Arlen Specter

Mr. SPECTER

Mr. SPECTER. I am sorry, I didn't understand.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce the Community Cancer Care Preservation Act, which will ensure Medicare beneficiaries' access to community-based cancer treatment and provide Medicare reimbursement assistance for oncologists providing vital cancer care services. Cancer takes a great toll on our friends, family and our Nation. In the U.S. cancer causes one out of every four deaths. Although the number of cancer diagnoses appears to have plateaued, more than 1.4 million Americans will still find out they have a form of cancer in 2007, and 560,000 will die, keeping cancer the second-leading cause of death in the U.S. In 2005, over 2 million new cases of cancer were diagnosed, the most prevalent of which were breast, prostate, lung, and colorectal. While these statistics are daunting, according to the American Cancer Society, the number of Americans who died of cancer in 2006 dropped for a second straight year. This decrease is the result of earlier detection and diagnosis, more effective and targeted cancer therapies, and greater accessibility to quality care provided by oncologists. These vital services have allowed millions of individuals to lead healthy and productive lives after successfully battling cancer. In 2006, 43.2 million individuals were enrolled in Medicare; of those beneficiaries over 29 percent have had cancer during their lives, 12.5 million beneficiaries. With such a large percentage of our seniors facing this horrible disease, the need for access to community cancer care is critical. Community cancer clinics treat 84 percent of Americans with cancer. Community cancer centers are free-standing outpatient facilities that provide comprehensive cancer care in a physician's office setting and are located in patients' communities. These clinics are especially critical in rural areas where access to larger cancer clinics may not be available. They provide patients with early diagnoses, effective cancer therapies, and innovative and supportive care that reduces fatigue, nausea/vomiting, and pain. The accessibility of treatment in the hands of skilled community oncologists has decreased the cancer mortality rate. On December 8, 2003, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, MMA, was signed into law by President Bush. This legislation contained numerous provisions that were beneficial to America's seniors and medical facilities; however, it also provided a reduction in Medicare's reimbursement for oncology treatment. The provisions sought to bring a balance to the reimbursement for the cost of cancer drugs and services. Prior to the implementation of the law, the Centers for Medicare & Medicaid Services, CMS, reimbursed the cost of cancer treatment drugs at a very high level. This level provided sufficient funding to supplement the costs of care and the storage of the prescription drugs, which were not being provided adequate reimbursement. The law enacted reimbursement reductions for the cost of prescription drugs while increasing the funding provided for cancer care services; however, that increase did not sufficiently offset oncologists' losses from the reduction in cancer drug reimbursement. The Congressional Budget Office estimated that Medicare reimbursements to oncologists would be reduced by $4.2 billion from 2004-2013. PricewaterhouseCoopers, an independent auditing firm, estimates that reductions will reach $14.7 billion over that time. This increased reduction will have a debilitating effect on oncologists' ability to provide cancer treatment to Medicare beneficiaries, especially those in the community setting. For 2005, CMS provided an estimated $300 million in Medicare funding to community cancer clinics via a demonstration project, in part as stop-gap funding for Medicare reimbursement cuts. This funding was reduced to $150 million in 2006 and has been eliminated in 2007. These decreases, in addition to other reductions in services payments, have resulted in a $200-300 million reduction in reimbursement in 2007. However, this reimbursement reduction may be larger than estimated. CMS did not factor in the delay in the adjustment of reimbursement rates when a drug manufacturer increases the price for cancer therapies and the inability of some beneficiaries to pay their Medicare 20 percent coinsurance payment. When accounting for these reductions, the overall cut to cancer care will likely exceed $300-400 million. The MMA mandated a transitional increase of 32 percent in service fees in 2004, falling to 3 percent in 2005, and 0 percent in 2006. This was done to provide time for CMS to pay for essential unpaid medical services, such as pharmacy facilities and treatment planning. In 2005, CMS created a cancer care demonstration project as a quality enhancement initiative to examine the effects of oncology drugs on patients. This demonstration project also provided $300 million in critical funding because CMS had not increased the reimbursement for essential unpaid medical services. On June 29, 2005, I sent a letter with 38 other Senators to President Bush requesting an extension of the demonstration project through 2006. CMS, however, announced a new oncology demonstration project for 2006 that examines the quality of cancer care in relation to treatment guidelines, but at least $150 million less than the previous funding level. Accordingly, I am introducing legislation to provide assistance to community oncologists that are disadvantaged by CMS reforms brought forth under the MMA. The bill's $1.7 billion cost, over the next 5 years, is a relatively small cost in the face of the vast reductions in CMS's reimbursement to oncologists. Let me briefly summarize the provisions of this legislation. 1. Sales Price Updates: Currently, CMS updates the prices for cancer treatment drugs quarterly, however there is a 6-month lag from when prices increase in the marketplace and when CMS applies that information to increase reimbursement. For example, a price change in the first quarter will not be reflected until reimbursement in the third quarter. This forces community cancer clinics to often pay increased prices for prescription drugs without increased reimbursement. This legislation requires the sales price for oncology drug reimbursement be updated as changes occur in the price to provide a more accurate reimbursement to oncologists for the cost of drugs every 2 months. This will provide reimbursements to oncologists that are fair and reflective of market costs. 2. Removal of the Prompt Pay Discount: The prompt pay discount is a discount from the pharmaceutical manufacturer to the wholesaler, not the community cancer clinic, for prompt payment on prescription drugs. However, the MMA requires that this prompt pay discount be included in the calculation of average sales price, ASP, which forms the basis for the Medicare drug reimbursement provided, by the manufacturer. This has the impact of lowering ASP, thus artificially lowering drug reimbursement to community cancer clinics. My legislation would remove the prompt pay discount from ASP, requiring CMS to reimburse oncologists at the price they actually pay for drugs without the inclusion of discounts. 3. Increase in Payments for Chemotherapy Administration: The MMA increased the payment for the first hour of chemotherapy administration by 32 percent on a transitional basis in 2004. The intent of this was to provide an increase in payment for cancer care services that were under-reimbursed but subsidized by overpayments for cancer drugs under the previous system. While the MMA attempted to balance the payment for both drugs and services, including increasing payments to cover the increasing costs of delivering quality cancer care, the 32 percent was temporary and expired at the end of 2004. This legislation re-establishes 2004 levels of reimbursement. Further, cancer patients can receive multiple hours of chemotherapy and must be constantly monitored by skilled oncology nurses. Payment for the cost of providing quality cancer care must ensure patient safety during the process of administering often toxic medications, which can produce life-threatening side effects. To meet this need, this bill also provides an increase in funding for the subsequent hours of chemotherapy administration at 70 percent of the first hour payment rate. 4. Payments for Oncological Drug Storage: CMS reimbursement for oncology prescription drugs does not provide adequate funding for storage and care needs. The prescription drugs for cancer care often require refrigeration and specialized handling, as some drugs are highly toxic. These special provisions result in an increased cost, which is why my legislation provides a 2 percent increase in drug reimbursement to account for the storage and care of oncology drugs. 5. Oncology Treatment Planning: Oncology treatment planning provides a personalized treatment program for oncology patients. This legislation creates two payment codes for treatment planning: moderate and complex. Radiation oncologists are currently reimbursed for treatment planning; however, medical oncologists, who provide the treatment plan foundation, are not reimbursed for treatment planning. As both chairman and ranking member of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I have sought to increase funding for the National Institutes of Health, and the National Cancer Institute, NCI. Since becoming chairman of the LHHS Subcommittee, the funding for NIH has increased from $11.3 billion in fiscal year 1996 to $29 billion in 2007, an increase of 157 percent, while funding for the NCI increased from $2.3 billion in fiscal year 1996 to $4.8 billion in 2007, an increase of 109 percent. In 1970, President Nixon declared war on cancer. Had that war been prosecuted with the same diligence as other wars, my former chief of staff, Carey Lackman, a beautiful young lady of 48, would not have died of breast cancer. One of my very best friends, a very distinguished Federal judge, Chief Judge Edward R. Becker, would not have died of prostate cancer. All of us know people who have been stricken by cancer, who have been incapacitated with Parkinson's or Alzheimer's, who have been victims of heart disease, or many other maladies. I sustained an episode with Hodgkin's lymphoma cancer 2 years ago. That trauma, that illness, I think, could have been prevented had that war on cancer declared by the President of the United States in 1970 been prosecuted with sufficient intensity. This legislation provides Medicare reimbursement assistance for community oncologists and ensures Medicare beneficiaries' access to community-based cancer treatment. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce the Community Cancer Care Preservation Act, which will ensure Medicare beneficiaries' access to community-based cancer treatment and provide Medicare reimbursement assistance for oncologists providing vital cancer care services. Cancer takes a great toll on our friends, family and our Nation. In the U.S. cancer causes one out of every four deaths. Although the number of cancer diagnoses appears to have plateaued, more than 1.4 million Americans will still find out they have a form of cancer in 2007, and 560,000 will die, keeping cancer the second-leading cause of death in the U.S. In 2005, over 2 million new cases of cancer were diagnosed, the most prevalent of which were breast, prostate, lung, and colorectal. While these statistics are daunting, according to the American Cancer Society, the number of Americans who died of cancer in 2006 dropped for a second straight year. This decrease is the result of earlier detection and diagnosis, more effective and targeted cancer therapies, and greater accessibility to quality care provided by oncologists. These vital services have allowed millions of individuals to lead healthy and productive lives after successfully battling cancer. In 2006, 43.2 million individuals were enrolled in Medicare; of those beneficiaries over 29 percent have had cancer during their lives, 12.5 million beneficiaries. With such a large percentage of our seniors facing this horrible disease, the need for access to community cancer care is critical. Community cancer clinics treat 84 percent of Americans with cancer. Community cancer centers are free-standing outpatient facilities that provide comprehensive cancer care in a physician's office setting and are located in patients' communities. These clinics are especially critical in rural areas where access to larger cancer clinics may not be available. They provide patients with early diagnoses, effective cancer therapies, and innovative and supportive care that reduces fatigue, nausea/vomiting, and pain. The accessibility of treatment in the hands of skilled community oncologists has decreased the cancer mortality rate. On December 8, 2003, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, MMA, was signed into law by President Bush. This legislation contained numerous provisions that were beneficial to America's seniors and medical facilities; however, it also provided a reduction in Medicare's reimbursement for oncology treatment. The provisions sought to bring a balance to the reimbursement for the cost of cancer drugs and services. Prior to the implementation of the law, the Centers for Medicare & Medicaid Services, CMS, reimbursed the cost of cancer treatment drugs at a very high level. This level provided sufficient funding to supplement the costs of care and the storage of the prescription drugs, which were not being provided adequate reimbursement. The law enacted reimbursement reductions for the cost of prescription drugs while increasing the funding provided for cancer care services; however, that increase did not sufficiently offset oncologists' losses from the reduction in cancer drug reimbursement. The Congressional Budget Office estimated that Medicare reimbursements to oncologists would be reduced by $4.2 billion from 2004-2013. PricewaterhouseCoopers, an independent auditing firm, estimates that reductions will reach $14.7 billion over that time. This increased reduction will have a debilitating effect on oncologists' ability to provide cancer treatment to Medicare beneficiaries, especially those in the community setting. For 2005, CMS provided an estimated $300 million in Medicare funding to community cancer clinics via a demonstration project, in part as stop-gap funding for Medicare reimbursement cuts. This funding was reduced to $150 million in 2006 and has been eliminated in 2007. These decreases, in addition to other reductions in services payments, have resulted in a $200-300 million reduction in reimbursement in 2007. However, this reimbursement reduction may be larger than estimated. CMS did not factor in the delay in the adjustment of reimbursement rates when a drug manufacturer increases the price for cancer therapies and the inability of some beneficiaries to pay their Medicare 20 percent coinsurance payment. When accounting for these reductions, the overall cut to cancer care will likely exceed $300-400 million. The MMA mandated a transitional increase of 32 percent in service fees in 2004, falling to 3 percent in 2005, and 0 percent in 2006. This was done to provide time for CMS to pay for essential unpaid medical services, such as pharmacy facilities and treatment planning. In 2005, CMS created a cancer care demonstration project as a quality enhancement initiative to examine the effects of oncology drugs on patients. This demonstration project also provided $300 million in critical funding because CMS had not increased the reimbursement for essential unpaid medical services. On June 29, 2005, I sent a letter with 38 other Senators to President Bush requesting an extension of the demonstration project through 2006. CMS, however, announced a new oncology demonstration project for 2006 that examines the quality of cancer care in relation to treatment guidelines, but at least $150 million less than the previous funding level. Accordingly, I am introducing legislation to provide assistance to community oncologists that are disadvantaged by CMS reforms brought forth under the MMA. The bill's $1.7 billion cost, over the next 5 years, is a relatively small cost in the face of the vast reductions in CMS's reimbursement to oncologists. Let me briefly summarize the provisions of this legislation. 1. Sales Price Updates: Currently, CMS updates the prices for cancer treatment drugs quarterly, however there is a 6-month lag from when prices increase in the marketplace and when CMS applies that information to increase reimbursement. For example, a price change in the first quarter will not be reflected until reimbursement in the third quarter. This forces community cancer clinics to often pay increased prices for prescription drugs without increased reimbursement. This legislation requires the sales price for oncology drug reimbursement be updated as changes occur in the price to provide a more accurate reimbursement to oncologists for the cost of drugs every 2 months. This will provide reimbursements to oncologists that are fair and reflective of market costs. 2. Removal of the Prompt Pay Discount: The prompt pay discount is a discount from the pharmaceutical manufacturer to the wholesaler, not the community cancer clinic, for prompt payment on prescription drugs. However, the MMA requires that this prompt pay discount be included in the calculation of average sales price, ASP, which forms the basis for the Medicare drug reimbursement provided, by the manufacturer. This has the impact of lowering ASP, thus artificially lowering drug reimbursement to community cancer clinics. My legislation would remove the prompt pay discount from ASP, requiring CMS to reimburse oncologists at the price they actually pay for drugs without the inclusion of discounts. 3. Increase in Payments for Chemotherapy Administration: The MMA increased the payment for the first hour of chemotherapy administration by 32 percent on a transitional basis in 2004. The intent of this was to provide an increase in payment for cancer care services that were under-reimbursed but subsidized by overpayments for cancer drugs under the previous system. While the MMA attempted to balance the payment for both drugs and services, including increasing payments to cover the increasing costs of delivering quality cancer care, the 32 percent was temporary and expired at the end of 2004. This legislation re-establishes 2004 levels of reimbursement. Further, cancer patients can receive multiple hours of chemotherapy and must be constantly monitored by skilled oncology nurses. Payment for the cost of providing quality cancer care must ensure patient safety during the process of administering often toxic medications, which can produce life-threatening side effects. To meet this need, this bill also provides an increase in funding for the subsequent hours of chemotherapy administration at 70 percent of the first hour payment rate. 4. Payments for Oncological Drug Storage: CMS reimbursement for oncology prescription drugs does not provide adequate funding for storage and care needs. The prescription drugs for cancer care often require refrigeration and specialized handling, as some drugs are highly toxic. These special provisions result in an increased cost, which is why my legislation provides a 2 percent increase in drug reimbursement to account for the storage and care of oncology drugs. 5. Oncology Treatment Planning: Oncology treatment planning provides a personalized treatment program for oncology patients. This legislation creates two payment codes for treatment planning: moderate and complex. Radiation oncologists are currently reimbursed for treatment planning; however, medical oncologists, who provide the treatment plan foundation, are not reimbursed for treatment planning. As both chairman and ranking member of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I have sought to increase funding for the National Institutes of Health, and the National Cancer Institute, NCI. Since becoming chairman of the LHHS Subcommittee, the funding for NIH has increased from $11.3 billion in fiscal year 1996 to $29 billion in 2007, an increase of 157 percent, while funding for the NCI increased from $2.3 billion in fiscal year 1996 to $4.8 billion in 2007, an increase of 109 percent. In 1970, President Nixon declared war on cancer. Had that war been prosecuted with the same diligence as other wars, my former chief of staff, Carey Lackman, a beautiful young lady of 48, would not have died of breast cancer. One of my very best friends, a very distinguished Federal judge, Chief Judge Edward R. Becker, would not have died of prostate cancer. All of us know people who have been stricken by cancer, who have been incapacitated with Parkinson's or Alzheimer's, who have been victims of heart disease, or many other maladies. I sustained an episode with Hodgkin's lymphoma cancer 2 years ago. That trauma, that illness, I think, could have been prevented had that war on cancer declared by the President of the United States in 1970 been prosecuted with sufficient intensity. This legislation provides Medicare reimbursement assistance for community oncologists and ensures Medicare beneficiaries' access to community-based cancer treatment. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly.

Mr. SPECTER

Mr. SPECTER. Mr President, I seek recognition today to offer the Presidential Signing Statements Act of 2007. The purpose of this bill is to regulate the use of Presidential Signing Statements in the interpretation of acts of Congress. This bill is similar in substance to the Presidential Signing Statements Act of 2006, which I introduced on July 26, 2006. The Senate Judiciary Committee also held a hearing on this topic on June 27, 2006. I believe that this is necessary to protect our constitutional system of checks and balances. This bill achieves that goal in the following ways. First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing Federal and State courts not to rely on Presidential signing statements in interpreting a statute. Second, it grants Congress the power to participate in any case where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued by (i) allowing Congress to file an amicus brief and present oral argument in such a case; (ii) instructing that if Congress passes a joint resolution declaring its view of the correct interpretation of the statute, the court must admit that resolution into the case record; and (iii) providing for expedited review in such a case. Presidential signing statements are nothing new. Since the days of President James Monroe, Presidents have issued statements when signing bills. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law. They may also use them to explain to the public the likely effect of a law. And, there may be a host of other legitimate uses. However, the use of signing statements has risen dramatically in recent years. When I introduced the Presidential Signing Statement bill last year, I noted that as of June 26, 2006, President Bush had issued 132 signing statements. Since then, he has issued an additional 17 statements, for a total of 149 to date. In comparison, President Clinton issued 105 signing statements during his two terms. Moreover, President Bush's signing statements often raise objections to several provisions of a law. For example, a recent report by the Government Accountability Office released June 18, 2007, found that, for 11 appropriations acts for fiscal year 2006, President Bush issued signing statements identifying constitutional concerns or objections to 160 different provisions appearing in the acts. While the mere numbers may not be significant, the reality is that the way the President has used those statements threatens to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced. The President cannot use a signing statement to rewrite the words of a statute nor can he use a signing statement to selectively nullify those provisions he does not like. This much is clear from our Constitution. The Constitution grants the President a specific, narrowly defined role in enacting legislation. Article I, section 1 of the Constitution vests ``all legislative powers . . . in a Congress.'' Article I, section 7 of the Constitution provides that when a bill is presented to the President, he may either sign it or veto it with his objections. He may also choose to do nothing, thus rendering a so- called pocket veto. The President, however, cannot veto part of bill, he cannot veto certain provisions he does not like. The Founders had good reason for constructing the legislative process as they did: by creating a bicameral legislature and then granting the President the veto power. According to The Records of the Constitutional Convention, the veto power was designed by our Framers to protect citizens from a particular Congress that might enact oppressive legislation. However, the Framers did not want the veto power to be unchecked, and so, in article I, section 7, they balanced it by allowing Congress to override a veto by two-thirds vote. As I stated when I introduced the Presidential Signing Statement bill last year, this is a finely structured constitutional procedure that goes straight to the heart of our system of check and balances. Any action by the President that circumvents this finely structured procedure is an unconstitutional attempt to usurp legislative authority. If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers. The Supreme Court has affirmed that the constitutional process for enacting legislation must be safeguarded. As the Supreme Court explained in INS v. Chahda, ``It emerges clearly that the prescription for legislative action in article I, section 1 and 7 represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'' So, while signing statements have been commonplace since our country's founding, we must make sure that they are not being used in an unconstitutional manner; a manner that seeks to rewrite legislation, and exercise line item vetoes. As I have previously explained, President Bush has used signing statements in ways that have raised some eyebrows. An example is the signing statement accompanying Senator McCain's ``anti-torture amendment'' to the Department of Defense Emergency Supplemental Appropriations Act, otherwise known as the ``McCain Amendment.'' In that legislation, Congress voted by an overwhelming majority, 90 to 9, to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held anywhere by the United States. President Bush, who had threatened to veto the legislation, instead invited Senator McCain to the White House for a public reconciliation and declared they had a mutual goal: to make it clear to the world that this government does not torture and that we adhere to the international convention of torture.'' Now from that, you might conclude that by signing the McCain amendment into law, President Bush and his administration has fully committed to not using torture. But you would be wrong. After the public ceremony of signing the bill into law, the President issued a signing statement saying his administration would construe the new law ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'' This vague language may mean that, despite the enactment of the McCain Amendment, the administration may still be preserving a right to inflict torture on prisoners and to evade the International Convention Against Torture. Now, the National Defense Authorization Bill, like the McCain amendment, has a crucial provision regarding torture: it provides that the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may not consider a [detainee's] statement that was obtained through methods that amount to torture.'' See section 1023(4)(e). But who knows how this provision will be enforced if deemed inconsistent with the unitary executive theory? And, the McCain amendment is just the tip of the iceberg: On close examination of the same signing statement, we see that President Bush has declared the right to construe the entire Detainee Treatment Act and all provisions relating to detainees, in a manner consistent with the unitary executive theory and with his powers as Commander and Chief. This is extremely troublesome. Like the DTA, this bill has crucial sections relating to detainees. Specifically, this bill contains much-needed provisions that protect detainees' due process rights in CSRT procedures, including allowing detainees a right to legal counsel, a right to compel and cross examine witnesses, and a right to have their status determined by a military judge. Should a similar signing statement be issued to S. 1547, that all sections related to detainees will be construed in a certain way, there is really no way to know how these crucial provisions will be enforced. We must ensure that such provisions, and for that matter, any and all provisions in this bill, are not subject to revision by a Presidential signing statement. In addition to these examples, I have noted another instance in which a questionable signing statement was issued, for the PATRIOT Act. We passed the PATRIOT Act after months of deliberation. We debated nearly every provision, often redrafting and revising. Moreover, we worked very closely with the President because we wanted to get it right. We wanted to make sure that we were passing legislation that the executive branch would find workable. In fact, in many ways, the process was an excellent example of the legislative branch and the executive branch working together towards a common goal. In the end, the bill that was passed by the Senate and the House contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. It also required Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. The President signed the PATRIOT Act into law, but afterwards, he wrote a signing statement that said he could withhold any information from Congress provided in the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.'' As I noted last year, during the entire process of working with the President to draft the PATRIOT Act, he never asked the Congress to include this language in the act. At a hearing we held last June on signing statements, I asked an executive branch official, Michelle Boardman from the Office of Legal Counsel, why the President did not ask the Congress to put the signing statement language into the bill. She simply didn't have an answer. Given this backdrop, I believe this bill is necessary. As I noted when I introduced the Presidential Signing Statement bill last summer, this bill does not seek to limit the President's power, and it does not seek to expand Congress's power. Rather, this bill simply seeks to safeguard our Constitution. This bill will provide courts with much-needed guidance on how legislation should be interpreted. The recent GAO report on Presidential Signing Statements found that Federal courts cited or referred to presidential signing statements in 137 different opinions reported from 1945 to May 2007. It also shows that the Supreme Court's reliance on presidential signing statements has been sporadic and unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct. 1624 at 1631, 1995, where the Court struck down the Gun-Free School Zones Act, the Supreme Court has relied on Presidential signing statements as a source of authority to interpret an act, while in other cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to do so. This inconsistency has the unfortunate result of rendering the effect of Presidential signing statements on Federal law unpredictable. As I stated when I initially introduced the Presidential Signing Statements Act of 2006, it is well within Congress's power to resolve judicial disputes such as this by enacting rules of statutory interpretation. In fact, the Department of Defense Authorization bill already contains at least one ``rule of construction'' provision. See section 845(e). This power flows from article 1, section 8, clause 18 of the Constitution, which gives Congress the power ``To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.'' Rules of statutory interpretation are ``necessary and proper'' to execute the legislative power. Several scholars have agreed: Jefferson B. Fordham, a former dean of the University of Pennsylvania Law School said, ``[I]t is within the legislative power to lay down rules of interpretation for the future;'' Mark Tushnet, a professor at Harvard Law School explained, ``In light of the obvious congressional power to prescribe a statute's terms, and so its meaning, congressional power to prescribe interpretive methods seems to me to follow;'' Michael Stokes Paulsen, an associate dean of the University of Minnesota Law School noted, ``Congress is the master of its own statutes and can prescribe rules of interpretation governing its own statutes as surely as it may alter or amend the statutes directly.'' Finally, J. Sutherland, the author of the leading multivolume treatise for the rules of statutory construction has said, ``There should be no question that an interpretive clause operating prospectively is within legislative power.'' Furthermore, any legislation that sets out rules for interpreting an act makes legislation more clear and precise, which is exactly what we aim to achieve here in Congress. Congress can and should exercise this power over the interpretation of Federal statutes in a systematic and comprehensive manner. Put simply, this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution, and I urge my colleagues to support it.

Mr. SPECTER

Mr. SPECTER. Mr President, I seek recognition today to offer the Presidential Signing Statements Act of 2007. The purpose of this bill is to regulate the use of Presidential Signing Statements in the interpretation of acts of Congress. This bill is similar in substance to the Presidential Signing Statements Act of 2006, which I introduced on July 26, 2006. The Senate Judiciary Committee also held a hearing on this topic on June 27, 2006. I believe that this is necessary to protect our constitutional system of checks and balances. This bill achieves that goal in the following ways. First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing Federal and State courts not to rely on Presidential signing statements in interpreting a statute. Second, it grants Congress the power to participate in any case where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued by (i) allowing Congress to file an amicus brief and present oral argument in such a case; (ii) instructing that if Congress passes a joint resolution declaring its view of the correct interpretation of the statute, the court must admit that resolution into the case record; and (iii) providing for expedited review in such a case. Presidential signing statements are nothing new. Since the days of President James Monroe, Presidents have issued statements when signing bills. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law. They may also use them to explain to the public the likely effect of a law. And, there may be a host of other legitimate uses. However, the use of signing statements has risen dramatically in recent years. When I introduced the Presidential Signing Statement bill last year, I noted that as of June 26, 2006, President Bush had issued 132 signing statements. Since then, he has issued an additional 17 statements, for a total of 149 to date. In comparison, President Clinton issued 105 signing statements during his two terms. Moreover, President Bush's signing statements often raise objections to several provisions of a law. For example, a recent report by the Government Accountability Office released June 18, 2007, found that, for 11 appropriations acts for fiscal year 2006, President Bush issued signing statements identifying constitutional concerns or objections to 160 different provisions appearing in the acts. While the mere numbers may not be significant, the reality is that the way the President has used those statements threatens to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced. The President cannot use a signing statement to rewrite the words of a statute nor can he use a signing statement to selectively nullify those provisions he does not like. This much is clear from our Constitution. The Constitution grants the President a specific, narrowly defined role in enacting legislation. Article I, section 1 of the Constitution vests ``all legislative powers . . . in a Congress.'' Article I, section 7 of the Constitution provides that when a bill is presented to the President, he may either sign it or veto it with his objections. He may also choose to do nothing, thus rendering a so- called pocket veto. The President, however, cannot veto part of bill, he cannot veto certain provisions he does not like. The Founders had good reason for constructing the legislative process as they did: by creating a bicameral legislature and then granting the President the veto power. According to The Records of the Constitutional Convention, the veto power was designed by our Framers to protect citizens from a particular Congress that might enact oppressive legislation. However, the Framers did not want the veto power to be unchecked, and so, in article I, section 7, they balanced it by allowing Congress to override a veto by two-thirds vote. As I stated when I introduced the Presidential Signing Statement bill last year, this is a finely structured constitutional procedure that goes straight to the heart of our system of check and balances. Any action by the President that circumvents this finely structured procedure is an unconstitutional attempt to usurp legislative authority. If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers. The Supreme Court has affirmed that the constitutional process for enacting legislation must be safeguarded. As the Supreme Court explained in INS v. Chahda, ``It emerges clearly that the prescription for legislative action in article I, section 1 and 7 represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'' So, while signing statements have been commonplace since our country's founding, we must make sure that they are not being used in an unconstitutional manner; a manner that seeks to rewrite legislation, and exercise line item vetoes. As I have previously explained, President Bush has used signing statements in ways that have raised some eyebrows. An example is the signing statement accompanying Senator McCain's ``anti-torture amendment'' to the Department of Defense Emergency Supplemental Appropriations Act, otherwise known as the ``McCain Amendment.'' In that legislation, Congress voted by an overwhelming majority, 90 to 9, to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held anywhere by the United States. President Bush, who had threatened to veto the legislation, instead invited Senator McCain to the White House for a public reconciliation and declared they had a mutual goal: to make it clear to the world that this government does not torture and that we adhere to the international convention of torture.'' Now from that, you might conclude that by signing the McCain amendment into law, President Bush and his administration has fully committed to not using torture. But you would be wrong. After the public ceremony of signing the bill into law, the President issued a signing statement saying his administration would construe the new law ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'' This vague language may mean that, despite the enactment of the McCain Amendment, the administration may still be preserving a right to inflict torture on prisoners and to evade the International Convention Against Torture. Now, the National Defense Authorization Bill, like the McCain amendment, has a crucial provision regarding torture: it provides that the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may not consider a [detainee's] statement that was obtained through methods that amount to torture.'' See section 1023(4)(e). But who knows how this provision will be enforced if deemed inconsistent with the unitary executive theory? And, the McCain amendment is just the tip of the iceberg: On close examination of the same signing statement, we see that President Bush has declared the right to construe the entire Detainee Treatment Act and all provisions relating to detainees, in a manner consistent with the unitary executive theory and with his powers as Commander and Chief. This is extremely troublesome. Like the DTA, this bill has crucial sections relating to detainees. Specifically, this bill contains much-needed provisions that protect detainees' due process rights in CSRT procedures, including allowing detainees a right to legal counsel, a right to compel and cross examine witnesses, and a right to have their status determined by a military judge. Should a similar signing statement be issued to S. 1547, that all sections related to detainees will be construed in a certain way, there is really no way to know how these crucial provisions will be enforced. We must ensure that such provisions, and for that matter, any and all provisions in this bill, are not subject to revision by a Presidential signing statement. In addition to these examples, I have noted another instance in which a questionable signing statement was issued, for the PATRIOT Act. We passed the PATRIOT Act after months of deliberation. We debated nearly every provision, often redrafting and revising. Moreover, we worked very closely with the President because we wanted to get it right. We wanted to make sure that we were passing legislation that the executive branch would find workable. In fact, in many ways, the process was an excellent example of the legislative branch and the executive branch working together towards a common goal. In the end, the bill that was passed by the Senate and the House contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. It also required Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. The President signed the PATRIOT Act into law, but afterwards, he wrote a signing statement that said he could withhold any information from Congress provided in the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.'' As I noted last year, during the entire process of working with the President to draft the PATRIOT Act, he never asked the Congress to include this language in the act. At a hearing we held last June on signing statements, I asked an executive branch official, Michelle Boardman from the Office of Legal Counsel, why the President did not ask the Congress to put the signing statement language into the bill. She simply didn't have an answer. Given this backdrop, I believe this bill is necessary. As I noted when I introduced the Presidential Signing Statement bill last summer, this bill does not seek to limit the President's power, and it does not seek to expand Congress's power. Rather, this bill simply seeks to safeguard our Constitution. This bill will provide courts with much-needed guidance on how legislation should be interpreted. The recent GAO report on Presidential Signing Statements found that Federal courts cited or referred to presidential signing statements in 137 different opinions reported from 1945 to May 2007. It also shows that the Supreme Court's reliance on presidential signing statements has been sporadic and unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct. 1624 at 1631, 1995, where the Court struck down the Gun-Free School Zones Act, the Supreme Court has relied on Presidential signing statements as a source of authority to interpret an act, while in other cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to do so. This inconsistency has the unfortunate result of rendering the effect of Presidential signing statements on Federal law unpredictable. As I stated when I initially introduced the Presidential Signing Statements Act of 2006, it is well within Congress's power to resolve judicial disputes such as this by enacting rules of statutory interpretation. In fact, the Department of Defense Authorization bill already contains at least one ``rule of construction'' provision. See section 845(e). This power flows from article 1, section 8, clause 18 of the Constitution, which gives Congress the power ``To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.'' Rules of statutory interpretation are ``necessary and proper'' to execute the legislative power. Several scholars have agreed: Jefferson B. Fordham, a former dean of the University of Pennsylvania Law School said, ``[I]t is within the legislative power to lay down rules of interpretation for the future;'' Mark Tushnet, a professor at Harvard Law School explained, ``In light of the obvious congressional power to prescribe a statute's terms, and so its meaning, congressional power to prescribe interpretive methods seems to me to follow;'' Michael Stokes Paulsen, an associate dean of the University of Minnesota Law School noted, ``Congress is the master of its own statutes and can prescribe rules of interpretation governing its own statutes as surely as it may alter or amend the statutes directly.'' Finally, J. Sutherland, the author of the leading multivolume treatise for the rules of statutory construction has said, ``There should be no question that an interpretive clause operating prospectively is within legislative power.'' Furthermore, any legislation that sets out rules for interpreting an act makes legislation more clear and precise, which is exactly what we aim to achieve here in Congress. Congress can and should exercise this power over the interpretation of Federal statutes in a systematic and comprehensive manner. Put simply, this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution, and I urge my colleagues to support it.

Mr. SPECTER

Mr. SPECTER. Mr. President, I yield myself 5 minutes. The legislation now pending is the very best that can be done by very extensive work on the immigration problems in the United States. Last year in the 109th Congress, the Judiciary Committee, which I chaired, produced a bill. This year we went to a little different procedure and we have structured a bill which is the best that can be done as of this moment. It may yet be improved in the balance of the amendments yet to be voted upon, if cloture is invoked on this vote this morning, a 60-vote tally, obviously very difficult to get to. Had I written the bill, it would have been substantially different. I would have agreed with Senator Menendez that there ought to be more consideration to families. I would have agreed with Senator Dodd that we ought to have more parents coming into this country. I would have agreed with those who oppose the touchback, which I think is punitive and formalistic and not related to anything, necessarily. But this is an accommodation. The art of politics is to compromise and to accommodate. We have constantly said to the opponents: If you have something better, tell us what it is. Not only have the opponents not told us what they have in mind for something better, but they have refused to come forward and offer any amendments and have used Senate procedure to stop others from offering amendments. So for hours I sat here as manager of the bill doing nothing. That is why we have utilized the unusual procedure we have today. Some are complaining that they have not had an opportunity to offer amendments but, candidly, it is their own fault. When they had a chance to do so, they didn't. Beyond that, they stopped others from offering amendments. We have the advocates for the immigrants. They have a very strong case. What this bill started out to do was to deal with the 12 million people who are so-called ``living in the shadows'' in fear. This bill does deal with that issue. Those who say it doesn't go far enough have a point, but I think they lose sight of the core reason the bill is structured, as it is for the 12 million. It accommodates them in a realistic way and puts them on the path to citizenship. That has led many to cry ``amnesty.'' I don't think it is amnesty for the reasons that have been enumerated many times. But amnesty, like beauty, is in the eye of the beholder. These 12 million are going to be here whether we legislate or not. So if it is amnesty, to do nothing is to have silent amnesty. They are going to stay here. To do nothing is to perpetuate anarchy. Those who have argued strenuously and cogently to have border protection and employer verification to eliminate the magnet and to reimpose the rule of law are right. But they are not going to get the core of what they want if no bill is passed. So we ought to come to grips with the basic reality that the fundamentals on both sides have been realized, not the periphery and not the fringes, but the fundamentals. We have had some votes which really defy the tradition of the Senate. We had the Dorgan amendment early on where many voted against their preferences, their policy judgments, to kill the bill. They had a position as to what they thought was right. They had expressed it. We knew what their policy position was. They voted the other way to kill the bill. Yesterday, on the Baucus amendment, it was really extraordinary. I have been here a while. Twenty-three Senators changed their votes. You can tell on the cards, there is a check one way and a cross-off and a check the other way. Twenty-three Senators changed their votes. We talk about profiles in courage, this is a profile in cynicism. Votes were changed in order to defeat the bill, not because they expressed the preferences of the Senators. There were colleagues who said how they would vote, and then they didn't vote the way they said they were going to. I am not going to call them commitments which were breached, but that term might be used. It is a little strong to say that a Senator broke his word and breached a commitment. Let me simply say that some said how they would vote and then didn't. That is an unusual occurrence in the Senate. It has been a common practice for Senators to vote in favor of cloture and then to vote against the bill. That expresses a middle ground that the Senator doesn't think there ought to have to be a supermajority that is, 60 votes--to carry the bill. But the Senator doesn't want to vote for the bill and so expresses himself or herself by voting for cloture so the bill can go forward but then votes against the bill on the merits. Those who vote against cloture will be responsible for killing the bill. They can then vote against the bill so that they won't be responsible for passing the bill. Around here, we like to avoid being responsible for one thing or another, but if we do not have cloture on this bill, the bill is dead. If we have cloture, then Senators are not responsible for its passage when they vote against it. I urge my colleagues to bear that in mind. We pride ourselves in the Senate on being courageous. President Kennedy's book as a Senator was titled ``Profiles in Courage.'' We have one illustration of that in the senior Senator from Arizona, Mr. McCain, who is on the front page of the Washington Post today with the reports about his courageous stand on immigration costing him votes, perhaps costing him the Republican nomination. No one knows for sure, but it isn't helping him any. It would be my hope that the Senate would rise to the occasion and would not kill this bill because if it is done, it is finished for the year. Next year is a Presidential/congressional election. We are off to 2009 and beyond. Then it will only be worse. I leave my colleagues with the essential point that a responsible position would be to let the bill go forward. There is another 60-vote margin coming on the issue of a budget point of order. Don't be responsible for killing the bill by voting against cloture. Then you don't have to be responsible for the bill when voting no, and let the majority rule but not call for a supermajority on this very critical issue. I reserve the remainder of my time.

Mr. SPECTER. Mr. President, I yield 5 minutes to the distinguished Senator from Arizona.

Mr. SPECTER. Mr. President, we have 5 allotted minutes for Senator Sessions, and I see he is on the floor. I ask the Senator, would you like to take that time now, Senator Sessions?

Mr. SPECTER. Mr. President, I say to the Senator, you have 5 minutes from each side. You have 5 from me and 5 from Senator Kennedy. I say to the Senator, I was going to yield you 5 minutes now.

Mr. SPECTER. Mr. President, I yield 5 minutes to the distinguished Senator from South Carolina.

Mr. SPECTER. Mr. President, let me first compliment the distinguished Senator from Massachusetts. I yield 2 minutes to the Senator from Florida.

Mr. SPECTER. Mr. President, the Senator from Florida has such a background, being an immigrant himself, and I think our cause would be well served if he took another 3 minutes.

Mr. SPECTER. Mr. President, I compliment the Senator from Florida for his statements. Had we more time, all of us could tell our own stories. Mine involves two immigrant parents. My father came here at 18, in 1911, and contributed to this country. My mother came with her family at the age of 6, in 1906, and contributed to this country. I thank the Senator from Florida, Senator Martinez, who has a special story to tell because he himself is an immigrant and is a great testament to what we are trying to accomplish with this bill. I yield 3 minutes to the Senator from Arizona, who has made such a unique contribution to this bill, coming from a border State and facing irate calls, not that they are necessarily representative of all of Arizona. He said he learned some new words.

Mr. SPECTER. I have 10 minutes 30 seconds because I have been allotted the leader time. I yield him 3 minutes.

Mr. SPECTER. Mr. President, how much time remains?

Mr. SPECTER. Mr. President, we have heard from the objectors what the American people think. I am not sure they have standing to represent the American people. We heard the junior Senator from South Carolina speak as to his interpretation of what the American people think. But we heard the senior Senator from South Carolina stand in firm support of this legislation--the Senator representing South Carolina, as well as the other Senator from South Carolina. We know as a matter of practice that the callers and the e-mailers are characteristically naysayers. You hear a lot more from people who object than you do from people who are in favor. We know that the majority of America is the silent majority. From my own soundings, what I hear on the train when I come back and forth from Pennsylvania, what I hear in the restaurants, on the streets, and in the fitness club is to proceed, try to find a way to improve a very serious situation in immigration. No one of us is able to speak for the American people. We hear different voices at different times. I know one thing with relative certainty, and that is you cannot tell what the American people think simply by those who object and those who call. We do not run America in a representative democracy, in a republic, by public opinion polls. If we did, we would take the public opinion poll and we could dispense with all of the fat salaries that Members of Congress get. We could dispense with paying 535 people and take a public opinion poll and sign it into law. I think the most erudite statement on this particular issue was uttered by a distinguished British philosopher politician, named Edmund Burke, in a speech to the electorate of Bristol on November 3, 1774, when he made this famous statement: Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. Now, that is not to say in a representative democracy we ought to not consider the opinions of our constituents, but I think Edmund Burke was right more than 200 years ago when he talked about our duty in owing our constituents our best judgment. What is our best judgment and how have we come to it? We have been working on immigration a long time, and we saw the failures of the 1986 legislation. Because the 1986 legislation failed doesn't mean we cannot correct the problem. Things are very different today than they were in 1986. For one thing, we now have a foolproof method of determining whether an individual is legal or illegal. So now we can hold employers responsible not to hire illegal immigrants. We can take away the magnet of work in this country for those who are not here legally. We have lost sight I think, of the very fundamental purpose as to what we are trying to accomplish through legislation to reform immigration. We are trying to secure our borders. This bill goes a long way to securing the borders with fencing, with automobile blocks, with more Border Patrol. The entire 2,000-mile plus of the border will be more secure. It can't be perfectly secured, and that is why we have employer verification which, as I say, is now foolproof. Then when we deal with the immigrants, we are trying to deal with the 12 million undocumented immigrants. Those who would like more--I said earlier that if I had my choice, I would agree with Senator Menendez, that I would have more family unification. I would agree with Senator Dodd that I would have more visas for parents. But this legislation is crafted by compromise, and that is the art of politics--the compromise. So it is the best bill that we can structure and come forward with. If we do not legislate now, we will not legislate later this year when our calendar is crowded with Iraq and appropriations bills and patent reform, et cetera. We are then into 2008 and an election year for President and Congress, and it will be pushed over to 2009. Circumstances will not be better then, they will be worse. We have a very frequent practice, as we all know, for Senators to vote in favor of cloture, and then to vote against the bill. That is an expression of policy judgment not to hold a piece of legislation to a 60-vote supermajority level. We do not have an issue of freedom of religion. We do not have an issue of freedom of speech. We have a public policy question where in good conscience Senators can say: I am opposed to the legislation, but I do not think it ought to be held to a 60-vote supermajority. If we do not invoke cloture, this bill is dead. A vote against cloture is a vote to kill the bill. A Senator may vote for cloture and then express himself in opposition to the bill by voting against the bill. For those who did not hear an earlier statement I made, I repeat, we had the unusual situation on the Dorgan amendment where Senators did not vote their judgment on public policy but voted against their own judgment to kill the legislation. We have a tally sheet, those of us who work in the Senate, showing how Senators voted. And on the Baucus amendment yesterday, we had the extraordinary situation of 23 vote changes. You can tell the vote change because there is a mark on one side, it is crossed off, and the mark then appears on the other side. I suggest to my colleagues that we had more cynical maneuvering on the Baucus vote, which is characteristic of the maneuvering throughout the text of this legislation, and that what this body ought to do is take the famous words of President John F. Kennedy when he served in this body, to exercise a little courage, a profile in courage as opposed to what appears to be a profile in cynicism. The essence of it is, Senators can vote for cloture not to kill the bill, and then vote against the bill and exercise their right to do that and still allow this bill to go forward where it may yet be improved. Mr. President, I see my time is just about to expire. How much time remains?

Mr. SPECTER. I yield back the remainder of my time.

Mr. SPECTER

Mr. SPECTER. Madam President, I seek recognition to speak on the nomination of Benjamin Settle to be a U.S. District Judge for the Western District of Washington. Benjamin Hale Settle was nominated by President Bush on January 9, 2007. A hearing was held on his nomination on March 13, and he was unanimously reported out of the Judiciary Committee on April 25. Mr. Settle has an impressive resume and a record of service. He received his B.A. from Claremont McKenna College in 1969. Upon graduating from college, he enlisted in the U.S. Army Reserve and entered law school at Willamette University College of Law where he received his J.D. degree in 1972. After graduating from law school he worked for Don Miles Attorneys as an associate until he was called up to serve full time in the Judge Advocate General's Corps for the U.S. Army in 1973. Three years later, in 1976, Mr. Settle left full time Army service and rejoined the Don Miles where he practiced for one year, before opening a small partnership of his own. He has enjoyed a successful career as a general practitioner, working in a variety of small partnerships over the last three decades. Mr. Settle's broad practice has encompassed both litigation and transactional matters. The nominee has also served as the general counsel to several municipal and private corporate entities. In addition to his litigation and general counsel work, Mr. Settle has served as judge pro tempore in Mason County Superior and District Courts where he has managed numerous matters for mediation and arbitration. The ABA has unanimously rated Mr. Settle ``Qualified.'' The vacancy to which Mr. Settle is nominated has been designated a ``judicial emergency'' by the nonpartisan Administrative Office of the Courts. I hope my fellow Senators will support this nomination. Madam President, I also seek recognition to discuss the nomination of Richard Sullivan to be a District Judge for the Southern District of New York. Richard J. Sullivan was nominated to be a U.S. District Court Judge for the Southern District of New York on February 15, 2007. A hearing was held on his nomination on April 11, 2007, and the Judiciary Committee reported his nomination favorably on May 3, 2007. He is a highly qualified nominee with a distinguished record both as a prosecutor and in private practice. In 1986, he received his B.A. degree from the College of William and Mary, where he was elected to Phi Beta Kappa. In 1990, he graduated from Yale Law School. Following law school, he served as a law clerk to Judge David M. Ebel of the United States Court of Appeals for the Tenth Circuit. In 1991, he joined Wachtell Lipton Rosen & Katz as a litigation associate. In 1994, he joined the U.S. Attorney's Office for the Southern District of New York as an assistant U.S. attorney. During his tenure in the office, he served in a variety of leadership positions. In 1999, he was put in charge of the Office's General Crimes Unit and later became chief of the Narcotics Unit. In 2002, he was named the founding chief of the newly created International Narcotics Trafficking Unit, which was dedicated to investigating and prosecuting the world's largest narcotics trafficking and money-laundering organizations. From 2002 to 2005, he also served as director of the New York/New Jersey Organized Crime Drug Enforcement Task Force. In 2005, Mr. Sullivan joined Marsh & McLennan Companies, Inc., as deputy general counsel for litigation. He still works in that capacity, and since 2006 has also served as the general counsel of Marsh Inc., the world's largest insurance broker and risk management firm. Marsh & McLennan Companies is the parent company of Marsh Inc. The American Bar Association has unanimously rated Mr. Sullivan ``Well Qualified.'' The seat to which he is nominated has been designated a ``judicial emergency'' by the nonpartisan Administrative Office of the Courts. I hope my fellow Senators will vote to confirm Mr. Sullivan. And finally, Madam President, I seek recognition to discuss the nomination of Joseph S. Van Bokkelen to be a District Judge for the Northern District of Indiana. President Bush nominated Mr. Van Bokkelen on January 9, 2007. A hearing was held on his nomination on April 11 and the Senate Judiciary Committee reported his nomination favorably on May 3. He is a highly qualified nominee with extensive experience both as a prosecutor and in private practice. In 1966, Mr. Van Bokkelen received his B.A. degree from Indiana University. In 1969, he graduated from Indiana University School of Law. After graduating law school, Mr. Van Bokkelen joined the Office of the Indiana Attorney General, serving as deputy attorney general and subsequently as assistant attorney general. In 1972, he became an assistant U.S. attorney for the Northern District of Indiana, where he served until 1975. Between 1975 and 2001, he worked in private practice as a partner-- first at Wilson, Donnesberger, Van Bokkelen & Reid and then at Goodman, Ball, Van Bokkelen & Leonard, P.C. His practice has focused on litigation, both civil and criminal. Between 1983 and 1985, he served as a special prosecutor to investigate the murder of a prominent politician and lawyer in Lake County, IN. Since 2001, Mr. Van Bokkelen has served as U.S. Attorney for the Northern District of Indiana. His courtroom experience is extensive. Over the course of his career, he has tried over 100 cases to verdict. The American Bar Association has unanimously rated Mr. Van Bokkelen ``Well Qualified.'' I urge my fellow Senators to support this nomination. Madam President, I know everybody is anxious to conclude these matters. They ought not be noncontroversial. Again, we have Benjamin Hale Settle, for the Western District of Washington; Joseph S. Van Bokkelen, for the Northern District of Indiana; Richard J. Sullivan, for the Southern District of New York. All have excellent academic records and professional records and passed through the Judiciary Committee. I recommend that my colleagues vote for them. I yield back the remainder of my time.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to honor the life of my colleague, Senator Craig Thomas. Craig, a real outdoorsman, would say he enjoyed nothing more than a horseback ride through Wyoming's spectacular wilderness area. Despite that, he found himself here in Washington, DC, working for the betterment of his Home State and the Nation. He was outspoken on government's need to provide adequate funding for national parks, a subject he knew well as chairman and ranking member of the National Parks Subcommittee on the Energy and Natural Resources Committee. Senator Thomas was also a strong defender of his State's cattle industry and was a firm believer in the virtues of rural America. This passion stems back to his time at the University of Wyoming, where he received a degree in animal husbandry. Senator Thomas also served as an officer in the U.S. Marine Corps from 1955 to 1959, achieving the rank of captain, an experience that taught discipline and reinforced his commitment to the United States. Before Craig came to Congress, he served as vice president of the Wyoming Farm Bureau, and once headed the rural electric trade association of Wyoming. After 5 years in the Wyoming House, Thomas won a special election to replace Dick Cheney, who was appointed to be Secretary of Defense. As Wyoming's lone Member in the U.S. House of Representatives, he had the responsibility of representing over 450,000 constituents. Craig was reelected to that seat in 1990 and 1992, a testament to his ability to serve the people of Wyoming effectively. In 1994, he ran for the U.S. Senate and won, defeating popular Democratic Governor Mike Sullivan by 20 percentage points. He was elected to a second term in 2000 with a 74 percent majority, one of the largest margins in Wyoming election history. He was reelected to a third term in 2006 with 70 percent of the vote. Senator Thomas had no doubts about who he was or what he represented. He was not one to pick a fight, but if asked how he felt about a given issue, he would be sure to give his typically candid and honest response. When it came to issues he was passionate about, such as public lands and private property, he left little doubt as to his priorities. As a member of the Senate Energy Committee, and particularly in his leadership of the National Parks Subcommittee, Craig asked tough questions and made strong statements about the responsibility of the Federal Government to care for the land it already owned; the fundamental nature of private property rights; and Congress's need to consider the interplay between these principles when contemplating new national parks or historic sites. He was always a fair broker, and I found on many occasions that he would give my priorities fair consideration and due process. I very much regret that Senator Thomas lost his battle to cancer. In 1970, President Nixon declared war on cancer. Had that war been prosecuted with the same diligence as other wars, my former chief of staff, Carey Lackman, a beautiful young lady of 48, would not have died of breast cancer. One of my very best friends, a very distinguished Federal judge, Chief Judge Edward R. Becker, would not have died of prostate cancer. All of us know people who have been stricken by cancer, who have been incapacitated with Parkinson's or Alzheimer's, who have been victims of heart disease, or many other maladies. I sustained an episode with Hodgkin's lymphoma cancer 2 years ago. That trauma, that illness, I think, could have been prevented had that war on cancer declared by the President of the United States in 1970 been prosecuted with sufficient intensity. On a personal level, Senator Thomas had an extraordinary relationship with his wife Susan. As many of my colleagues can attest, Craig and Susan were quite inseparable and quick with humor. Even as Craig battled with acute myeloid leukemia he continued to serve in the Senate with extreme vigor and a smile. He leaves behind many friends and admirers, who have tried to emulate his courage, his tenacity, and his integrity. I extend my deepest condolences to Susan, their four children, the whole Thomas family, and his very able staff.

Mr. SPECTER

Mr. SPECTER. I thank the distinguished majority leader. I have sought recognition to comment on two subjects on the pending immigration bill. First, it is my hope that my colleagues in the Senate will focus very closely on the extraordinary problems the United States faces today by the current status of our immigration laws and weigh very carefully, notwithstanding any objections people may have to the pending bill, the comparison of the bill with the status quo, what is in existence at the present time. The ultimate decision on whether to vote for or against the bill depends upon not what we would like to have, not what would be perfect, maybe not even what would meet the desires of the individual Members, but a comparison between what bill finally emerges and the status quo, what is happening at the present time, because what we really have in our immigration law is chaos and anarchy. We struggled through legislation in the 109th Congress. It came through the Judiciary Committee, which I chaired in the 109th Congress, passed the Senate, and a different kind of a bill passed the House of Representatives. We could not go to conference, we did not resolve the issue, and it is back again this year. As I have said on a number of occasions on the floor, I think it probably would have been preferable to work through committee. I think at this juncture, you can strike the ``probably.'' It would have been preferable to work through committee in regular order. Whenever we leave regular order, we get into trouble. So we structured it differently. We structured it with a hard-working group of Senators, up to 12, sometimes a rotating group, and we came up with a bill. We have been struggling with it on the Senate floor. We have found objections on all sides. We have found objections on the right that it is amnesty, and we have found objections on the left that it does not satisfy humanitarian needs and provide for family reunification, but we continue to push ahead. But I think it is plain that if the Senate does not come up with a bill, doing the best we can now, the subject will be cut off for the indefinite future. Certainly it will not come back up this year when we have a very crowded agenda on appropriations bills and patent reform and many other subjects. It is unlikely to come up next year in a Presidential and congressional election year. Then we are looking at 2009, and we have no reason to expect that the issue will be any easier in 2009 than it is today except that we would have lost more time. We also ought to bear in mind that the Senate bill is not the final product. We will yet have a House bill, we will yet have conference, and we will yet have an opportunity to meet objections which are presently lodged against the bill. Just a word of explanation. When I tear up, it is a result of chemotherapy; it is not a result of sadness on the current status of the immigration bill. There is unity of judgment in both the House and the Senate, and I think broadly across America, that we need to reinstate the rule of law. We need to fix our broken borders. We need to have law enforcement against individuals who knowingly hire illegal immigrants. That is a very major part of the pending bill. The current bill provides for an increased Border Patrol from 12,000 to 18,000--6,000 new people. It provides for additional fencing, although fencing was legislated in the 109th Congress. It provides for drones to fly overhead. It provides for fencing to protect urban areas. While you can't build an impenetrable fence of more than 2,000 miles above the border, we do cover a great deal of border protection. But no matter how secure the border is, as long as there is a magnet so people can get jobs in the United States which are better than other places, immigrants will be attracted, illegal immigrants will be attracted. That is why we have structured provisions in this bill to have foolproof identification so employers will be able to know with certainty whether an individual is a legal or an illegal immigrant. That being the case, if employers hire illegal immigrants knowing they are illegal immigrants because they are in a position to make that determination, it is fair to have sanctions, and for repeat offenders tougher sanctions, and for repeat offenders, confirmed recidivists, to have jail time so we will provide the incentives of law enforcement on white-collar crime, which is very effective as a deterrent. I have seen that from my own experience as a prosecuting attorney. In this bill we have issues which are agreed upon by everyone to secure our borders, to impose the rule of law, and to control illegal immigration. But that is not the end of the issue on comprehensive legislation. We have a guest worker program. In the midst of many objections which I am receiving about the bill, I am also hearing a great deal from people who say we need to have immigrant workers, that they are a vital part of our workforce. The landscapers have contacted me. The farmers have contacted me. Restauranteurs have contacted me. Hotel associations have contacted me. The agriculture needs in California have been expressed repeatedly on the floor of this body. So we do need the workers. The Chamber of Commerce and the other organizations are very forceful in articulating that need. We have tried to balance it so we do not take away American jobs and so we are sensitive to the objections which the AFL-CIO has raised. We reduced the number of the guest worker program from 400,000 to 200,000. We tried to take into consideration the H-1B workers so that we bring in people with advanced degrees and technical knowledge to help Silicon Valley and other entities which are seeking more along that line. The bill is structured in a very sensitive way in that direction. Then we have the 12 million undocumented immigrants. No one knows the exact number, but that is the number which we have utilized, a number which the Pew Foundation says is about right from their surveys. We have a cry that we will be giving amnesty to these 12 million individuals. We have done our best to structure a bill which requires these undocumented immigrants to earn the right to the path of citizenship. We have imposed fines. We have the requirement in the bill now, through amendment, that they have to pay back taxes. We require they learn English. We require the undocumented immigrants hold jobs for a part of our society. We have a so-called touchback provision which I am not enthusiastic about. I have grave reservations about punitive measures which do not have some substantive meaning, but that concession has been made to try to avoid the amnesty claim. We have gone about as far as we can go. Amnesty, like beauty, may be in the eye of the beholder. One thing is plain: The 12 million undocumented immigrants are going to stay in the United States one way or another. They are going to stay here unless we find a way to identify those who are criminals and who could and should be deported, those who may be problems on terrorism. It is agreed that you can't deport 12 million undocumented immigrants. But if we can find a way to so-called ``bring them out of the shadows,'' we can identify those who ought to be deported in manageable numbers. Secretary of Homeland Security Michael Chertoff has accurately said that the current situation, with 12 million undocumented immigrants, is silent amnesty. So they are here, one way or another, silent amnesty or amnesty. But one thing we could do if we move ahead with the legislation is to avoid the anarchy which is here at the present time. I urge my colleagues, in formulating their judgment on the next critical cloture vote and on the issues of the point of order which will be raised, both of which will require 60 votes, to consider very carefully our best efforts at legislation which may be improved upon even more on the pending amendments, may be improved upon even more, contrasting that with the current situation, the status quo, which is totally objectionable. I want to comment about one other subject, and that is the procedures which we are undertaking on this bill. We have come to an approach which, quite frankly, I would prefer not to have seen adopted. I would have preferred to have proceeded as we did at the start of the consideration of this bill before the majority leader took it off the calendar, where we were entertaining amendments from all sides. When the majority leader moved for cloture, I joined most of my colleagues on this side of the aisle, on the Republican side, in voting against cloture so people could have an opportunity to offer their amendments and the minority would not be stifled. I think on some occasions in the past, there have been efforts to stifle the minority and not allow them to bring up amendments. I stood with my Republican colleagues in voting against cloture. Then we spent hours on the floor of the Senate where the objectors-- really the obstructionists; well, let's call them objectors, I withdraw the comment ``obstructionists''--were exercising their rights. It is better to use a more diplomatic language and to accord all colleagues the full panoply of their rights. They were exercising their rights. But we sat around here. As the manager of the bill, I have to sit on the floor because something may happen; unlikely, but something may happen. I sat around for hours again yesterday. I don't mind hard work, but I do mind no work. But we sat around for hours on Thursday afternoon where the objectors wouldn't offer amendments, and they wouldn't allow anybody else to offer amendments. That is unacceptable, just unacceptable. So I joined my colleagues, seven of us on the Republican side, and voted for cloture to cut off debate, and it failed. Then understandably the majority leader took the bill down. Now we have a very limited period of time, because we are about to embark on the 4th of July recess. When we come back there is a full agenda. As I said earlier, if we don't take the bill up now, it is not going to happen this year and probably won't happen next year. When we look at 2009, the same kind of problems we will face then, we face now, except they will be worse. So a procedure has been structured now where we have 25 amendments. That is going to be the full extent. Yesterday the distinguished junior Senator from Oklahoma said he wanted an opportunity to offer amendments. I don't disagree with his philosophy, but in order to have had that opportunity, they had to have been done when we first had the bill on the floor. If the bill is to be moved along, we are going to have to proceed as we are now. Our plan is to seek unanimous consent on these 25 amendments for a limited period of time. We have the proponents of the amendments, and opponents, and they are prepared to take a limited time agreement. Now we are equally divided. If Senators get down to business and get down to issues in an hour, you can debate the salient points. You probably aren't going to change any minds, anyway, around here, but you can have the debate in a pro forma way and get it done. But those time agreements will not proceed if there are objections to the time agreements, and we won't be able to have even limited debate. The plan has been worked out. I don't like the plan, but it is the best we can do. It is the least of the undesirable alternatives. As a manager, I am going to move to table Democratic amendments, and Senator Kennedy, as the manager, is going to move to table Republican amendments. So if there is no agreement on this limited time, there won't be any debate at all, and we are going to move right ahead for the disposition of the bill. If someone seeks recognition to speak with the managers controlling the floor, we will ask for unanimous consent that the speaker agree that no amendment will be offered and that there will be discussion only on the bill and for a limited period of time, a very limited period of time. That is not the way the Senate ordinarily does business. Ordinarily if there is a request for unanimous consent on a time agreement on a pending amendment, if there is an objection, then there is no time limit and people debate it at some length, or they may filibuster it. But that is not going to happen on this bill at this time, because the day for amendments to be offered and regular order to be followed is past. If we are to have a resolution of this issue, we are going to have to move ahead under this constricted and constrained procedure which, again, I don't like, but we are being forced to by the circumstances which we find ourselves in. Just as we respect the rights of the objectors to raise the objections they have, we have rights, too. The way we are proceeding is fully within the rules of the Senate. It is going to be a rough ride. We are in trench warfare, and it is going to be tough. But we are going to see the will of the Senate work one way or another. I hope, as I said earlier, my colleagues will, on the merits, take a close look at a comparison between the legislation we will produce with the unacceptable, unsatisfactory anarchy we have in immigration law today. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent--if I may have the attention of the distinguished majority leader--that of the time allocated to this side of the aisle, that 15 minutes be allocated to Senator Hutchison.

Mr. SPECTER

Mr. SPECTER. Mr. President, I yield myself 2 minutes before yielding to the Senator from Missouri. I do so at this time before hearing from the senior Senator from Missouri to comment about what the Senator from Louisiana has had to say. When he objects to the procedure where he doesn't have an opportunity to offer amendments, I would remind the Senator from Louisiana and everyone else that there was a time when we were searching for amendments. I refer specifically to the Thursday afternoon before the majority leader took the bill down on the cloture vote. We sat around for hours looking for amendments, and the people who objected to the bill would not offer amendments, nor would they let anybody else offer amendments. That is why I supported cloture, first to protect the rights of the minority to offer amendments, but then when they would neither offer amendments nor let anyone else offer amendments, I voted for cloture. So when someone comes to the floor today and objects that they are not being able to offer amendments, I remind them as to what happened and what precipitated this unusual procedure. As I said earlier, candidly, I don't like this, but it is the lesser of the evils. We don't have any choice if we are going to exercise the will of the Senate on this bill before the recess, because after the 4th of July recess, the Senate is going to be very heavily engaged in appropriations bills and other matters. Now I yield to the Senator from Missouri. How much time would the Senator like?

Mr. SPECTER. The Senator has it.

Mr. SPECTER. How much time remains on this side?

Mr. SPECTER. In light of the comments which have been made as to the cost of this program, I think it is important to focus on the fact that the nonpartisan Congressional Budget Office has made a finding that new Federal revenue from taxes, penalties, and fees under the bipartisan immigration bill will more than offset the costs of setting up any immigration system and the costs of any Federal benefits temporary workers, Z visa holders, and future legal immigrants under the bill would receive. CBO estimates that increased revenue from taxes, penalties, and fines under the bill will offset any estimated increases of mandatory spending, such as emergency Medicaid, and produce a net fiscal surplus of $25.6 billion over 10 years. The surplus will be used to cover costs, including implementing the new program, and a significant portion of the costs of better securing our borders and improving interior enforcement through additional Border Patrol and ICE agents. I ask unanimous consent that this fact sheet be printed in the Record at this point.