Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, last year I introduced the Notice Pleading Restoration Act of 2009, H.R. 1504. As I explained in my accompanying floor statement, my objective was to restore the pleading standard that had governed federal civil practice if not since the Federal Rules of Procedure originally took effect in 1938, then at very least since the Supreme Court decided Conley v. Gibson in 1957. Several months earlier the Supreme Court had issued the second of two controversial decisions--Bell Atlantic Corp. v. Twombly, 2007, and Iqbal v. Ashcroft, 2009--in which it had replaced that standard with a heightened pleading standard that, not least among its several flaws, was plainly inconsistent with the original meaning of the Federal Rules. My concern was not only that the Court had closed the courthouse doors to plaintiffs with meritorious claims and limited the private enforcement of public law, but also that, in yet another of its recent incursions on Congress's lawmaking powers, it had end-run the process for amending the Rules established by the Rules Enabling Act of 1934. That process includes, as its last step, Congressional approval of any amendment. While there was widespread agreement among the country's leading academic proceduralists on the need for legislation overruling the Court's decisions, there was much less agreement among them as to what, exactly, the legislation should say. I chose in S. 1504 to incorporate the pleading standard set forth in Conley. A companion House bill introduced after S. 1504, H.R. 4115, took a somewhat different approach. Various commentators proposed yet other approaches. After a hearing on the legislation before the Judiciary Committee, I consulted through my general counsel, Matthew L. Wiener, with leading academic proceduralists and several distinguished practicing lawyers with an eye toward offering a possible substitute amendment. The conclusion I soon drew was that Congress must indeed overrule Twombly and Iqbal but without (as the Court had done) prescribing a pleading standard outside the rulemaking process established by the Enabling Act. The best way to do so, I concluded, was simply to draft legislation requiring adherence to the Supreme Court's pre-Twombly decisions interpreting the applicable federal rules unless and until they are amended in accordance with the Enabling Act. The bill I have introduced today, the Notice Pleading Restoration Act of 2010, takes just that approach. I urge the next Congress to take up this bill when it convenes in January. For their wise counsel in helping me work through the issues presented by the legislation, I would like to acknowledge and thank the following lawyers, most of them professors of civil procedure: Allen D. Black, a partner at Fine, Kaplan & Black, R.P.C.; John S. Beckerman, Professor of Law, Rutgers University School of Law-Camden; Stephen B. Burbank, the David Berger Professor for the Administration of Justice at the University of Pennsylvania Law School; Sean Carter, a shareholder of Cozen O'Connor; Jonathan W. Cuneo, a partner at Cuneo Gilbert & LaDuca LLP and a former counsel to the House Judiciary Committee; Michael C. Dorf, the Robert S. Stevens Professor of Law at Cornell University School of Law; William N. Eskridge, Jr., the John A. Garver Professor of Jurisprudence at Yale Law School; Suzette M. Malveaux, Associate Professor of Law, Columbus School of Law, Catholic University of America; Arthur R. Miller, University Professor at the New York University School of Law; John Payton, President and Director- Counsel, NAACP Legal Defense Fund; Alexander Reinert, an Associate Professor of Law at the Benjamin Cardozo School of Law; David L. Shapiro, the William Nelson Cromwell Professor of Law, Emeritus, at Harvard Law School; Stephen N. Subrin, Professor of Law, Northeastern University School of Law; and Tobias Barrington Wolff, a Professor of Law at the University of Pennsylvania Law School. Professor Burbank deserves special acknowledgment for first suggesting and explaining the general approach underlying my bill during his testimony before the Senate Judiciary Committee on December 2, 2009, and special thanks for lending my staff so much of his valuable time during the last year-and-a-half. I commend his unimpeachable testimony to my colleagues and their staffs. Not all of these lawyers, I must emphasize in closing, endorse my legislation, and none of them of course is responsible for its particulars. Most of them submitted prepared statements for the record of the December 2 hearing, and their individual views can be found there.

Mr. SPECTER

Mr. SPECTER. Mr. President, last year I introduced the Notice Pleading Restoration Act of 2009, H.R. 1504. As I explained in my accompanying floor statement, my objective was to restore the pleading standard that had governed federal civil practice if not since the Federal Rules of Procedure originally took effect in 1938, then at very least since the Supreme Court decided Conley v. Gibson in 1957. Several months earlier the Supreme Court had issued the second of two controversial decisions--Bell Atlantic Corp. v. Twombly, 2007, and Iqbal v. Ashcroft, 2009--in which it had replaced that standard with a heightened pleading standard that, not least among its several flaws, was plainly inconsistent with the original meaning of the Federal Rules. My concern was not only that the Court had closed the courthouse doors to plaintiffs with meritorious claims and limited the private enforcement of public law, but also that, in yet another of its recent incursions on Congress's lawmaking powers, it had end-run the process for amending the Rules established by the Rules Enabling Act of 1934. That process includes, as its last step, Congressional approval of any amendment. While there was widespread agreement among the country's leading academic proceduralists on the need for legislation overruling the Court's decisions, there was much less agreement among them as to what, exactly, the legislation should say. I chose in S. 1504 to incorporate the pleading standard set forth in Conley. A companion House bill introduced after S. 1504, H.R. 4115, took a somewhat different approach. Various commentators proposed yet other approaches. After a hearing on the legislation before the Judiciary Committee, I consulted through my general counsel, Matthew L. Wiener, with leading academic proceduralists and several distinguished practicing lawyers with an eye toward offering a possible substitute amendment. The conclusion I soon drew was that Congress must indeed overrule Twombly and Iqbal but without (as the Court had done) prescribing a pleading standard outside the rulemaking process established by the Enabling Act. The best way to do so, I concluded, was simply to draft legislation requiring adherence to the Supreme Court's pre-Twombly decisions interpreting the applicable federal rules unless and until they are amended in accordance with the Enabling Act. The bill I have introduced today, the Notice Pleading Restoration Act of 2010, takes just that approach. I urge the next Congress to take up this bill when it convenes in January. For their wise counsel in helping me work through the issues presented by the legislation, I would like to acknowledge and thank the following lawyers, most of them professors of civil procedure: Allen D. Black, a partner at Fine, Kaplan & Black, R.P.C.; John S. Beckerman, Professor of Law, Rutgers University School of Law-Camden; Stephen B. Burbank, the David Berger Professor for the Administration of Justice at the University of Pennsylvania Law School; Sean Carter, a shareholder of Cozen O'Connor; Jonathan W. Cuneo, a partner at Cuneo Gilbert & LaDuca LLP and a former counsel to the House Judiciary Committee; Michael C. Dorf, the Robert S. Stevens Professor of Law at Cornell University School of Law; William N. Eskridge, Jr., the John A. Garver Professor of Jurisprudence at Yale Law School; Suzette M. Malveaux, Associate Professor of Law, Columbus School of Law, Catholic University of America; Arthur R. Miller, University Professor at the New York University School of Law; John Payton, President and Director- Counsel, NAACP Legal Defense Fund; Alexander Reinert, an Associate Professor of Law at the Benjamin Cardozo School of Law; David L. Shapiro, the William Nelson Cromwell Professor of Law, Emeritus, at Harvard Law School; Stephen N. Subrin, Professor of Law, Northeastern University School of Law; and Tobias Barrington Wolff, a Professor of Law at the University of Pennsylvania Law School. Professor Burbank deserves special acknowledgment for first suggesting and explaining the general approach underlying my bill during his testimony before the Senate Judiciary Committee on December 2, 2009, and special thanks for lending my staff so much of his valuable time during the last year-and-a-half. I commend his unimpeachable testimony to my colleagues and their staffs. Not all of these lawyers, I must emphasize in closing, endorse my legislation, and none of them of course is responsible for its particulars. Most of them submitted prepared statements for the record of the December 2 hearing, and their individual views can be found there.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly about the START Treaty, the consideration of which is now pending before the Senate, and to urge my colleagues to move forward to ratify this important treaty. I have long been interested in the relationship between the United States and, at that time, the Soviet Union, following the end of World War II, with the emergence of our Nation and the Soviets emerging as the two great world powers. In college, after the war, I devoted a good bit of study to U.S.- U.S.S.R. relations. I wrote a senior thesis on it as a major in political science and international relations, and I have continued that interest throughout my tenure in the Senate. One of my first initiatives, in 1982, after being elected in 1980, was to propose a resolution calling for a summit meeting between the President of the United States and the head of the Soviet Union. President Reagan had a practice of making Saturday afternoon speeches--or Saturday morning speeches--on the radio. One day I listened in and heard him talk about the tremendous destructive power which both the U.S. and U.S.S.R. had, and how they had the capacity to destroy each other. Of course, that capacity became the basis of the mutual assured destruction period. But it seemed to me that what ought to be done was there ought to be a dialog and an effort to come to terms with the Soviet Union to reduce the tension and reduce the threat of nuclear war. I, therefore, offered a resolution to propose that. My resolution was resisted by one of the senior Senators, Senator John Tower of Texas, who was chairman of the Armed Services Committee. When I proposed the resolution, it brought Senator Tower to the floor with a very really heated debate, with Senator Tower challenging my resolution and challenging my knowledge on the subject. Early on, after being elected and starting to serve in 1981, I had traveled to Grand Forks, ND, to see the Missileman II. I went to Charleston, SC, to see our nuclear submarine fleet, and I went to Edwards Air Force Base in California to look at the B1-B, the B-1 bomber, at that time. I was prepared to take on these issues. Senator Tower opposed it, offered a tabling motion, and standing in the well of the Senate, as if it was yesterday, I can remember that Senator Laxalt walked down the aisle from the door entering this Chamber and voted no. He started to walk up the aisle to the Republican cloakroom. Senator Tower chased him and said: Paul, you don't understand. This is a tabling motion. I am looking for an ``aye.'' Laxalt turned and said: I understand it is a tabling motion, and I voted the way I wanted to, no. I want the resolution to go forward. Senator Tower said: Well, Arlen Specter is trying to tell the President what to do. Senator Laxalt replied: Well, why shouldn't he? Everybody else does, he said jokingly. That tabling motion was defeated 60 to 38. When a vote came up on the final resolution, it passed with 90 in favor and 8 in opposition. We know what happened. There were negotiations and President Reagan came up with the famous dictum, ``trust, but verify.'' I was then active in the negotiations, the discussions on the Senate observer group in Geneva around 1987. Then our record is plain that we have approved by decisive numbers three very important treaties. START I was approved by the Senate in 1992, with a vote of 93 to 6. The START II treaty was approved in 1996 by a vote of 87 to 4. The Moscow Treaty of 2003 was approved by a vote of 95 to 0. We have heard extensive debate on the floor of the Senate. People have questioned the adequacy of the verification. I think those arguments have been answered by Senator John Kerry, chairman of the Foreign Relations Committee, who has done such an excellent job in managing the treaty. Questions have been raised about the missile defense, and I think that, too, has been adequately responded to. This has nothing to do with the issue of missile defense. For me, a very key voice in this entire issue has been the voice of Senator Richard Lugar, who has pointed out that this treaty does not deal with these collateral issues. This treaty is, directly stated, an extension of the treaty which has been in effect up until the present time and has worked so very well. Strenuous arguments have been made about modernizing our nuclear forces. Well, that is a subject for another day and another time. But those who have offered that advocacy have found a response from the administration with millions of dollars, from $85 million. That, as I say, belongs to another day and another analysis. But those who have advocated for modernization have gained very substantial responses from the administration on that subject. Curious, in that context, that notwithstanding that very substantial funding, it hasn't won them over, hasn't diminished their resistance to the treaty. Also, curious in the context of those expenditures on an issue, which didn't directly involve the necessity for modernization, there is a real question as to whether there has been adequate debate and study on that subject, on the hearings. It isn't part of the START treaty debate and discussion about the expenditure of that kind of money, considering the kind of a deficit we have, and also considering the advocates of those modernization additions with the great expense have been some of the loudest voices objecting to governmental expenditures. Well, we ought to spend what it takes for defense. That is the fundamental purpose of the Federal Government, to protect its citizens. But real questions arise in my mind as to whether this was the proper place to have that argument, but that has gone by the boards. I think the letter which Admiral Mullen, Chairman of the Joint Chiefs of Staff, has issued about the conclusion of the military, that this is a good treaty; about Admiral Mullen's statement that he personally was involved in the negotiations; that if the START treaty was not to be ratified there would be U.S. military resources that would have to be devoted to certain other issues which were taken by START so that it leads to an unequivocal recommendation by our No. 1 military expert, the Chairman of the Joint Chiefs of Staff. One other very important element that has been discussed, but cannot be over emphasized, is the destructive consequence of having this treaty rejected in terms of our relations with Russia. Russia is vitally important to us as we deal with Iran, vitally important to us as we deal with North Korea, vitally important to us as we deal with a whole range of international problems. For us to come right to the brink and then to say no and reject it and seek to reopen it would have a very serious effect on our relations with Russia, which are so important to our national security. The other nations of the world are watching in the wings what we do here. It would have a domino effect on our relationship with other nations. It comes in a context where it is subject to being misunderstood as a political matter in the United States. I do not question for a moment the motivation of those who oppose START. Those who have spoken against it have been some of our body's most knowledgeable Members on this important subject. But there is so much publicity about some questioning whether President Obama can have both the START treaty and repeal of don't ask, don't tell at the same time, there has been so much public comment about not wanting to see President Obama have another victory before the end of the year, so much comment which raises a question as to whether opposition is politically motivated. If the Russians and the other nations of the world cannot rely upon the Senate to make a judgment on the merits without regard to the politics or the appearance of politics, it has very serious consequences for our standing in the international community of nations. For those reasons, I do believe we ought to move ahead promptly. We ought to ratify this treaty. We ought to continue our strenuous efforts to rid the world of the threat of nuclear war. This is part of that ongoing process. I urge my colleagues to ratify this important treaty. I yield the floor.

Mr. SPECTER. Madam President, this is not a farewell address but, rather, a closing argument to a jury of my colleagues and the American people outlining my views on how the Senate and, with it, the Federal Government arrived at its current condition of partisan gridlock, and my suggestions on where we go from here on that pressing problem and the key issues of national and international importance. To make a final floor statement is a challenge. The Washington Post noted the poor attendance at my colleagues' farewell speeches earlier this month. That is really not surprising since there is hardly anyone ever on the Senate floor. The days of lively debate with many Members on the floor are long gone. Abuse of the Senate rules has pretty much stripped Senators of the right to offer amendments. The modern filibuster requires only a threat and no talking. So the Senate's activity for more than a decade has been the virtual continuous drone of a quorum call. But that is not the way it was when Senator Chris Dodd and I were privileged to enter the world's greatest deliberative body 30 years ago. Senators on both sides of the aisle engaged in collegial debate and found ways to find common ground on the Nation's pressing problems. When I attended my first Republican moderates luncheon, I met Mark Hatfield, John Chafee, Ted Stevens, Mac Mathias, Bob Stafford, Bob Packwood, Chuck Percy, Bill Cohen, Warren Rudman, Alan Simpson, Jack Danforth, John Warner, Nancy Kassebaum, Slade Gorton, and I found my colleague John Heinz there. That is a far cry from later years when the moderates could fit into a telephone booth. On the other side of the aisle, I found many Democratic Senators willing to move to the center to craft legislation--Scoop Jackson, Joe Biden, Dan Inouye, Lloyd Bentsen, Fritz Hollings, Pat Leahy, Dale Bumpers, David Boren, Russell Long, Pat Moynihan, George Mitchell, Sam Nunn, Gary Hart, Bill Bradley, and others. They were carrying on the Senate's glorious tradition. The Senate's deliberate cerebral procedures have served our country well. The Senate stood tall in 1805 in acquitting Supreme Court Justice Samuel Chase in impeachment proceedings and thus preserved the independence of the Federal judiciary. The Senate stood tall in 1868 to acquit President Andrew Johnson in impeachment proceedings, and that preserved the power of the Presidency. Repeatedly in our 223-year history, the Senate has cooled the passions of the moment to preserve the institutions embodied in our Constitution which have made the United States the envy of the world. It has been a great privilege to have had a voice for the last 30 years in the great decisions of our day: how we allocate our resources among economic development, national defense, education, environmental protection, and NIH funding; the Senate's role in foreign policy as we exercise it now on the START treaty; the protection of civil rights, as we demonstrated last Saturday, eliminating don't ask, don't tell; balancing crime control and defendants' rights; and how we have maintained the quality of the Federal judiciary, not only the high- profile 14 Supreme Court nominations I have participated in but the 112 Pennsylvanians who have been confirmed during my tenure on the Federal district courts or the Third Circuit. On the national scene, top issues are the deficit and the national debt. The deficit commission has made a start. When raising the debt limit comes up next year, that will present an occasion to pressure all parties to come to terms on future taxes and expenditures, to realistically deal with these issues. The Next Congress should try to stop the Supreme Court from further eroding the constitutional mandate of separation of powers. The Supreme Court has been eating Congress's lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional factfinding and precedents. That is stare decisis. The recent decision in Citizens United is illustrative. Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising, thus effectively undermining the basic democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes. Then he moved the bases. Congress's response is necessarily limited in recognition of the importance of judicial independence as the foundation of the rule of law, but Congress could at least require televising the Court proceedings to provide some transparency to inform the public about what the Court is doing since it has the final word on the cutting issues of the day. Brandeis was right when he said that sunlight is the best disinfectant. The Court does follow the election returns, and the Court does judicially notice societal values as expressed by public opinion. Polls show that 85 percent of the American people favor televising the Court when told that a citizen can only attend an oral argument for 3 minutes in a chamber holding only 300 people. Great Britain, Canada, and State supreme courts permit television. Congress has the authority to legislate on this subject, just as Congress decides other administrative matters such as what cases the Court must hear, time limits for decisions, number of Justices, the day the Court convenes, and the number required for a quorum. While television cannot provide a definitive answer, it could be significant and may be the most that can be done consistent with life tenure and judicial independence. Additionally, I urge Congress to substantially increase funding for the National Institutes of Health. When NIH funding was increased from $12 to $30 billion annually and $10 billion added to the stimulus package, significant advances were made on medical research. It is scandalous--absolutely scandalous--that a nation with our wealth and research capabilities has not done more. Forty years ago, the President of the United States declared war on cancer. Had that war been pursued with the diligence of other wars, most forms of cancer might have been conquered. I also urge colleagues to increase their activity on foreign travel. Regrettably, we have earned the title of ugly Americans by not treating other nations with proper respect and dignity. My experience on congressional delegations to China, Russia, India, NATO, Jerusalem, Damascus, Bagdad, Kabul, and elsewhere provided an opportunity for eyeball-to-eyeball discussions with world leaders about our values, our expectations, and our willingness to engage in constructive dialog. Since 1984, I have visited Syria almost every year, and my extensive conversations with Hafiz al-Assad and Bashar al- Assad have convinced me there is a realistic opportunity for a peace treaty between Israel and Syria, if encouraged by vigorous U.S. diplomacy. Similar meetings I have been privileged to have with Muammar Qadhafi, Yasser Arafat, Fidel Castro, Saddam Hussein, and Hugo Chavez have persuaded me that candid, respectful dialog with our toughest adversaries can do much to improve relations among nations. Now I will shift gears. In my view, a principal reason for the historic stature of the U.S. Senate has been the ability of any Senator to offer virtually any amendment at any time. This Senate Chamber provides the forum for unlimited debate with a potential to acquaint the people of America and the world with innovative proposals on public policy and then have a vote on the issue. Regrettably, that has changed in recent years because of abuse of the Senate rules by both parties. The Senate rules allow the majority leader, through the right of his first recognition, to offer a series of amendments to prevent any other Senator from offering an amendment. That had been done infrequently up until about a decade ago and lately has become a common practice, and, again, by both parties. By precluding other Senators from offering amendments, the majority leader protects his party colleagues from taking tough votes. Never mind that we were sent here and are paid to make tough votes. The inevitable and understandable consequence of that practice has been the filibuster. If a Senator cannot offer an amendment, why vote to cut off debate and go to final passage? Senators were willing--and are willing--to accept the will of the majority in rejecting their amendments but unwilling to accept being railroaded to concluding a bill without being provided an opportunity to modify it. That practice has led to an indignant, determined minority to filibuster and to deny 60 votes necessary to cut off debate. Two years ago on this Senate floor, I called the practice tyrannical. The decade from 1995 to 2005 saw the nominees of President Clinton and President Bush stymied by the refusal of the other party to have a hearing or floor vote on many judicial and executive nominees. Then, in 2005, serious consideration was given by the Republican caucus to changing the longstanding Senate rule by invoking the so-called nuclear or constitutional option. The plan called for Vice President Cheney to rule that 51 votes were sufficient to impose cloture for confirmation of a judge or executive nominee. His ruling, then to be challenged by Democrats, would be upheld by the traditional 51 votes to uphold the Chair's ruling. As I argued on the Senate floor at that time, if Democratic Senators had voted their consciences without regard to party loyalty, most filibusters would have failed. Similarly, I argued that had Republican Senators voted their consciences without regard to party loyalty, there would not have been 51 of the 55 Republican Senators to support the nuclear option. The majority leader then scheduled the critical vote on May 25, 2005. The outcome of that vote was uncertain, with key Republicans undeclared. The showdown was averted the night before by a compromise by the so-called Gang of 14. Some nominees were approved, some rejected, and a new standard was established to eliminate filibusters unless there were extraordinary circumstances, with each Senator to decide if that standard had been met. Regrettably, again, that standard has not been followed as those filibusters have continued up to today. Again, the fault rests with both parties. There is a way out of this procedural gridlock by changing the rule on the power of the majority leader to exclude other Senators' amendments. I proposed such a rule change in the 110th and 111th Congresses. I would retain the 60-vote requirement for cloture on legislation, with a condition that Senators would have to have a talking filibuster, not merely presenting a notice of intent to filibuster. By allowing Senators to offer amendments and a requirement for debate, not just notice, I think filibusters could be effectively managed, as they had been in the past, and still retain, where necessary, the opportunity to have adequate debate on controversial issues. I would change the rule to cut off debate on judicial and executive branch nominees to 51 votes, as I formally proposed in the 109th Congress. Important positions are left open for months, and the Senate agenda today is filled with unacted-upon judicial and executive nominees, and many of those judicial nominees are in areas where there is an emergency backlog. Since Judge Bork and Justice Thomas did not provoke filibusters, I think the Senate can do without them on judges and executive officeholders. There is a sufficient safeguard of the public interest by requiring a simple majority on an up-down vote. I would also change the rule requiring 30 hours of postcloture debate and the rule allowing the secret hold, which requires cloture to bring the matter to the floor. Requiring a Senator to disclose his or her hold to the light of day would greatly curtail this abuse. While political gridlock has been facilitated by the Senate rules, I am sorry to say partisanship has been increased greatly by other factors. Senators have gone into other States to campaign against incumbents of the other party. Senators have even opposed their own party colleagues in primary challenges. That conduct was beyond contemplation in the Senate I joined 30 years ago. Collegiality can obviously not be maintained when negotiating with someone simultaneously out to defeat you, especially within your own party. In some quarters, ``compromise'' has become a dirty word. Senators insist on ideological purity as a precondition. Senator Margaret Chase Smith of Maine had it right when she said we need to distinguish between the compromise of principle and the principle of compromise. This great body itself was created by the so-called Great Compromise, in which the Framers decreed that States would be represented equally in the Senate and proportionate to their populations in the House. As Senate Historian Richard Baker noted: ``Without that compromise, there would likely have been no Constitution, no Senate, and no United States as we know it today.'' Politics is no longer the art of the possible when Senators are intransigent in their positions. Polarization of the political parties has followed. President Reagan's ``big tent'' has frequently been abandoned by the Republican Party. A single vote out of thousands cast can cost an incumbent his seat. Senator Bob Bennett was rejected by the far right in his Utah primary because of his vote for TARP. It did not matter that Vice President Cheney had pleaded with the Republican caucus to support TARP or President Bush would become a modern Herbert Hoover. It did not matter that 24 other Republican Senators, besides Bob Bennett, out of the 49 Republican Senators voted for TARP. Senator Bennett's 93 percent conservative rating was insufficient. Senator Lisa Murkowski lost her primary in Alaska. Congressman Mike Castle was rejected in Delaware's Republican primary in favor of a candidate who thought it necessary to defend herself as not being a witch. Republican Senators contributed to the primary defeats of Bennett, Murkowski, and Castle. Eating or defeating your own is a form of sophisticated cannibalism. Similarly, on the other side of the aisle, Senator Joe Lieberman, a great Senator, could not win his Democratic primary. The spectacular reelection of Senator Lisa Murkowski on a write-in vote in the Alaska general election and the defeat of other Tea Party candidates in the 2010 general elections may show the way to counter right-wing extremists. Arguably, Republicans left three seats on the table in 2010--beyond Delaware, Nevada, and perhaps Colorado--because of unacceptable general election candidates. By bouncing back and winning, Senator Murkowski demonstrated that a moderate centrist can win by informing and arousing the general electorate. Her victory proves that America still wants to be and can be governed by the center. Repeatedly, senior Republican Senators have recently abandoned long- held positions out of fear of losing their seats over a single vote or because of party discipline. With 59 votes for cloture on this side of the aisle, not a single Republican would provide the 60th vote for many important legislative initiatives, such as identifying campaign contributors to stop secret contributions. Notwithstanding the perils, it is my hope more Senators will return to independence in voting and crossing party lines evident 30 years ago. President Kennedy's ``Profiles in Courage'' shows the way. Sometimes a party does ask too much. The model for an elected official's independence in a representative democracy has never been stated more accurately, in my opinion, than it was in 1774 by Edmund Burke, in the British House of Commons, when he said: `` . . . his [the elected representative's] unbiased opinion, his mature judgment, his enlightened conscience . . . [including his vote] ought not to be sacrificed to you, to any man or any set of men living.'' But, above all, we need civility. Steve and Cokie Roberts, distinguished journalists, put it well in a recent column, saying: Civility is more than good manners. . . . Civility is a state of mind. It reflects respect for your opponents and for the institutions you serve together. . . . This polarization will make civility in the next Congress more difficult--and more necessary--than ever. A closing speech has an inevitable aspect of nostalgia. An extraordinary experience for me is coming to an end. But my dominant feeling is pride in the great privilege to be a part of this very unique body with colleagues who are such outstanding public servants. I have written and will write elsewhere about my tenure here, so I do not say farewell to my continuing involvement in public policy, which I will pursue in a different venue. Because of the great traditions of this body and because of its historic resilience, I leave with great optimism for the future of our country, a great optimism for the continuing vital role of the Senate in the governance of our democracy. I thank my colleagues for listening. (Applause, Senators rising.)

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce today a bill that strengthens the Armed Career Criminal Act in response to a series of Supreme Court rulings, which wrongly have restricted when and how the Act is applied, and have caused unnecessary and costly litigation with inconsistent results throughout our Federal court system. The Department of Justice has provided extensive technical assistance in the drafting of this bill over many months. I am introducing this legislation, so the next Congress can have my views on this subject. The Armed Career Criminal Act provides certain and harsh penalties for criminals who are considered especially dangerous because of their prior serious criminal convictions and subsequent possession of a firearm. It has proven to be one of the strongest crime fighting tools in protecting the public from repeat offenders who are armed. The Act mandates a 15-year sentence for offenders who have already accumulated three prior convictions for a violent felony or serious drug offense, and are convicted in Federal court for possessing a firearm in violation of section 922(g) of title 18, United States Code. The Armed Career Criminal Act, also referred to as section 924(e) of title 18, United States Code, was part of the Omnibus Crime Control Act passed by the 98th Congress in 1984. The 99th Congress broadened its reach by expanding the crimes that trigger the mandatory 15 year sentence. The Act provides Federal prosecutors with the ability to take the most dangerous and violent criminals--a small percentage responsible for as much as 70 percent of all crimes--out of circulation. Its effectiveness, however, has been seriously undermined by Supreme Court decisions that have severely limited its reach and needlessly complicated its application. Specifically, these decisions have unfairly restricted what documents a judge may review in order to determine whether a prior conviction triggers the Act's sentencing enhancement, and too narrowly restricted the Act's definition of violent crime. The bill I am introducing, called the Armed Career Criminal Sentencing Act of 2010, negates the impact of these rulings. In Taylor v. United States, 495 U.S. 575, 1990, and Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court has required that district courts apply a ``categorical approach'' when determining whether certain prior convictions trigger the enhanced sentence under section 924(e) of title 18, United States Code. This has led to increased litigation, as well as random and contradictory sentencing results. It has also put an unnecessary burden on the courts. The ``categorical approach'' prevents Federal judges from looking at reliable evidence of the facts of qualifying prior convictions and instead only permits Federal judges to review the language of the statute of conviction and certain limited judicial records, such as the charging document, the jury instructions, and the change of plea colloquy. The Supreme Court of the United States has said that its reading of section 924(e) in this regard is colored, in part, by concern that to permit a more probing judicial inquiry could raise right-to-jury-trial issues because the sentence enhancement under section 924(e) increases the statutory maximum sentence of 10 years under section 922(g) to life imprisonment. Under Apprendi v. New Jersey, 530 U.S. 466, 490, 2000, a case decided after the enactment of the Armed Career Criminal Act, any facts, other than prior convictions, which may be used to increase the sentence of a defendant beyond the statutory maximum sentence must be proven to a jury beyond a reasonable doubt. There have been frequent instances in which armed career criminals have not been sentenced consistent with congressional intent due to this Supreme Court precedent that has significantly narrowed the applicability of section 924(e) and prevented judges from exercising their historic sentencing discretion and judgment. Few statutory sentencing issues have led to such costly and time- consuming litigation at every level of the Federal court system as the determination of whether the broad range of criminal offenses under State and local law qualify categorically as crimes of violence or serious drug trafficking offenses. Among the 50 States and territories, there are significant disparities in the content and formulation of State and local criminal laws. There are also differing charging and recordkeeping practices. Based on such fortuities as this, the Supreme Court's precedent has caused an irrational divergence of Armed Career Criminal Act sentences. Fundamental principles of equality and fair treatment, as well as the imperative of vigorously protecting public safety, require far more uniform administration and implementation of the sentencing provisions under section 924(e). Federal judges are capable of examining and evaluating reliable evidence to determine if a particular conviction or series of convictions merits enhancement and should be entrusted to continue their historic role as sentencing fact finders. The solution to this problem is simple. The bill I am introducing today eliminates the ``categorical approach'' and allows judges to return to their traditional sentencing roles and to make the sentencing judgments traditionally assigned to courts. The bill accomplishes this by lowering the maximum sentence under section 924(e) from life to 25 years, and increasing the maximum sentence under section 922(g) from 10 years to 25 years. Equalizing the maximum sentences for the two statutes means that when a judge enhances a sentence for a section 922(g) conviction, as permitted by section 924(e) for armed career criminals, the judge will not increase the statutory maximum sentence of section 922(g) and therefore necessarily avoids any implication of Apprendi principles. The Congressional Research Service has reviewed and agreed with this legal analysis. Because sentences for violations of section 922(g) of title 18, United States Code, by individuals who are not armed career criminals will commonly fall in the range of 10 years or less by operation of the advisory sentencing guidelines and the reasonable judgment of the sentencing courts, I do not anticipate that there will be many resulting changes in the length of sentence for those individuals, although the increased statutory maximum will apply. The Armed Career Criminal Act currently defines ``violent felony'' as ``any crime punishable by imprisonment for [more than] one year . . . that . . . (i) has as an element the use, attempted use, or threatened use of physical force against . . . another . . . or . . . (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.'' 18 U.S.C. Sec. 924(e)(2)(B). To date, the Supreme Court has decided four cases (with another to be argued next month) in an attempt to clarify which State and local violent crime offenses qualify as sentencing enhancements under the Armed Career Criminal Act. In all but one, the Court has too narrowly restricted the Act's definition of violent crime. Despite the clear language in section 924(e)(2)(B)(ii) that a violent crime includes ``conduct that presents a serious potential risk of injury to another,'' the Court has read this so-called ``residual clause'' to only apply to crimes that typically involve purposeful, violent, and aggressive conduct--even though there is no such limiting language to be found in the statute's definition of violent crime. Thus, in United States v. Begay, 553 U.S. 137, 2008, the Court found that 11 felony DUI convictions did not qualify as conduct that presents a serious risk of physical injury to another. In Chambers v. United States, 129 S. Ct. 687, 2009, the Court held that the crime of failure to report to prison, which is the crime of escape, was a ``far cry from the purposeful, violent, and aggressive conduct''' required to qualify as a violent crime. The Supreme Court has also too narrowly restricted the violent felony definition in section 924(e)(2)(B)(i) by holding that the use of physical force against another as an element of a crime must include violent force. In Johnson v. United States, 130 S. Ct. 1265, 1271, 2010, the Supreme Court held that a battery conviction under Florida law did not qualify for the Act's sentencing enhancement because ``[w]e think it clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force--that is, force capable of causing physical pain or injury to another person.'' Again, those words--violent force--are nowhere in the statute's definition. The bill I am introducing today simply and clearly defines qualifying violent crime in two ways--by elements and by conduct--and does not require violent force, just physical force. It also removes the violent crime definition from the so-called ``residual clause'' to prevent limitations being read by the Court into its meaning. Under the bill, violent crime includes crimes that have as an element--the use, attempted use, or threatened use of physical force, however slight, against the person of another individual, or that serious bodily injury intentionally, knowingly, or recklessly resulted from the offense conduct. The bill also defines violent crime to include offenses that, without regard to the formal elements of the crime, involved conduct that presented a serious potential risk of bodily injury to another or intentionally, knowingly, or recklessly resulted in serious bodily injury to another. Finally, to ensure that an inflexible application of section 924(e) does not result in overly harsh results, this bill gives prosecutors the discretion to file a notice advising the defendant and the court whether the prosecutor will seek to invoke all, some, or none of the prior convictions of the defendant to trigger the penalty enhancement. This is done already for Federal drug penalty enhancements and works well. By making these simple changes, we can be assured that fundamental principles of equality and fair treatment are followed, and that public safety will be vigorously protected. I urge my colleagues to pass the Armed Career Criminal Sentencing Act of 2010.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce today a bill that strengthens the Armed Career Criminal Act in response to a series of Supreme Court rulings, which wrongly have restricted when and how the Act is applied, and have caused unnecessary and costly litigation with inconsistent results throughout our Federal court system. The Department of Justice has provided extensive technical assistance in the drafting of this bill over many months. I am introducing this legislation, so the next Congress can have my views on this subject. The Armed Career Criminal Act provides certain and harsh penalties for criminals who are considered especially dangerous because of their prior serious criminal convictions and subsequent possession of a firearm. It has proven to be one of the strongest crime fighting tools in protecting the public from repeat offenders who are armed. The Act mandates a 15-year sentence for offenders who have already accumulated three prior convictions for a violent felony or serious drug offense, and are convicted in Federal court for possessing a firearm in violation of section 922(g) of title 18, United States Code. The Armed Career Criminal Act, also referred to as section 924(e) of title 18, United States Code, was part of the Omnibus Crime Control Act passed by the 98th Congress in 1984. The 99th Congress broadened its reach by expanding the crimes that trigger the mandatory 15 year sentence. The Act provides Federal prosecutors with the ability to take the most dangerous and violent criminals--a small percentage responsible for as much as 70 percent of all crimes--out of circulation. Its effectiveness, however, has been seriously undermined by Supreme Court decisions that have severely limited its reach and needlessly complicated its application. Specifically, these decisions have unfairly restricted what documents a judge may review in order to determine whether a prior conviction triggers the Act's sentencing enhancement, and too narrowly restricted the Act's definition of violent crime. The bill I am introducing, called the Armed Career Criminal Sentencing Act of 2010, negates the impact of these rulings. In Taylor v. United States, 495 U.S. 575, 1990, and Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court has required that district courts apply a ``categorical approach'' when determining whether certain prior convictions trigger the enhanced sentence under section 924(e) of title 18, United States Code. This has led to increased litigation, as well as random and contradictory sentencing results. It has also put an unnecessary burden on the courts. The ``categorical approach'' prevents Federal judges from looking at reliable evidence of the facts of qualifying prior convictions and instead only permits Federal judges to review the language of the statute of conviction and certain limited judicial records, such as the charging document, the jury instructions, and the change of plea colloquy. The Supreme Court of the United States has said that its reading of section 924(e) in this regard is colored, in part, by concern that to permit a more probing judicial inquiry could raise right-to-jury-trial issues because the sentence enhancement under section 924(e) increases the statutory maximum sentence of 10 years under section 922(g) to life imprisonment. Under Apprendi v. New Jersey, 530 U.S. 466, 490, 2000, a case decided after the enactment of the Armed Career Criminal Act, any facts, other than prior convictions, which may be used to increase the sentence of a defendant beyond the statutory maximum sentence must be proven to a jury beyond a reasonable doubt. There have been frequent instances in which armed career criminals have not been sentenced consistent with congressional intent due to this Supreme Court precedent that has significantly narrowed the applicability of section 924(e) and prevented judges from exercising their historic sentencing discretion and judgment. Few statutory sentencing issues have led to such costly and time- consuming litigation at every level of the Federal court system as the determination of whether the broad range of criminal offenses under State and local law qualify categorically as crimes of violence or serious drug trafficking offenses. Among the 50 States and territories, there are significant disparities in the content and formulation of State and local criminal laws. There are also differing charging and recordkeeping practices. Based on such fortuities as this, the Supreme Court's precedent has caused an irrational divergence of Armed Career Criminal Act sentences. Fundamental principles of equality and fair treatment, as well as the imperative of vigorously protecting public safety, require far more uniform administration and implementation of the sentencing provisions under section 924(e). Federal judges are capable of examining and evaluating reliable evidence to determine if a particular conviction or series of convictions merits enhancement and should be entrusted to continue their historic role as sentencing fact finders. The solution to this problem is simple. The bill I am introducing today eliminates the ``categorical approach'' and allows judges to return to their traditional sentencing roles and to make the sentencing judgments traditionally assigned to courts. The bill accomplishes this by lowering the maximum sentence under section 924(e) from life to 25 years, and increasing the maximum sentence under section 922(g) from 10 years to 25 years. Equalizing the maximum sentences for the two statutes means that when a judge enhances a sentence for a section 922(g) conviction, as permitted by section 924(e) for armed career criminals, the judge will not increase the statutory maximum sentence of section 922(g) and therefore necessarily avoids any implication of Apprendi principles. The Congressional Research Service has reviewed and agreed with this legal analysis. Because sentences for violations of section 922(g) of title 18, United States Code, by individuals who are not armed career criminals will commonly fall in the range of 10 years or less by operation of the advisory sentencing guidelines and the reasonable judgment of the sentencing courts, I do not anticipate that there will be many resulting changes in the length of sentence for those individuals, although the increased statutory maximum will apply. The Armed Career Criminal Act currently defines ``violent felony'' as ``any crime punishable by imprisonment for [more than] one year . . . that . . . (i) has as an element the use, attempted use, or threatened use of physical force against . . . another . . . or . . . (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.'' 18 U.S.C. Sec. 924(e)(2)(B). To date, the Supreme Court has decided four cases (with another to be argued next month) in an attempt to clarify which State and local violent crime offenses qualify as sentencing enhancements under the Armed Career Criminal Act. In all but one, the Court has too narrowly restricted the Act's definition of violent crime. Despite the clear language in section 924(e)(2)(B)(ii) that a violent crime includes ``conduct that presents a serious potential risk of injury to another,'' the Court has read this so-called ``residual clause'' to only apply to crimes that typically involve purposeful, violent, and aggressive conduct--even though there is no such limiting language to be found in the statute's definition of violent crime. Thus, in United States v. Begay, 553 U.S. 137, 2008, the Court found that 11 felony DUI convictions did not qualify as conduct that presents a serious risk of physical injury to another. In Chambers v. United States, 129 S. Ct. 687, 2009, the Court held that the crime of failure to report to prison, which is the crime of escape, was a ``far cry from the purposeful, violent, and aggressive conduct''' required to qualify as a violent crime. The Supreme Court has also too narrowly restricted the violent felony definition in section 924(e)(2)(B)(i) by holding that the use of physical force against another as an element of a crime must include violent force. In Johnson v. United States, 130 S. Ct. 1265, 1271, 2010, the Supreme Court held that a battery conviction under Florida law did not qualify for the Act's sentencing enhancement because ``[w]e think it clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force--that is, force capable of causing physical pain or injury to another person.'' Again, those words--violent force--are nowhere in the statute's definition. The bill I am introducing today simply and clearly defines qualifying violent crime in two ways--by elements and by conduct--and does not require violent force, just physical force. It also removes the violent crime definition from the so-called ``residual clause'' to prevent limitations being read by the Court into its meaning. Under the bill, violent crime includes crimes that have as an element--the use, attempted use, or threatened use of physical force, however slight, against the person of another individual, or that serious bodily injury intentionally, knowingly, or recklessly resulted from the offense conduct. The bill also defines violent crime to include offenses that, without regard to the formal elements of the crime, involved conduct that presented a serious potential risk of bodily injury to another or intentionally, knowingly, or recklessly resulted in serious bodily injury to another. Finally, to ensure that an inflexible application of section 924(e) does not result in overly harsh results, this bill gives prosecutors the discretion to file a notice advising the defendant and the court whether the prosecutor will seek to invoke all, some, or none of the prior convictions of the defendant to trigger the penalty enhancement. This is done already for Federal drug penalty enhancements and works well. By making these simple changes, we can be assured that fundamental principles of equality and fair treatment are followed, and that public safety will be vigorously protected. I urge my colleagues to pass the Armed Career Criminal Sentencing Act of 2010.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to urge my colleagues to support and take up next Congress the bill I just introduced, the Restoration of Legal Rights for Claimants Under Holocaust-Era Insurance Policies. The bill would restore the right of Holocaust survivors and their descendants--many of them United States citizens--to maintain lawsuits in our courts to recover unpaid proceeds under Holocaust-era life insurance policies. Recent decisions of the federal courts about which I have spoken at length in prior floor statements and confirmation hearings have denied survivors and their descendants that right. The insurance policies at issue were issued to millions of European Jews before World War II. During the Nazi era, European insurers largely escaped their obligations under the policies--sometimes by participating with the Nazis in what one Supreme Court Justice has characterized as ``larcenous takings of gigantic proportions.'' [Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 430 (2003) (Ginsburg, J., joined by Stevens, Scalia, and Thomas, JJ., dissenting).] In the aftermath of World War II, insurers dishonored the policies for one shameful reason or another. The most shameful of them was that a claimant could not produce a death certificate of a deceased insured who had been murdered in a Nazi death camp. In the 1990s survivors turned, as a last resort, to the courts of the United States. Numerous suits were filed seeking compensation from European insurers for dishonoring Holocaust-era insurance policies during and especially after the War. Several States, for their part, attempted to facilitate recovery under unpaid policies by requiring insurers doing business in their States, as most did, to disclose information about those policies. European insures responded to these developments by agreeing to establish a private claims resolution process. Their agreement resulted in the establishment of a voluntary organization in 1998--formed by, among others, the insurers, the State of Israel, and State insurance commissioners in the United States known as the International Commission on Holocaust Era Insurance Claims, ICHEIC. ``The job of ICHEIC,'' according to the Supreme Court, ``include[d] negotiation with European insurers to provide information about unpaid insurance policies and the settlement of claims under them.'' [Garamendi, 539 U.S. at 407.] Many survivors and their descendants filed claims through ICHEIC. How fairly ICHEIC decided their claims remains a debated question. Testimony before Congress at least raises serious questions as to whether meritorious claims were denied. I do not wish to enter that debate today except to emphasize that ICHEIC was not a neutral, governmental adjudicatory body. It was, as then-Judge Michael Mukasey said, a ``an ad-hoc non- judicial, private international claims tribunal'' created, funded, and to a large extent controlled by the insurance companies--in short, again in Judge Mukasey's words, ``a company store.'' [In re Assicurazioni Generali, S.p.A Holocaust Ins. Litig., 228 F. Supp. 2d 348, 356-57 (S.D.N.Y. 2002).] I also wish to emphasize that by filing a claim through ICHEIC, a claimant did not waive his right to file suit. Only claimants who received payments under insurance policies did so. Despite the creation of ICHEIC, litigation continued in American courts. Foreign protests over the litigation led the United States to negotiate several executive agreements with foreign governments. Of these, the most important was the 2000 German Foundation Agreement. It obligated Germany to establish the German Foundation, which was funded by Germany and German companies, to compensate Jews ``who suffered'' various economic harms ``at the hands of the German companies during the National Socialist era.'' As for insurance claims in particular, the agreement obligated German insurers to address them through ICHEIC. Similar agreements between the United States and Austria and France followed. No agreement was reached, though, with Nazi German's principal ally, Italy. In negotiating the 2000 agreement, Germany sought immunity from suit--``legal peace'' as Germany calls it--in American courts for German companies. The United States refused to provide it, and could not have provided it, in my view, in the absence of a Senate-ratified treaty or some other such authoritative Congressional action. Instead the United States agreed only to the inclusion of a provision obligating the United States to file in any suit against a German company over a Holocaust-era claim a precatory statement informing the court that ``it would be in the foreign policy interests of the United States for the Foundation to be the exclusive forum and remedy for the resolution of all asserted claims against Germany companies arising from their involvement in the National Socialist era and World War II.'' The United States also agreed in any such filing to ``recommend dismissal on any valid legal ground (which, under the U.S. system of jurisprudence, will be for the U.S. courts to determine).'' The 2000 agreement makes explicit, however, that ``the United States does not suggest that its policy interests concerning the Foundation in themselves provide an independent legal basis for dismissal.'' But what the 2000 executive agreement expressly denied Germany companies--that is, immunity from suit--our federal courts have now given them at the urging of the executive branch. I refer first and foremost to the Supreme Court's much-criticized, five-to-four decision in American Insurance Co. v. Garamendi, 2003. The Court held there that the executive branch's foreign policy favoring the resolution of Holocaust-era insurance claims through ICHEIC preempted a California law requiring the disclosure of information about Holocaust-era insurance policies to potential claimants. It did not matter, the Court said, that the executive agreement said nothing whatsoever about preemption, let alone that no federal statute or treaty actually preempted disclosure statute's like California's. It was enough that the agreement embodied a general policy--reaffirmed over the years by statements by sub-cabinet officials--with which California's disclosure state could be said to conflict. Four Justices with very different views on executive power--Ginsburg, Scalia, Stevens, and Thomas-- dissented. While conceding the, questionable, argument that the President can under some circumstances preempt state law by executive agreement, they emphasized the obvious flaw in the Court's position on the facts at hand: The 2000 agreement says nothing about preemption. Insofar as it says anything on the subject, it actually disclaims any preemptive effect. On the authority of Garamendi, the Federal district court before which lawsuits to recover on policies issued by the Italian insurer Generali had been consolidated dismissed those suits as preempted. The court rejected the plaintiffs' argument that the suits could not be preempted because Italy and the United States had never entered into an executive agreement addressing claims against Italian insurers. Appeals to the Court of Appeals for the Second Circuit followed. While the appeals were pending, a class action settlement was reached and approved by the court under which most of the class members received nothing. The plaintiffs' lead counsel has said that Garamendi left them no choice but to settle. Several plaintiffs who opted out of the settlement nonetheless pressed on with the appeals. Early this year the Second Circuit affirmed the dismissal of their cases. [In re Assicurazioni Generali, S.P.A., 529 F.3d 113 (2d Cir. 2010).] The plaintiffs then asked the Supreme Court to hear their case by filing a petition for certiorari. They raised two main questions. Whether Garamendi preempts the generally applicable state common law under which the plaintiffs sought recovery, as opposed to the disclosure-specific law California enacted. Whether Garamendi should be read to preempt state-law claims in the absence of any executive agreement addressing those claims. Recall that Italy and the United States never entered into an executive agreement with which claims against Generali, an Italian insurer, could be said to conflict. A post-Garamendi decision of the Court, Medellin v. Texas, 2008, suggests that Garamendi cannot be so broadly read--that an executive-branch foreign policy can preempt state law only if it becomes law through the means prescribed by the Constitution or, in some limited class of cases at least, find expression in an executive agreement entered with Congress's acquiescence. Despite the importance of these questions and an apparent split among the lower courts in answering them, the Supreme Court denied certiorari. My legislation would achieve two narrow, but important, objectives: First, it would restore Holocaust survivors and their descendants to the legal position they occupied before Garamendi and Generali. Second, it would allow states to enforce the sort of disclosure laws at issue in Garamendi. With limited exceptions tailored to achieve these objectives, the legislation would otherwise leave undisturbed any defenses that insurers may have to Holocaust-era insurance claims, including the defense that they were settled and released through ICHEIC. Of equal significance, my legislation would vindicate two important Constitutional principles--one involving separation of powers, the other federalism. The principle of separation of powers is that the Constitution vests all lawmaking authority in Congress and none in the executive branch. The principle of federalism is that, under the Constitution's supremacy clause, Article VI, only the Constitution, Congressionally enacted law, and Senate-ratified treaties can preempt state law. Some executive agreements, if entered at least with Congress's acquiescence, arguably may also do so. But executive-branch policies plainly do not. One final point: A similar House bill, H.R. 4596, has been objected to on the ground that it will disserve aging Holocaust survivors because it will create unrealistic expectations of recovery. Claims that were not successful before ICHEIC, the House bill's critics claim, are almost certain to fail in court. That is a debatable objection. It is, in any event, beside the point. Holocaust survivors and their descendants should be allowed to decide for themselves whether to file suit. Neither the executive branch nor the federal courts should make that decision for them.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to urge my colleagues to support and take up next Congress the bill I just introduced, the Restoration of Legal Rights for Claimants Under Holocaust-Era Insurance Policies. The bill would restore the right of Holocaust survivors and their descendants--many of them United States citizens--to maintain lawsuits in our courts to recover unpaid proceeds under Holocaust-era life insurance policies. Recent decisions of the federal courts about which I have spoken at length in prior floor statements and confirmation hearings have denied survivors and their descendants that right. The insurance policies at issue were issued to millions of European Jews before World War II. During the Nazi era, European insurers largely escaped their obligations under the policies--sometimes by participating with the Nazis in what one Supreme Court Justice has characterized as ``larcenous takings of gigantic proportions.'' [Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 430 (2003) (Ginsburg, J., joined by Stevens, Scalia, and Thomas, JJ., dissenting).] In the aftermath of World War II, insurers dishonored the policies for one shameful reason or another. The most shameful of them was that a claimant could not produce a death certificate of a deceased insured who had been murdered in a Nazi death camp. In the 1990s survivors turned, as a last resort, to the courts of the United States. Numerous suits were filed seeking compensation from European insurers for dishonoring Holocaust-era insurance policies during and especially after the War. Several States, for their part, attempted to facilitate recovery under unpaid policies by requiring insurers doing business in their States, as most did, to disclose information about those policies. European insures responded to these developments by agreeing to establish a private claims resolution process. Their agreement resulted in the establishment of a voluntary organization in 1998--formed by, among others, the insurers, the State of Israel, and State insurance commissioners in the United States known as the International Commission on Holocaust Era Insurance Claims, ICHEIC. ``The job of ICHEIC,'' according to the Supreme Court, ``include[d] negotiation with European insurers to provide information about unpaid insurance policies and the settlement of claims under them.'' [Garamendi, 539 U.S. at 407.] Many survivors and their descendants filed claims through ICHEIC. How fairly ICHEIC decided their claims remains a debated question. Testimony before Congress at least raises serious questions as to whether meritorious claims were denied. I do not wish to enter that debate today except to emphasize that ICHEIC was not a neutral, governmental adjudicatory body. It was, as then-Judge Michael Mukasey said, a ``an ad-hoc non- judicial, private international claims tribunal'' created, funded, and to a large extent controlled by the insurance companies--in short, again in Judge Mukasey's words, ``a company store.'' [In re Assicurazioni Generali, S.p.A Holocaust Ins. Litig., 228 F. Supp. 2d 348, 356-57 (S.D.N.Y. 2002).] I also wish to emphasize that by filing a claim through ICHEIC, a claimant did not waive his right to file suit. Only claimants who received payments under insurance policies did so. Despite the creation of ICHEIC, litigation continued in American courts. Foreign protests over the litigation led the United States to negotiate several executive agreements with foreign governments. Of these, the most important was the 2000 German Foundation Agreement. It obligated Germany to establish the German Foundation, which was funded by Germany and German companies, to compensate Jews ``who suffered'' various economic harms ``at the hands of the German companies during the National Socialist era.'' As for insurance claims in particular, the agreement obligated German insurers to address them through ICHEIC. Similar agreements between the United States and Austria and France followed. No agreement was reached, though, with Nazi German's principal ally, Italy. In negotiating the 2000 agreement, Germany sought immunity from suit--``legal peace'' as Germany calls it--in American courts for German companies. The United States refused to provide it, and could not have provided it, in my view, in the absence of a Senate-ratified treaty or some other such authoritative Congressional action. Instead the United States agreed only to the inclusion of a provision obligating the United States to file in any suit against a German company over a Holocaust-era claim a precatory statement informing the court that ``it would be in the foreign policy interests of the United States for the Foundation to be the exclusive forum and remedy for the resolution of all asserted claims against Germany companies arising from their involvement in the National Socialist era and World War II.'' The United States also agreed in any such filing to ``recommend dismissal on any valid legal ground (which, under the U.S. system of jurisprudence, will be for the U.S. courts to determine).'' The 2000 agreement makes explicit, however, that ``the United States does not suggest that its policy interests concerning the Foundation in themselves provide an independent legal basis for dismissal.'' But what the 2000 executive agreement expressly denied Germany companies--that is, immunity from suit--our federal courts have now given them at the urging of the executive branch. I refer first and foremost to the Supreme Court's much-criticized, five-to-four decision in American Insurance Co. v. Garamendi, 2003. The Court held there that the executive branch's foreign policy favoring the resolution of Holocaust-era insurance claims through ICHEIC preempted a California law requiring the disclosure of information about Holocaust-era insurance policies to potential claimants. It did not matter, the Court said, that the executive agreement said nothing whatsoever about preemption, let alone that no federal statute or treaty actually preempted disclosure statute's like California's. It was enough that the agreement embodied a general policy--reaffirmed over the years by statements by sub-cabinet officials--with which California's disclosure state could be said to conflict. Four Justices with very different views on executive power--Ginsburg, Scalia, Stevens, and Thomas-- dissented. While conceding the, questionable, argument that the President can under some circumstances preempt state law by executive agreement, they emphasized the obvious flaw in the Court's position on the facts at hand: The 2000 agreement says nothing about preemption. Insofar as it says anything on the subject, it actually disclaims any preemptive effect. On the authority of Garamendi, the Federal district court before which lawsuits to recover on policies issued by the Italian insurer Generali had been consolidated dismissed those suits as preempted. The court rejected the plaintiffs' argument that the suits could not be preempted because Italy and the United States had never entered into an executive agreement addressing claims against Italian insurers. Appeals to the Court of Appeals for the Second Circuit followed. While the appeals were pending, a class action settlement was reached and approved by the court under which most of the class members received nothing. The plaintiffs' lead counsel has said that Garamendi left them no choice but to settle. Several plaintiffs who opted out of the settlement nonetheless pressed on with the appeals. Early this year the Second Circuit affirmed the dismissal of their cases. [In re Assicurazioni Generali, S.P.A., 529 F.3d 113 (2d Cir. 2010).] The plaintiffs then asked the Supreme Court to hear their case by filing a petition for certiorari. They raised two main questions. Whether Garamendi preempts the generally applicable state common law under which the plaintiffs sought recovery, as opposed to the disclosure-specific law California enacted. Whether Garamendi should be read to preempt state-law claims in the absence of any executive agreement addressing those claims. Recall that Italy and the United States never entered into an executive agreement with which claims against Generali, an Italian insurer, could be said to conflict. A post-Garamendi decision of the Court, Medellin v. Texas, 2008, suggests that Garamendi cannot be so broadly read--that an executive-branch foreign policy can preempt state law only if it becomes law through the means prescribed by the Constitution or, in some limited class of cases at least, find expression in an executive agreement entered with Congress's acquiescence. Despite the importance of these questions and an apparent split among the lower courts in answering them, the Supreme Court denied certiorari. My legislation would achieve two narrow, but important, objectives: First, it would restore Holocaust survivors and their descendants to the legal position they occupied before Garamendi and Generali. Second, it would allow states to enforce the sort of disclosure laws at issue in Garamendi. With limited exceptions tailored to achieve these objectives, the legislation would otherwise leave undisturbed any defenses that insurers may have to Holocaust-era insurance claims, including the defense that they were settled and released through ICHEIC. Of equal significance, my legislation would vindicate two important Constitutional principles--one involving separation of powers, the other federalism. The principle of separation of powers is that the Constitution vests all lawmaking authority in Congress and none in the executive branch. The principle of federalism is that, under the Constitution's supremacy clause, Article VI, only the Constitution, Congressionally enacted law, and Senate-ratified treaties can preempt state law. Some executive agreements, if entered at least with Congress's acquiescence, arguably may also do so. But executive-branch policies plainly do not. One final point: A similar House bill, H.R. 4596, has been objected to on the ground that it will disserve aging Holocaust survivors because it will create unrealistic expectations of recovery. Claims that were not successful before ICHEIC, the House bill's critics claim, are almost certain to fail in court. That is a debatable objection. It is, in any event, beside the point. Holocaust survivors and their descendants should be allowed to decide for themselves whether to file suit. Neither the executive branch nor the federal courts should make that decision for them.

Mr. SPECTER. Mr. President, I have sought recognition to introduce the Designer Anabolic Steroid Control Act of 2010. This legislation was originally filed as an amendment, number 4693, to the FDA Food Safety Modernization Act S. 510, but did not receive a vote. Therefore, before the 111th Congress ends, I am introducing it as a stand-alone bill which may be taken up in another Congress. Anabolic steroids--masquerading as body building dietary supplements--are sold to millions of Americans in shopping malls and over the Internet even though these products put at grave risk the health and safety of Americans who use them. The harm from these steroid-tainted supplements is real. In its July 28, 2009 public health advisory, the FDA described the health risk of these types of products to include serious liver injury, stroke, kidney failure and pulmonary embolism. The FDA also warned: [A]anabolic steroids may cause other serious long-term adverse health consequences in men, women, and children. These include shrinkage of the testes and male infertility, masculinization of women, breast enlargement in males, short stature in children, adverse effects on blood lipid levels, and increased risk of heart attack and stroke. New anabolic steroids--often called designer steroids--are coming on the market every day, and FDA and DEA are unable to keep pace and effectively stop these products from reaching consumers. At the Senate Judiciary Subcommittee on Crime and Drugs hearing I chaired on September 29, 2009, representatives from FDA and DEA, as well as the U.S. Anti-Doping Agency, testified that there is a cat and mouse game going on between unscrupulous supplement makers and law enforcement--with the bad actors engineering more and more new anabolic steroids by taking the known chemical formulas of anabolic steroids listed as controlled substances in Schedule III and then changing the chemical composition just slightly, perhaps by a molecule or two. These products are rapidly put on the market--in stores and over the Internet--without testing and proving the safety and efficacy of these new products. There is no pre-notification to, or pre-market approval by, federal agencies occurring here. These bad actors are able to sell and make millions in profits from their designer steroids because while it takes them only weeks to design a new steroid by tweaking a formula for a banned anabolic steroid, it takes literally years for DEA to have the new anabolic steroid classified as a controlled substance so DEA can police it. The FDA witness at the hearing, Mike Levy, Director of the Division of New Drugs and Labeling Compliance, acknowledged that this is a ``challenging area'' for FDA. He testified that for FDA it is ``difficult to find the violative products and difficult to act on these problems.'' The DEA witness, Joseph T. Rannazzisi, Deputy Assistant Administrator for DEA, was even blunter. When I questioned him at the hearing, Mr. Rannazzisi admitted that ``at the present time I don't think we are being effective at controlling these drugs.'' He described the process as ``extremely frustrating'' because ``by the time we get something to the point where it will be administratively scheduled [as a controlled substance], there's two to three [new] substances out there.'' The failure of enforcement is caused by the complexity of the regulations, statutes and science. Either the Food Drug and Cosmetic Act, which provides jurisdiction for FDA, or the Controlled Substances Act, which provides jurisdiction for DEA, or both, can be applicable depending on the ingredients of the substance. Under a 1994 amendment to the Food Drug and Cosmetic Act, called the Dietary Supplement Health and Education Act, DSHEA, dietary supplements, unlike new drug applications, are not closely scrutinized and do not require Pre-market approval by the FDA before the products can be sold. Pre-market notification for dietary supplements is required only if the product contains new dietary ingredients, meaning products that were not on the U.S. market before DSHEA passed in 1994. If the FDA determines that a dietary supplement is a steroid, it has several enforcement measures available to use. FDA may treat the product as an unapproved new drug, or as an adulterated dietary supplement under the Food Drug and Cosmetic Act. Misdemeanor violations of the Food Drug and Cosmetic Act may apply, unless there is evidence of intent to defraud or mislead, a requirement for a felony charge. However, given the large number of dietary supplement products on the market, it is far beyond the manpower of the FDA to inspect every product to find, and take action against, those that violate the law-- as the FDA itself has acknowledged. The better enforcement route is a criminal prosecution under the Controlled Substances Act. However, the process to classify a new anabolic steroid as a controlled substance under Schedule III is difficult, costly and time consuming, requiring years to complete. Current law requires that to classify a substance as an anabolic steroid, DEA must demonstrate that the substance is both chemically and pharmacologically related to testosterone. The chemical analysis is the more straightforward procedure, as it requires the agency to conduct an analysis to determine the chemical structure of the new substance to see if it is related to testosterone. The pharmacological analysis, which must be outsourced, is more costly, difficult, and can take years to complete. It requires both in vitro and in vivo analyses, the latter is an animal study. DEA must then perform a comprehensive review of existing peer-reviewed literature. Even after DEA has completed the multi-year scientific evaluation process, the agency must embark on a lengthy regulatory review and public-comment process, which typically delays by another year or two the time it takes to bring a newly emerged anabolic steroid under control. As part of this latter process, DEA must conduct interagency reviews, which means sending the studies and reports to the Department of Justice, DOJ, the Office of Management and Budget, OMB, and the Department of Health and Human Services, HHS, provide public notification of the proposed rule, allow for a period of public comment, review and comment on all public comments, write a final rule explaining why the agency agreed or did not agree with the public comments, send the final rule and agency comments back to DOJ, OMB and HHS, and then publish the final rule, all in accordance with the Administrative Procedures Act. To date, under these cumbersome procedures, DEA has only been able to classify three new anabolic steroids as controlled substances and that process--completed only after the September 29, 2010 Senate Judiciary subcommittee hearing-- took more than 5 years to finish. It is clear that the current complex and cumbersome regulatory system has failed to protect consumers from underground chemists who easily and rapidly produce designer anabolic steroids by slightly changing the chemical composition of the anabolic steroids already included on Schedule III as controlled substances. The story of Jareem Gunter, a young college athlete who testified at the hearing, illustrates the system's failure. To improve his athletic performance four years ago, Jareem purchased in a nutrition store a dietary supplement called Superdrol, a product he researched extensively on the Internet and believed was safe. Unfortunately it was not. Superdrol contained an anabolic steroid which to this day is still not included in the list of controlled substances. After using Superdrol for just several weeks, Jareem came close to dying because this product--which he thought would make him stronger and healthier--seriously and permanently injured his liver. He spent four weeks in the hospital and has never been able to return to complete his college education. To close the loopholes in the present laws that allow the creation and easy distribution of deadly new anabolic steroids masquerading as dietary supplements, I am introducing today The Designer Anabolic Steroid Control Act of 2010. The bill simplifies the definition of anabolic steroid to more effectively target designer anabolic steroids, and permits the Attorney General to issue faster temporary and permanent orders adding recently emerged anabolic steroids to the list of anabolic steroids in Schedule III of the Controlled Substances Act. Under the bill, if a substance is not listed in Schedule III of the Controlled Substances Act but has a chemical structure substantially similar to one of the already listed and banned anabolic steroids, the new substance will be considered to be an anabolic steroid if it was intended to affect the structure or function of the body like the banned anabolic steroids do. In other words, DEA will not have to perform the complex and time consuming pharmacological analysis to determine how the substance will affect the structure and function of the body, as long as the agency can demonstrate that the new steroid was created or manufactured for the purpose of promoting muscle growth or causing the same pharmacological effects as testosterone. Utilizing the same criteria, the bill permits the Attorney General to issue a permanent order adding such substances to the list of anabolic steroids in Schedule III of the Controlled Substances Act. The bill also includes new criminal and civil penalties for falsely labeling substances that are actually anabolic steroids. The penalties arise where a supplement maker fails to truthfully indicate on the label--using internationally accepted and understandable terminology-- that the product contains an anabolic steroid. These penalties are intended to be substantial enough to take away the financial incentive of unscrupulous manufacturers, distributors, and retailers who might otherwise be willing to package these products in a way that hides the true contents from law enforcement and consumers. Finally, the bill adds 33 new anabolic steroids to Schedule III. These 33 anabolic steroids have emerged in the marketplace in the six years since Congress passed the Anabolic Steroid Control Act of 2004. The bill also instructs the United States Sentencing Commission to review and revise the Federal sentencing guidelines to ensure that sentences will be based on the total weight of the product when anabolic steroids are illegally manufactured or distributed in a tablet, capsule, liquid or other form that makes it difficult to determine the actual amount of anabolic steroid in the product. By making these changes, we can protect the health and lives of countless Americans and provide an effective enforcement mechanism to hold accountable those individuals and their companies which purposefully exploit the current regulatory system for their selfish gain. The Department of Justice has provided extensive technical assistance in the drafting of this bill over many months. In addition, this legislation is fully supported by the United States Olympic Committee, the National Football League, the United States Anti-Doping Agency, as well as by Supplement Safety Now, a coalition including all the major league sports teams, and other sports and medical associations. I urge my colleagues to take up this much-needed bill in the next Congress.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce the Designer Anabolic Steroid Control Act of 2010. This legislation was originally filed as an amendment, number 4693, to the FDA Food Safety Modernization Act S. 510, but did not receive a vote. Therefore, before the 111th Congress ends, I am introducing it as a stand-alone bill which may be taken up in another Congress. Anabolic steroids--masquerading as body building dietary supplements--are sold to millions of Americans in shopping malls and over the Internet even though these products put at grave risk the health and safety of Americans who use them. The harm from these steroid-tainted supplements is real. In its July 28, 2009 public health advisory, the FDA described the health risk of these types of products to include serious liver injury, stroke, kidney failure and pulmonary embolism. The FDA also warned: [A]anabolic steroids may cause other serious long-term adverse health consequences in men, women, and children. These include shrinkage of the testes and male infertility, masculinization of women, breast enlargement in males, short stature in children, adverse effects on blood lipid levels, and increased risk of heart attack and stroke. New anabolic steroids--often called designer steroids--are coming on the market every day, and FDA and DEA are unable to keep pace and effectively stop these products from reaching consumers. At the Senate Judiciary Subcommittee on Crime and Drugs hearing I chaired on September 29, 2009, representatives from FDA and DEA, as well as the U.S. Anti-Doping Agency, testified that there is a cat and mouse game going on between unscrupulous supplement makers and law enforcement--with the bad actors engineering more and more new anabolic steroids by taking the known chemical formulas of anabolic steroids listed as controlled substances in Schedule III and then changing the chemical composition just slightly, perhaps by a molecule or two. These products are rapidly put on the market--in stores and over the Internet--without testing and proving the safety and efficacy of these new products. There is no pre-notification to, or pre-market approval by, federal agencies occurring here. These bad actors are able to sell and make millions in profits from their designer steroids because while it takes them only weeks to design a new steroid by tweaking a formula for a banned anabolic steroid, it takes literally years for DEA to have the new anabolic steroid classified as a controlled substance so DEA can police it. The FDA witness at the hearing, Mike Levy, Director of the Division of New Drugs and Labeling Compliance, acknowledged that this is a ``challenging area'' for FDA. He testified that for FDA it is ``difficult to find the violative products and difficult to act on these problems.'' The DEA witness, Joseph T. Rannazzisi, Deputy Assistant Administrator for DEA, was even blunter. When I questioned him at the hearing, Mr. Rannazzisi admitted that ``at the present time I don't think we are being effective at controlling these drugs.'' He described the process as ``extremely frustrating'' because ``by the time we get something to the point where it will be administratively scheduled [as a controlled substance], there's two to three [new] substances out there.'' The failure of enforcement is caused by the complexity of the regulations, statutes and science. Either the Food Drug and Cosmetic Act, which provides jurisdiction for FDA, or the Controlled Substances Act, which provides jurisdiction for DEA, or both, can be applicable depending on the ingredients of the substance. Under a 1994 amendment to the Food Drug and Cosmetic Act, called the Dietary Supplement Health and Education Act, DSHEA, dietary supplements, unlike new drug applications, are not closely scrutinized and do not require Pre-market approval by the FDA before the products can be sold. Pre-market notification for dietary supplements is required only if the product contains new dietary ingredients, meaning products that were not on the U.S. market before DSHEA passed in 1994. If the FDA determines that a dietary supplement is a steroid, it has several enforcement measures available to use. FDA may treat the product as an unapproved new drug, or as an adulterated dietary supplement under the Food Drug and Cosmetic Act. Misdemeanor violations of the Food Drug and Cosmetic Act may apply, unless there is evidence of intent to defraud or mislead, a requirement for a felony charge. However, given the large number of dietary supplement products on the market, it is far beyond the manpower of the FDA to inspect every product to find, and take action against, those that violate the law-- as the FDA itself has acknowledged. The better enforcement route is a criminal prosecution under the Controlled Substances Act. However, the process to classify a new anabolic steroid as a controlled substance under Schedule III is difficult, costly and time consuming, requiring years to complete. Current law requires that to classify a substance as an anabolic steroid, DEA must demonstrate that the substance is both chemically and pharmacologically related to testosterone. The chemical analysis is the more straightforward procedure, as it requires the agency to conduct an analysis to determine the chemical structure of the new substance to see if it is related to testosterone. The pharmacological analysis, which must be outsourced, is more costly, difficult, and can take years to complete. It requires both in vitro and in vivo analyses, the latter is an animal study. DEA must then perform a comprehensive review of existing peer-reviewed literature. Even after DEA has completed the multi-year scientific evaluation process, the agency must embark on a lengthy regulatory review and public-comment process, which typically delays by another year or two the time it takes to bring a newly emerged anabolic steroid under control. As part of this latter process, DEA must conduct interagency reviews, which means sending the studies and reports to the Department of Justice, DOJ, the Office of Management and Budget, OMB, and the Department of Health and Human Services, HHS, provide public notification of the proposed rule, allow for a period of public comment, review and comment on all public comments, write a final rule explaining why the agency agreed or did not agree with the public comments, send the final rule and agency comments back to DOJ, OMB and HHS, and then publish the final rule, all in accordance with the Administrative Procedures Act. To date, under these cumbersome procedures, DEA has only been able to classify three new anabolic steroids as controlled substances and that process--completed only after the September 29, 2010 Senate Judiciary subcommittee hearing-- took more than 5 years to finish. It is clear that the current complex and cumbersome regulatory system has failed to protect consumers from underground chemists who easily and rapidly produce designer anabolic steroids by slightly changing the chemical composition of the anabolic steroids already included on Schedule III as controlled substances. The story of Jareem Gunter, a young college athlete who testified at the hearing, illustrates the system's failure. To improve his athletic performance four years ago, Jareem purchased in a nutrition store a dietary supplement called Superdrol, a product he researched extensively on the Internet and believed was safe. Unfortunately it was not. Superdrol contained an anabolic steroid which to this day is still not included in the list of controlled substances. After using Superdrol for just several weeks, Jareem came close to dying because this product--which he thought would make him stronger and healthier--seriously and permanently injured his liver. He spent four weeks in the hospital and has never been able to return to complete his college education. To close the loopholes in the present laws that allow the creation and easy distribution of deadly new anabolic steroids masquerading as dietary supplements, I am introducing today The Designer Anabolic Steroid Control Act of 2010. The bill simplifies the definition of anabolic steroid to more effectively target designer anabolic steroids, and permits the Attorney General to issue faster temporary and permanent orders adding recently emerged anabolic steroids to the list of anabolic steroids in Schedule III of the Controlled Substances Act. Under the bill, if a substance is not listed in Schedule III of the Controlled Substances Act but has a chemical structure substantially similar to one of the already listed and banned anabolic steroids, the new substance will be considered to be an anabolic steroid if it was intended to affect the structure or function of the body like the banned anabolic steroids do. In other words, DEA will not have to perform the complex and time consuming pharmacological analysis to determine how the substance will affect the structure and function of the body, as long as the agency can demonstrate that the new steroid was created or manufactured for the purpose of promoting muscle growth or causing the same pharmacological effects as testosterone. Utilizing the same criteria, the bill permits the Attorney General to issue a permanent order adding such substances to the list of anabolic steroids in Schedule III of the Controlled Substances Act. The bill also includes new criminal and civil penalties for falsely labeling substances that are actually anabolic steroids. The penalties arise where a supplement maker fails to truthfully indicate on the label--using internationally accepted and understandable terminology-- that the product contains an anabolic steroid. These penalties are intended to be substantial enough to take away the financial incentive of unscrupulous manufacturers, distributors, and retailers who might otherwise be willing to package these products in a way that hides the true contents from law enforcement and consumers. Finally, the bill adds 33 new anabolic steroids to Schedule III. These 33 anabolic steroids have emerged in the marketplace in the six years since Congress passed the Anabolic Steroid Control Act of 2004. The bill also instructs the United States Sentencing Commission to review and revise the Federal sentencing guidelines to ensure that sentences will be based on the total weight of the product when anabolic steroids are illegally manufactured or distributed in a tablet, capsule, liquid or other form that makes it difficult to determine the actual amount of anabolic steroid in the product. By making these changes, we can protect the health and lives of countless Americans and provide an effective enforcement mechanism to hold accountable those individuals and their companies which purposefully exploit the current regulatory system for their selfish gain. The Department of Justice has provided extensive technical assistance in the drafting of this bill over many months. In addition, this legislation is fully supported by the United States Olympic Committee, the National Football League, the United States Anti-Doping Agency, as well as by Supplement Safety Now, a coalition including all the major league sports teams, and other sports and medical associations. I urge my colleagues to take up this much-needed bill in the next Congress.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to recognize MAJ Lance Burnett's service to his country and as an Air Force fellow on my staff. Major Burnett joined my office through the Congressional Fellows Program. Over the past year, he has been an invaluable addition to my staff. He has demonstrated an expertise with military policy issues and built close relationships both within the office and on Capitol Hill. As a member of my staff, Major Burnett has been closely involved in a number of policy areas. He has assisted with the defense appropriations process, liaised with the Veterans Affairs Committee, and coordinated congressional delegations. He has served as an adviser on issues relating to the armed services to me and my staff, adding invaluable perspective. He has exemplified the Air Force values of ``Integrity First, Service before Self, and Excellence in All We Do'' through his work. The Air Force has recognized his service through his selection for promotion to the rank of lieutenant colonel on August 26, 2010. Major Burnett hails from Cameron, TX. He received his bachelor of science degree from Texas A&M University and his commission from the Air Force Officer and Training School. Since earning his flight wings in 1998, Major Burnett has become a senior navigator, completing over 2,800 flight hours of with 613 hours of them in combat. Major Burnett has served as an instructor and evaluator navigator in both the Air Mobility Command and the Air Force Special Operations Command, flying support missions for Operations Southern Watch, Joint Forge, Joint Endeavor, Enduring Freedom, Iraqi Freedom, as well as numerous counternarcotics missions in South America. Prior to being accepted into the Congressional Fellows Program, Major Burnett was the MC-130E/H standardization and evaluation branch chief at Headquarters Air Force Special Operations Command where he was responsible for all 30 MC-130E Combat Talon and MC-130H Combat Talon II aircraft in the USAF inventory and their associated 390 aircrew members. He has been honored with the Meritorious Service Medal, the Air Medal with six Oak Leaf Clusters, the Air Force Commendation Medal, the Air Force Combat Action Medal, and the 2006 General P.K. Carlton Award for Valor. Major Burnett and his wife Andrea have two children, Peyton and Andrew. I would like to pay a special tribute to Major Burnett's tremendous public service and recognize his work on behalf of Pennsylvanians.

Mr. SPECTER

Mr. SPECTER. Mr. President, I had spoken about this when we reconvened several weeks ago, that it is my hope that Congress, the Senate specifically, will take up legislation which I have introduced which would authorize the use of Federal funding for embryonic stem cell research. Embryonic stem cell research holds enormous potential. You take the embryos which are the most flexible of all of the stem cells and they can replace diseased parts of the body and they offer promise of a veritable fountain of youth. The U.S. District Court for the District of Columbia said the Executive order issued by President Obama was invalid. But Congress has the authority to legislate to cure any defect. The case is on appeal to the circuit court, and a stay has been issued. But the scientists are very apprehensive, as they testified before the Labor, Health and Human Services Subcommittee. There are some 200 projects with some $200 million involved. It is not a constitutional matter. It is a matter of statutory interpretation on the existing statute. But to the extent there is any ambiguity, this is something which we ought to address and we ought to address promptly because it is a life-and-death matter. As long as the litigation is pending in the Federal court, the scientists do not know which way to turn. So they have made their point very clear. The case could go on for a very protracted period of time when you have to file briefs, have argument, and a decision in the Court of Appeals for the District of Columbia. Then a possible petition for certiorari could take a matter of years. With the ideological issues involved, who knows what the final outcome would be in the judicial system. But that can all be put to rest by legislation.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition principally to urge my colleagues to ratify the START treaty with Russia. I ask unanimous consent at the outset that the text of a memorandum from Senator Jon Kyl and Senator Bob Corker, two Republican Members, dated November 24, 2010, regarding progress in defining nuclear modernization requirements be printed in the Record at the conclusion of my statement.

Mr. SPECTER. I urge my colleagues to move ahead with the prompt ratification of this treaty. I have long been interested in the relationship between the United States and the Soviet Union, predecessor to Russia, on the issue of arms control, going back to my college days as a student of international relations. One of the first items which attracted my concern on election to the Senate was a Saturday speech made by then-President Reagan where he said essentially that the United States had sufficient weapons to destroy the Soviet Union and, similarly, the Soviet Union had sufficient weapons to destroy the United States. For decades, the two countries lived under the truce, so to speak, of mutual assured destruction. That has given way to arms control negotiations and the successful negotiation of treaties. For example, the START I treaty in 1992 was approved by a margin of 93 to 6. The START II treaty of 1996 was approved by a margin of 87 to 4. The Moscow Treaty of 2003 was approved by a vote of 98 to nothing. The memorandum I have referenced raises a number of concerns which I submit to my colleagues ought not to stop us from moving ahead with ratification. For example, the memorandum makes this point on page 5: Additional funding could be applied to accelerate the construction of these facilities to ensure on schedule completion. . . . Well, there is no showing of a problem on on-schedule completion. To talk about ``additional funding could be applied'' is far from saying it is necessary for our national security. The memorandum further says: Further Administration effort to advance funding is the best path to successful completion of these facilities. Well, here again, there is no showing that advance funding is necessary for successful completion. It simply says it ``is the best path to successful completion of these facilities,'' but no showing that the current path is not an adequate path. The memorandum, in another spot, makes this statement: . . . the NNSA is reviewing an updated surveillance plan that could lead to greater budget requirements. ``Could.'' It does not say it would lead to greater budget requirements, and what is speculative as to what could happen ought not to be taken as any reason for objecting to the ratification. Still later in the memorandum there is the statement: . . . there are still no costs or funding commitments beyond FY 2015. Well, that is not surprising when we are in the year 2010. Adequate time to consider and make commitments beyond 2015 is hardly a reason not to move ahead with ratification. Then, on page 5, under the category of ``Conclusion,'' there is a statement about ``assurances from the appropriate authorizers and appropriators must be obtained to ensure that the enacted budget reflects the President's request.'' Well, that is unrealistic. There is no way to get assurances from authorizers--that is referring to the Armed Services Committee--or the appropriators, specifically the Defense Appropriations Subcommittee, a subcommittee on which I have served during my tenure. When you talk about getting assurances from legislators, from Senators, from Members of the House of Representatives, that, simply stated, is unrealistic, I submit. The concerns I had in the early days of my tenure in the Senate led me to propose a resolution for a summit meeting which was contested by Senator Tower, who was then-chairman of the Armed Services Committee. On this floor--I can still see Senator Tower on the end seat in the third row back and I in the junior league my first couple of years in the Senate. Senator Tower was a tough advocate. We had quite a protracted debate about the triad. I had done my homework. I had been to Grand Forks, ND, and seen the Minuteman II. It was my first experience seeing a nuclear weapon, and it was quite a sight. I recall looking down an open space--I think it went close to 100 feet, perhaps 90 feet; I would not affirm exactly what it was--and seeing the Minuteman II, and that was, in effect, small potatoes compared to what we have had since. I went to the Air Force base in California to look at the B bomber, the B-1 or the B-2 at that time, and to South Carolina to Charleston to see the nuclear submarines. I had quite a debate with Senator Tower as to whether the subs were detectable, which bore on the issue of whether we had sufficient strength, and the tabling motion was defeated on a vote of 60 to 38. I recall Senator Laxalt walking down the aisle and voting no and starting to head for the Republican cloakroom, and Senator Tower walked fast, chasing him up the aisle, and said: You don't understand, Paul, this is a tabling motion. I am looking for an ``aye.'' And Laxalt turned and said: I understand what you are after, John, but I agree with Arlen Specter. Senator Tower said: He is trying to tell the President what to do. Senator Laxalt said: Well, so is everybody else--really, in effect, saying that is what Senators do from time to time, just expressing their opinions. The tabling motion was defeated 60 to 38, and the resolution was adopted 90 to 8. There has been a lot of unease and consternation among foreign nations as to what is going on in the Senate. I do not question the motives of the writers of the memorandum. I do not question their motives or their good faith. But there is considerable concern both at home and abroad as to the gridlock which now confronts the Senate. That is inevitable when one Senator says: We are going to see to it that this is President Obama's Waterloo, and when leadership on the other side of the aisle says: Our principal objective is to defeat President Obama in 2012. There is a concern about what is happening, whether there are really bona fide objections to the START talks. In connection with the travels I have undertaken during the course of the past many months--in India, with a congressional delegation, a group of us met with the Prime Minister of India, a concern about agreements made with our executive branch, whether they will be upheld; a meeting with officials in China on certain trade issues; talking to leaders in other foreign countries, a real question about what is going on in the government of the United States. In this interdependent world, I suggest it is very important we project a national image, a national posture of rationality in what we are doing and not to throw up roadblocks to international agreements such as START without good reason in the context where at least in appearances there is obstructionism. When we talk about risks involved, my own view is that we are far at this point from a threat with the Russian Government. This is not the day of the Cuban missile crisis in 1962 when the world may have teetered on the edge of a nuclear confrontation. The relations with the Soviet Union were disintegrated. The relations with Russia are vastly improved, and we need the cooperation of Russia in dealing with many very vexing international problems, paramount of which is our dealings with Iran and the need to have the Russians join us in sanctions against Iran and to promote the Russian offer to enrich the uranium from Iran so they do not enrich it themselves, posing a threat with what Iran would do with enriched uranium--a threat which is not present if it is not in Iran's hands when uranium is enriched, which could be used for peaceful purposes. We see today the importance of the cooperation of China in the concerns we have with North Korea. When that problem broke last week, my first comment publicly in a television interview on MSNBC was to state what was the obvious: that we had to engage China to deal with North Korea. China's initial comments were muted, were not very encouraging. I am pleased to see the most recent reports are that China is moving ahead to try to deal with a threat posed by North Korea, having shuttle talks between North Korea and South Korea. So it is in this overall context of having the assurances registered with foreign governments that there is rationality. When we talk about risks, my own assessment--and I have studied this situation closely. I was a member of the U.S. arms talks in Geneva going back into 1987, during that decade and beyond. But the risks are not what they once were. It is never possible to eliminate risks entirely, but when we are looking to evaluate the balance of risks and international cooperation with Russia and our conduct on START, as we project an image of strength with other countries, the risk is well worth taking to the extent that it exists. Again, I say my own evaluation is that there is not much of a risk involved. The Washington Post, last Friday, November 26, quoted one of the authors of the memorandum expressing satisfaction: I've come to the conclusion that the administration is intellectually committed to modernization now. . . .Whether they're committed in the heart is another matter. Suppose Start is ratified, and they no longer have to worry about that? Will they continue to press for the money? Well, if we concede there is a commitment, be it an intellectual commitment, there is not a whole lot more that we can ask for.

Mr. SPECTER

Mr. SPECTER. I thank the Chair and yield the floor.

Mr. SPECTER. One other point briefly--I see a colleague awaiting an opportunity to speak--and that is my hope we will address, before the end of the year, the issue of televising the proceedings of the Supreme Court of the United States. This is an issue I have worked on, on the Judiciary Committee, for a couple decades now. It has been reported a number of times out of committee. It is currently on the Senate agenda. The Supreme Court of the United States decides all of the cutting edge questions. There ought to be transparency. When the case of Bush v. Gore was argued, then-Senator Biden and I wrote to the Chief Justice urging that the proceedings be televised. We got a response back in the negative, but on that day there was a simultaneous audio released. I noticed 2 weeks ago that on C-SPAN there was a Supreme Court argument which was a couple weeks old with an audio, and they had a picture of the Justice who was speaking and a picture of the lawyer arguing the case--sort of like movies before talking; sort of like silent movies. There was an audio. It is high time the public's business be open. Newspaper reporters can walk into the Supreme Court, make notes, upheld by the Supreme Court of the United States. Visitors are limited to some 3 minutes. The chambers can only hold about 250 people. It is time the Court was televised. I hope the Senate will act. I have discussed the issue with the leadership in the House and there are positive responses on the issue. Exhibit 1 From: Sen. Jon Kyl, Sen. Bob Corker To: Republican Members Date: November 24, 2010 Re: Progress in Defining Nuclear Modernization Requirements We appreciate your willingness to consider New START in the context of modernization of our nuclear complex and the weapons it supports. In advance of having an opportunity to discuss the issue more fully next week in Washington, we want to summarize the status of our discussions with the administration. Summary Throughout the Obama administration's pursuit of a New START treaty, we have been clear, as has Secretary Gates, that we could not support reductions in U.S. nuclear forces unless there is adequate attention to modernizing those forces and the infrastructure that supports them. The Administration's recent update of the 1251 plan, originally submitted in May in accordance with Section 1251 of the FY2010 NDAA, is an acknowledgment that more resources we needed to accomplish the objectives set forth in the Nuclear Posture Review for the modernization of the U.S. nuclear deterrent. This memo discusses our concerns with the original 1251 plan, changes made and our assessment of those changes and remaining issues. Background--the Decline of the Nuclear Weapon Stockpile and Infrastructure Since the end of the Cold War, the U.S. nuclear weapons infrastructure (including laboratories, production facilities and supporting capabilities) has been allowed to deteriorate. The weapons have remained safe, secant and reliable, but they and their caretakers have been in a state of limbo--only when critical problems have arisen has action been taken. The production facilities are Cold War relics, safety and security costs have grown exponentially, and critical skills have been jeopardized through layoffs, hiring freezes, and the retirement of skilled scientists and technicians who earlier were able to fully exercise the full set of nuclear weapons-related skills. In FY2010, the Ohama administration invested only $6.4 billion in the National Nuclear Security Administration Weapons Activities funding line, a 20 percent loss in purchasing power from FY2005 alone. It is no longer possible to continue deferring maintenance of either the facilities or the weapons. As a result, the 2010 Nuclear Posture Review set forth a broad range of modernization and sustainment requirements that would be impossible without additional budget support. A detailed explanation of these concepts is located in the appendix to this memo; but to help understand the current situation, imagine an automotive expert working in a garage built in 1942. The roof leaks and his tools are becoming outdated. Moreover, he has responsibility for a fleet of eight racing Ferraris, which have been sitting in storage for about 30 years. The last time any engine was turned on was 1992, but this ``steward'' is responsible for assuring that, at any given moment, each of the eight finely-tuned cars will respond to the key turn. To do this, he is allowed to assess components of the cars for aging--leaks, cracks, rust, etc. (though he isn't able to look at the components often enough and in sufficient detail because of his maintenance budget). Even on a shoe-string budget, he is beginning to see signs of age throughout the fleet, and realizes that each and every car will require a complete overhaul (a ``life extension'' program). To be successful, he needs a new garage, updated tools, and skilled assistants (because truthfully, the expert will be retiring long before the overhauls are complete, assuming his pension fund is still solvent). He will have to replace some of the parts (especially the electronics--some of his fleet of Ferraris still have vacuum tubes), because they just aren't available anymore; but some parts will have to be reused, or manufactured to be as close to the original as possible. Some of the original parts contained materials that are now illegal for safety or environmental reasons. To add to the problem, the owner is asking for air bags, anti- lock brakes and anti-theft technology. Each overhaul will take about a decade, from planning through execution and without a new garage, he will be unable to finish the overhauls on time. And at the end of the day, the mechanic is fairly certain that he will not be allowed to turn the ignition to check his work. This is the state of our nuclear deterrent today, except, we're dealing not with cars, but with the most sophisticated and dangerous weapons ever devised by man. Section 1251 Plan and FY2011 Budget--A Response to the Nuclear Posture Review The initial section 1251 report showed a ten-year budget plan for Weapons Activities totaling $80 billion. But most of that $80 billion is not directed at modernization activities called for in the NPR--it is mostly consumed in ``keeping the lights on'' at the laboratories and plants, including safety, security, facility upkeep (which is difficult on very old facilities that would have been replaced long ago in the private sector), and routine warhead maintenance. Only about $10 billion of that ten year number was for new weapons activity, about half of it coming from DOD and half from ``savings'' assumed from low inflation projections. We doubt such savings can be realized and the DOD funding is not enough to cover everything that needs to be done. It provides for a small increase to stockpile surveillance for warhead evaluation, funding for the W76 life extension program and the B61 and W78 life extension studies, and partial funding for badly-needed design, engineering and a modest investment for construction of new plutonium and uranium processing facilities--the Chemistry and Metallurgy Research Replacement (CMRR) nuclear facility and the Uranium Processing Facility (UPF). These new facilities will replace Manhattan Project- era buildings that are a substantial maintenance burden and are becoming increasingly challenging to maintain in a safe and operable condition. Recognizing that more money was needed up front, the administration's FY2011 budget request of $7.0 billion for Weapons Activities improved the FY2010 budget by $624 million. The $624 million was included as a budget ``anomaly'' in the two month C.R. we passed before the October recess, but will have to be maintained in the longer-term C.R. or Omnibus we will pass in December. The initial 1251 plan left a lot of questions about how all the work articulated in the NPR would be funded. Numerous experts expressed concerns about obvious shortfalls in funding and about restrictions placed on designers that will constrain their ability to work through stockpile issues. The funding levels for CMRR and UPF were of significant concern, as was the funding for Life Extension Programs--especially to incorporate improved safety, security and reliability in these warheads. And of great concern to the directors of the national weapons laboratories, much of the promised budget increase for modernization was not pledged until FY 16, by which point the Administration's commitment (if it is still in office) may have waned. As a result, we requested an update to the 1251 plan that would answer the questions we raised and that would show a stronger commitment to modernization. Undated 1251 Plan Atter reviewing our questions, and with further review of the requirements imposed by the NPR, the Administration agreed that updated budgets were required. Thus, on November 17, 2010, an updated 1251 report was provided to the Senate, including an early FY12 budget projection with White House approval. The 1251 update, and the briefing provided as part of the update, satisfied many, but not all, of the initial questions we had earlier expressed. The 1251 plan update increases the FY2012 budget request by an additional $600 million, increases the FY2012 five-year plan by $4.1 billion, and adds to the total FY11 ten-year plan between $5.4 and $62 billion. We are told that the new increases will not be taken from the DOD budget line. This update brings the ten-year plan (from FY11) to between $85.4 and $86.2 billion. Again, approximately $70 billion of the original pledge of $80 billion was needed just to maintain current operations of the nuclear weapons complex, without covering the expense of the needed modernization of the stockpile or infrastructure. This update also includes revised cost estimates for CMRR and UPF; those estimates now range from $3.7 to $5.8 billion for CMRR and $4.2 to $6.5 billion for UPF. The new $4.1 billion for the five years of the FY2012 FYNSP is divided as follows: $340 million for design and engineering and modest construction activity for CMRR and UPF (see below for more detail); $1.7 billion (approximately) for other facility construction and maintenance requirements, including the High Explosive Pressing Facility at Pantex and test facilities at Sandia National Laboratories; $1.0 billion (approximately) for stockpile work, with added funding for life extension programs, stockpile surveillance and other design and research activities, though some of this funding ($255 million for the W76) is only needed because one life extension program will take longer due to the capacity bottleneck in the complex; $1.1 billion for contractor pension obligations spread through Weapons Activities accounts (which, while needed, does not support modernization). Remaining Concerns Despite this new increase, there remain a few substantial concerns about the adequacy of the proposed budget. For one, the Administration is attempting to address the enormous increases in the cost estimates for CMRR and UPF by delaying the full operation of those facilities by one to two years. This would stretch the final completion of CMRR to 2023 and UPF to 2024, although the Administration states that some operational capability would be established (as required) in 2020. If extended, hundreds of millions of dollars would be needed annually to maintain Manhattan Project-era facilities at LANL & Y-12. Additional funding could be applied to accelerate the construction of these facilities to ensure on schedule completion and prevent wasted investments in maintaining an securing facilities that are being replaed anyway. Furthermore, the Administration is ignoring the benefits of ensuring funding commitments for these facilities early in the budget process. Responsible advance funding mechanisms exist, such as a FY12 request for three-year rolling funding (recommended by some NNSA budget specialists), or alternatively, an Administration commitment to seek advanced funding in FY13 following the completion of the 90 percent design cost estimate. Further Administration effort to advance funding is the best path to successful completion of these facilities. Given the need to live with our currently aging stockpile until an adequate production capability is established (after 2020), accurate assessment of the state of the current stockpile is paramount. The 1251 plan update shows a doubling of surveillance funding from FY09 to FY11--which is commendable--but is our understanding that the NNSA is reviewing an updated surveillance plan that could lead to greater budget requirements. NNSA should affirm that this review has been completed and the budget request will reflect updated requirements. Finally, the 1251 update made clear that NNSA will not restore a production capability adequate to maintain our current stockpile levels (declassified as 5,113 weapons total), and instead allow up to 1,500 warheads to be retired or held with no maintenance unless funding increases are sought and obtained. Failing to maintain hedge weapons will increase the risk that the U.S. cannot respond to a problem in our aging stockpile. The Administration should not engage in further cuts to our deployed or non-deployed stockpile without first determining if such cuts are in our national security interest and then obtaining corresponding reductions in other nations' nuclear weapons stockpiles, such as Russia's large stockpile of weapons not limited by New START (e.g., its tactical nuclear weapons). Modernization of U.S. strategic delivery systems The 1251 update deals not only with our nuclear weapons, but the delivery systems that are part of our TRIAD. The update indicates somewhat clearer intent by the Administration to pursue a follow-on heavy bomber (though not specifically nuclear) and air-launched cruise missile (ALCM), though development costs beyond FY 2015 are yet to be determined. While the update notes that estimated costs for a follow-on bomber for FY 2011 through FY 2015 are $1.7 billion, there are still no costs or funding commitments beyond FY 2015. It is the same for the ALCM: $800 million programmed over the FYDP, but no cost estimates are included beyond FY 2015. We should have a better idea of these estimated costs over the full ten years of the 1251 plan, and know whether the Administration intends to make this new heavy bomber and ALCM nuclear capable. Decision-making for an ICBM follow-on is unlikely before FY 2015, at the completion of an ongoing analysis of alternatives. The update notes: ``While a decision on an ICBM follow-on is not needed for several years, preparatory analysis is needed and is in fact now underway. This work will consider a range of deployment options, with the objective of defining a cost-effective approach for an ICBM follow-on that supports continued reductions in U.S. nuclear weapons while promoting stable deterrence.'' (emphasis added) We think it important to understand what the Administration intends when it suggests that a decision regarding a follow- on ICBM must be guided, in part, by whether it ``supports continued reductions'' in U.S. nuclear weapons--especially since we seriously doubt it's in our interests to pursue reductions beyond the New START treaty. One logical inference from this criterion is that a follow-on ICBM is no longer needed because the U.S. is moving to drastically lower numbers of nuclear weapons. We continue to press for a letter from the DOD confirming its commitment to follow-on nuclear- capable delivery systems. Conclusion Until these issues are resolved, it will be difficult to adequately assess the updated 1251 plan, despite the welcome increases in proposed spending. And as has always been clear, assurances from the appropriate authorizers and appropriators must be obtained to ensure that the enacted budget refledcts the President's request. appendix Briefly, some of the stockpile programs most affected by the lack of Administration support for modernization include: Replacing Manhattan Project-era Facilities: Since the closure of the Rocky Flat Plant in 1989, the U.S. has had only a limited capability to produce the core component of our stockpile weapons: the plutonium pit. To establish a pit production capability, a 60-year-old research laboratory must be replaced by the Chemistry and Metallurgy Research Replacement (CMRR) nuclear facility at Los Alamos. Likewise, producing uranium components at the 70-year-old facility at Y-12 in Oak Ridge is an increasing risk that requires construction of a new Uranium Processing Facility (UPF). Completion of these new facilities will be essential in meeting life extension program requirements starting in 2020. Production Capacity: As Secretary Gates stated, ``Currently, the United States is the only declared nuclear power that is neither modernizing its nuclear arsenal nor has the capability to produce a new nuclear warhead.'' The United States requires a nuclear weapon production capability with sufficient capacity to satisfy the life extension requirement of our aging weapons, as well as to provide a ``hedge'' against future technical or political problems. Currently, we are limited to producing a handful of plutonium pits a year for one weapon, but are unprepared to produce most of the remaining pieces of that weapon. Modernization of the NNSA laboratories and plants is required to correct this issue, with the stated goal of establishing a ``capability-based'' production capacity. Without this capacity, there can be no stockpile reductions. In fact, General Chilton argues the stockpile might have to be increased: ``I would say because of the lack of a production capacity there's a fear that you might need to increase your deployed numbers because of the changing and uncertain strategic environment in the future.'' Life Extension Programs: Under current policy, the laboratories and plants are constrained to extending the life of existing warheads to keep them in the stockpile for much longer than originally expected. Thus, as the weapons age and concerns are observed, the laboratories and plants determine how best to repair the weapons. Aging components are replaced, remanufactured or inspected for reuse in the stockpile. In performing life extension for the W87 and the ongoing W76, our experts have discovered that it is very difficult to reconstitute processes and capabilities that have been allowed to atrophy. Currently, the W76 warhead is in LEP production, the B61 LEP study is underway and the NPR called for an FY2011 start to a W78/W88 LEP study that will research if the two warheads can be life-extended simultaneously. Surveillance: The average age of our current nuclear weapons is approaching 30 years. To ensure that each warhead remains reliable, each year approximately 11 warheads per type should be returned from the military for dismantlement and evaluation. Components are inspected and tested to ensure reliable operation. This program aids in the annual assessment of the stockpile performed by the laboratories and is the lead mechanism for identifying potential stockpile issues. Due to inadequate funding, surveillance requirements have not been met for many years, raising concerns about confidence in the stockpile. Deferring Maintenance, Creating Chokepoints: In addition to the CMRR and UPF construction projects to replace aging facilities, a significant number of buildings in our laboratories and plants have been accumulating a backlog of maintenance. This deferred maintenance creates a substantial number of facilities that could (and occasionally do) become a choke point in the progress of a life extension program. Maintenance can only be deferred for so long, until, eventually, something breaks; and when it does break, it is usually much more expensive to replace than routine maintenance would have cost. Reducing deferred maintenance is a demonstration that we are moving from a nuclear weapons complex in decline, to a revitalized and robust capability. Critical Skills: Perhaps the most significant attribute of a strong deterrent is the scientific and technical capability that is present in our laboratories and military complex. Maintaining those skills, especially as most nuclear-test experienced weapon designers are past retirement age, is a growing challenge within the NNSA laboratories and plants. Hedging: Without a robust production capability, the U.S. maintains a large non-deployed stockpile as a technical hedge against stockpile concerns and a political hedge that allows rapid upload should another nation become increasingly adversarial. With the technical hedge, if one weapon type were discovered to have an urgent issue requiring replacement, alternate components in the force structure theoretically could be used to compensate for that loss of capability. For example, W78 warheads on Minuteman III might be replaced by W87 warheads maintained in storage, and vice- versa. Delivery Systems: Nuclear weapon delivery systems require replacement within the next thirty years. These systems include: The B-52H bomber, first deployed in 1961 and scheduled to be sustained through 2035; The B-2 penetrating bomber, deployed in 1993 is currently being updated for long-term sustainment; The Air-Launched Cruise Missile (ALCM), deployed in 1981 and scheduled to be sustained through 2030; The Minuteman III ICBM, deployed in 1970, undergoing life extension and scheduled for replacement by 2030; And the ballistic missile submarines and missiles. Ohio- class SSBNs were first deployed in 1981 and commence retirement in 2027. The Trident II Submarine Launched Ballistic Missile (SLBM), deployed in 1990, will be sustained through at least 2042, following a life extension.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to speak in favor of my amendment No. 4693 to the FDA Food Safety Modernization Act S.510 to permit emergency scheduling of designer anabolic steroids. Anabolic steroids--masquerading as body building dietary supplements--are sold to millions of Americans in shopping malls and over the Internet even though these products put at grave risk the health and safety of Americans who use them. The harm from these steroid-tainted supplements is real. In its July 28, 2009, public health advisory, the FDA described the health risk of these types of products to include serious liver injury, stroke, kidney failure and pulmonary embolism. The FDA also warned: [A]anabolic steroids may cause other serious long-term adverse health consequences in men, women, and children. These include shrinkage of the testes and male infertility, masculinization of women, breast enlargement in males, short stature in children, adverse effects on blood lipid levels, and increased risk of heart attack and stroke. New anabolic steroids--often called designer steroids--are coming on the market every day, and FDA and DEA are unable to keep pace and effectively stop these products from reaching consumers. At the Senate Judiciary Subcommittee on Crime and Drugs hearing I chaired on September 29, 2009, representatives from FDA and DEA, as well as the U.S. Anti-Doping Agency, testified that there is a cat and mouse game going on between unscrupulous supplement makers and law enforcement--with the bad actors engineering more and more new anabolic steroids by taking the known chemical formulas of anabolic steroids listed as controlled substances in schedule III and then changing the chemical composition just slightly, perhaps by a molecule or two. These products are rapidly put on the market--in stores and over the Internet--without testing and proving the safety and efficacy of these new products. There is no prenotification to, or premarket approval by, Federal agencies occurring here. These bad actors are able to sell and make millions in profits from their designer steroids because while it takes them only weeks to design a new steroid by tweaking a formula for a banned anabolic steroid, it takes literally years for DEA to have the new anabolic steroid classified as a controlled substance so DEA can police it. The FDA witness at the hearing, Mike Levy, Director of the Division of New Drugs and Labeling Compliance, acknowledged that this is a ``challenging area'' for FDA. He testified that for FDA it is ``difficult to find the violative products and difficult to act on these problems.'' The DEA witness, Joseph T. Rannazzisi, Deputy Assistant Administrator for DEA, was even blunter. When I questioned him at the hearing, Mr. Rannazzisi admitted that ``at the present time I don't think we are being effective at controlling these drugs.'' He described the process as ``extremely frustrating'' because ``by the time we get something to the point where it will be administratively scheduled [as a controlled substance], there's two to three [new] substances out there.'' The failure of enforcement is caused by the complexity of the regulations, statutes and science. Either the Food Drug and Cosmetic Act, which provides jurisdiction for FDA, or the Controlled Substances Act, which provides jurisdiction for DEA, or both, can be applicable depending on the ingredients of the substance. Under a 1994 amendment to the Food Drug and Cosmetic Act, called the Dietary Supplement Health and Education Act, DSHEA, dietary supplements, unlike new drug applications, are not closely scrutinized and do not require premarket approval by the FDA before the products can be sold. Premarket notification for dietary supplements is required only if the product contains new dietary ingredients, meaning products that were not on the U.S. market before DSHEA passed in 1994. If the FDA determines that a dietary supplement is a steroid, it has several enforcement measures available to use. FDA may treat the product as an unapproved new drug or as an adulterated dietary supplement under the Food Drug and Cosmetic Act. Misdemeanor violations of the Food Drug and Cosmetic Act may apply, unless there is evidence of intent to defraud or mislead, a requirement for a felony charge. However, given the large number of dietary supplement products on the market, it is far beyond the manpower of the FDA to inspect every product to find, and take action against, those that violate the law-- as the FDA itself has acknowledged. The better enforcement route is a criminal prosecution under the Controlled Substances Act. However, the process to classify a new anabolic steroid as a controlled substance under schedule III is difficult, costly and time consuming, requiring years to complete. Current law requires that to classify a substance as an anabolic steroid, DEA must demonstrate that the substance is both chemically and pharmacologically related to testosterone. The chemical analysis is the more straightforward procedure, as it requires the agency to conduct an analysis to determine the chemical structure of the new substance to see if it is related to testosterone. The pharmacological analysis, which must be outsourced, is more costly, difficult, and can take years to complete. It requires both in vitro and in vivo analyses--the latter is an animal study. DEA must then perform a comprehensive review of existing peer-reviewed literature. Even after DEA has completed the multiyear scientific evaluation process, the agency must embark on a lengthy regulatory review and public-comment process, which typically delays by another year or two the time it takes to bring a newly emerged anabolic steroid under control. As part of this latter process, DEA must conduct interagency reviews, which means sending the studies and reports to the Department of Justice, DOJ, the Office of Management and Budget, OMB, and the Department of Health and Human Services, HHS--provide public notification of the proposed rule, allow for a period of public comment, review and comment on all public comments, write a final rule explaining why the agency agreed or did not agree with the public comments, send the final rule and agency comments back to DOJ, OMB and HHS, and then publish the final rule, all in accordance with the Administrative Procedures Act. To date, under these cumbersome procedures, DEA has only been able to classify three new anabolic steroids as controlled substances and that process--completed only after the September 29, 2010, Senate Judiciary subcommittee hearing-- took more than 5 years to finish. It is clear that the current complex and cumbersome regulatory system has failed to protect consumers from underground chemists who easily and rapidly produce designer anabolic steroids by slightly changing the chemical composition of the anabolic steroids already included on schedule III as controlled substances. The story of Jareem Gunter, a young college athlete who testified at the hearing, illustrates the system's failure. To improve his athletic performance 4 years ago, Jareem purchased in a nutrition store a dietary supplement called Superdrol, a product he researched extensively on the Internet and believed was safe. Unfortunately it was not. Superdrol contained an anabolic steroid which to this day is still not included in the list of controlled substances. After using Superdrol for just several weeks, Jareem came close to dying because this product--which he thought would make him stronger and healthier--seriously and permanently injured his liver. He spent 4 weeks in the hospital and has never been able to return to complete his college education. To close the loopholes in the present laws that allow the creation and easy distribution of deadly new anabolic steroids masquerading as dietary supplements, I filed amendment No. 4693 to the FDA Food Safety Modernization Act S.510 to permit emergency scheduling of designer anabolic steroids. The amendment simplifies the definition of anabolic steroid to more effectively target designer anabolic steroids, and permits the Attorney General to issue faster temporary and permanent orders adding recently emerged anabolic steroids to the list of anabolic steroids in schedule III of the Controlled Substances Act. Under the amendment, if a substance is not listed in schedule III of the Controlled Substances Act but has a chemical structure substantially similar to one of the already listed and banned anabolic steroids, the new substance will be considered to be an anabolic steroid if it was intended to affect the structure or function of the body like the banned anabolic steroids do. In other words, DEA will not have to perform the complex and time consuming pharmacological analysis to determine how the substance will affect the structure and function of the body, as long as the agency can demonstrate that the new steroid was created or manufactured for the purpose of promoting muscle growth or causing the same pharmacological effects as testosterone. Utilizing the same criteria, the amendment permits the Attorney General to issue a permanent order adding such substances to the list of anabolic steroids in schedule III of the Controlled Substances Act. The amendment also includes new criminal and civil penalties for falsely labeling substances that are actually anabolic steroids. The penalties arise where a supplement maker fails to truthfully indicate on the label--using internationally accepted and understandable terminology--that the product contains an anabolic steroid. These penalties are intended to be substantial enough to take away the financial incentive of unscrupulous manufacturers, distributors, and retailers who might otherwise be willing to package these products in a way that hides the true contents from law enforcement and consumers. Finally, the amendment adds to schedule III 33 new anabolic steroids that have emerged in the marketplace in the 6 years since Congress passed the Anabolic Steroid Control Act of 2004. It also instructs the U.S. Sentencing Commission to review and revise the Federal sentencing guidelines to ensure that where an anabolic steroid product is illegally manufactured or distributed, and that product is in a tablet, capsule, liquid or other form that makes it difficult to determine the actual amount of anabolic steroid in the product, the sentence will be based on the total weight of the product. Amendment No. 4693 simplifies and expedites the process for scheduling anabolic steroids as controlled substances. By making this simple procedural change, we can protect the health and lives of countless Americans and provide an effective enforcement mechanism to hold accountable those individuals and their companies which purposefully exploit the current regulatory system for their selfish gain. I urge my colleagues to pass amendment No. 4693 to the FDA Food Safety Modernization Act S. 510.

Mr. SPECTER

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

Mr. SPECTER. I ask unanimous consent to speak for up to 15 minutes.

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

Mr. SPECTER

Mr. SPECTER. The Polman article recites a number of Senators who voted no against proceeding with the DISCLOSE Act, having made in the past very forceful affirmative statements in favor of disclosure. It may be that by reminding those 4 Senators, perhaps 1 of them or 2 of them--we only need 1, if the 59 votes hold--they could be persuaded to vote aye and proceed to consider the bill. Then we have the advocates of McCain-Feingold. If we compare the rollcall vote on McCain-Feingold, we find there are a number of Senators who voted no against taking up the DISCLOSE Act, Senators who previously had spoken out forcefully in favor of finance limitations and in favor of transparency. Perhaps at least one of those or perhaps even more could be persuaded to vote to proceed with the so-called DISCLOSE Act. There has been a plethora of political commentary about the dangers to our political system by having anonymous campaign contributions. The last election was inundated with money, and the forecasts are that the next election will be even more decisively controlled by these large contributions and by these anonymous contributions. So to preserve our democracy and to preserve the power of the individual contrasted with the power of the wealthy, I believe that ought to be very high on our agenda. There is a corollary to the need for some change, some reform as a result of what happened in Citizens United. In that case, we had two votes, and they were decisive. To make the five-person majority, two votes totally reversed the positions which those Justices had taken not too long ago during their confirmation proceedings. Chief Justice Roberts was emphatic in his confirmation proceeding that he was not going to jolt the system, that he would have respect for stare decisis, and that he would have respect for congressional findings. So was Justice Alito on both those accounts. In their confirmation hearings, the testimony of both was explicit in the statement that it was a legislative function to find the facts, and it was not a judicial function to find the facts. When Citizens United came down, as the dissenting opinion by Justice Stevens pointed out, a voluminous factual record showing the dangers and the potential dangers of excessive contributions was on the record. All that was ignored in the decision in Citizens United and was ignored by the commitment which those two Justices made in their confirmation hearings not too many years before. The best approach in dealing with this issue is to have the public understand what is going on in the Court. It is my view and the view of many other Senators that we are long past the time when the Court ought to be televised so the public would understand what has been going on. On repeated occasions, the Judiciary Committee has voted out legislation requiring the Supreme Court to be televised. It is an appropriate legislative function to impose that requirement. It is up to the Congress to decide administrative matters. For example, the Congress decides when the Supreme Court will convene. It is on the first Monday of October in each year. The Congress decides how many Justices it takes to have a quorum--six--to transact the business of the Court. It is the Congress which decides how many Justices there will be on the Court, and the Congress has set the number at nine. It is recalled that an effort was made during the Roosevelt administration to so-called pack the Court by raising the number to 15. The Congress could have done that. It would have been unwise, but the Congress has the power. The Congress decides what cases the Court will hear. For example, mandating that McCain-Feingold be reviewed by the Supreme Court so the Court's customary discretionary decision on granting certiorari or not can be overcome by the Congress. I suggest it is time that transparency and understanding by the public should come into operation. Justice Brandeis was an eloquent spokesman for sunlight being the best disinfectant. It has been said repeatedly that the Supreme Court follows the election returns. The Supreme Court follows the values of our society in a changing country, which has eliminated segregation, changed the rules with respect to sexual preferences, changed the rules many times. The best way to accomplish that would be to take up this issue, which we could take up in this session--this session before the end of the year--something I have discussed with the majority leader, something I have discussed with the leadership of the House, and we could handle this in relatively short order. There is another matter which I suggest we ought to take up and conclude, and that is the issue of the START Treaty. President Reagan set the standard of ``trust but verify,'' but since the end of 2009, when the last treaty expired, we have been unable to verify what the Russians are doing. The START Treaty also provides for beyond verification, provides for arms reduction, which is something which ought to be done. There is no reason to have these vast arsenals. They can be reduced and it would be much less expensive in an era when we are very much concerned about governmental costs. The 1992 START Treaty, negotiated by President Reagan and by President George H. W. Bush, passed the Senate 93 to 6. The 2003 Moscow Treaty on arms control, negotiated by President George W. Bush, passed 95 to 0. So that is a subject which ought to be taken up and ought to be acted upon, notwithstanding the objection of a small number of individuals. We ought to take that up on the merits and vote it up or down. I am sure it would be ratified. The issue of don't ask, don't tell is another matter which ought to be concluded before the end of the year. We know what has resulted from the study ordered by the Department of Defense. Some say we ought to know more than we know at the present time. Well, we have considered don't ask, don't tell for more than a decade, and I think it is palpably plain that the time for the current standards has long since run and it ought to come to a vote. To tie up the Department of Defense authorization bill on that subject--a bill which has been passed year after year after year, going back decades--it is something which ought to be enacted by this Congress. I suggest further that we ought to take up unemployment compensation very promptly. We have millions who are unemployed and an unemployment rate of 9.5 percent nationally. There are people who are actively seeking jobs who cannot find them. That ought to be a priority item, certainly to be accomplished during this session. There is one other item which I think we ought to act on; that is, to authorize Federal funding for research on embryonic stem cells. That legislation has twice been passed, first under the name Specter-Harkin and later, when the majority changed, to Harkin-Specter. We should have enacted it earlier. We have relied upon an Executive order promulgated by President Obama to authorize Federal funding, and then in a surprise decision the United States District Court for the District of Columbia ruled that the Executive order violated the existing statute. Well, it is not a constitutional issue. The Congress can change that. The order has been appealed to the Court of Appeals for the District of Columbia Circuit, and the order has been stayed, which means at the present time research can proceed with Federal funding. But it is a very uncertain matter. As testified to by Dr. Collins, the Director of the National Institutes of Health, the scientists who are working under NIH grants are very much in doubt as to what is going to happen. There is some $200 million and more than 200 projects which hang in the balance. On embryonic stem cell research we are dealing with a life- and-death situation, and there ought not to be hesitancy or doubt in the minds of those scientists. The objection has been raised that these embryos could produce life. Well, if there were any chance that would happen I think no one would be in favor of using them for scientific research. But the fact is, there are some 400,000 of these embryos frozen, and they are not being used to produce life. Back in 2002, when I chaired the Appropriations Subcommittee on Health, I took the lead in Federal funding to assist individuals who wanted to adopt these embryos to have them produce life. Some $9 million has been appropriated in the intervening years, but only 242 of these embryos have been adopted to produce life. Meanwhile, in 2008, the most recent year for which statistics are available, more than a million people died from heart disease and cancer. We have the capacity, the opportunity, through these embryos, which replace diseased cells, to deal with stroke, to deal with heart disease, perhaps to deal with cancer. We do not know. But there is much that can be done, and Congress has the authority to clarify the situation. It could take years pending in the Court of Appeals for the District of Columbia, with the time for briefing and argument and decision, and possible appeal to the Supreme Court of the United States. But it is a matter that Congress can act on, and twice we have already acted, and both times vetoes were successfully handed down by President George W. Bush. So there is much we can do during this session of Congress if we make up our minds to do it. One other lesson which we have seen from the current election is the tremendous power which has been exercised by the extremities of both political parties, and we have seen this in recent years. We have seen an excellent Senator such as Senator Joseph Lieberman who cannot win a Democratic primary, and we have seen an excellent Senator such as Bob Bennett, with a 93-percent conservative rating, who cannot survive the nomination process in Utah. Those are only a couple of cases. Many more could be cited. But we have also seen that when the voters are informed and the voters are aroused that we are still a country which has a constituency which desires to be governed from the center, not on either extreme, and the primary elections bring out those on one side or the other. But we have the situation with Senator Lisa Murkowski which demonstrates the point that there is still a dominant voice in the center. Senator Murkowski lost her primary election, illustrative of the principle I mentioned a few moments ago about the primaries being dominated by the extremes. But then, in a spectacular write-in campaign, it now appears Senator Murkowski will be reelected--the first time that has happened since Senator Thurmond won on a write-in campaign in the 1950s, and that is a pretty tough proposition. You have to have the spelling right. ``Murkowski'' is not the easiest name in the world to spell, notwithstanding the fact that it has been popularized not only in Alaska by her distinguished father-- elected at the same time I and others were elected to this body--and it is not certain but it looks pretty likely that Senator Murkowski will be remaining in the U.S. Senate. So when the electorate understands what the issue is--and there was so much publicity that the electorate did--and when they are aroused and motivated to action, I think it is very strong evidence that America, illustrated by Alaska, wants to be governed from the center. So I think that is something that ought to be noted by this Congress in the last 45 days of this year as we look over a tremendous number of very important issues. I have not covered the entire range of issues which we ought to consider, but I think I have covered some which ought to be handled by this session of the Congress and that the duck ought to spread its wings, show it is not lame, and get something done to operate in the interests of the American people. I thank the Acting President pro tempore and yield the floor. Exhibit 1 [From the Philadelphia Inquirer, Oct. 31, 2010] The American Debate: Secret Donors vs. Democracy (By Dick Polman) Can we all agree that secret money in politics is a bad thing? OK, you're with me. So far, so good. And can we all agree that the Republicans have been hypocrites on this issue--having long declared that they were against secret money, only to flip-flop in 2010 and declare that they were for it? OK, now I've probably lost half of you. But bear with me. Thanks to a number of factors--a historic Supreme Court decision that has inspired wealthy donors to pony up, a tax code riddled with loopholes, and toothless federal watchdogs--a record amount of secret money, topping $250 million, is flooding the Senate and House races. We have no idea who these donors are, yet we've all seen their handiwork in TV ads. From the shadows, they create front groups with vacuously pleasing names--something like Concerned Citizens for the Betterment of Mankind, or Americans for Puppies, Apple Pie, and the Fourth of July. By the way, even though it's true that the Republicans have trumped the Democrats in the secret-money race by more than 2-1, I don't mean to imply that the GOP is poised to win big Tuesday night simply because its anonymous donors wrote big checks. Nancy Pelosi may think so--the House speaker recently said, ``Everything was going great, and all of a sudden secret money from God knows where, because they won't disclose it, is pouring in''--but she is wrong. Long before the GOP's richest fans ever got involved, hardly anything was ``going great'' for the Democrats. But the secrecy, in itself, is an affront to democracy and the principle of transparency. People give big money for a reason; we may never know what they got in return. We have essentially legalized the practice of backstage bribery, and 2010 is a mere tune-up for the presidential race in 2012. Last winter, after the U.S. Supreme Court freed up corporations, unions, and other special interests to spend campaign money more easily, rich people felt more emboldened to finance the GOP's efforts. But they didn't want the public to know who they were. So, a few intrepid Republican strategists, including Karl Rove, came up with a clever fix. They created nonprofit groups under a section of the tax code reserved for ``social welfare organizations'' that allows donors to fork over unlimited money without being publicly named. And the secret money has flowed unabated ever since. So you might be wondering, ``Doesn't the public have a right to know who these donors are? How come Congress hasn't done something about this?'' Well, guess what? Congress has tried. In the spring and summer, the ruling Democrats sought to pass the Democracy Is Strengthened by Casting Light on Spending in Elections Act (which proves that Democrats will never work on Madison Avenue). Known commonly by its acronym, the DISCLOSE Act, it would essentially force these donors into the open. It passed in the House--with virtually all Republicans voting no. It went to the Senate, where it lingers today because Republicans won't let it come up for a vote. I warned you that I would bring up the Republicans' hypocrisy, defined here as the chasm between what they once professed to believe and what they now practice. Back in the days when Republicans were strongly opposed to campaign-finance reform (this was a decade ago, when John McCain was mavericky in his efforts to curb big money in politics), they insisted that full disclosure was the best solution, that as long as the voters could see who's giving the big money, voting decisions could be made on that basis and democracy would be alive and well. So said George W. Bush, for instance, when he first ran for president in 2000. But let's go down the list. Here was Sen. Mitch McConnell, the chamber's current GOP leader, during a 2000 appearance on Meet the Press: ``Republicans are in favor of disclosure.'' That year, he also said that ``the major political players in America'' should be subject to disclosure; in his words, ``Why would a little disclosure be better than a lot of disclosure?' Here was Lamar Alexander, now a Tennessee senator but speaking as a presidential candidate in 1999: ``I support . . . free speech and full disclosure. In other words, any individual can give whatever they want as long as it is disclosed every day on the Internet.'' Here was Texas Sen. John Cornyn's philosophical stance just six months ago: ``I think the system needs more transparency, so people can reach their own conclusions.'' Here was Alabama Sen. Jeff Sessions, just six months ago: ``I don't like it when a large source of money is out there funding ads and is unaccountable . . . I tend to favor disclosure.'' Al four have been blocking the DISCLOSE Act. Meanwhile, on the House side, GOP leader John Boehner said in 2007, ``We ought to have full disclosure, full disclosure of all of the money that we raise and how it is spent. And I think that sunlight is the best disinfectant.'' But when the DISCLOSE Act came up in the House this year, Boehner voted for darkness. Actually, Rove's group, American Crossroads, has engineered the best flip-flop. It was launched this year as a full- disclosure enterprise; one of its board members, ex-GOP national chairman Mike Duncan, said in May, ``I'm a proponent of lots of money in politics and full disclosure in politics''--the traditional GOP position. He voiced his support for ``full accountability.'' But when the potential big donors voiced their distaste for sunlight, the Crossroads gang deep-sixed its disclosure talk and created an offshoot in the aforementioned secrecy section of the tax code. That got the bucks flowing. And don't expect the feds to police this behavior. Under the tax code, these social-welfare organizations are supposedly barred from spending more than half their money on politics. But the Federal Elections Commission has a well- deserved reputation for allowing political operatives to play fast and loose with the rules. Indeed, the FEC is set up for stalemate; even if its three Democratic commissioners wanted to move against secret money, its three Republican counterparts would likely block the move. All told, if sunlight is indeed the best disinfectant (as Boehner once believed, when he borrowed the phrase from Justice Louis Brandeis), then I suppose we must now gird ourselves indefinitely for the toxins that flourish in the dark.

Mr. SPECTER. Mr. President, I have sought recognition to discuss the activities of the so-called lameduck session we are about to enter. I begin by suggesting that our session does not necessarily have to be a lameduck. We have the capacity to respond to the many pressing problems of the country as we choose. We can spread our wings and we can fly. One could say at many points during the course of the 111th Congress, the session could be called a turkey. It has not been very active in many respects. This body, not atypical, has been expert at avoiding tough votes. Well, if there is any time where it is easiest to avoid tough votes, it is a long distance from the next election, and we can't get any further from the next election than today, since the last election was only 13 days ago. It is my suggestion that this would be a good time to undertake some significant action. The country is in a tremendous state of turmoil politically, I think more so than at any time in the country's history, certainly more than at any time during my tenure in the Senate; I think beyond that, at any time in the history of the country with the exception of the Civil War period. We have seen candidates run on a platform of ``I won't compromise.'' This is a political body. The art of politics is compromise and accommodation. I suggest there are some real lessons we all learned 13 days ago from the election which we ought to put into effect now and take some action and some decisive action. I suggest a good place to start would be the enactment of the so-called DISCLOSE Act. That is the legislation which would, at a minimum, require the identity of contributors be known to the public so their motivations can be evaluated. Campaign finance reform followed the massive cash contributions going back to the 1972 elections, and the Congress passed reform legislation in 1974. Then, in a landmark decision, Buckley v. Valeo, in 1976, key parts of that legislation were declared unconstitutional. Freedom of speech under the first amendment was equated with money. I agree with Justice Stevens that that was a classic mistake; that the principle of one person one vote is vitiated by allowing the powerful, the rich to have such a large megaphone that it drowns out virtually everybody else. There have been a series of legislative enactments to try to overcome the restrictions of Buckley v. Valeo and a corresponding series of Supreme Court decisions broadening the field of freedom of speech, until we got to the case of Citizens United. Then, upsetting 100 years of precedent, the Supreme Court decided corporations and unions could advertise in political campaigns and, in conjunction with other loopholes in the campaign law, it was possible those contributions could be made secretly. When the bill was called for a motion to proceed, as we all know, it fell short of the 60 votes necessary to cut off debate or to impose cloture. Fifty-nine Senators voted aye that we wanted to proceed, 57 Democrats and 2 Independents and all 41 Republicans voted no. I ask unanimous consent to have printed in the Record at the conclusion of my remarks an article by Richard Polman in the Philadelphia Enquirer and an editorial from the New York Times on the DISCLOSE Act.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to join in paying tribute to Senator Ted Stevens, who was in this Chamber from 1967 until early 2009, and his presence is still felt, so pervasive was his impact on this body. My first contact with Senator Stevens was shortly after my election, when I was in the process of selecting my committee assignments. I had said during the campaign that I would seek the Agriculture Committee, but when the first round came up and there was a spot left on Appropriations, I decided that was the best committee to select for the interests of my State. I did not get the Ag Committee. Appropriations has a subcommittee, Ag Appropriations, and it was filled. But Ted Stevens generously opened the spot, taking another subcommittee assignment so I could maintain, in part, my statement that I would seek influence on the agricultural issues. Ted Stevens had a reputation for being tough and demanding. He had a famous Hulk tie which I proudly have in my closet and wear on occasions when it is appropriate. But behind that tough exterior, there was a heart of gold and a very emotional man. He said that he did not lose his temper, he would ``use'' his temper, that he did not lose his temper, he always knew where it was. I recall one session of the Senate in the middle of the night. During Howard Baker's term as majority leader, he would sometimes have all- night sessions. It is amazing how much you can get done and how short the debate is at 3 a.m. An issue had arisen as to residency. I believe it was Bill Proxmire who had made some statements about living in Washington, DC. That infuriated Ted Stevens, and he rose, and in a loud, bombastic, explosive voice, he said he did not live in Washington, he lived in Alaska, and because of his affection for Alaska, he could not consider living in Washington. This was part-time duty to handle a specific job. In 1984 after the elections, Senator Baker retired, and the Senate leadership was up. At that time, we had the most hotly contested battle for leadership during my tenure here and perhaps of all time. There were five top-notch candidates: Senator Stevens, Senator Dole, Senator McClure, Senator Domenici, and Senator Lugar. It finally boiled down to Bob Dole and Ted Stevens, and Bob Dole won, 28 to 25. When the vote was taken, I happened to be sitting with Senator Dole. We had lived in the same town--Russell, KS--and had been friends for decades. When Ted Stevens came over to congratulate Bob Dole, I was in the picture--a photo I prize until this day. Senate leadership elections are complex, and there was later consideration that perhaps Bob Dole's leaving the leadership of the Finance Committee opened the door for Bob Packwood, whose vote was for Dole, and perhaps Senator Packwood's leaving the leadership of the Commerce Committee chairman opened it up for Jack Danforth. That was a watershed election. Senator Stevens and I did not always agree on matters, such as the outcome of the Iran Contra matters, but there was also a collegiality and cordiality. I was the beneficiary of one of the famous Alaska trips with Ted Stevens. I caught a king salmon, 29 pounds--toughest 15 minutes of my life--and it hangs on a shelf. The stuffed salmon hangs proudly in my Senate office. Great fish to eat. They have ways of preserving the carcass so that you can stuff it. You can have your fish and eat it too. Ted Stevens was a mentor. During the Alcee Hastings impeachment proceedings, where I was cochairman of the committee assigned to hear the evidence and later making a floor speech, I thought there ought to be a standard for impeachment. Ted Stevens wisely counseled me against that. He said: Don't do that. Don't try to establish some standard. It is a matter of each Senator's individual judgment. And when the impeachment proceeding of President Clinton came up, Ted Stevens was one of the 10 dissenters. He voted no on one of the bills of impeachment. During the course of Ted Stevens' problems with the Department of Justice and the investigation, I talked to him about those matters, some of the implications in the criminal law case. I responded to an inquiry shortly before the 2008 election, was on Alaska radio cautioning the voters not to consider Ted Stevens a convict because the case was in midstream and there were very, very serious questions which had to be adjudicated, and I said I didn't know all of the details, but I had reviewed enough of the file to know that it was an open question. During the confirmation hearings of Attorney General Eric Holder, when we had our private talks--I was then ranking--I called the issue to his attention, and he promised to make a thorough review and later did so. And the rest is history. Ted Stevens was exonerated and the issue was dismissed. After that event took place, I was talking to Larry Burton, who worked years ago for Ted Stevens, a squash-playing partner of mine. A few of us crafted a resolution honoring Ted Stevens and saying what a tremendous force he had been here, but we were asked by the lawyers to hold up because some action might be pending in the Department of Justice, so that should be delayed. Today, we will lay Ted Stevens to rest, and with him a really great American. His family--Catherine, a devoted wife, an outstanding lawyer, a great public servant in her own right as an assistant U.S. attorney. When my class was elected in 1980, their daughter Lily was an infant, and she grew up in the Senate and now is a fine young woman, is a practicing attorney, and is now 30 years old. And Catherine, Joan, Ted, and I spent many pleasant evenings over a martini and a dinner and some of Ted Stevens' really great red wine. He was extraordinary in his devotion to his State, and no Senator has ever done more for their State than Ted Stevens did for Alaska. So he leaves a great record, a great reputation, and he will be sorely missed. In the absence of any other Senator in the Chamber seeking recognition, I ask unanimous consent for 15 minutes to proceed as in morning business.

Mr. SPECTER

Mr. SPECTER. Mainstream Americans must march to the polls this November to express themselves forcefully to stop extremists financed by undisclosed contributors from stifling our democracy. The Congress is gridlocked, leaving the Nation's business floundering. Fringe candidates with highly questionable competency are winning primary elections. Moderates and some conservatives are falling because they fail the test of ideological purity. In the past 10 years, both parties have taken advantage of procedural rules-gimmicks to thwart needed congressional action. During the administration of President George W. Bush, Democrats mounted so many filibusters against judicial nominations that the Senate was on the verge of changing an important rule requiring 60 votes to cut off debate. During the Obama administration, Republicans have exceeded the prior extremism of Democrats on filibusters. In addition, the leaders of both parties have abused procedural rules to stop Senators from offering important, germane amendments to pending legislation in a Chamber where the tradition had allowed any Senator to offer virtually any amendment on any bill to get a vote to focus public attention on important national issues. The partisanship has reached such a high level and comity such a low level that there is not even the pretense of negotiation or compromise in almost all situations. Within days of the start of the Obama administration, literally before the ink was dry on his oath of office, Republicans openly bragged about plans to ``break'' him and to engineer his ``Waterloo.'' Announcing that ideological purity was more important than obtaining a majority, the prevailing Republican motto was: We would rather have 30 Marco Rubios in the Senate than 50 Arlen Specters. Moderates and some conservatives, too, have fallen like flies at the hands of extremists in both parties. Senator Robert Bennett's 39 percent conservative rating was insufficient for renomination in Utah. Senator Lisa Murkowski was rejected by Alaska's tea party's dominance in their Republican primary. In perhaps the most stunning election, an opponent whom conservative Republicans characterized as incompetent beat Congressman Mike Castle. These elections were presaged by the surprising defeat of Senator Joe Lieberman, who was not sufficiently liberal to represent Connecticut's Democrats. The Senate is a vastly different place than it was when I was elected in 1980. In that era, Howard Baker and Lloyd Bentsen worked together. Bob Dole and Russell Long could reach an accommodation on tax issues. Bill Cohen and ``Scoop'' Jackson found compromises in the Armed Services Committee. The Nunn-Lugar initiatives were legendary. Dan Inouye and Ted Stevens perfected bipartisanship on the Appropriations Committee. I think it is fair and accurate to say that the Republican Party has changed the most ideologically from the days when the steering committee, led by Senator Jesse Helms, represented the conservatives and the Wednesday moderate luncheon club was almost as big, with Mark Hatfield, ``Mac'' Mathias, Lowell Weicker, John Danforth, Charles Percy, Bob Stafford, John Heinz, John Chafee, Bob Packwood, Alan Simpson, John Warner, Warren Rudman, Slade Gorton, and Arlen Specter, in addition to Baker, Dole, Stevens, and Cohen. By the turn of the century, the group had shrunk to Jim Jeffords, Olympia Snowe, Susan Collins, Lincoln Chafee, and me. After the 2008 election, only Snowe, Collins, and I remained. By the fall of 2008, the economy was in free fall. More than half a million jobs were being lost each month, and the unemployment rolls were nearing 4 million. President Bush formulated a $750 billion so- called bailout called TARP, the Troubled Asset Relief Program. Resistance to the proposal was high. The House of Representatives rejected it on September 29 by a vote of 228 to 205. The stock market fell 778 points on the Dow Jones average. Nothing could be done immediately since many in Congress--myself included--were in synagogues across the country celebrating Rosh Hashanah on that evening and the next day. The Senate came back into session on October 1 to vote on TARP. Vice President Cheney met with the Republican caucus to urge acceptance of the President's plan. Dick Cheney had an earned reputation for being a dry, factual, unemotional speaker, low key, direct, here it is, take it or leave it. Before the Senate vote, in the Senate Mansfield Room, immediately off this Chamber, the Vice President was impassioned. He said if you don't pass this legislation, George W. Bush will turn into a modern day Herbert Hoover. Republicans responded with 34 voting aye and 15 opposed. TARP passed the Senate 75 to 24. The House followed suit, and the President signed the bill. It wasn't a pretty legislative process. It started out with a few pages, mushroomed into a gigantic bill, without appropriate hearings, analysis, debate or deliberation. Fast action was mandatory if we were to stop the market slide and the economy from crashing. The implications were worldwide. The situation continued to deteriorate. President Obama immediately went to work on a stimulus bill. He came to the Republican Caucus on January 27, and made a very strong appeal on the urgency of immediate action to save the U.S. economy from a 1929-type depression with a domino effect on the world economy. He said it was imperative that the bill be passed by February 13, the Friday before Congress began a weeklong recess for the Washington/Lincoln birthdays. A large group of Senators held a series of meetings attended by about 15 rotating Democrats with 6 Republicans initially in attendance: Olympia Snowe, Susan Collins, George Voinovich, Lisa Murkowski, Mel Martinez, and me. The final meetings were held on February 6 in Harry Reid's office, attended by Susan Collins, Ben Nelson, Joe Lieberman, Rahm Emanuel, Reid, and me. Collins and I insisted on having a final bill under $800 billion. The Obama figure had started out at $600 billion and ballooned to more than a trillion dollars. She and I thought it would be tough for the public to swallow a stimulus act so we insisted on holding the figure under $800 billion. When she and I couldn't agree with the Democrats, we took a break and went to my hideaway office to confer. There we formulated our last best proposal, which was accepted. The stimulus package, like TARP, was put together too fast without appropriate hearings, analysis, debate, and deliberation. Had the Republican leadership participated, there would have been critical staff assistance on formulating what the money should have been spent for to stimulate the economy immediately and create jobs, but the Republican leadership refused to participate. The Republican game plan was already in effect to ``break'' Obama and cause his ``Waterloo.'' There were many Republicans in the caucus who would have liked to have voted for the stimulus. The U.S. and world economies were closer to the precipice of depression than when 34 Senators had voted for TARP. But the pressure to vote the party line was tremendous--the strongest I had seen in my 29-year tenure. The risk of retribution was enormous. After making my floor speech supporting the President's plan, I walked back into the Republican cloakroom where a senior colleague said: ``Arlen, I'm proud of you.'' When I then asked him: ``Will you join with me?'' he replied: ``No, I couldn't do that. Might cost me a primary.'' While there has been much justified criticism that the stimulus legislation could have been better, most would agree that it did prevent a 1929-style depression. Not interested in governance, after the stimulus vote, Republicans turned to obstructionism--a virtual scorched-earth policy to carry out the plan to defeat the President. In 2009 and 2010 to date, 112 cloture motions have been filed and voted on 67 times. That the filibusters were frivolous, dilatory, and obstructionistic is evidenced by the fact that some judges were confirmed by overwhelming majorities, some 99 to 0, after cloture was invoked. Each time cloture was invoked, the Senate could not take up any other business for 30 hours, leaving little time to take up other vital legislation. On some occasions, relatively rare, the filibusters were justified where the majority leader filled the so-called tree, precluding minority amendments. That sometimes led to half-hearted negotiations over how many and what amendments the minority could offer, resulting in reciprocal recriminations of unfairness. Often the recriminations were meritorious with both parties being to blame. Each side maneuvered to avoid voting on amendments which posed political risks to their side. Notwithstanding the fact that Senators are sent to Washington to vote, enormous energy is expended to avoid votes. This issue did not apply to judicial confirmations where no amendments were in order. In 2008, I proposed a rule change to establish a timetable for confirming judges precluding filibusters. In 2009, I proposed a rule change to prohibit filling the so-called tree to prevent other Senators from offering amendments. The exodus of Senate Republican moderates has resulted from the shift of the party to the right causing many moderates to reregister as Independents or Democrats, significant expenditures by the Club for Growth, the activism of the tea party, and, more recently, the infusion of enormous sums of money from secret contributors. Extreme right-wing candidates have benefited from enormous campaign expenditures by outside groups. The New York Times recently reported that ``outside groups supporting Republican candidates in House and Senate races . . . have been swamping their Democratic-leaning counterparts on television . . .'' Bloomberg News reports that, in September alone, groups supporting Republican candidates spent $17 million while groups supporting Democratic candidates spent only $2.6 million. The Club for Growth's backing of Lincoln Chafee's primary opponent in Rhode Island in 2006 was especially costly causing his defeat in the general by draining his financing and pushing him to the right. It cost Republicans control of the Senate in 2007 and 2008. When the Club for Growth defeated moderates in the primaries, Pete Domenici's seat was lost in 2008, as were the House seats of Joe Schwartz in Michigan in 2006 and Wayne Gilchrist in Maryland in 2008. It is understandable that moderates are responding to caucus pressure, seeing what is happening to colleagues who are seen as ideologically impure and insufficiently conservative. Bob Bennett had a 93 percent conservative rating. Only two objections were raised against him: he sponsored health care reform legislation which was cosponsored by many other Republicans, and he voted for TARP. As noted, TARP was President Bush's legislation, enthusiastically advocated by Vice President Cheney. It was a significant success, stabilizing the banking industry and enabling GM and Chrysler to stay in business. Most of the government funds have been repaid. South Carolina Congressman Bob Inglis, who was defeated earlier this year by a conservative primary challenger, said today's political climate would make it ``a tough time for Ronald Reagan and Jack Kemp.'' Florida Governor Charlie Crist was driven out of the Republican Party to an Independent candidacy because his State accepted stimulus money. He was pictured embracing President Obama and he was thought to be too liberal. Considering what has happened to Bennett, Murkowski, Castle, and Crist, is no wonder that Republican Senate moderates and some conservatives are hewing the party line as they watch right wingers plan for their primary defeats years away. Republican Senators who previously actively supported campaign finance reform were unwilling to cast a single vote with 59 Democrats to proceed to consider legislation requiring the disclosure of corporate contributions permitted by the Supreme Court decision in Citizen's United. Notwithstanding the broad latitude given to campaign contributions under the first amendment, the Supreme Court rulings leave Congress the authority to require disclosure. It is hard to understand how any objective view would oppose disclosure when secret contributions pose such a threat to our democracy.

Mr. SPECTER. Madam President, I ask unanimous consent for 2 additional minutes.