Gordon Smith

Mr. SMITH

Mr. SMITH. Mr. President, I thank the Chair and our side for the time to speak on this issue. This is an issue and a moment in Senate history which, frankly, I wished there could have been found a way to have avoided. I have been among those who have said to my leader: You have a qualified yes for my support to try and negotiate. Those negotiations have apparently broken down. So then it falls to each of us to study and to take as seriously as we can the weight and moment of this decision and how we should come down on the issue of filibustering judges who have majority support. I ran for the Senate because I value this body, appreciate its unique role in the history of our Nation, and very much want to see it succeed in doing the people's business. So I have taken as seriously as I can the decision I have made to be an unqualified supporter of what the majority leader is attempting to do here. When I ran for the Senate, I promised the people of Oregon that when it came to advising and consenting on judges, I would not have a litmus test, that I would respect the results of elections, that I would evaluate nominees for their academic achievement, their judicial temperament, for their personal integrity, and I would then vote on that basis without regard to a cultural litmus test. I tried to demonstrate that when President Clinton was living at 1600 Pennsylvania Avenue, although I was not on the Judiciary Committee, I followed closely the deliberations of that committee under the leadership of Senator Hatch. There were a number of Democratic nominees that I specifically advocated for and tried very hard to help in their confirmation, and in the most part succeeded, even though their views were different from mine on a range of issues. I remember, in particular, the work of the committee on two controversial judges who were, by every measure, on the left wing of the spectrum politically, Judge Berzon and Judge Paez. I remember Senator Hatch got them out of the committee, and I remembered my promise to the people of Oregon. One of our colleagues began to filibuster against proceeding in violation of what had been a gentleman's agreement of 200 years and more; that is, you don't filibuster judges when they clear the committee process and they come to a vote. So I voted in both instances to invoke cloture and then to confirm their ascension to the appellate court. I remember hearing a lot of disgruntlement by conservatives in Oregon who felt very strongly that they should be defeated. But I do think elections have consequences. Presidents have rights and we have a role to play in advising and consenting. But I also feel that when we use the Senate rules to essentially overturn the right of a President and the result of an election, we do more than just violence to the executive branch of Government. We do serious injury to the judicial branch of Government. And we send a chilling effect into judges' chambers that they are going to then, in the future, be held to a standard that is so politicized that the best and brightest of liberal and conservative minds need no longer apply for service in the Federal judiciary. Reflecting upon what I did under President Clinton, I have tried to be consistent in my advice and consent during the administration of George W. Bush. I also have noted, in history and through my 10 years here, that at the end of every Presidential term it is the common practice in the Senate to slow down the nomination process awaiting the results of an election. This happened to President Carter, it happened to President Reagan, it happened to George Hubert Walker Bush, and to Bill Clinton as well. But we are faced now with a new standard. The agreement of the Senate that has been around for 214 years was changed in the last Congress. The 108th Senate began to filibuster on the floor judges that had cleared committee, judges that had demonstrable majority support. The question that faces us now is a clash of two principles: Do we accede to this new Senate rule that has the standard no longer of 51 votes but the standard of 60 votes or do we go back to that standard by changing a Senate rule making explicit what had before been an understanding among colleagues? I believe we are in a place now that we have to go back to the standard that this Chamber has operated under for 214 years. I think to do otherwise has a long-term impact that is negative for the third branch of our Government, the judiciary. As Senator Durbin, the assistant minority leader, would probably like to know, this is one Republican who does listen to him and I was listening to him last night when he spoke about Priscilla Owen. I heard his comments earlier when she had come up for confirmation in the 108th Congress, and among the many things held against her was her membership in the Federalist Society. The Federalist Society is something I have never belonged to. When I was in law school, I did not know about it. But it is an organization that believes apparently the judicial branch of Government should strictly construe the laws and be reluctant to get into political questions, to leave the democratic processes working, and to strictly interpret their judgments from the black letter of the law. I do, however, remember when I was in law school that one organization was very active in recruiting, and that was the American Civil Liberties Union. That is an organization that believes it stands for the protection of the Bill of Rights and believes that those who should be on the court should expansively interpret those rights. As I understood the assistant Democratic leader, he was saying that Judge Owen's membership in the Federalist Society should disqualify her. Well, if that is now the standard--and, Mr. President, it will be the standard if the new Senate rule is 60 votes--then I promise my friends on the Democratic side that there will probably be more than 40 Senators on this side who in the future will hold ACLU membership against nominees. I think that is a mistake. I think guilt by association, whatever you think of these organizations, should not be disqualifying of nominees from the Federal bench. If the standard that he erects for Priscilla Owen had been in place when Ruth Bader Ginsburg was nominated to the Court, she would not have been confirmed. I have also noted with some interest, while it is never held up as a religious test, great concern for nominees who are devout members of their religious faith, fearing that their beliefs and their faith would affect their judgment on the bench. Mr. President, I believe the Constitution is explicit in making clear that we do not have religious tests for public office. I do not accuse any of my Democratic colleagues of religious bias, but I do hear a fearful undertone, an undercurrent here that I think will bar the door to judicial service to people of faith if we set or keep the standard at 60. Mr. President, I come to this place believing that the brightest of conservative and liberal thinkers best serve American justice and the evolution of American law rather than having a standard that says if you are unwritten and unrevealed and unaffiliated, you have a chance, but if you are a Member of a political organization, if you are affiliated with the Heritage Institute or the Brookings Institute or you are a member of a religious faith, these standards will begin to erect barriers to service in public office. I think that is a very dangerous thing. After my own law school experience, I had the privilege of serving as the law clerk to the chief justice of the New Mexico Supreme Court, Vern Payne. It was my observation in those chambers that the judges that made the most difference for good in the administration of equal protection and due process were those on the right and the left that had clear feelings and a compassion that guided their decisions. I do think we make a serious long-term mistake and do very real damage to American law when we say only those in the middle can serve. But that is what the standard of 60 will mean in the future of American law if that is now the rule of the Senate. If you study the filibuster, you will find that this is a right that Senators have that has evolved out of a mistake in leaving out a Senate rule that originally governed this body. But unlimited debate became the standard, and yet it also became the vehicle by which much of America's business was left undone. Sometimes it was used to odious ends, such as the denial of an African-American's civil rights. Long before I ever arrived here, colleagues of former days began to change, refine, and limit the use of the filibuster. I have heard my colleagues on the other side describe this right in terms which make it secular scripture or that this is in the Constitution. It is not in the Constitution. But it is an important right, I grant. What the public is not hearing is that there are several calendars of business that we take up. There is the Legislative Calendar. We are the legislative branch. Then there is the Executive Calendar in which we take up advice and consent on executive appointments both to the executive branch and to the judicial branch. When you get to the Executive Calendar, you really do get to the checks and balances. And the question is why was it for more than 200 years the gentleman's agreement was that you do not filibuster these nominees, you give them an up-or-down vote for so long? And the reason was simply because it did have an impact upon other branches of Government. No one here is proposing a limitation of filibusters on the legislative calendar. Nevertheless, in former years, our colleagues made many modifications to the filibuster rule. It began in 1917. There was no limit to filibusters until then. The standard was then set at 67 votes to invoke cloture, end debate, and go to a vote. But still, this was not a standard applied to the Executive Calendar. Further on, many changes have been made to the filibuster rights of a Senator. There are, in fact, 26 laws on our books today abrogating the right of a Senator to filibuster. For example, you cannot filibuster a Federal budget resolution. It was known as the Congressional Budget and Impoundment Control Act of 1974. The Budget Act of 1974 restricts debate on a budget resolution and all amendments thereto and debatable motions and appeals in connection therewith to not more than 50 hours. That is a very significant restriction on the right of a Senator to filibuster. Another restriction is that you cannot filibuster a reconciliation bill. Like the budget amendment, a reconciliation bill cannot be filibustered on the Senate floor, so it can pass by a majority vote. So you cannot filibuster anything connected with a resolution or reconciliation, such as an amendment or a conference report. I think the public would be surprised to know that at the end of a session, when the work of the Finance Committee and much of the work of the Appropriations Committee comes to this floor, usually in a big omnibus bill or reconciliation package, it passes by a majority vote because it cannot be filibustered. In fact, I suspect half of the work we end up doing here, because of decisions made in former days, is not the subject of filibuster, even though it is part of the legislative calendar. Another instance: You cannot filibuster a resolution authorizing the use of force--the War Powers Resolution. You cannot filibuster international trade agreements, and that is called the Bipartisan Trade Promotion Authority. You cannot filibuster legislation under the Nuclear Waste Policy Act of 1982. Time and again, our colleagues before have recognized that to move the business of the United States, there had to be some kind of limits. When I speak of the filibuster, I speak of it respectfully; I also understand its importance to slow down debate and to give Senators all the opportunity they need for debate. But I also understand that the country's business has to move forward. So colleagues, in former decades, have narrowed the right of the filibuster. One of the Senators in this Chamber who preceded me here from Oregon is a man much esteemed in Oregon lore. His name was Wayne Morse, known as the ``tiger of the Senate.'' He is the third place recordholder for a filibuster, exceeded only by Strom Thurmond and Al D'Amato. As I recollect, he spoke for 22 hours and 26 minutes on the tidelands oil bill in 1953. I suspect, if you check the record, few Senators used the filibuster more than Wayne Morse. He used to come here late at night and speak well into the night almost on a daily basis when the Senate was in session. But listen to what Wayne Morse said about the filibuster: It is time we got back to the original purpose of the Founding Fathers and of the U.S. Senate. That purpose is to give reflection, continuity, and dispassion to legislation. These certainly do not extend to giving a veto power to a dissident minority. The Constitution is clear about when a two-thirds vote is required to make a decision. Those who want to add to those instances might better be honest about their intentions and come forward with a constitutional amendment, rather than to seek to achieve their purpose by the means of Senate rules. What Senator Morse was referring to is that the U.S. Constitution makes explicit those instances in which supermajorities are required. Advising and consenting on judges is not among those. It is required for amending the Constitution, it is required to override a President's veto, it is required for the ratification of treaties, and in a couple more instances. But this issue is not among those expressed in the Constitution. To clarify, Senator Morse states that he supports the use of filibusters. He said: I am one liberal who admits that he filibusters. Yet he draws a distinction between filibusters which control debate and a filibuster designed to prevent a vote from ever occurring, which subjects the Senate to rule by the minority. He went on to say: It is one thing to filibuster to stop what is called a ``steamroller'' in the Senate, to stop a majority from taking advantage of a parliamentary minority. It is quite another thing to filibuster in the Senate under a program which is aimed to defeat the right of the majority to express itself by way of the passage of legislation, which in turn will be subject to the checks which our constitutional system provides. There are lots of checks and balances, but right now the 109th Senate has a decision to make--whether or not we should reinstate a two- century tradition of voting up or down on the Executive Calendar for judges. Why? Because it is important to the two other branches of Government. The 108th Congress broke this tradition and 60 is now the rule, unless we come to some other agreement. Well, again, Mr. President, I do fear the impact of this new standard if we don't do something. I believe this new standard, if applied to past distinguished jurists, would make their confirmation impossible. I believe Oliver Wendell Holmes was revolutionary in his thinking about law. Felix Frankfurter, a Roosevelt appointee, was certainly revolutionary in his thinking. Thurgood Marshall or William Rehnquist or Justice Scalia--these men, I believe, today, under this new 60-vote standard, would likely be unconfirmable. I believe this dumbs down American law, and the Senate does a disservice to the meaning of elections and to the important authorities given to the executive and the judicial branches when we raise filibusters to this new level, which I believe says to every bright young law student: If you have a point of view that is clear, if you have a membership in the ACLU or in the Federalist Society, if you are a member of a religious faith or part of a labor union, this will be held against you; it will have a chilling effect on people's ability to make a difference in law. It will certainly be a sword that we will wield when we are in the minority. It is, therefore, with regret but conviction that I assert my support for a rule that will restore the tradition of the Senate on the Executive Calendar. The Senate rules are not Scripture. They have been changed repeatedly throughout the history of this institution. We may now have to do that again. I had hoped that a compromise could be found. One may yet be found. But I have also come to believe that when you take a deal that says give up on the principle, the tradition, and throw half of these nominees overboard, what is admitted in that offer is that all of these people from whom we can select are qualified for the Federal bench, and what is also admitted by that offer is that this is just about politics. This is a principle too important to get in the way of the efficient management of our business, our responsibility of advising and consenting, and having back in place the 200-year tradition of giving up-or-down votes to those who have majority support. With that, I urge my colleagues to support the majority leader, and I urge the restoration of a majority vote on judges. I yield the floor.

Mr. SMITH

Mr. SMITH. Mr. President, I would like to ask a question of the chairman of the Finance Committee. I am concerned about the application of one of the fuel tax provisions of the JOBS bill. Some people were cheating, by paying no tax on aviation fuel and then selling the fuel for highway use. To prevent this, we moved the collection point upstream, to the point at which fuel is removed from the rack. At the same time, we created exceptions, for situations where there is little risk of evasion. One important exception is for fuel delivered by pipeline to a secure airport that goes from a secure fuel tank at an airport terminal directly into a commercial aircraft. Here is the problem. Fuel suppliers often enter into long-term contracts to deliver fuel throughout an entire region. In some cases, they don't have their own fuel tanks at a particular airport. So the company enters into a contract with a fuel supplier, referred to as a ``position holder,'' who does have fuel available at that airport. In these cases, when planes come in for refueling, the legal title to the fuel shifts from the position holder to the reseller, then to the airline when the fuel goes into the commercial aircraft. The concern is that situations like this may be disqualified from the exception because some believe the passage of title means that the fuel is not considered to go ``directly'' from the position holder to the commercial aircraft. As a result, the transaction could be subject to the burdens of the new rules even though I believe there is absolutely no risk of evasion. In the chairman's markup, I filed an amendment to address this concern by clarifying that these so-called ``flash title'' transactions qualify for the exception, as long as they meet all of the other applicable requirements. I understand, however, that some believe my amendment was unnecessary because the transactions could already qualify. This is an important matter to me. It affects many companies, including a Salem, OR, company that employs more than 100 people and provides an important service to airlines throughout my State. I would like to get a clarification of this point. Is it the chairman's understanding that a transaction that otherwise qualifies for the exception in section 4081(a)(2)(C) and 4081(a)(3) and (4), which allows commercial aviation to self-assess fuel tax at the commercial rate, when the commercial airline receives fuel at one of the secure airports through the hydrant system exception, is not disqualified merely because of the incidental transfer of title from the original position holder to the reseller, and then to the commercial airline?

Mr. SMITH. Mr. President, with that understanding, I thank Chairman Grassley for his assistance in this matter. It is important in order to avoid imposing unnecessary burdens on companies in Oregon and all across the country that provide aviation fuel.

Mr. SMITH

Mr. SMITH. Mr. President, water and energy are precious resources that we must manage as efficiently as possible. That is why I am joining with my colleagues Senator Lincoln and Finance Chairman Grassley to introduce the ``Resource Efficient Appliance Incentives Act of 2005.'' This bill would provide for manufacturers' tax credits of varying levels for certain energy and water efficient home appliances. Under this bill, for the first time, water efficiency is included in the eligibility criteria for the tax credits for clothes washers. This bill provides graduated credits to appliance manufacturers. The more efficient the dishwasher, clothes washer or refrigerator, the higher the credit. To spur increased production, the bill provides that these tax credits would apply only to production that exceeds historical production levels, and requires a three-year rolling average to calculated this production baseline. The bill only applies to appliances manufactured in the United States. This will encourage innovation and investment in domestic manufacturing facilities, which employ about 95,000 Americans. Energy savings from this bill would be significant. Super-energy efficient and water conserving clothes washers would have to use at least 65 percent less energy than the 2004 federal standard to qualify for the higher credit. Refrigerators must exceed the 2001 energy conservation standards for comparably sized models by at least 15 percent to receive a credit under this bill. This bill will not only save energy, and reduce the consumers' energy bills over the life of the appliance. It is estimated that, over twenty years, the credit would reduce the amount of water used to wash clothes by approximately a trillion gallons, the amount used in two years by a city the size of Phoenix, Arizona. In several parts of the country, development is constrained by the lack of good quality water and water infrastructure. Having dealt with the water crisis in the Klamath Basin in 2001, when 1,200 farmers and ranchers had their irrigation water cut off, I can tell you firsthand that the conflicts between competing human and environmental needs are real and are growing. As Benjamin Franklin observed, ``When the well is dry, we know the worth of water.'' In many parts of the arid west, the well is running dry on a regular basis. The 10-year drought in the Colorado River Basin, which has seen relief this year, had produced the lowest flows on record last year, straining an important resource for millions of people. The Columbia River Basin has also experienced below average flows in recent years. The daily per capita water use around the world varies significantly. The U.N. Population Fund cites that, in the United States, we use an estimated 152 gallons per day per person, while in the United Kingdom they use 88 gallons. Africans use 12 gallons a day. According to the Rocky Mountain Institute, 47 percent of all water supplied to communities in the United States by public and private utilities is for residential water use. Of that, clothes washers account for approximately 22 percent of residential use, while dishwashers account for about 3 percent. I firmly believe that we can use technology to improve our environmental stewardship. Water efficiency can extend our finite water supplies, and also reduce the amount of wastewater that communities must treat. I would urge my colleagues to join me in cosponsoring this important bill to provide incentives for water and energy efficient residential appliances. I ask unanimous consent that the text of legislation be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, water and energy are precious resources that we must manage as efficiently as possible. That is why I am joining with my colleagues Senator Lincoln and Finance Chairman Grassley to introduce the ``Resource Efficient Appliance Incentives Act of 2005.'' This bill would provide for manufacturers' tax credits of varying levels for certain energy and water efficient home appliances. Under this bill, for the first time, water efficiency is included in the eligibility criteria for the tax credits for clothes washers. This bill provides graduated credits to appliance manufacturers. The more efficient the dishwasher, clothes washer or refrigerator, the higher the credit. To spur increased production, the bill provides that these tax credits would apply only to production that exceeds historical production levels, and requires a three-year rolling average to calculated this production baseline. The bill only applies to appliances manufactured in the United States. This will encourage innovation and investment in domestic manufacturing facilities, which employ about 95,000 Americans. Energy savings from this bill would be significant. Super-energy efficient and water conserving clothes washers would have to use at least 65 percent less energy than the 2004 federal standard to qualify for the higher credit. Refrigerators must exceed the 2001 energy conservation standards for comparably sized models by at least 15 percent to receive a credit under this bill. This bill will not only save energy, and reduce the consumers' energy bills over the life of the appliance. It is estimated that, over twenty years, the credit would reduce the amount of water used to wash clothes by approximately a trillion gallons, the amount used in two years by a city the size of Phoenix, Arizona. In several parts of the country, development is constrained by the lack of good quality water and water infrastructure. Having dealt with the water crisis in the Klamath Basin in 2001, when 1,200 farmers and ranchers had their irrigation water cut off, I can tell you firsthand that the conflicts between competing human and environmental needs are real and are growing. As Benjamin Franklin observed, ``When the well is dry, we know the worth of water.'' In many parts of the arid west, the well is running dry on a regular basis. The 10-year drought in the Colorado River Basin, which has seen relief this year, had produced the lowest flows on record last year, straining an important resource for millions of people. The Columbia River Basin has also experienced below average flows in recent years. The daily per capita water use around the world varies significantly. The U.N. Population Fund cites that, in the United States, we use an estimated 152 gallons per day per person, while in the United Kingdom they use 88 gallons. Africans use 12 gallons a day. According to the Rocky Mountain Institute, 47 percent of all water supplied to communities in the United States by public and private utilities is for residential water use. Of that, clothes washers account for approximately 22 percent of residential use, while dishwashers account for about 3 percent. I firmly believe that we can use technology to improve our environmental stewardship. Water efficiency can extend our finite water supplies, and also reduce the amount of wastewater that communities must treat. I would urge my colleagues to join me in cosponsoring this important bill to provide incentives for water and energy efficient residential appliances. I ask unanimous consent that the text of legislation be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I am pleased today to introduce the Small Business Growth and Opportunity Act of 2004 along with my Finance Committee colleague, Senator Blanche Lincoln. This legislation will allow S corporations to liquidate unproductive assets freeing up capital to be used to grow the business and create new jobs. There are about 2.9 million of these small and family-owned businesses in all 50 States. Over the past few years, many of these small businesses have been forced to lay off workers and delay capital investment. At the same time, the tax code forces them to hold on to unproductive and inefficient assets or face the double tax period of the corporate ``built-in gains'' tax. Under current law, businesses that convert from a C corporation to S corporation status are penalized by a double tax burden for a period of 10 years if they sell assets they owned as a C corporation. This tax penalty is imposed at the corporate level on top of normal shareholder- level taxes, making the sale and reinvestment of these assets prohibitively expensive. In some States, this double-tax burden can exceed 70 percent of the built-in gain. Clearly this tax penalty is neither justifiable nor sustainable as a reasonable business matter. The built-in gains tax 1. limits cash flow and availability, 2. encourages excess borrowing because the S corporation cannot access the locked-in value of its own assets, and 3. prevents these small businesses from growing and creating jobs. While I would like to see even more generous relaxation of these rules, for revenue considerations this legislation will reduce the built-in gains recognition period (the holding period) from 10 years to 7 years. And, this three-year reduction would be a significant start in easing this unproductive tax burden on these small and family- owned businesses. I look forward to working with my colleagues on the Senate Finance Committee and hope the Committee will consider this proposal this year. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I am pleased today to introduce the Small Business Growth and Opportunity Act of 2004 along with my Finance Committee colleague, Senator Blanche Lincoln. This legislation will allow S corporations to liquidate unproductive assets freeing up capital to be used to grow the business and create new jobs. There are about 2.9 million of these small and family-owned businesses in all 50 States. Over the past few years, many of these small businesses have been forced to lay off workers and delay capital investment. At the same time, the tax code forces them to hold on to unproductive and inefficient assets or face the double tax period of the corporate ``built-in gains'' tax. Under current law, businesses that convert from a C corporation to S corporation status are penalized by a double tax burden for a period of 10 years if they sell assets they owned as a C corporation. This tax penalty is imposed at the corporate level on top of normal shareholder- level taxes, making the sale and reinvestment of these assets prohibitively expensive. In some States, this double-tax burden can exceed 70 percent of the built-in gain. Clearly this tax penalty is neither justifiable nor sustainable as a reasonable business matter. The built-in gains tax 1. limits cash flow and availability, 2. encourages excess borrowing because the S corporation cannot access the locked-in value of its own assets, and 3. prevents these small businesses from growing and creating jobs. While I would like to see even more generous relaxation of these rules, for revenue considerations this legislation will reduce the built-in gains recognition period (the holding period) from 10 years to 7 years. And, this three-year reduction would be a significant start in easing this unproductive tax burden on these small and family- owned businesses. I look forward to working with my colleagues on the Senate Finance Committee and hope the Committee will consider this proposal this year. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I thank the chairman of the Budget Committee, Senator Gregg, for yielding time but much more for his patience with all of his colleagues--and I suppose myself primarily-- during what has been a very difficult and grueling period of time for the majority and even some in the minority who are focused on this issue. I also want to express my appreciation to Bill Frist, the majority leader, and Mitch McConnell, the whip, who have come at this responsibility of producing a budget with determination and understanding that without a budget, we have considerable chaos in this Chamber. To the general public it probably looks as if we are in chaos all the time, but they have seen nothing until they have seen us without a budget. As I have approached this budget, two things have been apparent to me. No. 1, that we had to have a budget. I understand the institutional responsibility the majority carries when it comes to advancing the legislative work of the American people. I have also been mindful for some time that Medicaid needs reform, restructuring, and, in my view, restructuring not unlike what the State of Oregon has done with the Oregon health plan, to make sure that those intended to be served and covered, those legitimate and truly eligible, find access to this essential strand in America's safety net. Each one of us in this Chamber comes from their own perspectives and with their own sense of responsibility, their own history from their States. In my case, I come from a State that prides itself on pioneering in many ways, not the least of which is in the area of health care. One of the crown jewels of that pioneering is the Oregon health plan, which was an effort on the part of one of our former Governors, John Kitzhaber, to find a way, with the resources available through the Federal match with State resources, to cover more people more effectively with preventive medicine and essential services in a way that gets the most bang for the medical buck. Clearly, America will come to a point when more people of the baby boom generation come on to Medicaid where such a model or something similar will be necessary for our country to both afford it and to provide it. So as I approached this budget, it was with caution, especially caution due to the people who are covered by Medicaid. These are the elderly, the poor, the disabled, the unusually vulnerable in our society, who when they are thrown off of Medicaid are thrown into emergency rooms, where the cost of their medicine is simply shifted over time on to the escalating costs of private plans which many small businesses struggle today to continue to provide to their employees. When we came to this debate, I was very mindful that the House of Representatives had passed a reconciliation number which, in the case of their Chamber, I believe was $18.5 billion over 5 years to the Ways and Means Committee and $20 billion to the House Commerce Committee, a total of $38.5 billion over 5 years. That is a very large number, and the programs to be affected were not Social Security. It was announced that Medicare would not be touched. That leaves, on the list of programs, very few. So it was my feeling--despite my high regard for the budget chairman, Senator Gregg--that I needed to engage and, if I could, to take out the Senate number, which was $14 billion. He and others were honest enough to say it was to Medicaid. So the Senate went to zero. Then comes the clash of institutional responsibility, the ability to do the Nation's business without in any way, in my view, putting such undue pressure upon Medicaid as a class of people that should not be borne in haste, or done in haste, by putting a budget number ahead of sound policy. I know that the people in the medical community who are counting on us want us to do this right, if we do it at all. I know many of them would have liked a budget with a number that remained at zero. That has not been possible. But the minimum number that I was told, necessary to get a budget, was $10 billion over 5 years, with no cuts required in the first year. That also was coupled with the creation of a commission. You will look through this budget and you will not find a commission in it because that is not the kind of thing you put in a budget. A commission is something that Congress could create, but it can more quickly be created through an executive decision, with resources currently allocated, so that work can begin in a more timely way. I want to make it also clear that the Secretary of Health and Human Services, the former Governor of Utah, Mike Leavitt, is a person in whom I have implicit confidence. He is a man of integrity. He is a man of his word. He is a man who understands that his reputation and mine are on the line in constructing the kind of commission that is inclusive, that is bipartisan, that is academic in its nature, and is charged with the responsibility to produce a Medicaid program--not just short term but long term--that is a system that we can be proud of and that will serve the people who need its coverage. It is the strong desire of the Senate, and I do not speak for my Democratic colleagues, but my partner in this effort, Senator Jeff Bingaman of New Mexico, he and I and our staffs have been working across the aisle to create the kind of credible structure to recommend to the Secretary. Ideally, and it is my strong urge and plea, this commission will be conducted by the Institute of Medicine. They will be charged to provide to us, by early September, their recommendations of what ways the Senate Finance Committee and the House Commerce Committee can respond to the reconciliation number. I will not prejudge what they will say, but I know they will say it in a way that will be acceptable to Republican and Democratic ears and will give this the kind of academic focus it truly deserves. But that is a work in progress. Ultimately, you have to trust people to be good, to live up to the public statements they make. The President's administration has made it clear that they approve of the creation of this commission. The majority leader, Senator Frist, has also assured me of a colloquy that will be part of this budget to the Senate, how we will proceed. Ultimately, the work of the commission will go to the Senate Finance Committee, and there we will take up deciding what should be done under reconciliation. The Senate Finance Committee is composed of thoughtful people, all of whom, with few exceptions, are anxious to do this right and to serve the people that ought to be served. I hope that everyone will understand this has not been easy, but I think much has been achieved in terms of checks and balances as we proceed. No one can deny that the awful arithmetic of American demographics confronts future Congresses with a demographic tsunami, and we have to find ways to keep our safety net strong without bankrupting our taxpayers and particularly our children and grandchildren. I think they would want us to do this carefully, to do it right, to do it on the basis of good policy instead of numbers which may, in some cases, be arrived at arbitrarily. But we are going to begin now because this budget should pass. I would say to all of my colleagues who are wondering, as I have, whether to vote for this budget: I have yet to vote for a budget with which I found myself in agreement with everything. I have never voted on a perfect piece of legislation. But I also remember the time when my party was briefly in the minority and the majority party at the time was unable to come up with a budget at all, and we truly had a chaotic situation. We cannot have that if people are sincere about managing spending and setting this country on a path of promise-keeping, not just to those served, but also to today's and tomorrow's taxpayers. So I ask my colleagues, particularly those who voted with me to remove the $14 billion, to now vote in good faith for this budget that Senator Gregg has brought to the floor. It has been a difficult process, and again I say I believe our leaders are to be credited. They have dealt in good faith. They have a tough job to do, and each of us in this Chamber has principles that we are trying to defend. But this is not the final number. The final number is done in the authorizing committees--in the House Commerce Committee and in the Senate Finance Committee. There is a long way to go. So to those who care about Medicaid, to those who are served by Medicaid: Be engaged and know that my office, my heart, my mind are open to you in order to do this right and not just to do it fast. But, having said that, it is necessary for us to go beyond where we are now, which is operating without a budget at all, because appropriations need to be made, important legislation has to pass, and a budget is the cornerstone of making all this work begin to proceed. I thank Chairman Gregg for the time, for his understanding, and for his coming to the Senate and bringing the best budget we can produce under all the competing interests and demands. This is, while not perfect--and I have a long list of things I would rather not be there--this is a beginning and not an ending. But we do not get to the end until we finish this budget. I announce my support for it and urge all of my colleagues to join in approving it this evening. I yield the floor.

Mr. SMITH

Mr. SMITH. Mr. President, I speak about the need for hate crimes legislation. Each Congress, Senator Kennedy and I introduce hate crimes legislation that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. Likewise, each Congress I have come to the floor to highlight a separate hate crime that has occurred in our country. Last month, a fifth person was arrested and charged with beating up a teenager because of his sexual orientation. The victim, an 18-year-old from Virginia, was at a gathering at his cousin's home. Late that night, the five assailants repeatedly kicked and hit the victim with a chair because he was gay. I believe that the Government's first duty is to defend its citizens, to defend them against the harms that come out of hate. The Local Law Enforcement Enhancement Act is a symbol that can become substance. By passing this legislation and changing current law, we can change hearts and minds as well.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak in behalf of John Bolton to be the U.S. Permanent Representative to the United Nations. I know this nomination is gaining controversy. Yet the more I listen to it, I realize there may be an attempt to kill his nomination from a thousand cuts. It is not unusual in this town to see someone with a strong personality being subject to all kinds of innuendo and charges and hearsay. Certainly all of these things warrant investigation so that the Senate can perform its advise and consent duty. However, I think it is also very important we remember the President's right to nominate the individuals he believes are important in order to pursue his policies after his election, an election he earned at the ballot box, and the right conferred upon him by the Constitution. I rise here not as an opponent of the United Nations, but as one deeply disappointed in the United Nations in the 9 years in which I have served as a Senator. The U.N. is going through a challenging period, one that is raising questions about its effectiveness and ability to fulfill its mission on a global scale. New and unprecedented challenges face the United States and our allies. We cannot solve all the world's problems on our own. We need to continue to work with our allies to combat threats around the world, especially the threat of terrorism and the spread of weapons of mass destruction, for those two factors in combination probably pose the greatest security threat to our Nation and the civilized world. An efficient and effective United Nations can still play a valuable role in world affairs. The U.N. demonstrated this by its response to the tsunami disasters that befell Indonesia, India, Sri Lanka, Thailand and the other nations in the Indian Ocean. The United Nations can still serve an integral humanitarian function. Its success in coordinating relief efforts is helping the region to recover from its tragedy. I am also pleased with the U.N.'s establishment of new levels of oversight to monitor how enormous levels of humanitarian assistance are distributed to needy people. Unfortunately, the U.N. can, and should, and must be more and do more. We have a United Nations that is tragically rife with corruption and mismanagement. It is an organization that is starting now to admit its problems. That is a positive. But it seems incapable of addressing these issues in any meaningful way. The international community has been rocked by scandals involving the United Nations. The most obvious example of its malfeasance, of course, is the Oil-for-Food Program. As you know, the U.N. was responsible for overseeing the Oil-for-Food Program, which was established to provide relief to the Iraqi people suffering under Saddam Hussein's brutal regime. Instead, it allowed--and possibly even directed--the incredible scheme of kickbacks, bribes, and other financial crimes that may have even enriched some members of the U.N. bureaucracy. The United Nations peacekeepers, sent to provide some semblance of security to war-torn countries, have been accused of such crimes as rape, child molestation, and sexual abuse in the Democratic Republic of Congo, the Balkans, and in Haiti. High-ranking United Nations officials have been accused of sexual harassment. The U.N. High Commissioner for Refugees, Ruud Lubbers, was recently removed from his post because of sexual harassment. To tackle this challenge, on March 7, 2005, President Bush nominated John Bolton to be the Permanent United Nations Representative for the United States. I believe Mr. Bolton can help produce a more effective and efficient U.N., a stronger U.S.-U.N. relationship, and a U.N. that lives up to its founding principles and ideals. I do not know Mr. Bolton. I have shaken has hand, I believe, on one occasion. But as I have reviewed his record of accomplishment and his answers to the Senate Foreign Relations Committee, on which I once was privileged to serve, it is clear to me he is intelligent. I believe he is honest. He is certainly candid. These are qualities I think that can help him help the United Nations. When we think back on U.N. ambassadors from our Nation, those willing to shake things up have been most meaningful in helping the U.N. to live up to its high purposes. The name of our former colleague, Daniel Patrick Moynihan, comes to mind. Jeanne Kirkpatrick also comes to mind. These are two who were not afraid to step on toes or to do what was necessary to get the job done and help the U.N. to change. I believe John Bolton's personality, while not perfect for everyone, will work in a manner that will create change leading to needed reforms. Frankly what you need in this capacity is probably a strong backbone more than a winning personality. He understands the strengths and especially the weaknesses of the U.N. At no time in the history of the United Nations has reform been as needed as right now. The United States, as the leading contributor to the United Nations' budget, must take the lead in setting forth the necessary reforms. The United Nations is losing respect, not only in the United States but throughout the world. The United Nations has a serious legitimacy problem. I remember hearing the Secretary General saying legitimacy comes uniquely from the United Nations. I wish it did. But it does not. Legitimacy comes from democracy and processes that are open and transparent and free from corruption and, when corruption is found, rooted out through the process of law. The Security Council--and I think the American people understand this--is not a place where Americans can find security. In some of the worst cases of genocide in our planet, it has been idle, unable, unwilling, and too gridlocked to stand up to some of the worst human crime in our time. It sets high standards for itself and then sits on its hands while genocide occurs in places such as Rwanda and in the Sudan. Countries that harass their people, that imprison those who clamor for democratic rights, that thwart all efforts at civilized behavior, have the same voting power as those with free, democratic societies. I wish it was the United Democratic Nations but, it tragically is not. Legitimacy is given to the United Nations from countries such as the United States. We do not need a stamp of approval from the U.N. to act, but the U.N. does need the stamp of approval from its member states before it can act. How can one not doubt the legitimacy of the United Nations when a human rights stalwart such as Libya, or Cuba, is appointed to chair the Human Rights Commission and the United States is removed? Or Iran is chairing the Disarmament Commission? The question answers itself. With the 60th anniversary of the United Nations approaching this summer, though, we have a real opportunity to encourage the U.N. to change its ways, to live up to its founding ideals. The United States must take the lead in helping to reform the United Nations. This is the only way the U.N. can fulfill its original promise of promoting international peace and security. John Bolton may or may not be the perfect nominee. That is not my point. But I think he can be effective simply because he can be confrontational. Under Secretary Bolton has, with all the slings and arrows directed his way, served his country with honor and distinction at many different times. He has been an effective diplomat, enjoying a strong record of success, and has demonstrated his enthusiasm for working with other countries to meet common challenges. When one reviews John Bolton's credentials, it is clear he is extremely qualified to be United States Ambassador to the United Nations. I say that without any commentary at all on his personality. As an Assistant Secretary for International Organizations from 1989 to 1993 in the first Bush administration, Under Secretary Bolton worked for Secretary James Baker on U.N. reform matters and on the repayment of arrearages and assessments. While serving as the Assistant Secretary for International Organizations, he detailed his concept of a unitary U.N. that sought to ensure management and budget reforms that impacted the entire U.N. system, not only the U.N. Secretariat. This is truly a forward thinking initiative. This is the type of creativity and resourcefulness we need in order to address the enormous problems within the United Nations. In 1991, Under Secretary Bolton was the principal architect behind the initiatives that finally led the United Nations General Assembly to repeal the resolution that equated Zionism and racism, one of the more notorious and heinous resolutions ever passed by the United Nations. Imagine this: The United Nations, created out of the ashes of World War II, passing a resolution in 1975 equating Zionism with racism and refusing for nearly 20 years to repeal that appalling notion. During his time out of Government, Mr. Bolton served the United Nations on a pro bono basis between 1997 and 2000, as an assistant to former Secretary of State Baker in his capacity as the Secretary General's personal envoy for Western Sahara, working to resolve the dispute over that territory--quite an effort from someone who does not believe in the power of multilateralism and international organizations, which is alleged against him but is not true. For the past 4 years he has served as the Under Secretary of State for Arms Control and International Security Affairs. Under Secretary Bolton led the efforts to implement the President's agenda to counter nonproliferation, including the reform of the International Atomic Energy Agency. He also shaped the administration's approaches to countering the threat of WMD proliferation and, most importantly, the proliferation security initiative, a program that led directly to the discovery of Libya's nuclear program and its subsequent disarmament. John Bolton is the best candidate to help usher in this needed reform because he is the one the President nominated and he has a long record of achievement. He knows the United Nations. He knows the changes that need to be made, and with his prior experience he can work with fellow members of the U.N. and to implement the necessary reforms. My mother used to tell me when I was a little boy, got in trouble and punished: Son, it is better to be trusted than loved. Frankly, if Mr. Bolton is feared, while not loved, he may do more good than if he is loved and getting along with all. With all the problems illustrated with the United Nations, why would we want to send someone to New York who is more interested in the status quo than with engaging this institution with real reform for its organizations. Again, I don't know Mr. Bolton personally. His personality is probably much different than my own. But I do know the President has a right to appoint whom he will appoint. Unless something is unearthed that disqualifies him because of his conduct, then all the innuendo, the hearsay, and the charges made against him that are ``he said, she said'' need to be understood in the long tradition in this town of killing one by 1,000 cuts, simply for political gain. We owe this country and especially the United Nations, something better than an effort of blood sport in the Senate. Unless something is quickly unearthed about Mr. Bolton, I ask my colleagues to advise and consent on this nomination and to confirm him as quickly as possible because the work of reform at the United Nations is long overdue. I yield the floor.

Mr. SMITH

Mr. SMITH. Mr. President, I ask unanimous consent that I be allowed to speak as in morning business.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. Each Congress, Senator Kennedy and I introduce hate crimes legislation that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. Likewise, each day I have come to the floor to highlight a separate hate crime that has occurred in our country. Last March, 29-year-old Jason Gage, who is gay, was beaten and stabbed in his home. According to police reports, his attacker acknowledged striking Gage twice with a bottle in the head and stabbing him with a piece of glass. There have been reports that the victim was targeted solely because of his sexual orientation. I believe that the government's first duty is to defend its citizens, to defend them against the harms that come out of hate. The Local Law Enforcement Enhancement Act is a symbol that can become substance. I believe that by passing this legislation and changing current law, we can change hearts and minds as well.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. Each Congress, Senator Kennedy and I introduce hate crimes legislation that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. Likewise, each day I have come to the floor to highlight a separate hate crime that has occurred in our country. Last March, a Bronx man was assaulted by a group of teenagers because of his sexual orientation. The teenage boys allegedly jumped the man near his home on the evening of March 19, 2005. The assailants repeatedly punched and kicked the man while yelling antigay epithets. I believe that the government's first duty is to defend its citizens, to defend them against the harms that come out of hate. The Local Law Enforcement Enhancement Act is a symbol that can become substance. I believe that by passing this legislation and changing current law, we can change hearts and minds as well.

Mr. SMITH

Mr. SMITH. Madam President, I thank my colleague. It seems only yesterday but it was over 8 years ago that Senator Wyden and I engaged in a very hotly contested race for the seat of Bob Packwood, formerly the seat of Wayne Morse. I believe he was called ``the tiger of the Senate,'' a man for whom Senator Wyden had worked earlier in his college years. Ours was a campaign that Oregonians will not soon forget because it was so hard fought. It was a special election. Ron Wyden won that race, and I narrowly lost that race. Yet, through a matter of circumstances, it was possible for me to continue running for the seat of Mark Hatfield with his announced retirement. So a few months later, I was elected to the U.S. Senate to the Hatfield seat, the McNary seat, the Baker seat. I think it was a question on every Oregonian's mind and certainly in the press whether Ron Wyden and I could work together in any fashion because of the difficulty of the race we had run. What I did the morning after my victory was to call Ron Wyden and invite him to breakfast. No sooner had the orange juice been poured than it was very apparent to both of us that we were similar in nature in terms of our desire to do right by the State of Oregon. And while we would come at two issues from different political perspectives, we quickly recognized that on the matter of one's State, there was a community of interest, indeed, an incredible resource, and if we could find a way to put partisanship aside when it came to the borders of Oregon, we could find many areas where together, as a Republican and a Democrat, we could serve the interests of our Nation but particularly the interests of Oregon. Senator Wyden is the most senior elected Democrat, and I am the most senior elected Republican in our State. We understand that to our parties, we owe loyalty on nearly all procedural votes, we owe to our parties support of our nominees, but to each other we owe respect, and we have found that easy to come by. So after once being competitors, we found ourselves colleagues. In the course of 9 years, we have found a very rich friendship. We do not editorialize on one another's votes. We try to support in every way we can the initiatives of the other. And we have found that the winner is not just our friendship but, much more importantly, the people we serve in the great State of Oregon. What we do today is announce yet another bipartisan agenda, this one for the 109th Congress, a list of items that are specific, some general, but embark us on an agenda which we think will leave our State better when this Congress goes to sine die. The common ground we have found in some cases is not on difficult issues, but it includes supporting communities, families, and children. Much work needs to be done to confront Oregon's methamphetamine agenda, including passing the Combating Meth Act and pursuing full funding for the High Intensity Drug Trafficking Area Program. We will help improve access to higher education by keeping 529 higher education savings tax free. We will find new ways to alleviate hunger and the causes of hunger for Oregon's economically vulnerable citizens. A major part of our agenda is aimed at ensuring economic stability and growth. This includes defending Oregon timber producers from unfair trade practices and pressing the administration to work diligently for a new soft wood agreement with our neighbor, the nation of Canada. We will support our ports so they can remain vibrant. We need to maintain funding for Oregon's smaller ports and work to ensure that the port of Portland's competitiveness in the future is ensured by dredging the Columbia River channel. Our agenda includes promoting renewable energy and furthering Oregon's status as the premier State for the development of renewable resources through tax and energy legislation. We will work with our colleagues in the House and the Senate to protect the county payments legislation that brings over $200 million to Oregon counties annually. This is a program that was started with our effort to help vulnerable rural places that have lost timber receipts to have sufficient resources so that their schools can remain open, their streets can remain paved, and their neighborhoods can remain safe. We will also work with the understanding that a strong economy depends upon affordable power rates. We will stand up against any attempts to force BPA to sell its power at market-based rates or restrict its access to capital for infrastructure investments. Before I yield to Senator Wyden, I note for our friends in the media that one of the most significant issues Senator Wyden has already highlighted on our agenda is our effort to provide for catastrophic insurance. On the issue of health care, our Nation faces a crisis. Certainly the people of Oregon do. I have always believed that in America, and certainly in Oregon, the loss of one's health should not mean the loss of one's home. So what we are going to do together on the Finance Committee is pursue an agenda whereby people in America will have the ability to have in emergency situations health care for catastrophic illnesses so their families are not left destitute and their heirs are not left bankrupted. I yield now to my colleague, Senator Wyden.

Mr. SMITH. Madam President, I thank the Senator. I think he said it well. So much can be accomplished if colleagues will focus on the possible instead of the polemic. When we do that, we find that the people's business is moved forward in a positive way and our Nation makes progress. I conclude with these words: I do not know how long Oregonians will grant me the honor of representing them in the Senate, but I do know for as long as I am in this Chamber and for as long as Senator Wyden is my colleague, we will continue to look for ways to move beyond partisanship and to continue our partnership for Oregon. We yield the floor.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today with Senator Inouye and other colleagues to introduce the ``Junk Fax Prevention Act of 2005.'' This bill will strengthen existing laws by providing consumers the ability to prevent unsolicited fax advertisements and provide greater Congressional oversight of enforcement efforts by the Federal Communications Commission (FCC). This bill will also help businesses by allowing them to continue to send faxes to their customers in a manner that has proven successful with both businesses and consumers. In July of 2003, the FCC reconsidered its Telephone Consumer Protection Act (TCPA) rules and elected to eliminate the ability for businesses to contact their customers even where there exists an established business relationship. The effect of the FCC's rule would be to prevent a business from sending a fax solicitation to any person, whether it is a supplier or customer, without first obtaining prior written consent. This approach, while seemingly sensible, would impose significant costs on businesses in the form of extensive record keeping. Recognizing the problems created by this rule, the Commission has twice delayed the effective date, with the current extension of stay expiring on June 30, 2005. The purpose of this legislation is to preserve the established business relationship exception currently recognized under the TCPA. In addition, this bill will allow consumers to opt out of receiving further unsolicited faxes. This is a new consumer protection that does not exist under the TCPA today. We believe that this bipartisan bill strikes the appropriate balance in providing significant protections to consumers from unwanted unsolicited fax advertisements and preserves the many benefits that result from legitimate fax communications. In the 108th Congress, this legislation passed both the Senate and House but was not signed into law prior to the adjournment of Congress. We hope that both the Senate and House can pass this legislation in a timely manner, prior to June 30, 2005, when the FCC's stay expires. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today with Senator Inouye and other colleagues to introduce the ``Junk Fax Prevention Act of 2005.'' This bill will strengthen existing laws by providing consumers the ability to prevent unsolicited fax advertisements and provide greater Congressional oversight of enforcement efforts by the Federal Communications Commission (FCC). This bill will also help businesses by allowing them to continue to send faxes to their customers in a manner that has proven successful with both businesses and consumers. In July of 2003, the FCC reconsidered its Telephone Consumer Protection Act (TCPA) rules and elected to eliminate the ability for businesses to contact their customers even where there exists an established business relationship. The effect of the FCC's rule would be to prevent a business from sending a fax solicitation to any person, whether it is a supplier or customer, without first obtaining prior written consent. This approach, while seemingly sensible, would impose significant costs on businesses in the form of extensive record keeping. Recognizing the problems created by this rule, the Commission has twice delayed the effective date, with the current extension of stay expiring on June 30, 2005. The purpose of this legislation is to preserve the established business relationship exception currently recognized under the TCPA. In addition, this bill will allow consumers to opt out of receiving further unsolicited faxes. This is a new consumer protection that does not exist under the TCPA today. We believe that this bipartisan bill strikes the appropriate balance in providing significant protections to consumers from unwanted unsolicited fax advertisements and preserves the many benefits that result from legitimate fax communications. In the 108th Congress, this legislation passed both the Senate and House but was not signed into law prior to the adjournment of Congress. We hope that both the Senate and House can pass this legislation in a timely manner, prior to June 30, 2005, when the FCC's stay expires. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. Each Congress, Senator Kennedy and I introduce hate crimes legislation that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. Likewise, each Congress I have come to the floor to highlight a separate hate crime that has occurred in our country. On March 1, 2005, a man was found murdered in Daly City, CA. The victim, who was dressed in women's clothing, was found with multiple stab wounds to his chest and abdomen. Police have identified gender identity and sexual orientation as possible motives. I believe that the Government's first duty is to defend its citizens, to defend them against the harms that come out of hate. The Local Law Enforcement Enhancement Act is a symbol that can become substance. I believe that by passing this legislation and changing current law, we can change hearts and minds as well.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to introduce the Long Term Care Quality and Consumer Information Improvement Act of 2005. Medicare spending for skilled nursing facilities grew rapidly during the late 1980s and 1990s increasing from almost $4 billion in 1992 to $12.9 billion in 1997. While spending has increased under Medicare, there has not been an effort to reward skilled nursing facilities that have provided exceptional care to seniors. The bill I am introducing today with my colleague from Oregon, Senator Wyden, will establish a system to reward skilled nursing facilities that provide exceptional care. We should take steps to ensure that skilled nursing facilities that are providing the best care be rewarded. We must also create incentives for other facilities to strive to provide excellent care. The Long Term Care Quality and Consumer Information Improvement Act of 2005 directs the Secretary of Health and Human Services to establish 10 to 15 quality measures for skilled nursing facilities. While establishing these measures, the Secretary must consult with residents of skilled nursing facilities, patient advocacy organizations, state regulatory representatives, representatives from the skilled nursing facility industry and quality measure experts. The quality ratings for the facilities will then be published on the Centers for Medicare and Medicaid Services' website and published in newspapers with a national circulation. The quality measures created by this bill will be used as an incentive for facilities to provide excellent care. Skilled nursing facilities that submit data shall receive a full market basket update and starting in fiscal year 2006 skilled nursing facilities that are in the top 10 percent of facilities will receive a 2 percent payment bonus. Skilled nursing facilities that are below the top 10 percent, but within the top 20 percent shall receive a one percent payment bonus. The increased public disclosure of facility-specific quality data and the financial incentives included in this bill will spur competition and improved performance in skilled nursing facilities. I believe that we need to help the 77 million elderly and disabled Americans who are in nursing homes by making sure they receive the highest quality care possible. Mr. President, I look forward to working with my fellow Senators and with the chairman of the Finance Committee on this important bill in the upcoming months, and I urge my colleagues to join us in support of this legislation. Mr. Wyden. Mr. President, I rise to discuss a bill I am introducing today, ``The Long Term Care Quality and Consumer Information Act''. As we begin discussions on how to assure that we reward quality health care, I believe we need to include long term care as part of that discussion. Nursing homes sever some of the most vulnerable among us, and assuring quality of care is encouraged and rewarded is important. I hope that this bill will spark a serious debate about how we pay for quality care. This proposal establishes a voluntary system under which nursing homes providing better quality of care would receive higher payment and in turn would provide more information about the quality of care provided. Information would include nurse staffing ratios and would be made public to consumers and their families. Historically, Americans have been paying the same for quality health care as for mediocre care. Efforts have been made by some in the private sector to better recognize and provide incentives for those providers who consistently provide a higher level of care. The Institute of Medicine in its report ``Leading by Example,'' declared the government should take the lead in improving health care by giving financial rewards to hospitals and doctors who improve care for beneficiaries in six Federal programs, including Medicare and Medicaid and the Veterans Health Administration. The IOM report also said the government should collect and make available to the public data comparing the quality of care among poviders. The Centers for Medicare and Medicaid Services has begun pilot programs. I think nursing homes should also be an area in which we explore payment policies that regard those providing a higher quality of care. I look forward to continuing the discussion with all stakeholders about these concepts so we can assure a high level of care and find ways to help providers improve the level of care they provide.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to introduce the Long Term Care Quality and Consumer Information Improvement Act of 2005. Medicare spending for skilled nursing facilities grew rapidly during the late 1980s and 1990s increasing from almost $4 billion in 1992 to $12.9 billion in 1997. While spending has increased under Medicare, there has not been an effort to reward skilled nursing facilities that have provided exceptional care to seniors. The bill I am introducing today with my colleague from Oregon, Senator Wyden, will establish a system to reward skilled nursing facilities that provide exceptional care. We should take steps to ensure that skilled nursing facilities that are providing the best care be rewarded. We must also create incentives for other facilities to strive to provide excellent care. The Long Term Care Quality and Consumer Information Improvement Act of 2005 directs the Secretary of Health and Human Services to establish 10 to 15 quality measures for skilled nursing facilities. While establishing these measures, the Secretary must consult with residents of skilled nursing facilities, patient advocacy organizations, state regulatory representatives, representatives from the skilled nursing facility industry and quality measure experts. The quality ratings for the facilities will then be published on the Centers for Medicare and Medicaid Services' website and published in newspapers with a national circulation. The quality measures created by this bill will be used as an incentive for facilities to provide excellent care. Skilled nursing facilities that submit data shall receive a full market basket update and starting in fiscal year 2006 skilled nursing facilities that are in the top 10 percent of facilities will receive a 2 percent payment bonus. Skilled nursing facilities that are below the top 10 percent, but within the top 20 percent shall receive a one percent payment bonus. The increased public disclosure of facility-specific quality data and the financial incentives included in this bill will spur competition and improved performance in skilled nursing facilities. I believe that we need to help the 77 million elderly and disabled Americans who are in nursing homes by making sure they receive the highest quality care possible. Mr. President, I look forward to working with my fellow Senators and with the chairman of the Finance Committee on this important bill in the upcoming months, and I urge my colleagues to join us in support of this legislation. Mr. Wyden. Mr. President, I rise to discuss a bill I am introducing today, ``The Long Term Care Quality and Consumer Information Act''. As we begin discussions on how to assure that we reward quality health care, I believe we need to include long term care as part of that discussion. Nursing homes sever some of the most vulnerable among us, and assuring quality of care is encouraged and rewarded is important. I hope that this bill will spark a serious debate about how we pay for quality care. This proposal establishes a voluntary system under which nursing homes providing better quality of care would receive higher payment and in turn would provide more information about the quality of care provided. Information would include nurse staffing ratios and would be made public to consumers and their families. Historically, Americans have been paying the same for quality health care as for mediocre care. Efforts have been made by some in the private sector to better recognize and provide incentives for those providers who consistently provide a higher level of care. The Institute of Medicine in its report ``Leading by Example,'' declared the government should take the lead in improving health care by giving financial rewards to hospitals and doctors who improve care for beneficiaries in six Federal programs, including Medicare and Medicaid and the Veterans Health Administration. The IOM report also said the government should collect and make available to the public data comparing the quality of care among poviders. The Centers for Medicare and Medicaid Services has begun pilot programs. I think nursing homes should also be an area in which we explore payment policies that regard those providing a higher quality of care. I look forward to continuing the discussion with all stakeholders about these concepts so we can assure a high level of care and find ways to help providers improve the level of care they provide.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. Each Congress, Senator Kennedy and I introduce hate crimes legislation that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. Likewise, each Congress I have come to the floor to highlight a separate hate crime that has occurred in our country. Last month, a 19-year-old gay man from New York was brutally murdered. The victim's dismembered limbs were found throughout Brooklyn, including inside a subway tunnel. I believe that the Government's first duty is to defend its citizens, to defend them against the harms that come out of hate. The Local Law Enforcement Enhancement Act is a symbol that can become substance. I believe that by passing this legislation and changing current law, we can change hearts and minds as well.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to support an updated version of S. Res. 59, which I submitted on February 17 that calls on the European Union to maintain its arms embargo against the People's Republic of China. I am pleased that all of the original cosponsors of S. Res. 59 are joining me in submitting this revised legislation. This resolution states our strong support of the United States arms embargo on China and urges the European Union to strengthen, enforce, and maintain its embargo as well. It encourages the EU to examine its current arms control policies, close any loopholes, and examine their trade with China inn light of serious human rights concerns. The human rights abuses at Tiananmen Square in 1989 led the United States and the EU to impose this embargo. Now is not the time to lift it. If the EU proceeds down this road, there will be negative consequences to our relationship--an outcome their officials claim they do not want. This resolution expresses the Senate's view that maintaining the embargo is in our mutual security interests.

Mr. SMITH

Mr. SMITH. Mr. President, briefly, all the arguments have been made. Everybody knows we are dealing with a Damocles sword when you put reconciliation on Medicaid that covers the most vulnerable Americans. I think right now is simply the time to say vote your conscience. Thank you.

Mr. SMITH. Mr. President, 200-plus groups who support the Smith- Bingaman amendment believe this would be a poison pill. I fear the same because it tries to put the Senate on record as requiring the Senate Finance Committee, under the Damocles sword of reconciliation, to report out an agreement that Secretary Leavitt may reach with any group of Governors--not even a majority, not even from the National Governors Association. I urge a ``no'' vote.

Mr. SMITH

Mr. SMITH. Mr. President, on the Bingaman amendment, I would like to yield 4 minutes to Senator Baucus, 4 minutes to Senator Corzine. I believe after that Senator Stabenow will take 4 minutes and Senator Clinton for 4 minutes as well, and perhaps Senator Rockefeller following if time remains.