Gordon Smith

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. On January 2, 1993, police found Chrissey Johnson naked, with her feet tied together. She had been stabbed approximately 15 times and thrown from the second floor of her apartment. The disturbing nature of the murder suggested to police that Johnson was targeted for being transgendered. I believe that 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 rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. On January 18, 1999, a carload of men in San Francisco, CA, allegedly threw a bottle at and taunted two gay men. I believe that 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 with Senators Allen, Hollings and Sununu to introduce the ``Junk Fax Prevention Act of 2004.'' 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. At the end of last summer, 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. Almost immediately after issuing this rule, the Commission stayed its implementation until January 1, 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. We hope that this body can pass this legislation in a timely manner, prior to January 1, 2005, when the FCC's stay expires. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, I am very pleased today to introduce the Small Business Growth and Opportunity Act of 2004 along with my Finance Committee colleague, Senator Breaux. 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 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 bill will reduce the built-in gains recognition period, the holding period, from 10 years to 7 years. 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. Mr. President, 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 Senators Allen, Hollings and Sununu to introduce the ``Junk Fax Prevention Act of 2004.'' 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. At the end of last summer, 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. Almost immediately after issuing this rule, the Commission stayed its implementation until January 1, 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. We hope that this body can pass this legislation in a timely manner, prior to January 1, 2005, when the FCC's stay expires. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH. Mr. President, I am very pleased today to introduce the Small Business Growth and Opportunity Act of 2004 along with my Finance Committee colleague, Senator Breaux. 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 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 bill will reduce the built-in gains recognition period, the holding period, from 10 years to 7 years. 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. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SMITH

Mr. SMITH. Mr. President, realizing the dream of homeownership is one of the greatest moments in a lifetime. I am pleased that June has been designated as National Homeownership Month and I have enjoyed working with my colleagues to increase the number of Americans who are able to own their own homes. Homeownership provides more than just a shelter. It is a symbol of security that more American families are enjoying each year. Owning a home enhances our lives and contributes to thriving communities. Where homeownership flourishes, communities are more secure, residents are more civic-minded, schools are better and crime rates decline. Today, the national homeownership rate stands at 68 percent. I am proud of the great strides we have made in order to raise it to the highest rate ever. But if you take a close look at that statistic, you'll see that there is still much work to be done. The fact is that homeownership rates have risen the most among groups that have always had the highest ownership, while they've actually fallen for households with children and those headed by someone under the age of 55. In addition, African American and Hispanic households' homeownership rates still lag behind those of white households by more than 25 percentage points. I support President Bush in his goal of expanding the number of minority home owners by 5.5 million by 2010. As the lead sponsor of S. 198, the New Homestead Economic Opportunity Act, I am confident this legislation would go a long way toward increasing the number of American home owners--particularly first-time and minority home buyers. S. 198 will provide a tax credit for single-family homeownership. Modeled after the successful low-income rental housing tax credit, this proposal would allow States to allocate Federal tax credits to developers and investors who provide single-family homes for purchase by qualified buyers in qualified areas. The legislation is sound public policy and makes good economic sense. It would foster revitalization of both urban and rural areas and help working Americans currently priced out of the market to buy their first home. It is estimated that each year the credit would produce some 50,000 new and rehabilitated homes, 120,000 jobs, $4 billion in wages and $2 billion in taxes and fees. President Bush has stated that a home is: a foundation for families and a source of stability for communities. Part of economic security is owning your own home. Part of being a secure America is to encourage homeownership. Today, in the midst of National Homeownership Month, those words ring even more loud and true. I ask that my colleagues show their support for homeownership by cosponsoring S. 198.

Mr. SMITH

Mr. SMITH. Mr. President, today I rise to honor a courageous Oregonian who rushed to save the life of a wounded Taliban fighter. Sergeant Dan Trackwell, a native of Klamath Falls, OR, and a member of the Combined Anti-Armor Team, is currently serving in Afghanistan helping to secure that country's future. On June 13, 2004, Marines with Battalion Landing Team 1st Battalion, 6th Marines and Afghan Militia Forces engaged three enemy soldiers on a mountain side. The guerillas were tracking and reporting on the Battalion Landing Team's activities when coalition forces opened fire and wounded at least one of them. The Marines used a high-powered optical sight to observe the enemy fighters and to confirm that one was indeed wounded. As the other Taliban fighters escaped into the mountains the wounded man was left for dead. Sergeant Dan Trackwell was one of the four Marines who ventured up the mountain to find the enemy. They located him hiding behind a rock. He and Corporal Jesse Clingan, of Unitown, Pennsylvania, determined that the fighter had lost a lot of blood and appeared to be in severe pain. Corporal Daniel Dimaso, of Junction, NY, stripped off his own t-shirt and made a tourniquet to control the bleeding from the gunshot wound on the enemy fighter's lower left leg, while Pvt. 1st Class Daniel Fondonella, of Mt. Vernon, NY, provided security. Two hours earlier these men were hunting him down and now they were hurrying to save his life. The Marines knew that the Taliban fighter would die if they did not get him off the mountain. They gathered the injured man and signaled for the corpsman at the vehicles in the canyon to prepare for their arrival. Sergeant Trackwell carried the enemy soldier down the mountain. The wounded man was then taken to the battalion's command post, where the surgeon, Navy Lt. Brendon Drew, determined that he needed surgery soon. The Marines were instructed to keep an eye on the patient to ensure that he did not fall asleep while the wound was being worked on. As the surgeons worked on the patient, the Marines took turns holding the man's IV bag and blocking the bright Afghan sun from his eyes. After the patient was stabilized he was taken to a nearby military medical facility for recovery. Lt. Drew determined that it was the immediate medical attention and the quick intervention from the corpsman that saved the man's life. This story shows us that our Marines not only follow the rules of combat, they display a deep respect for humanity. For his selfless services to others, and to the United States in time of war, I salute Sergeant Dan Trackwell.

Mr. SMITH

Mr. SMITH. Mr. President, today I rise to honor a WWII veteran who has gone above and beyond the call of duty in his service to the United States and to the State of Oregon. Bob Maxwell was born in Boise, ID on October 26, 1920. Before joining the U.S. Army, Bob worked as a logger in Colorado. In the summer of 1942, he was shipped to Camp Roberts, CA for training. Bob boarded a British troop ship heading for the European theater and landed in Casablanca in February of 1943. There he was assigned to the battered 3rd Infantry Division. Together with the 3rd Rangers, his Division landed in Licata on the south-central coast of Sicily in July of 1943. Fighting their way inland, Bob Maxwell's division successfully captured the city of Agrigento after seven intense days of battle. Bob's dedication to the war effort was a valiant one. After landing near the town of Netuno, Italy on January 22, 1944, he was struck by shrapnel from a German artillery shell, severely injuring his leg. Maxwell returned to his duty repairing phone wires and working the switchboard after bandaging his leg. He did not go to the hospital until the next morning when his platoon leader forced him to go. He was later awarded the Silver Star for his efforts. A few months later, stationed near Besancon, France, Maxwell and three other soldiers, armed only with .45 caliber automatic pistols, defended their battalion observation post against a nearly overwhelming attack by enemy infantrymen. Despite fire from automatic weapons and grenade launchers, the men aggressively fought off advancing enemy troops and, with his calmness, tenacity, and fortitude, Maxwell inspired his fellows to continue the struggle. When an enemy hand grenade was thrown in the midst of his squad, Maxwell unhesitatingly threw himself squarely upon it, using his blanket and his unprotected body to absorb the full force of the explosion. For this action, Maxwell was awarded the Medal of Honor, the nation's highest military award. In addition, while serving with the 3rd Battalion, 7th Infantry of the United States Army, he was awarded two Purple Hearts, two Silver Stars, and a Bronze Star. Maxwell was honorably discharged from military service at Ft. Lewis, Washington June 13, 1945. After moving to Oregon, Maxwell met his wife Beatrice--Bea--and they married on August 12, 1951. He and Bea are parents to four children, numerous grandchildren, and a great-grandchild. Bob spent 30 years further serving the public in the teaching profession. For his selfless service to others, and to the United States in times of war, I salute Bob Maxwell as an Oregon Veteran Hero.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. On September 19, 1999, a group of men shouting anti-homosexual slurs assaulted five gay men. I believe that 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 today speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. In March 1999 in Decatur, IL, a university student was beaten by three men who allegedly made anti-gay remarks. 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 ask unanimous consent that my vote on amendment No. 3352 to S. 2400, rollcall No. 129, be changed to yea. I understand this will not change the outcome of the vote.

Mr. SMITH

Mr. SMITH. Mr. President, I rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. In Wichita, KS, on June 29, 2001, a 58-year old openly gay hairdresser, Marcell Eads, was beaten and died from burns and smoke inhalation after the alleged bashers set his home on fire. Zachary Steward, 18, and Brandon Boone, 17, were arrested in connection with the crime. Steward claimed that Eads had made sexual advances toward him, prompting Boone to start beating Eads with a broomstick and later with the end of a table and a rock. The perpetrators accused each other of setting the fire that killed Eads, and both took credit for trying to put out the fire. I believe that 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 rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. On January 25, 1999, Derek Glacken, 27, was convicted of first-degree murder and sentenced to life without the possibility of parole for the fatal 1996 stabbing of a man whom he believed to be gay. I believe that 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 rise today to speak about the need for hate crimes legislation. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. On January 14, 1999, in El Dorado, CA, Thomas Gary, 38, died after being run over by a truck and shot with a shot gun. The assailant claimed that Gary had made a pass at him. I believe that 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. On May 1, 2003, Senator Kennedy and I introduced the Local Law Enforcement Enhancement Act, a bill that would add new categories to current hate crimes law, sending a signal that violence of any kind is unacceptable in our society. In January 2000, a gay Mississippi man, was murdered by Brett David Kabat. Tolbert was kidnapped from a Biloxi gay bar and brutally strangling him and beating him to death before dumping his body in Alabama and stealing his truck. Because his friends say Tolbert was gay, was last seen at a gay bar, and the nature of his murder was particularly brutal, it is believed that Tolbert was targeted because he was gay. When Tolbert's body was discovered, he was beaten beyond recognition with just a few teeth left in his mouth. I believe that 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. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. SMITH

Mr. SMITH. Mr. President, I believe we have used all our time. Therefore, I believe we are ready to vote.

Mr. SMITH. Mr. President, have we used all time on our side?

Mr. SMITH. Mr. President, if I can modify the request, I think in fairness to my colleagues who disagree with me, we better charge it equally. I ask unanimous consent that Senator Arlen Specter of Pennsylvania be added as a cosponsor to this amendment.

Mr. SMITH. Mr. President, inasmuch as our colleagues are not here to debate Senator Kennedy and me, I hope that is a good sign. I thought I would recount very briefly again the appropriateness of why this is on the military authorization bill, recounting the stories of two service people. They are somewhat horrendous, but it is appropriate that everyone understand why this has a very logical nexus for Senator Kennedy and me with this piece of legislation and this amendment. One of these crimes resulted in the death of an Army private and the other the death of a Navy seaman. In 1992, Navy Seaman Allen R. Schindler was brutally murdered by his shipmate Terry Helvey in Okinawa, Japan. Helvey beat and stomped Schindler to death simply because he was gay. He didn't want his wallet; he didn't want his watch; he wanted him dead because of his sexual orientation. Helvey's attack was so vicious that he destroyed every organ in Schindler's body. He was so badly beaten that Schindler's own mother could identify him only by the remains of the tattoo on his arm. The medical examiner compared Schindler's injuries to those sustained by the victims of fatal airplane crashes. In another tragic case, PFC Barry Winchell was forced outside his barracks at Fort Campbell Army Base where he was stationed. In the early morning hours of July 5, 1999--this is very recent history-- Winchell was repeatedly beaten with a baseball bat by another Army private. He was beaten with such force and his injuries were so severe that he died shortly thereafter. Barry was only 21. He was murdered, again not for his watch, not for his wallet, but simply because he was gay. These are appalling examples. Again, I want to say for the Record, I understand the reluctance of some of my colleagues to deal with issues that involve a person's sexuality, but I also want to say I don't agree with them. I think we need to treat people civilly and in the highest Christian traditions, no matter what we think of their lifestyles. I think the finest example we can find on this issue--really on point--is the great New Testament example when, in my view, the greatest person who ever lived was confronted with a woman being stoned to death because of her lifestyle. He did not endorse her lifestyle, but He risked His life to save her life. It does seem to me that if this can be done in ancient Israel, we ought to be able to do the same in modern America and have laws that reflect the very best part of the American people, that we stand and help those in need. You need read no more into it, no more moral approval in it. I believe there are real family values, and I believe there are counterfeit family values. Arguments made to suggest that opposing hate crimes is a family value are truly misguided. When it comes to human necessities of making a living and having shelter and enjoying public safety, having the dignity and respect of law on your side, that is for all of us, I don't care how we conduct our lifestyles. That is for the American people. It includes gays and lesbians. We are not censoring speech. We are not punishing thought. We are punishing crime. The statutes that are constitutional in this government, upheld by William Rehnquist as to their constitutionality, are long overdue to be added to to include this category of the American people who are gay and lesbian. The need is easy to demonstrate through statistics, through crimes committed on this community. Those of us who stand with the President in fighting the war on terrorism, I say great, but don't forget the war on terrorism at home. It includes defending gays and lesbians and other Americans and classes that make them vulnerable and more likely victims of crime. We owe them that, and we owe them at least that. We owe them more, in fact. I suggest the absence of a quorum.

Mr. SMITH. Mr. President, there are few people I like more than my colleagues who are speaking against this amendment. They know that. They know I respect their right to disagree with me. But I want to state for the record that if I believed what Senator Kennedy and I were doing was criminalizing thought, I would vote against this amendment. What we are doing is criminalizing actions. It is always the case in criminal law that you look at all of the evidence, and if it can establish that words and thoughts have led to actions that rise to hate crimes--William Rehnquist, the most conservative Justice we probably have on the Supreme Court, and maybe some would argue that a couple others are more conservative--held in a unanimous Supreme Court decision that existing hate crimes statutes are constitutional because they do not punish thought. They do not impinge upon the first amendment. They do not impinge upon the 14th amendment because it takes action to commit a crime, and the words and the thoughts are simply evidentiary materials that go into motive to establish a crime. You have to establish motive. This is simply an enhanced version of looking at the totality of a crime. If it can rise to a hate crime, it ought to be prosecuted. This is the constitutional law of America. We are simply saying there is a category of Americans out there who ought to be added to settled constitutional law of the Federal Government. We owe them at least this; they deserve no less than a vote on this amendment. I yield the floor.

Mr. SMITH. I say to the Senator, I wonder, as you recounted some of these horrendous acts that have occurred, if you are familiar with the Wisconsin case that is called Wisconsin v. Todd Mitchell. It is the 1993 case in which Chief Justice William Rehnquist authored the decision upholding hate crimes legislation. As it says in this preamble: The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not. Sir, this was a unanimous decision. And Justice Rehnquist--again, you would probably agree with me, I say to the Senator--is one of the more conservative justices. He wrote: Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated for a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim. . . . And that was the man's race. Justice Rehnquist held it is entirely appropriate to look at the man's motive in ultimately ascribing the severity of the penalty that was handed down for this assault that was made by a White man on a Black man. It was prosecuted under the Federal Hate Crimes Act. I am sure the Senator is familiar with that. Maybe he can help me to explain to my conservative colleagues how it is that we are trying to legislate thought or punish thought and punish speaking. Would the Senator agree with me that Justice Rehnquist and I are both right in saying we are only punishing conduct and the evidence that comes from thought and speech that can be used legitimately, constitutionally to enhance penalties?

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

Mr. SMITH. I further ask that the request be modified to reserve to Senator Kennedy and myself any time unused after his remarks.