellent academic and professional background. He received his law degree from the University of California at Berkeley in 1965 after having received a bachelor's degree from the University of the Pacific in 1962. He practiced law with the distinguished firm of Gibson, Dunn, and Crutcher from 1965 to 1971 as an associate, and then as a partner for almost a decade, until 1981. And then from 1984 to the present time--he was Assistant Attorney General, legal counsel, for the Department of Justice from 1981 to 1984. He came in with the administration of President Reagan. I was elected in the same year, and I knew of his work, having served on the Judiciary Committee beginning immediately after taking my oath of office after the 1980 election. He is a real professional. He has argued some of the most important cases before the Supreme Court of the United States. On December 11, 2000, he argued the landmark case of Gov. George W. Bush v. Vice President Albert Gore where the decision of the Supreme Court of the United States essentially decided the conflict on the Florida election. I was present that day to hear that historic argument and can attest personally to his competency and his professionalism. There have been some concerns about his partisanship. I am confident Mr. Olson can separate partisanship from his professional responsibilities as Solicitor General of the United States. It is not surprising that President Bush would appoint a Republican to be Solicitor General, nor is it surprising that President Bush would appoint Ted Olson to this important position in light of Mr. Olson's accomplishments, his demonstration of competency, and his assistance to President Bush on that major case. Some questions have been raised as to some answers Mr. Olson gave at the confirmation hearing. A request was made to have an investigation of some of what Mr. Olson did. I took the position publicly in interviews and then later in the Judiciary Committee executive session when we considered Mr. Olson's nomination, saying I was prepared to see and support an investigation if there was something to investigate but that there had not been any allegation of any impropriety on Mr. Olson's part in terms of any specification as to what he was supposed to have said that was inconsistent or what he was supposed to have said that was not true. I am not totally without experience in investigative matters. But a starting point of any investigation has to be an allegation, something to investigate. That was not provided. I called at that hearing for some specification. If you make a charge, even in a civil case, there has to be particularity alleged, there has to be some specification as to what the impropriety was, let alone wrongdoing in order to warrant an investigation. I said at the hearing, although there was a certain amount of interest in moving the nomination ahead last Thursday, that I would support an investigation and would not rush to judgment if there was something to investigate. But nothing was forthcoming to warrant an investigation. One of the Judiciary Committee members said, well, Mr. Olson was not forthcoming at the Judiciary Committee hearing. I attended that hearing in part, and there were very few Senators there. But if there was some concern that Ted Olson wasn't forthcoming, the time to go into it was at the hearing or, if not at the hearing, Mr. Olson was available thereafter. I asked the Senator who raised the question about his not being forthcoming if he had talked to Mr. Olson, and the answer was that he had not. So based on the record, it is my conclusion that any of the generalized charges as to Mr. Olson haven't been substantiated at all, haven't been raised to the level of specification to warrant any proceeding or any investigation. I dare say that if those on the other side of the aisle had sought to block this nomination from coming up today, there were ample procedural opportunities for them to do just that. So on this state of the record, on the state of Ted Olson's excellent academic and professional record, and his established expertise as an advocate before the Supreme Court of the United States, and understanding the difference between partisanship when he is in a partisan context as opposed to professionalism when he is representing the United States of America before the Supreme Court, I intend to support this nomination and vote aye. I thank the Chair. I thank my friend from Alabama, the distinguished Senator from Alabama. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on the ``Veterans' Survivor Benefits Improvement Act of 2001,'' a measure which I ask be approved by the Senate as a substitute amendment to H.R. 801. H.R. 801 is a bill which was passed by the House of Representatives on March 27, 2001, and subsequently referred to the Senate Committee on Veterans' Affairs. In my capacity as Chairman of the Veterans' Affairs Committee, I am pleased to offer this amendment with my colleague, the Ranking Member of the Committee, Senator Rockefeller. In keeping with the spirit of the upcoming Memorial Day holiday--a day intended to memorialize the service of those who lost their lives while in service to the Nation--the Veterans' Survivor Benefits Improvements Act of 2001 would retroactively increase insurance benefits provided to, and guarantee additional health coverage for, the survivors of service members killed in the line of duty. The Act would also expand health care coverage to the spouses of veterans who have permanent and total disabilities due to military service, as well as the spouses of veterans who have died as a result of wounds incurred in service. Further, the Act extend life insurance benefits to service members' spouses and children, and would authorize, and direct, the Department of Veterans Affairs to conduct outreach efforts to contact these survivors, and other eligible dependents, to apprize them of the benefits to which they are entitled. Finally, the Act would make technical improvements to Montgomery GI Bill education benefits, and make other purely technical amendments to title 38, United States Code. As part of the ``Floyd D. Spense National Defense Authorization Act for Fiscal Year 2001'' (Public Law 106-398), Medicare-eligible military retirees and their spouses became eligible for lifetime health care coverage under the Department of Defense (DOD) TRICARE program. Under the new law, TRICARE acts as a ``Medigap'' policy, paying for those health care services, such as prescription drugs, not covered under Medicare. Prior to enactment of Public Law 106-398, military retirees lost TRICARE eligibility upon becoming eligible for Medicare. Mr. President, we can do no less for the survivors of service members who have died wearing our Nation's uniform than we have already done for spouses of military retirees. Therefore, Section 3 of the Act-- building on legislation introduced by Senator Rockefeller (S. 564) and consistent with the principles set out in the ``TRICARE-for-life'' program expansion for military retirees--would extend lifetime health coverage under the Civilian Health and Medical Program of the VA (CHAMPVA) program. That program--similar to TRICARE--provides medical services to the surviving spouses of service members who died while on active duty, to the surviving spouses of veterans who died after service from injuries sustained while on active duty, and to the spouses of veterans who have survived service but who had service- related injuries which are permanent and total in nature. Under the Act--similar to provisions applicable under the TRICARE expansion enacted in Public Law 106-398--CHAMPVA benefits will be extended to spouses even after they gain Medicare eligibility, and CHAMPVA will pay for what Medicare does not. Full CHAMPVA benefits will be extended to eligible survivors who were eligible for Medicare on the date of enactment, and for those survivors who became Medicare-eligible after enactment, full CHAMPVA benefits will be extended upon enrollment in Medicare Part B. As part of the ``Veterans Benefits and Health Care Improvement Act of 2000'' (Public Law 106-419), signed into law on November 1, 2000, Congress authorized an increase, from $200,000 to $250,000, in the maximum amount of Servicemembers Group Life Insurance (SGLI) coverage available to participating service members. However, Congress did not make the increased maximum death benefit effective until April 1, 2001. Sadly, the Nation's Armed Forces have suffered a series of tragic losses over the past several months. From the terrorist attack on the U.S.S. Cole on October 12, 2000, to the accidental bombing of our own service members in Kuwait on March 12, 2001, many brave Americans have lost their lives in defense of freedom during the period between enactment and the effective date of these increased benefits. As a symbol of gratitude to the survivors of those killed in the performance of duty, section 5 of the Act would allow retroactive application of the increased SGLI amount for those service members who died in the performance of duty between October 1, 2000, and March 31, 2001, and who had the maximum amount of available SGLI coverage in effect at the time of death. This would amount to a $50,000 payment for eligible beneficiaries, a small token of thanks for a sacrifice so large. I thank my colleague from Virginia, Senator Warner, who authorized the legislation (S. 546) from which this provision was derived. Another provision in the Act would enhance SGLI benefits for the spouses and dependent children of active duty service members. The provision would permit service members to purchase a maximum of $100,000 in SGLI coverage for their spouses and would extend $10,000 of life insurance coverage automatically to their children. These added enhancements to the SGLI program are common features provided by many commercial policies; they should be made available to our fighting men and women. A similar provision was approved by the Senate during the 106th Congress, but was not acted upon by the House. In order to ensure that veterans' family members are made aware of the various VA benefits to which they are entitled, section 6 of the Act authorizes and instructs VA to conduct enhanced outreach efforts to veterans' spouses, surviving spouses, children, and dependent parents. The Act also specifies that such efforts are to be undertaken with the use of the internet, media, and veterans' publications to reach as wide a beneficiary audience as possible. Awareness of available benefits is critical if VA is to meet its statutory responsibilities. Lastly, the Act makes several technical improvements to the Montgomery GI Bill (MGIB) education program. The first improvement would clarify eligibility requirements for MGIB benefits. Current law, as amended under the ``Veterans Benefits and Health Care Improvement Act of 2000'' (Public Law 106-419), could be interpreted as requiring more active duty service than is actually necessary to qualify for MGIB benefits. The clarifying language removes any ambiguity as to the service obligation required for eligibility. A second improvement would change the method by which a veteran's MGIB entitlement is charged in cases where an active duty service member uses a portion of his or her MGIB benefit entitlement during service to supplement costs not covered under Tuition Assistance Reimbursement programs run by the armed service branches. The new method would be simpler for VA to administer, easier for veterans to understand, and more beneficial for a veteran wishing to maximize his or her utilization of the MGIB benefit. A third improvement would simplify administration of the new MGIB ``buy-up'' opportunity created by the ``Veterans Benefits and Health Care Improvement Act of 2000'' (Public Law 106-419). Under that law, a service member who contributes up to $600 while in service may receive an additional $150 per month in additional monthly MGIB benefits for a total of 36 months. The improvement would set minimum monthly in- service contribution amounts of $20 and would limit the frequency of contributions to once per month. DOD requested these modifications to ensure the smooth and efficient operation of the ``buy-up'' program. A fourth improvement would clarify and extend current provisions of law providing for the reimbursement of contributions made to secure eligibility for MGIB benefits in cases where the service member has died before he or she could utilize those benefits. Current law neglects to specify explicitly that the reimbursement provision applies in certain circumstances. This provision remedies that oversight. Finally, a fifth improvement would clarify that service members who wish to convert from Veterans Educational Assistance Program (VEAP) benefits to MGIB eligibility--an option made possible by a provision of the ``Veterans Benefits and Health Care Improvement Act of 2000'' (Public Law 106-419)--need only contribute $2,700 to exercise that option. Due to a drafting error, current law could be read as requiring that a servicemember interested in converting pay $3,900, an additional contribution amount that was not intended. Mr. President, I urge my colleagues to support the adoption of the ``Veterans' Survivor Benefits Improvement Act of 2001.'' In doing so, we honor the memories of our fallen heroes by providing for those loved ones left behind. I yield the floor.

Mr. SPECTER

Mr. SPECTER. The balance of my 3-minute speech, which will now be condensed, relates to a concern on the estate tax. I do believe the estate tax is burdensome. The exemption of $675,000 is not realistic. We ought not to burden small businesses and the family farm with the threat of sale or disillusion or problems on the death of the principal. But, I do believe there is some ground where billionaires ought not to escape the estate tax. I am not sure exactly what that figure is, but we do not want to create a situation for inherited wealth to eliminate incentives in America. It may be that $100 million is an appropriate figure, perhaps even somewhat less. Also, in the elimination of the estate tax, which is not triggered for some 11 years, there are some real problems which will be caused when there will be taxes on capital gains. Obviously, while we ought not to tax twice, we ought not to have a system where people avoid taxes entirely with the stepped-up basis. That is very complicated. I am concerned generally with what may happen on unintended consequences. Once we start to deal in the tax field, the unintended consequences may take over. It is my hope that we can have some balance. I see the Presiding Officer with the gavel, so I yield the floor.