Arlen Specter

Mr. SPECTER

Mr. SPECTER. Undecided.

Mr. SPECTER. Mr. President, I thank my colleagues for squeezing me in for 5 minutes. I sought this time to talk very briefly about the Bingaman-Specter bill which is aimed at solving the problem of global warming but is somewhat more moderate than the Warner-Lieberman bill. I will take a few seconds on a personal note. I have had quite a few people take a look at me today and ask me how I am. On C-SPAN 2, some people may notice I am a little pale, a little thin, and a little bald. I feel better than I look. I have gone through this chemotherapy for Hodgkin's once, and I am optimistic about doing it again. But I agree with Senator Boxer that this is an historic day, and I wanted to be here at the outset of this debate. I have long been concerned about the problem of global warming, and I congratulate Senator McCain and Senator Lieberman for what they did several years ago and what Senator Warner and Senator Lieberman are doing now. I think it is vital that we move ahead on this issue, and I intend to vote yes on the motion to proceed. It is my hope that in this debate we can reconcile many of the interests. Warner-Lieberman and Bingaman-Specter have a lot of similarities, but there are significant differences. I believe it is going to be difficult to get 60 votes to impose cloture so that this bill can move ahead. Senator Bingaman and I started a long time ago, 18 months ago, in January of 2007, with a draft bill. We were ready for introduction July 11, 2007, and assembled a large group of labor, business, industry, and environmentalists to support the bill which we have. I would like to see us attain the goals of Lieberman-Warner. I would like it very much. But for reasons which are detailed in my extensive written statement, I do not believe that is possible. On February 14 of this year, at the request of management and labor, I testified before the Finance Committee on the issue of what importers were going to have to do. Illustratively, China wants 30 years. Well, in 30 years there won't be a steel industry. We have to reconcile a great many conflicting interests. My State is a major coal State. One of the top experts on Capitol Hill on this subject, Tom Dower, worked months working through complex issues with labor and management and conservationists. The details of a very extensive analysis are set forth in my floor statement, but that is the essence of my approach today. I ask unanimous consent that the full text of my statement be printed in the Record.

Mr. SPECTER. It is my hope that we will reconcile all these interests and move ahead, but I think it is very important that we not search for a goal we cannot attain and end up doing nothing. We know the maxim that the perfect is the destroyer of the good. I thank my colleagues and yield the floor.

Mr. SPECTER. Mr. President, I thank my colleague for those remarks. I feel better than I look, which isn't necessarily saying a whole lot.

Mr. SPECTER

Mr. SPECTER. Five minutes.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today in support of the domestic spending amendment to the fiscal year 2008 Military Construction, Veterans Affairs and Related Agencies bill, which is the underlying vehicle for fiscal year 2008 supplemental funding. These appropriations include funding for programs vital for our Nation's welfare. With my long record of support for these programs, I could hardly reject supporting them now especially in the face of supporting significant additional funding for national defense. There must be some semblance of balance on military and domestic spending. This legislation includes emergency unemployment compensation, UC, benefits for individuals who have exhausted all regular unemployment benefits after May 1, 2006. The UC program, funded by both Federal and State payroll taxes, pays benefits to covered workers who become involuntarily unemployed for economic reasons and meet State- established eligibility rules. These emergency UC benefits will provide a 13-week extension of unemployment benefits for those Americans in need of help. Although America's economic growth has been positive during each of the past 25 quarters, between January and March 2008, payroll employment fell by some 160,000 and the unemployment rate rose to 5.1 percent in March of this year. Inflation has accelerated with the consumer price index rising to 3.9 percent for the 12 months ending in April 2008 compared with 2.5 percent during 2006 and 3.4 percent in 2005. With the increased costs of food and energy and loss of jobs in the United States, we need to offer assistance to those employees who have lost their jobs in order for them to provide for their families until they can find another job. I have consistently supported efforts to extend UC benefits to help our fellow Americans through difficult times. The Senate failed to extend UC benefits during consideration of the economic stimulus bill on February 6, 2008, despite my support. Therefore, I support this amendment recognizing the need to capitalize on the opportunity it provides for a much needed economic boost to those hard-working Americans hit hardest by the recent economic downturn. Additionally, I support this amendment as it includes a much needed update to the GI bill of rights, which has not been revised for over 20 years. I joined 57 of my colleagues in sponsoring legislation that would provide a 4-year public university education for anyone who has served on active duty for at least 36 months since Sept. 11, 2001. This legislation would provide for this generation what the post-WWII GI bill provided for veterans of that global conflict. The current proposal is supported by the current chairmen of the Armed Services Committee and Veterans' Affairs Committee, as well as by a former chairman of the Armed Services Committee. This reform is a real necessity. Regrettably we do not take care of our veterans as we should. We find that men and women are coming back now from Iraq and Afghanistan and the wonders of modern medicine have been able to keep people alive, but they have very serious disabilities. Many need a lot of counseling, have a lot of psychiatric problems and a lot of brain damage. Some young men and women coming back in their early twenties will require decades of care. General Colin Powell recently said, ``For someone coming back after serving in Iraq or Afghanistan for two or three or four tours of duty, they need to catch up quickly, and we need to help them.'' For those veterans ready to return to school, it is vital that they not be hindered with financial impediments to accessing higher education. It is a very sound economic approach to provide this education. The post-WWII program has been paid off many times over by producing men and women who have been very productive and paid more taxes. According to a recent editorial by Tom Ridge and Bob Kerrey, ``for every tax dollar spent on the World War II GI bill, our country received $7 in tax remittances from veterans whose careers benefitted from enhanced education.'' I agree with General Powell's statement that, ``America got that money back in spades.'' I think this is something we ought to do, most fundamentally to treat the veterans properly, but also for the future of the country. We would be well served by another generation of very well educated men and women; they deserve it, and it would help the country a great deal in the long run. This amendment before the Senate contains $400 million for the National Institutes of Health, NIH. These additional funds are critical in catalyzing scientific discoveries that will lead to a better understanding in preventing and treating the disorders that afflict men, women, and children in our society. I was very disappointed in the small increase NIH received in fiscal year 2008. In fiscal year 2009, I am asking for an increase of several billion dollars. This amendment contains an additional $26 million for Centers for Disease Control and Prevention, CDC, to respond to outbreaks of communicable diseases related to the re-use of syringes in outpatient clinics. Funds would be used for research, education and outreach activities. Further, I have consistently supported efforts to increase funding for the Low Income Home Energy Assistance Program, LIHEAP, as the ranking member of the Senate Appropriations Subcommittee on Labor, Health and Human Services and Education. This amendment provides an additional $1 billion for fiscal year 2008 for this critical program. With the cost of energy continually increasing, it is essential that those on fixed incomes have assistance in making their home heating and cooling payments. This additional funding will bring the total level for fiscal year 2008 closer to the goal of the fully authorized level of $5 billion. Paying heating and cooling bills for low-income households throughout this Nation has always been a struggle, but never more so than today with the soaring energy costs. The inability to pay for heating or having to make decisions to forgo other needs such as food and medicine pose health and safety hazards--especially to the elderly, the disabled and children. This winter, Americans, on average, spent $977 to heat their homes which is 10 percent higher than last winter. Nationwide average oil heating bills are expected to be 22 percent higher than in the previous year. I support this amendment which will go a long way towards addressing the serious plight of those individuals facing a critical need for assistance during this energy crisis. This amendment will also provide a moratorium on several Medicaid regulations. These Medicaid Programs are critical to providing healthcare to low-income individuals in Pennsylvania. The moratorium prevents the elimination of school-based administrative and transportation programs and case management services for individuals with multiple health and social complications. This amendment will provide access for beneficiaries to rehabilitation services. Further, the moratorium would continue the payments to hospitals for graduate medical education funding, allowing Pennsylvania hospitals to train the physicians of tomorrow. These programs provide an important health safety net for disadvantaged children, seniors and parents that must be preserved. This amendment would restore access to nominal drug pricing for selected health centers specifically those clinics based at colleges and universities whose primary purpose is to provide family planning services to students of that institution. The domestic amendment also contains provisions that will decrease Federal spending. This includes the expansion of a demonstration project that verifies the assets held by Medicaid applicants. It saves federal dollars by preventing noneligible people from receiving Medicaid benefits inappropriately. Additionally, this amendment would impose a 1-year moratorium on the August 17, 2007, directive by the Centers for Medicare and Medicaid Services. This directive changed Federal policy by prohibiting coverage of uninsured children under SCHIP if their family income is above 250 percent of the Federal poverty level or $42,400. This is of particular importance in Pennsylvania where the SCHIP program covers children in families up to 300 percent of the poverty level or $63,600. For these reasons that I have outlined above--an extension of unemployment insurance benefits, enhanced benefits for our nation's veterans, and additional funding for LIHEAP, FDA, CDC and NIH where insufficient funding has been provided--I support the domestic spending amendment to the supplemental bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss my reasons for voting for the conference report to H.R. 2419, The Farm, Nutrition, and Bioenergy Act of 2007. Also known as the 2007 farm bill, this legislation determines America's agriculture and domestic nutrition policy for the next 5 years. It has, received substantial criticism because of subsidies paid to farmers of five major commodities or crops: corn, cotton, rice, soybeans, and wheat. On April 29, 2008, President Bush called the legislation a ``massive, bloated farm bill'' and has said he would veto it. The bill has also drawn criticism from taxpayer advocacy groups. The 2007 farm bill conference report scores at $307 billion over 5 years. However, this increase is fully off-set with customs users fees that are collected by the Border and Transportation Security Directorate--formerly the U.S. Customs Service--of the Department of Homeland Security for processing passengers, conveyances and merchandise entering the United States. The White House has agreed that this bill does not include any tax increase. During my tenure in the U.S. Senate, I have fought hard for agriculture and nutrition programs in Pennsylvania. However, I do have concerns with direct payment subsidies for farmers where the amount is not based on the price of the commodity and, more importantly, with large, almost endless, payments to producers. In 2006, Riceland Foods, Inc. located in Stuttgart, AR, received $7,710,705 for rice, soybean, wheat, and corn production. In 2006, the top 10 recipients of direct subsidies for production of corn, cotton, rice, soybeans, and wheat were, in order of rank, Iowa, Illinois, Texas, Nebraska, Kansas, Minnesota, Arkansas, Indiana, North Dakota, and Missouri. Pennsylvania's agriculture producers are not the recipients of these large subsidies, as Pennsylvania is a major producer of milk, Christmas trees, and specialty crops, which include mushrooms, apples, and fruits and vegetables. My home State ranks No. 1 in the production of mushrooms, No. 4 in the production of apples and freestone peaches, and No. 5 in the production of milk and grapes in the U.S. Pennsylvania ranks 32 out of 50 in terms of Federal Government agricultural payments, despite the fact that agriculture is PA's No. 1 industry. These large subsidies were a major concern when I voted against the 2002 farm bill conference report, even though the bill contained crucial programs for Pennsylvania, including the milk income loss contract, MILC, and conservation and nutrition programs. It would be my preference that we move toward a free market for agriculture. While this legislation is not perfect, it is a much better alternative to an extension of the 2002 farm bill or the reversion to nonexpiring provisions of primarily the Agriculture Adjustment Act of 1938 and the Agriculture Act of 1949--permanent law. The 2002 farm bill did not include any reforms of program subsidies and the 1938 and 1949 laws are drastically different from current policy, inconsistent with current farming, marketing, and trade agreements, and would mandate higher subsidy rates and land controls. I have reviewed the pending conference report to determine its benefits for the entire country, not just Pennsylvania where I have heard from many constituents and stakeholders expressing their support. This bill is not perfect, but it still moves America in the right direction. Our Nation, like Pennsylvania, will on the whole benefit from the 2007 farm bill. It makes key reforms to subsidy programs which I will discuss more in detail later. In addition, this legislation includes funding for domestic nutrition programs, conservation programs, programs to help rural America, and the milk income loss contract, MILC, program for America's dairy producers. For the first time, the farm bill would extend assistance to specialty crop producers through marketing and research programs. This conference report includes significant subsidy reforms. Under current law, producers are not eligible for payments if their adjusted gross income, AGI, exceeds $2.5 million. In the final 2007 farm bill, a producers' nonfarm income may not exceed $500,000 in order to receive a payment. Further, a producers' farm income, or AGI, cannot exceed more than $750,000 in order to receive a payment. One key reform is the elimination of the so-called ``three-entity rule,'' which enabled a farmer to collect twice the maximum payment limit amount by setting up multiple businesses on the same farm. The White House was influential in this outcome, which I support. Although the final language did not attain more stringent reforms as preferred by the White House or the Dorgan/Grassley amendment to the 2007 farm bill, this AGI reform is a step in the right direction. I have been a consistent supporter of efforts to limit payments to the major program crop producers. Further, the measure includes Crop Insurance subsidy reform by reducing the administrative and operating--A&O--reimbursement provided to agents by 2.3 percentage points and increasing catastrophic--CAT--and non-insured assistance program--NAP--insurance fees. The bill includes $209 billion for nutrition programs which is 68 percent of the entire cost of the bill. I have long supported nutrition programs, also known as domestic food assistance programs, which are crucial to help less fortunate Americans and those experiencing difficult times. They include the Food Stamp Program, The Emergency Food Assistance Program, TEFAP, the Commodity Supplemental Food Program, Community Food Projects, the Seniors Farmers' Market Nutrition Program, and fresh fruit and vegetable initiatives. The Food Stamp Program helps 26 million low-income Americans buy healthy food each month. Its benefits have not been raised in 30 years and the conference report raises the minimum benefit from $10 to $14 per week, indexed for inflation. Further, the final 2007 farm bill also includes $1 billion to expand the Fresh Fruit and Vegetable Program-- FFVP--nationwide to reach nearly 3 million low-income children. The FFVP allows schools to offer and promote free fresh fruits and vegetables during the day. The conference report includes $25 billion for conservation programs to help America's farmers use environmentally friendly farming practices in order to allow farmers to till the soil and raise livestock, while still protecting the land. In Pennsylvania alone, about one-quarter of all acres is farmland. The Environmental Quality Incentives Program, the Wetlands Reserve Program, the Grassland Reserve Program, the Farm and Ranch Land Protection Program, and the Wildlife Habitat Incentives Program are all worthy initiatives that need improvement and funding. Beyond providing funding for national conservation programs, the bill has $438 million for conservation programs in the Chesapeake Bay Watershed which includes large sections of Pennsylvania. Rural America, the backbone of our country, will benefit from this comprehensive legislation by reducing the backlog of unfunded pending rural development water and wastewater loan and grant applications. Also, broadband service will be expanded to rural America to allow access to those businesses, farms, and families in rural areas with no or very limited service. Further, a new rural microenterprise assistance program would be established for low and moderate income individuals to help develop the skills necessary to establish new small businesses in rural America. Lastly, the conference report provides $250 million in mandatory funding for grants and loan guarantees for renewable energy and energy efficiency systems for farmers, ranchers, and rural small businesses. One item of note is that reduction of the production tax credit for corn ethanol from 51 cents/gallon to 45 cents/gallon to reduce the incentive to shift corn production from feed to fuel in order to ensure that we are planting enough acres for other crops, including wheat and soybeans, for food. Finally, our dairy producers will continue to have the safety-net they deserve with a much-needed modification. The 2007 farm bill conference report funds the MILC program that provides countercyclical payments to our dairy producers when the price of milk falls below a set trigger price. This trigger price, as modified, will be adjusted on a monthly basis depending on the changes in the costs of feed. Increasing input costs are straining our producers and this will ensure that the payment will compensate for the increasing costs incurred by the dairy farmer. Also, the payment rate will be increased back to 45 percent from 34 percent and the cap on milk production will increase from 2.4 million pounds to 2.98 million pounds per year. Since its inception in the 2002 farm bill, the MILC program has provided more than $220 million to Pennsylvania dairy farmers. I have been a strong supporter of a mechanism to ensure that dairy farmers receive a fair price for the milk they produce considering the increased input costs. The bill also includes provisions to make the dairy industry more transparent by requiring mandatory reporting of dairy commodities and establishing a Federal Milk Marketing Order Review Commission. America's specialty crop producers which include most fruits and vegetables will get the assistance they need to market their products. The bill provides about $1.3 billion in mandatory funding for specialty crop block grants, technical assistance, and farmers' market promotion. This is the most ever set aside in a farm bill to assist these farmers who are left out of traditional Federal farm programs. The measure establishes the National Clean Plant Network consisting of centers across America to efficiently produce and distribute healthy planting stock of critical high-value new varieties of fruit trees and grapevines. These centers will be the first line of defense against devastating viruses, like the Plum Plox virus outbreak in Adams County, PA, in 1999. Also, both nursery and Christmas trees are included in the Tree Assistance Program which provides disaster relief for growers who lost their crops of trees due to natural disasters. Pennsylvania growers produce over 10 million trees every year. The 2007 farm bill is good for America and good for Pennsylvania. Therefore, I support this crucial legislation.

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, the nomination of Justice Steven Agee is pending for the Court of Appeals for the Fourth Circuit. Justice Agee has an outstanding record; he has been a judge on the Court of Appeals for Virginia for 2 years, from 2001 to 2003, and a Justice on the Supreme Court from 2003 until the present time. The record of Michael G. McGinn, to be a U.S. Marshal for the district of Minnesota, is also outstanding. The record of Ralph Eduardo Martinez, to be a Commissioner for the Foreign Claims Settlement Commission, also exceptional, is notable in part because his brother is Senator Mel Martinez. I ask unanimous consent that their resumes be printed in the Record.

Mr. SPECTER. Mr. President, I will use the balance of my time on the pending issue to discuss the agreement made between the Democratic and Republican leaders to have three circuit judges confirmed before Memorial Day. The concerns, which I expressed at some length yesterday, but will summarize very briefly today, are that there simply has been insufficient time to process the nominees the majority chose according to standard Committee procedures. I refer specifically to the nomination of Michigan Court of Appeals Judge, Helene White, who was nominated on April 15, with only 22 days elapsing between the time of her nomination and her hearing. The average time between a circuit court nominee's nomination and hearing has been 162 days during the Bush presidency. When a hearing was scheduled for Peter Keisler 33 days after his nomination, there was an objection made by all of the Democratic Senators on the Committee. This happened in 2006. At Mr. Keisler's hearing Senator Schumer had this to say: Let me reiterate some of the concerns we expressed about proceeding so hastily on this nomination. First, we barely had time to consider the nominee's record. Mr. Keisler was named to the seat 33 days ago, so we are having this hearing with astonishing and inexplicable speed. The average time for a nomination to hearing for the last seven nominees to that court is several times that long. Well, the nomination of Peter Keisler was much easier with respect to the pending record than the record for Judge White who has been on the bench for many years. First, an issue arose with Judge White because her questionnaire was incomplete. For example, she did not provide reversed opinions that had not been published, as required. During the course of the hearing, there was considerable concern about what Judge White had done while sitting on the Michigan court with respect to the soundness of her judicial scholarship. Then, yesterday, an objection was raised by Senator Reid that so many questions were submitted for Judge White. However, the fact is, the number of questions is relatively modest by comparison--73 questions for Judge White. Last year, Judge Jennifer Elrod, nominee to the Fifth Circuit, had 108 questions submitted by the Democrats. Last year, Judge Leslie Southwick had 80 questions submitted by Democrats. Grace Becker, a nominee for the Department of Justice, Civil Rights Division, had 250 questions submitted by the Democrats. These are just a few examples. So the number Judge White received is relatively modest in comparison to others. Next, you have the situation that there is the absence of the report of the American Bar Association, which is still not in on Judge White, and is not expected until the end of the month. It is unprecedented to have a hearing on a circuit judge without having the ABA report in hand--absolutely unprecedented. Yesterday, I spoke at some length about the importance of a court of appeals judge. The courts of appeals are the last appeal before the Supreme Court, meaning that in virtually all of their cases, their decisions are final. If there is a 2-to-1 decision and Judge White is one of the two in the majority, then that is the law, and it has very profound effects. So, it is a very serious obligation of the Senate, under our constitutional responsibility, to advise and consent, and to be sure we take adequate time for deliberation on the matter. The concern that I expressed yesterday, and will comment on very briefly today, is that there were other nominees waiting who could have been processed in this time without this rush to judgment and without this unprecedented practice. For example, Peter Keisler has had a hearing and has been waiting over 690 days for a committee vote. He could have been processed without this rush to judgment. Judge Conrad has been waiting for 308 days for a hearing and could have been processed without this rush to judgment. Steven Matthews has been waiting 257 days and could have been processed without this rush to judgment. There were ample nominees available. The majority did not have to proceed with Judge White's nomination. Yesterday, the Senator from Nevada commented that nobody presumed to tell Arlen Specter, when I was chairman of the Judiciary Committee, what the scheduling should be or what the order of business should be. But, as I pointed out at some length yesterday, the White House wanted to have the hearing on Chief Justice Roberts starting in August of 2005. I consulted with Senator Leahy in advance. He objected to it. I thought he was right. I, frankly, thought he was right in advance of consulting him, but I still consulted him. The hearing didn't start until September. Similarly, the White House wanted to have the hearing of Justice Alito concluded before Christmas. I consulted with Senator Leahy again, and Justice Alito's hearing started in January. Later, the President told me personally that he thought my judgment was right. The point I raise is--there was always consultation when I was chairman. But, on these matters, regrettably, there has been none. It is still my hope that we will be able to find some way through this morass. Senator Leahy and I have had a very good record of working on a bipartisan basis. It is my hope that we will establish a protocol for consideration of judicial nominees that so many days after a nomination, there will be a hearing, then so many days later, there will be action by the Judiciary Committee, and then so many days later, there will be floor action. That protocol would prevent this morass, which has engulfed this Senate. I look forward to working with Senator Leahy to accomplish that. On the state of the record, I feel constrained to say that the facts speak for themselves. Processing Judge White in this manner, breaking all of the precedents and rules, is simply not the way to conduct the business of the Senate. The deal could have been completed with the other nominees who are waiting in the wings. That is the way the Senate ought to function. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to respond to a statement made earlier today by the Senator from Nevada, Mr. Reid, on the judge issue. I heard about 25 or 30 minutes ago that Senator Reid had spoken. I pulled together some materials and asked my staff to notify Senator Reid's staff that I would be coming to the floor to speak on this issue, which is my practice when I am going to mention another Senator by name. Senator Reid, in his speech, mentioned me by name, stating that I had delayed the nomination of Judge Helene White, who is a nominee to the Sixth Circuit. My preference would have been to have had notice. I have been in the Senate complex since late morning, and I invited Senator Reid to come. And, perhaps he can come to the floor now. I would prefer to have this discussion face to face, but we can do it by long distance, through the record, or really short distance--Senator Reid's office is right across the hall from the Chamber. What is involved here is a very important issue, and that is the constitutional responsibility of the Senate to advise and consent on the nomination of Federal judges. Regrettably, it has been a very sore spot in Senate proceedings for the last 20 years. In the last 2 years of the Reagan administration, when Republicans controlled the White House and Democrats the Senate, nominations were delayed; the same during the last 2 years of the administration of President George H.W. Bush--again, Republicans controlled the White House and the Democrats the Senate. Then, during the last 6 years of President Clinton, the situation was worse--exacerbated. Each step along the way, the situation has gotten worse. I voted for President Clinton's qualified nominees and said on this floor that the Republican caucus was wrong to delay them, in a variety of ways. But, just as my caucus was wrong then, my caucus is right now. What the Democrats are doing to President Bush's nominees is wrong. In 2005, this Chamber, this historic Chamber, almost came apart with a challenge on the traditional right of filibuster with the so-called constitutional or nuclear option. And, now we have a situation where there is, again, a great imbalance. I will not go through the statistics again as to how many more nominees President Clinton got in his 8 years contrasted with President Bush in his 8 years. Those numbers have been on the record too often. I hasten to add on the subject that you can take the statistics in many directions, but let me focus on the specific matter we have at hand. What we have at hand is the nomination of Michigan State Court judge Helene White for the Court of Appeals for the Sixth Circuit. I do not think anybody in the Senate needs to be reminded, but some people watching on C-SPAN2--if there are any--would be well advised to understand the importance of a circuit court nomination. The Supreme Court of the United States reviews decisions from the circuits, but very few cases are reviewed by the Supreme Court because it is very busy. And so, that panel review by three judges on the circuit court is usually the last word on a matter, unless there is a court en banc. I will not go into details, but that is when all the judges of the circuit sit in unusual circumstances. The other unusual circumstance is when the Supreme Court grants certiorari or takes the case, which again is unusual. So, opinions of far-ranging importance are decided by the courts of appeals. Very frequently, these decisions are 2-to-1 decisions, so one circuit judge has a lot of power to make important law affecting a lot of people. The interests of individuals, companies, corporations, the Government, even international affairs are decided by these judges, and these are lifetime appointments. There has been considerable concern and debate in this body about the time the Senate has to consider these matters. Ordinarily, many weeks pass after the President submits a nomination before a nominee is voted on here. For example, Peter Keisler had a hearing, and his nomination has been pending for over 690 days. Judge Robert Conrad has waited more than 300 days for a hearing. Steve Matthews--also for the Fourth Circuit, from South Carolina--has waited over 250 days for a hearing. Contrast that with what has happened with Judge White. Judge White was nominated to the Sixth Circuit on April 15, 2008, and had a hearing on May 7, 22 days later. Her hearing record was held open until May 14 to receive questions. Her responses to the questions are due by May 23, which is the last day of the session. If she were to be confirmed soon, she would probably break all speed records. It would probably be the equivalent of an Olympic record. I can't be sure of that because I have not checked all the records. I have only had a few minutes to prepare to come over here to make this presentation, but, what we do know is what the attitude of the Democrats was when the shoe was on the other foot. Back in 2001, when Senator Leahy became chairman of the Judiciary Committee, he said: There will be an American Bar Association background check before there is a vote. Let the record show that there has been no American Bar Association evaluation on Judge White up to the present time, and the projection is that it will not be obtained before the Senate adjourns this week. I ask unanimous consent to have a letter dated May 6, 2008, to Chairman Leahy and myself printed in the Record following the conclusion of my statement.

Mr. SPECTER. In 2006, when a hearing was scheduled for Peter Keisler, 33 days after the nomination, all of the Democrats on the Judiciary Committee, signed a letter to me in my capacity as chairman asking me to ``postpone'' the hearing, citing the concern that: . . . the ABA has not even completed its evaluation of this nominee. The lack of an ABA rating did not seem to bother the Democrats this time. They ran roughshod right over that practice and held the hearing 22 days after the nomination was submitted before it was possible for the ABA to complete its rating. We did not have the benefit of the ABA evaluation, which is important before the hearing. There have been exceptions on district court nominees. I suppose you could go through the record and find exceptions. You can do that on about everything. But, with a circuit court nominee who is controversial, where there are questions about her qualifications, it is obviously a very bad practice. When the objections were raised to the timing on the Keisler nomination, Senator Leahy made the point to me as chairman--through the letter from all of the Democrats--that we should not be scheduling hearings for nominees before the committee has received their ABA ratings. I would note that the ABA rating for Keisler was received prior to his hearing. So what is good for the goose is, apparently, not good for the gander--bad practice for Keisler equals good practice for Judge White. Here is what Senator Schumer had to say about scheduling Keisler's hearing within 33 days: So, let me reiterate some of the concerns we expressed about proceeding so hastily on this nomination. First, we have barely had time to consider the nominee's record. Mr. Keisler was named to a seat 33 days ago, so we are having this hearing with astonishing and inexplicable speed. The average time from nomination to hearing for the last 7 nominees to that court is several times that long. A practice decried in very strong terms by Senator Schumer seems to be okay for Judge White. Without going into very great detail, let the record show that Judge White has a very extensive record on the state court--many cases to consider and analyze--contrasted with the record of Mr. Keisler, who had never been on the court. But, the mathematics of the situation is conclusive. Now Judge White's nomination comes to the floor in the context of an agreement having been reached by the leaders of the Republican and Democratic Parties, breaking a stalemate which existed for a long time. Mr. President, I ask unanimous consent for an additional 10 minutes.

Mr. SPECTER. The agreement, as accurately stated by Senator Reid earlier today, was in this form: I cannot guarantee three confirmations because that outcome would depend on factors beyond my control. Still, Senator Leahy and I have worked hard to move three appellate nominees this month. Judge Agee is one of the three. The next two nominees in line are Sixth Circuit nominees, Raymond Kethledge and Helene White of Michigan. Well, if Judge White and Raymond Kethledge and even Judge Agee were the only circuit court nominees available, that comment would have some relevance, but there are others who have been waiting a long time. Peter Keisler, as I noted before, had a hearing but has been waiting on the committee docket for over 690 days. He could be confirmed easily in the time allotted. When the arrangement was made on April 15, Judge Robert Conrad, who had been waiting for a hearing for over 300 days, could have been processed and confirmed. Steve Matthews, who had been waiting for over 250 days, could have been processed and confirmed. So, Senator Reid had plenty of alternatives to deal with. He did not have to move to Judge White and force this phenomenal effort on a rush to judgment. Senator Reid sought to rebut that fact in his statement saying: No one presumed to instruct Senator Specter about the sequence of nominations during the years he served as Chairman of the Judiciary Committee. Well, let me point out that no one had to instruct Senator Specter on comity, on courtesy, on consultation with the Democrats. As Chairman, not only did I never try to ram anything down the Democrats' throat, I went out of my way to see to it that they were consulted, that their views were taken into account, and that they were followed in many important considerations. The White House wanted to have the Roberts confirmation process start on August 28. I consulted with Senator Leahy, then ranking member. He thought that was a bad time, and we discussed it. I came to the conclusion--and candidly, would have had it in any event--but consulted with him before going back to the White House and saying: It cannot be done. It is going to be after Labor Day. If you bring back Senators during a recess, before children go back to school after Labor Day, it is a bad practice. The hearing was scheduled in a way which comported with what Senator Leahy had to say. Nobody consulted me about the scheduling of Judge White or the other two judges. Next, the White House wanted Justice Alito confirmed before Christmas. He had a big record; he had been on the bench for 15 years. I think Judge White has been on the bench at least comparable time, maybe even longer. It was unrealistic to go through his record in that time frame. I said to the White House and to the President personally: It can't be done realistically. I said: Mr. President, you have the great advantage of never having been a Senator. And, as a result, those hearings were held in January. Again, before the decision was made, I consulted with Senator Leahy extensively. He thought it was a bad idea to confirm before Christmas, and I listened. Here again, absent Senator Leahy's view, which I was pretty sure about before I consulted him, I would have had the same conclusion, but he was consulted, and consulted in advance. So, when Senator Reid says: No one presumed to instruct Senator Specter about the sequence of nominations when he was chairman, he is right, but then no one had to. Then we come to the part where Senator Reid mentions me, which, as I said, was without advanced notice. He said: Unfortunately Republican Senators on the Judiciary Committee have delayed consideration of Judge White. They badgered her at her confirmation hearing and then followed up by asking a total of 73 separate written questions, including some that will be particularly time consuming. Well, I am not going to take the time to go through the many hearings that I have sat through on that committee for the last 28 years, but the questioning of Judge White was firm, polite, professional, and much less intense than many hearings--the Alito hearings, for example, or from some of the Democratic Senators who questioned Roberts. She was not badgered. Let anybody take a fair reading or review of the video, and that can be easily confirmed. Then Senator Reid goes on to say: Every Senator has this right to ask questions of a nominee, but the number and nature of the questions posed to Judge White suggest that the Republicans intended to delay the nomination. There is not a scintilla of fact to back that up. The need to have time to consider this nomination in this time sequence is obviously apparent on its face. Senator Reid goes on: In addition, Republicans have insisted that the nomination not move forward until Judge White's ABA review is complete. Well, having an ABA rating is very fundamental and very basic procedure for every judge. Senator Reid goes on to say again: That is their right. But in this case, it is ironic they would make that request since she was rated qualified by the ABA 10 years ago when Republicans blocked her nomination from moving forward. Well, that argument is not so specious that it answers itself. A 10- year-old evaluation obviously has to be updated. Now, when Senator Reid objects to the questions we asked her, I take issue. We asked her the questions because her answers to the questionnaire were incomplete. She was given a questionnaire shortly after nomination on April 15. It was received by the committee on April 25. One of the questions in the questionnaire was to give ``copies'' of speeches given. And it further said: If you do not have a copy of the speech or a transcript of the tape recording, please give the name and address of the group before whom the speech was given, the date of the speech and the subject matter. Her response was: Over the years, I have participated as a member of various panel discussions at bench, bar or State or local bar association conferences and meetings. None of these have been recorded or transcribed to my knowledge. I have not retained any notes or outlines. But, she has not answered the question as to whom she spoke to or before. That was the question asked, and it is a relevant question and is the standard question for everyone. Next, she was asked to provide unpublished opinions when she was reversed. Now, that is a very important question. When a judge is reversed, that is a particular area worthy of inquiry. And, again, she did not answer the question by providing the opinions. She certainly is in the best position to have those opinions and speeches. Now, how can we confirm a judge where we do not have an opportunity to review all the information requested by the Senate questionnaire? And a good bit of this is not Judge White's fault. A good bit of this is the fault of the scheduling, which was determined by the Democrats. So here we have a situation where there was a commitment, albeit with limitations, to confirm three circuit judges before Memorial Day, and today Senator Reid comes to the floor, with adjournment later this week for the Memorial Day recess, and he is in effect saying: The commitment will not be completed due to circumstances beyond my control, beyond the Democrats' control. It is all the fault of the Republicans. Well, I ask fair-minded Americans, and Americans are fair-minded, whether this is appropriate. I have sought to avoid any characterizations or any of the vituperative language which has characterized this body in modern times, as we have had so much bickering which the American public is so sick and tired of. I have tried to avoid that with a strict factual analysis as to how the schedule proposed by Senator Reid is an unconscionable rush to judgment, is in violation of the standing practices and procedures of the Committee and the Senate, does not give an opportunity for a proper evaluation as to what her record is, and why she should not be nominated for a lifetime position on this state of the record. There has been a lot of talk about what the consequences will be of the tactics of the Democrats overall. That is going to be a question for the Republican caucus. At this point, I make only one commitment, and that is, to present it to the Republican caucus tomorrow. I thank my distinguished colleague from Florida for waiting. I would say patiently waiting, but only he can characterize his waiting. Exhibit 1 American Bar Association, Idaho Falls, ID, May 6, 2008. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Hon. Arlen Specter, Ranking Minority Member, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Chairman Leahy and Senator Specter: On behalf of the American Bar Association Standing Committee on the Federal Judiciary, I write to express our concern that you have decided to proceed with the confirmation hearings of Helene N. White to be U.S. Circuit Judge for the Sixth Circuit and Stephen Joseph Murphy III to be U.S. District Judge for the Eastern District of Michigan, currently scheduled for May 7, before completion of the Standing Committee's evaluation of these nominees. Our evaluations provide a unique window into the nominee's professional strengths and weaknesses, and offer members of the Judiciary Committee and the Senate a unique perspective on the nominees that otherwise would not be available. You and your colleagues have noted at numerous confirmation hearings that the Standing Committee's evaluation is important to what you do. As you know, barring unusual circumstances, the expectation is that the Standing Committee will complete its evaluation and submit its rating within 35 days of receiving a nominee's personal data questionnaire from the Department of Justice and a waiver from the nominee that allows a review of important records. A supplemental evaluation of a nominee whose nomination has been withdrawn or returned and then subsequently resubmitted by the President may require less time to complete. The Standing Committee's investigations of these two nominees are under way. Under our normal timetable, it would be reasonable for you to expect to receive our evaluations by the close of this month. It is unfortunate that, during the confirmation hearing, your committee members will not have the benefit of the Standing Committee's comprehensive review. Despite these developments, I assure you that the Standing Committee will continue its work evaluating both nominees and will make every effort to expedite the process without compromising the thoroughness or quality of its evaluation. This is consistent with our previous practice when, on rare occasions, we have been confronted with a similar situation. Our evaluation of each nominee will be submitted to your committee and to the Administration as soon as reasonably possible. We sincerely hope that the Judiciary Committee will defer further consideration of, and that the Senate will take no action on, these two nominees until our evaluations are submitted and can help inform your critical deliberations. It is our belief that by evaluating the integrity, professional competence and judicial temperament of each nominee, the ABA helps to ensure confirmation of the best qualified individuals for lifetime appointments to the federal bench. The ABA Standing Committee on the Federal Judiciary looks forward to continuing to work with you in pursuit of that goal. Sincerely, C. Timothy Hopkins Chair.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to commemorate the 60th anniversary of Israel's founding. On May 14, 1948, members of the Jewish People's Council gathered at the Tel Aviv Museum to approve the Declaration of the Establishment of the State of Israel. The declaration stated, in part, ``The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.'' These were the principles Israel was founded on, and these same principles guide it today. I have visited Israel 25 times since taking office in 1981. Under the able leadership of the numerous Israeli leaders whom I have come to know over that period, Israel has remained a bastion of democracy in the Middle East. According to the Freedom House's ``Freedom in the World 2008'' report, Israel is the only free country in the Middle East. Evidence of Israel's strong democratic traditions is seen in the inquisitiveness of its press: the Freedom House considers the Israeli press to be the only free press in the region. Israel's economy has also prospered under democratic rule. According to the Economist Intelligence Unit, ``Israel's economy is far more diversified and sophisticated than its neighbors.'' ``Israel has the highest proportion of engineers in the workforce [worldwide], and nearly double the share of second-place US and Japan.'' Its well- educated populace has enabled its high-tech industry to make advances in research and development, enabling Israeli firms ``to achieve global leadership in a number of fields, including various segments of the software industry, anti-virus protection and computer security systems, as well as in the areas of fiber optics and electro-optics, medical instruments and medical imaging systems.'' During my time in the Senate, I have worked to ensure Israel's security. One aspect of this has been securing economic and military assistance for Israel. During my most recent trip to Israel, in December 2007, I met with President Shimon Peres and Prime Minister Ehud Olmert. We discussed, among other things, the Israeli-Palestinian peace process, Iran's role in the region, and the U.S.-Israeli bilateral relationship. In each instance, it was clear to me that both the United States and Israel benefit greatly from our strong ties and shared ideals. At the core of the United States-Israeli relationship is the Middle East peace process. There have been so many developments since Israel emerged as a state. The enmity which has existed for decades has meant senseless killing, terrorism in Israel, and Hezbollah and Hamas firing rockets into Israel, prompting the justified retaliation by Israel as a matter of self defense. It is crucial that Israel's neighbors understand the importance of words and perceptions in the peace process, bringing the region closer to the goals set forth in the November 27, 2007 Joint Israeli- Palestinian Declaration at Annapolis: ``We express our determination to bring an end to bloodshed, suffering and decades of conflict between our peoples; to usher in a new era of peace, based on freedom, security, justice, dignity, respect and mutual recognition; to propagate a culture of peace and nonviolence; to confront terrorism and incitement, whether committed by Palestinians or Israelis.'' The democratic principles set forth in the Declaration of the Establishment of the State of Israel have enabled Israel to thrive for the past 60 years and will continue to guide it into the future.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Patriots engaged in extensive videotaping of opponents' offensive and defensive signals starting on August 20, 2000, and extending to September 9, 2007, when they were publicly caught videotaping the Jets. The extent of the taping was not disclosed until the NFL was pressured to do so. Originally, Commissioner Goodell said the taping was limited to late in the 2006 season and early in the 2007 season. In his meeting with me on February 13, 2008, Goodell admitted the taping went back to 2000. Until my meeting with Matt Walsh on May 13, 2008, the only taping we knew about took place from 2000 until 2002 and during the 2006 and 2007 seasons. That left an obvious gap between 2003 and 2005. In response to my questions, Matt Walsh stated he had season tickets in 2003, 2004 and 2005 and saw Steve Scarnecchia, his successor, videotape games during those seasons including: The Patriots' September 9, 2002, game against the Steelers. The Patriots' November 16, 2003, game against the Cowboys. The Patriots' September 25, 2005, game against the Steelers, which the Steelers resoundingly won 34-20. Walsh stated he observed Scarnecchia filming additional Patriots home games, though he could not recall the specific games. Walsh said he did not tell Goodell about the taping during 2003, 2004 and 2005 because he was not asked. The NFL confiscated the Jets tape on September 9, 2007; imposed the penalties on September 13, 2007; on September 17, 2007, viewed the tapes for the first time; and then announced they had destroyed those tapes on September 20, 2007. Commissioner Goodell made his judgment on the punishment to be levied before he had viewed the key evidence. Matt Walsh and other Patriots employees, Steve Scarnecchia, Jimmy Dee, Fernando Neto and possibly Ed Bailey were present to observe most if not all of the St. Louis Rams walk-through practice in advance of the 2002 Super Bowl, including Marshall Faulk's unusual positioning as a punt returner. David Halberstam's book, ``The Education of a Coach,'' documents the way Belichick spent the week before the Super Bowl obsessing about where the Rams would line up Faulk. Walsh was asked and told Assistant Coach, Brian Daboll, about the walkthrough. Walsh said Daboll asked him specific questions about the Rams offense and Walsh told Daboll about Faulk's lining up as a kick returner. Walsh also told Daboll about Rams running backs ``lining up in the flat.'' Walsh said Daboll then drew diagrams of the formations Walsh had described. According to media reports, Daboll denied talking to Walsh about Faulk. We do not know what Scarnecchia, Dee, Neto or Bailey did or even if they were interviewed. The Patriots took elaborate steps to conceal their filming of opponents' signals. Patriots personnel instructed Walsh to use a ``cover story'' if anyone questioned him about the filming. For example, if asked why the Patriots had an extra camera filming, he was instructed to say that he was filming ``tight shots'' of a particular player or players or that he was filming highlights. If asked why he was not filming the play on the field, he was instructed to say that he was filming the down marker. The red light indicating when his camera was rolling was broken. During at least one game, the January 27, 2002, AFC Championship game, Walsh was specifically instructed not to wear anything displaying a Patriots logo. Walsh indicated he turned the Patriots sweatshirt he was wearing at the time inside-out. Walsh was also given a generic credential instead of one that identified him as team personnel. These efforts to conceal the filming demonstrate the Patriots knew they were violating NFL rules. The filming enabled the Patriots coaching staff to anticipate the defensive plays called by the opposing team. According to Walsh, he first filmed an opponents' signals during the August 20, 2000, preseason game against the Tampa Bay Buccaneers. After Walsh filmed a game, he would provide the tape for Ernie Adams, a coaching assistant for the Patriots, who would match the signals with the plays. Walsh was told by a former offensive player that a few days before the September 3, 2000, regular season game against Tampa Bay, he--the offensive player--was called into a meeting with Adams, Bill Belichick and Charlie Weis, then the offensive coordinator for the Patriots, during which it was explained how the Patriots would make use of the tapes. The offensive player would memorize the signals and then watch for Tampa Bay's defensive calls during the game. He would then pass the plays along to Weis, who would give instructions to the quarterback on the field. This process enabled the Patriots to go to a ``no-huddle'' offensive, which would lock in the defense the opposing team had called from the sideline, preventing the defense from making any adjustments. When Walsh asked whether the tape he had filmed was helpful, the offensive player said it had enabled the team to anticipate 75 percent of the plays being called by the opposing team. Among the tapes Walsh turned over to the NFL is one of the AFC Championship game on January 27, 2002, in which the Patriots defeated the Steelers by a score of 24-17. When the Patriots played the Steelers again during their season-opener on September 9, 2002, the Patriots again won, this time by a score of 30-14. On October 31, 2004, the Steelers beat the Patriots 34-20, forced four turnovers, including two interceptions, and sacked the quarterback four times. In the AFC Championship game on January 23, 2005, the Patriots won 41-27 and intercepted Ben Roethlisberger three times. The Steelers had no sacks that game. With respect to the 2002 AFC Championship game, it was reported in February of this year that Hines Ward, Steelers wide receiver, said: ``Oh, they know. They were calling our stuff out. They knew, especially that first championship game here at Heinz Field. They knew a lot of our calls. There's no question some of their players were calling out some of our stuff.'' In addition, Eagles cornerback, Sheldon Brown, reportedly said earlier this year that he noticed a difference in New England's play calling in the second quarter of the February 6, 2005, Super Bowl game. Tampa Bay won the August 20, 2000, preseason game by a score of 31- 21. According to the information provided by Matt Walsh, the Patriots used the film to their advantage when they played Tampa Bay in their first regular season game on September 3, 2000. The Patriots narrowed the spread, losing by a score of 21-16. After the game, Charlie Weis, the Patriots' offensive coordinator, was reportedly overheard telling Tampa Bay's defensive coordinator, Monte Kiffin, ``We knew all your calls, and you still stopped us.'' The tapes Walsh turned over to the NFL indicate the Patriots filmed the Dolphins during their game on September 24, 2000, a game the Patriots lost by 10-3. According to Walsh, when the Patriots first began filming opponents, they filmed opponents they would play again during that same season. The Patriots played the Dolphins again that season on December 24, 2000; they again narrowed the spread, losing by a score of 27-24. According to Walsh, he filmed the Patriots' game against Buffalo on November 5, 2000, a game the Patriots lost 16-13. When the Patriots played the Bills again that season on December 17, 2000, the Patriots won by a score of 13-10. During the following season, Walsh filmed the Patriots' game against the Jets on September 23, 2001, a game the Patriots lost by a score of 10-3. When the Patriots played the Jets again that season on December 2, 2001, the Patriots won by a score of 17-16. The tapes Walsh turned over to the NFL indicate the Patriots filmed the Dolphins during their game on October 7, 2001, a game the Patriots lost by 30-10. When the Patriots played the Dolphins again that season on December 22, 2001, the Patriots won by a score of 20-13. The Patriots filmed opponents offensive signals in addition to defensive signals. On April 23, 2008, the NFL issued a statement indicating that ``Commissioner Goodell determined last September that the Patriots had violated league rules by videotaping opposing coaches' defensive signals during Patriots games throughout Bill Belichick's tenure as head coach.'' However, the tapes turned over by Matt Walsh contain footage of offensive signals. The tapes turned over to the NFL and the information provided by Walsh proves that the Patriots also routinely filmed opponents' offensive signals. Why the Patriots videotaped signals during games when they were not scheduled to play that opponent during the balance of the season unless they were able to utilize the videotape during the latter portion of the same game. The NFL has not addressed the question as to whether the Patriots decoded signals during the game for later use in that game. Mark Schlereth, a former NFL offensive lineman and an ESPN football analyst, is quoted in the New York Time on May 14: Then why are you doing it against teams you aren't going to play again that season?'' Schlereth said that ``the breadth of information on the tapes mainly, the coaches' signals and the subsequent play would be simple for someone to analyze during a game. There are enough plays in the first quarter, he said, to glean any team's ``staples,'' and a quick review of them could prove immediately helpful. I don't see them wasting time if they weren't using it in that game. Walsh said that Dan Goldberg, an attorney for the Patriots, was present at his interview and asked questions. With some experience in investigations, I have never heard of a situation where the subject of an investigation or his/her/its representative was permitted to be present during the investigation. It strains credulity that any objective investigator would countenance such a practice. During a hearing or trial, parties will be present with the right of cross- examination and confrontation but certainly not in the investigative stage. Commissioner Goodell misrepresented the extent of the taping when he said at the Super Bowl press conference on February 1, 2008: I believe there were six tapes, and I believe some were from the pre-season in 2007, and the rest were primarily in the late 2006 season. In addition, there were notes that had been collected, that I would imagine many teams have from when they scout a team in advance, that we took, that may have been collected by using an illegal activity, according to our rules. Later, Goodell said of the taping [W]e think it was quite limited. It was not something that was done on a widespread basis. Commissioner Goodell materially changed his story in his meeting with me on February 13, 2008, when he said there has been taping since 2000. There has been no plausible explanation as to why Commissioner Goodell imposed the penalty on September 13, 2007, before the NFL examined the tapes on September 17, 2007. There has been no plausible explanation as to why the NFL destroyed the tapes. Commissioner Goodell sought to explain his reason by saying during his February 1, 2008 press conference that: We didn't want there to be any question about whether this existed. If it shows up again, it would have to be something that came outside of our investigation and what I was told existed. On April 23, 2008, the NFL issued a statement that the penalties imposed on the Patriots last fall were solely for filming defensive signals. ``Commissioner Goodell determined last September that the Patriots had violated league rules by videotaping opposing coaches' defensive signals during Patriots games throughout Bill Belichick's tenure as head coach.'' The tapes turned over by Matt Walsh also contain footage of offensive signals. The overwhelming evidence flatly contradicts Commissioner Goodell's assertion that there was little or no effect on the outcome of the game: during his February 1, 2008, press conference, Commissioner Goodell stated ``I think it probably had a limited effect, if any effect, on the outcome on any game.'' Later during the press conference, Goodell stated again ``I don't believe it affected the outcome of any games.'' Commissioner Goodell's effort to minimize the effect of the videotaping is categorically refuted by the persistent use of the sophisticated scheme which required a great deal of effort and produced remarkable results. In the absence of the notes, which the NFL destroyed, of the Steelers' three regular season games and two postseason games, including the championship game on January 23, 2005, we do not know what effect the videotaping of the earlier games, especially the October 31, 2004, game, had on enabling the Patriots to win the AFC Championship. It is especially critical that key witnesses--coaches, players--be questioned to determine those issues. Failure to question--or at least publicly disclose the results of-- key witnesses to other matters identified herein on what we do not know. On the totality of the available evidence and the potential unknown evidence, the Commissioner's investigation has been fatally flawed. The lack of candor, the piecemeal disclosures, the changes in position on material matters, the failure to be proactive in seeking out other key witnesses, and responding only when unavoidable when evidence is thrust upon the NFL leads to the judgment that an impartial investigation is mandatory. There is an unmistakable atmosphere of conflict of interest or potential conflict of interest between what is in the public's interest and what is in the NFL's interest. The NFL has good reason to disclose as little as possible in its effort to convince the public that what was done wasn't so bad, had no significant effect on the games and, in any event, has all been cleaned up. Enormous financial interests are involved and the owners have a mutual self-interest in sticking together. Evidence of winning by cheating would have the inevitable effect of undercutting public confidence in the game and reducing, perhaps drastically, attendance and TV revenues. The public interest is enormous. Sports personalities are role models for all of us, especially youngsters. If the Patriots can cheat, so can the college teams, so can the high school teams, so can the 6th grader taking a math examination. The Congress has granted the NFL a most significant business advantage, an antitrust exemption, highly unusual in the commercial world. That largesse can continue only if the NFL can prove itself worthy. Beyond the issues of role models and antitrust, America has a love affair with sports. Professional football has topped all other sporting events in fan interest. Americans have a right to be guaranteed that their favorite sport is honestly competitive. In an extraordinary time, baseball took extraordinary action in turning to a man of unimpeachable integrity--Federal Judge Kenesaw Mountain Landis--to act forcefully and decisively to save professional baseball from the Black Sox scandal in 1919. On this state of the record, an objective, thorough, transparent investigation is necessary. If the NFL does not initiate an inquiry like the investigation conducted by former Senator George Mitchell for baseball, it will be up to Congress to get the facts and take corrective action.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to express my views about the pending energy amendment aimed at increasing domestic oil and gas production. In recognizing that this is a symbolic vote aimed at stimulating debate on the Nation's energy situation, I am voting for this amendment today because I want to affirm the principle of taking decisive action on the Nation's energy issues. I do, however, have reservations about some of the provisions contained within this measure. While I fully support measures contained in the package which would further the development of alternative fuels for the transportation sector and for electric-powered vehicles; set goals for the use of coal-derived fuels; suspend filling the Strategic Petroleum Reserve; and streamline the permitting process for new oil refineries, I believe further debate is necessary on some other provisions. Specifically, when these energy issues are revisited, there should be further discussion of opening additional areas of the Outer Continental Shelf to drilling as well as further discussion on the moratorium on commercial leasing of oil shale in the Western United States. I understand the need to develop our domestic resources due to growing global demand for oil, but we must ensure these steps are taken with the utmost environmental sensitivity.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to speak about the nomination process, to be followed by Senators Cornyn and Kyl. The situation is desperate at the present time, as the Senate has reverted to a longstanding policy in the last 2 years where the White House is controlled by one party and the Senate by another. The nominees of President Bush are being inappropriately blocked. During the course of the last 2 years of the Clinton administration, there were 15 circuit judges confirmed, 57 district judges, contrasted with only 7 circuit judges confirmed during the last 2 years of the Bush administration, and 38 district judges. For the entire 8 years, President Clinton has 65 circuit confirmations contrasted with only 58 for President Bush. President Clinton had 305 district confirmations contrasted with only 241. Regrettably, this has been the pattern for the past 20 years--in the last 2 years of President Reagan's administration, when the Senate was controlled by Democrats; in the last 2 years of President Bush the first; and in the 6 years Republicans controlled the Senate during President Clinton's administration. The issue has been raised by Democrats about the inappropriate blocking by Republicans of the Clinton administration. I have agreed with them. I voted to confirm the Clinton judges who were qualified. The action taken was not appropriate, and I disagreed with my caucus. But now my caucus is right. An agreement had been reached--a good-faith agreement, so to speak-- by leadership to confirm three circuit judges between now and Memorial Day. The Democrats had chosen three nominees: Judge Helene White, Mr. Kethledge, and Justice Agee, who are really out of turn. It would be much more appropriate to take up Judge Conrad who has been waiting 290 days for a hearing; Mr. Matthews, who has been waiting 240 days for a hearing; or Mr. Keisler, who has been waiting 675 days for a committee vote. The chairman obviously has the right to make the selection on the calendar, but it is important to note that this selection was made without any consultation with the Republicans, which is a sharp shift in practice from what happened during the last Congress when I chaired the committee and Senator Leahy was ranking. The White House wanted the confirmation hearings of Chief Justice Roberts to start on August 29. I had serious questions about the wisdom of doing that and consulted with Senator Leahy extensively. Senator Leahy was totally opposed. I made the decision to start the hearings after Labor Day, after due and appropriate consultation with the Democrats. Similarly, on the nomination of Justice Alito, the White House wanted the confirmation completed by Christmas. Again, I had severe concerns about hurrying the process. I consulted extensively with Senator Leahy, and then I made the decision to start the hearings in January. Let the record show after the confirmations were completed successfully, President Bush agreed with the judgment to hold the hearings when they were scheduled. That is the sort of comity which is indispensable if this body is to function. There are grave concerns raised about the scheduling of the confirmation of Judge Helene White because, simply stated, there is not enough time to do it and do it right. Judge White was nominated on April 15, less than a month ago. Her questionnaire was not received until April 25. The FBI investigation was not begun until April 25. The ABA report cannot be completed until May 19 at the earliest. After Judge White's hearing, which is scheduled hastily for May 7, the committee typically leaves the record open for 1 week, which would close the record on May 14. If there are questions for the record, Judge White would have 1 week to answer those questions, which would bring us to May 21. If the nomination is held over for a week, that would put us into June. Assuming the nomination is not held over for a week, that leaves only 2 days before May 23 for the committee to review her answers, schedule and hold a committee vote, and for the full Senate to vote on her nomination. No circuit court nominee has had hearings prior to their ABA report being received. The ABA report is not expected until at least May 19. In the past, the Democrats have been very vocal in opposing this kind of a schedule. When the schedule was set for Peter Keisler 33 days after his nomination, the Democrats cited the concern that the Keisler hearing should not be held so quickly in advance of the ABA recommendations: ``We should not be scheduling hearings for nominees before the Committee has received their ABA ratings,'' all of which is violated here. Senator Schumer said: So let me reiterate some of the concerns we expressed about proceeding so hastily on this nomination. First, we have barely had time to consider the nominee's record. Mr. Keisler was named to this seat 33 days ago. So, we are having this hearing with astonishing and inexplicable speed. Well, this hearing is even more astonishing and even more inexplicable. When we do not follow regular order, we tend to get into trouble. The appropriate course would be to move to the nominations of Judge Conrad and Mr. Matthews in the Fourth Circuit where there is a judicial emergency. How much time remains, Mr. President?

Mr. SPECTER

Mr. SPECTER. I want to comment briefly about what I consider the disintegration of the standing of the Senate as the world's greatest deliberative body. There was a time, when someone wanted to filibuster, that they had to stand up and speak. The Democrats brought to the floor legislation to alter the Supreme Court decision which cut short the statute of limitations on women's pay. I voted for cloture to take up that issue. The issue came and went in the course of a few hours one day. Under the traditional rules of the Senate, when a matter is raised, it is presented. It is argued. If someone opposes and wants to object and filibuster, they have to speak. The cost of a filibuster today is very cheap. All you have to do is say: I am going to filibuster. Then there is a cloture vote, and 60 votes are not obtained, and the issue goes away. That is not the way the Senate has traditionally functioned. If the Democrats had been serious about trying to change the rule that the Supreme Court handed down, which I thought was a bad decision--bad on the law, and it certainly can be changed by legislation--they would have argued the matter. They would have compelled opponents to come to the Senate floor and oppose the matter. There would have been a public debate. Had there been an extended debate, the American people would have understood the wrong Supreme Court decision and insisted the Congress take corrective action. Similarly, we have found the Senate has now been overwhelmed by procedural motions on filling the tree which preclude any meaningful, traditional Senate approach to our function where Senators should be able to offer amendments at any time on any issue. Senator Reid, who now has the distinction of having the record on filling the tree the most times, has it in heavy competition. Senator Mitchell established a new record in the 103rd Congress with nine. Senator Lott tied him in the 106th Congress with nine. Senator Frist tied him in the 109th Congress with nine. But Senator Reid is now the champion. The problem with filling the tree is that Senators are precluded from coming to the floor and offering amendments. The American people do not understand what is happening in the Senate because nothing is happening in the Senate. Last week we had one cloture vote at 5:30 on Monday. We didn't vote on Tuesday, Wednesday, Thursday, or Friday--one vote, and not a peep in the news media about the inactive Senate. So what we are seeing--and I intend to speak at length on this at a later date--is the disintegration of what the Senate is supposed to be. If legislation is needed to change the statute of limitations on enforcing women's employment rights for equal pay, let the Senate take it up and debate. If we are on the FAA Act, let's have Senators come forward and consider it. It is time we declared a truce on the judge issue. It has been exacerbated continuously over the last 20 years. It is time for a truce because the American people are caught in the crossfire. Mr. President, I ask unanimous consent that a survey of the filling of the tree, compiled by CRS, be printed in the Record. I urge my colleagues to study it to see how the business of the Senate has been thwarted, stymied, and eliminated by this procedural, inappropriate activity.

Mr. SPECTER. I again call on the Rules Committee to take up my pending rule change which would stop this abhorrent practice. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to explain my vote against the motion to invoke cloture on the Rockefeller substitute amendment No. 4627 to H.R. 2881, the Federal Aviation Administration Reauthorization Act. There are many aviation-related provisions in the substitute amendment which are of critical importance to both the Nation and my State, including: $290 million per year to modernize the air traffic control system; a $15.8 billion authorization of funds for the Airport Improvement Program; a requirement that airlines post the on-time performance of chronically delayed flights on their Web sites; a $175 million authorization of funds for Essential Air Service, EAS, to rural areas; and an extension of EAS eligibility for Lancaster, PA; and safety improvements related to the FAA's oversight of aircraft inspections. The legislation also includes nonaviation provisions to restore the solvency of the highway trust fund, which is a matter of critical importance, and to provide tax credit bonds for high-speed rail service, a measure that I helped put together. For these and other reasons, I believe it is imperative that the Senate act on this bill. However, I do not believe it would be appropriate to act on it without necessary and proper debate, and that is precisely what a vote for cloture on the substitute amendment would have represented. The Senate was precluded from having any meaningful or traditional debate on this legislation due to a decision to fill the so-called ``amendment tree'' so that no other amendments could be freely debated and considered. I filed two amendments to this bill, one attempting to address overscheduling of airline flights and one prohibiting unnecessary flights over residential areas, which I was precluded from offering. I believe my amendments address critically important issues that deserve the attention and consideration of the Senate, and I am told that other Senators hold similar sentiments with respect to amendments they intended to pursue. On February 15, 2007, I introduced a resolution which would prohibit this abhorrent practice of filling the ``amendment tree'' so that the Senate can conduct its business. In the absence of this much-needed reform, I voted against cloture on the substitute amendment, not because I fail to recognize the importance of the provisions contained therein, but because the Senate was effectively blocked from offering and debating any amendments to improve it. It is my hope that the chairman and ranking members of the relevant committees can work out an agreement that will allow this bill to come back before the Senate, and with it a process for its consideration that will allow for the kind of meaningful and traditional debate fitting of the Senate.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am introducing the Free Speech Protection Act of 2008 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 defamation 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 U.S. by U.S. journalists, and is published or disseminated primarily in the U.S. 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. The impetus for this legislation is 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 U.S. 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 prompt action. I note that the person who sued Dr. Ehrenfeld has filed dozens of lawsuits in England. 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. England should be free to have its own libel law, but so too should the U.S. England has become a popular venue for defamation plaintiffs from around the world, including those who want to intimidate our journalists. The stakes are high. This legislation is important. This legislation creates a Federal cause of action and Federal jurisdiction so that Federal courts may determine whether there has been defamation under U.S. law when a U.S. journalist, speaker, or academic is sued in a foreign court for speech or publication in the U.S. The bill authorizes a court to issue an order barring enforcement of a foreign judgment and to award damages. 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 Senator Lieberman for working with me on this important bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am introducing the Free Speech Protection Act of 2008 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 defamation 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 U.S. by U.S. journalists, and is published or disseminated primarily in the U.S. 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. The impetus for this legislation is 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 U.S. 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 prompt action. I note that the person who sued Dr. Ehrenfeld has filed dozens of lawsuits in England. 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. England should be free to have its own libel law, but so too should the U.S. England has become a popular venue for defamation plaintiffs from around the world, including those who want to intimidate our journalists. The stakes are high. This legislation is important. This legislation creates a Federal cause of action and Federal jurisdiction so that Federal courts may determine whether there has been defamation under U.S. law when a U.S. journalist, speaker, or academic is sued in a foreign court for speech or publication in the U.S. The bill authorizes a court to issue an order barring enforcement of a foreign judgment and to award damages. 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 Senator Lieberman for working with me on this important bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to speak to an amendment to the pending legislation, H.R. 2881, the FAA Reauthorization bill, which would require the FAA to more effectively address flight delays that are caused by airline overscheduling. Airlines continually schedule more flights than airports can physically handle. Schedules are made to reduce operating costs and maximize airline profits without regard for airport capacity. Since only a certain number of flights can be accommodated within a specified time period, overscheduling triggers built-in delays which can take the air traffic system hours to recover from. Responsible scheduling of flights within airport capacity limits will go a long way towards alleviating delays. Many interested parties point out that airport capacity needs to be expanded to match existing schedules. This is true. We do need to ultimately expand airport capacity to accommodate passenger demand, but projects to expand capacity can take years to develop and millions of dollars to construct. In the nearterm, we should ensure that there is some rationality to flight schedules so that passengers can trust that their flight has a reasonable chance of being accommodated. This amendment, on its own, would not cap or reduce peak hour flights at any airport. It would simply direct the Federal Aviation Administration to intervene in cases where overscheduling is causing significant delays. Specifically, it would require the FAA Administrator to convene a meeting of airlines to discuss voluntary flight schedule reductions at any airport where flights exceed the maximum hourly departure and arrival rates set by the FAA, provided that such excess flights are likely to have a significant adverse effect on the national or regional airspace system. In other words, if the excess flights were deemed not likely to have an adverse effect, no action would be taken. If an agreement cannot be reached on voluntary flight schedule reductions, then the Administrator, working with the affected airport, would be required to take such action as is necessary to ensure that flight schedule reductions are implemented. This gives the FAA and the local airport the flexibility to decide how best to bring their schedules within capacity. Additionally, the Administrator would be required to submit a report to Congress every 3 months on flight scheduling at the Nation's 35 busiest airports. This amendment is supported by the Airports Council International- North America as a measure that will force the FAA to more effectively deal with delays. Accordingly, I urge my colleagues to adopt it. Mr. President, on December 19, 2007, the Federal Aviation Administration, FAA, ordered air traffic controllers at Philadelphia International Airport, PHL, to use new dispersal departure headings, sending aircraft at low altitudes over residential portions of Pennsylvania, Delaware and New Jersey. These new flight paths, a component of the FAA's New York/New Jersey/ Philadelphia metropolitan area airspace redesign, have been met with enormous fury in local communities, prompting 12 lawsuits against the FAA. They also prompted air traffic controllers at PHL to file an ``Unsatisfactory Condition Report,'' claiming that mandatory use of dispersal headings unnecessarily complicates departure procedures. The FAA has always touted this project as a congestion relief initiative, and it is vitally important to address airspace congestion in the northeast. However, they are not sending planes over residential areas as a relief option. According to air traffic controllers, these dispersal headings are being used as a primary option from 9-11AM and 2-7PM, resulting in overflights even when there are no other planes waiting to take off at PHL. At an April 25, 2008, field hearing that I chaired in Philadelphia under the auspices of the Transportation and Housing and Urban Development Appropriations Subcommittee, FAA Administrator Robert Sturgell confirmed that overflights are occurring when less than 10 planes are waiting to depart at PHL. This runs counter to prior commitments the FAA had made to only use the headings during moderate to heavy traffic periods at PHL, when 10 or more aircraft were waiting to depart. The FAA has been unwilling to honor its commitment by limiting use of the headings to only those times when 10 or more aircraft are waiting because they claim that doing so would require them to conduct a reevaluation and analysis. I would argue that a reevaluation and analysis are in order if it would provide relief to the communities surrounding PHL, but I am more interested in seeing to it that the FAA honors its commitments. Since they have not been willing to do so on their own, this amendment would force them to honor their commitment by prohibiting the use of dispersal departure headings at PHL unless 10 or more aircraft are waiting to depart. It will ensure that communities are not frivolously disrupted by overflights but still give air traffic controllers the option of using dispersal headings as a relief option when the airport is most congested. It is important to note that the FAA is limiting overflights from Newark Airport to times when 10 or more aircraft are waiting, so this is not a policy that is unprecedented or impossible to implement. Accordingly, I urge my colleagues to adopt this amendment. Amendment No. 4585 Withdrawn

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce a bill to give mortgage servicers an incentive to work out new loan terms with struggling homeowners who are falling behind in their mortgage payments. It is possible to avoid foreclosure in some cases by reworking the payment terms on mortgages. Investors, however, would have to accept a smaller return on their investment than they otherwise may have expected. As a result, businesses that service mortgage loans may fear litigation from investors who are the direct or indirect holders of those mortgages. This concern may be slowing the pace of or stopping loan modifications. In testimony on December 6, 2007, before the House Committee on Financial Services, Mark Pearce, speaking on behalf of the Conference of State Bank Supervisors, testified that at a meeting with the top 20 subprime servicers ``many of them brought up fear of investor lawsuits'' as a hurdle to voluntary loan modification efforts. The loan servicers have a legal duty to the investors to maximize the return on their investments. But in light of the current and changing economic environment, and the new and complex financial vehicles that hold mortgages, this ``duty'' is not simple or clear. This bill clarifies matters by stating that, absent contract provisions to the contrary, the duty is owed to the investor group as a whole, and not to individual investors or classes of investors. In addition, the bill clarifies that the servicer satisfies that duty by ensuring that the return from a mortgage, as modified, exceeds the return that would be expected from foreclosure. This may include agreeing to mortgage modifications or workout plans when a homeowner is in payment default, or when default or foreclosure appears imminent. Although some investors may get a smaller return than they may have expected, in the long run, taking these actions will be in the best interest of all investors. This bill is not a bailout. The bill honors contract provisions that may be contrary to provisions in the bill. This bill would not solve all of the problems we face today, but it is an important step in removing barriers that may slow progress as we work to solve the home mortgage crisis. This bill is necessary because regulation has not kept pace with innovation. Years ago, a homeowner would obtain a mortgage from a local bank. If he couldn't make the mortgage payment, the bank often would be willing and able to offer a workout, modifying the loan's terms to make it affordable. The bank would do this because whatever amount the borrower could pay would be worth more to the bank than foreclosure. Foreclosure has its costs, sometimes as much as half the value of the mortgage, and banks did not want to have to resell the home, so the calculation was often simple. Today, however, many mortgages are often bundled together with others mortgages and are sold to investment banks, who in turn slice and dice the bundles to produce securities that are rated by rating agencies and sold to investors all over the world. Investment banks that issue securities backed by mortgages typically divide the securities into tranches, with some tranches having claims that are senior to other more junior tranches. None of this, of course, is transparent to the homeowner, and servicers face a complex situation. Servicers should not have to first determine precisely how a loan modification will affect the various tranches of investors and then make choices among the groups. If the servicer reasonably believes that a modification increases the net present value of the investment as a whole, it should be able to agree to the modification. This month, Federal Reserve Chairman Ben Bernanke encouraged the nation's bankers to write down the principle on millions of mortgages. He said banks have not made nearly enough modifications to stop foreclosures. But there has been some progress. Treasury Secretary Paulson reported this month that ``since July more than one million struggling homeowners received a workout--either a loan modification or a repayment plan that helped them avoid foreclosure.'' In January alone, there were 167,000 such modifications, with the number of borrowers receiving help rising faster than the number of foreclosures. Congress needs to ensure that these modifications continue, and that they continue at a rapid pace. We are faced with a crisis caused by mortgage brokers who pushed risky loans on homeowners, homeowners who assumed the value of their home would always increase, conflicts of interest at credit rating agencies, bond underwriters who loosened standards, lax regulators, and financial institutions that ignored the risks in the instruments they were buying and selling. There is plenty of blame to go around but Congress must now take steps to prevent similar problems in the future. Right now, we must do what we can to keep families in their homes by encouraging the companies that service mortgages to modify mortgages where it will prevent foreclosure. This bill will encourage servicers to make such modifications and I urge my colleagues to support it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce a bill to give mortgage servicers an incentive to work out new loan terms with struggling homeowners who are falling behind in their mortgage payments. It is possible to avoid foreclosure in some cases by reworking the payment terms on mortgages. Investors, however, would have to accept a smaller return on their investment than they otherwise may have expected. As a result, businesses that service mortgage loans may fear litigation from investors who are the direct or indirect holders of those mortgages. This concern may be slowing the pace of or stopping loan modifications. In testimony on December 6, 2007, before the House Committee on Financial Services, Mark Pearce, speaking on behalf of the Conference of State Bank Supervisors, testified that at a meeting with the top 20 subprime servicers ``many of them brought up fear of investor lawsuits'' as a hurdle to voluntary loan modification efforts. The loan servicers have a legal duty to the investors to maximize the return on their investments. But in light of the current and changing economic environment, and the new and complex financial vehicles that hold mortgages, this ``duty'' is not simple or clear. This bill clarifies matters by stating that, absent contract provisions to the contrary, the duty is owed to the investor group as a whole, and not to individual investors or classes of investors. In addition, the bill clarifies that the servicer satisfies that duty by ensuring that the return from a mortgage, as modified, exceeds the return that would be expected from foreclosure. This may include agreeing to mortgage modifications or workout plans when a homeowner is in payment default, or when default or foreclosure appears imminent. Although some investors may get a smaller return than they may have expected, in the long run, taking these actions will be in the best interest of all investors. This bill is not a bailout. The bill honors contract provisions that may be contrary to provisions in the bill. This bill would not solve all of the problems we face today, but it is an important step in removing barriers that may slow progress as we work to solve the home mortgage crisis. This bill is necessary because regulation has not kept pace with innovation. Years ago, a homeowner would obtain a mortgage from a local bank. If he couldn't make the mortgage payment, the bank often would be willing and able to offer a workout, modifying the loan's terms to make it affordable. The bank would do this because whatever amount the borrower could pay would be worth more to the bank than foreclosure. Foreclosure has its costs, sometimes as much as half the value of the mortgage, and banks did not want to have to resell the home, so the calculation was often simple. Today, however, many mortgages are often bundled together with others mortgages and are sold to investment banks, who in turn slice and dice the bundles to produce securities that are rated by rating agencies and sold to investors all over the world. Investment banks that issue securities backed by mortgages typically divide the securities into tranches, with some tranches having claims that are senior to other more junior tranches. None of this, of course, is transparent to the homeowner, and servicers face a complex situation. Servicers should not have to first determine precisely how a loan modification will affect the various tranches of investors and then make choices among the groups. If the servicer reasonably believes that a modification increases the net present value of the investment as a whole, it should be able to agree to the modification. This month, Federal Reserve Chairman Ben Bernanke encouraged the nation's bankers to write down the principle on millions of mortgages. He said banks have not made nearly enough modifications to stop foreclosures. But there has been some progress. Treasury Secretary Paulson reported this month that ``since July more than one million struggling homeowners received a workout--either a loan modification or a repayment plan that helped them avoid foreclosure.'' In January alone, there were 167,000 such modifications, with the number of borrowers receiving help rising faster than the number of foreclosures. Congress needs to ensure that these modifications continue, and that they continue at a rapid pace. We are faced with a crisis caused by mortgage brokers who pushed risky loans on homeowners, homeowners who assumed the value of their home would always increase, conflicts of interest at credit rating agencies, bond underwriters who loosened standards, lax regulators, and financial institutions that ignored the risks in the instruments they were buying and selling. There is plenty of blame to go around but Congress must now take steps to prevent similar problems in the future. Right now, we must do what we can to keep families in their homes by encouraging the companies that service mortgages to modify mortgages where it will prevent foreclosure. This bill will encourage servicers to make such modifications and I urge my colleagues to support it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.