Ron Wyden

Mr. WYDEN

Mr. WYDEN. Mr. President, as the Senate sponsor of the Internet tax freedom bill, I appreciate a chance to set the record straight about exactly what this law is. For example, it is continually cited that the Internet tax freedom law creates a kind of Cayman Islands for the Internet, where you can't collect taxes. That is not right. The only thing the Internet tax freedom law does is it bans discriminatory taxes. You can tax the Internet; you just must do to the offline world what you do to the online world. That is No. 1. No. 2, not a single jurisdiction in this country--not even one--has been able to show any evidence that they have been hurt by their inability to impose discriminatory taxes on electronic commerce. We are constantly told by the mayors and Governors in some jurisdictions that they have been hurt. We have repeatedly asked for the evidence, and there has been none forthcoming. I have made it clear that I am very anxious to work with the mayors and Governors on this issue. I was not aware there was going to be an effort to extend the moratorium today for just a few months, because we have had these negotiations now for 18 months in an effort to try to bring the parties together. I want to make it clear that I am anxious to continue those negotiations. No. 3, there is absolutely nothing in current law that prohibits States and localities from collecting revenue that is owed to them. There is nothing in the Internet Tax Freedom Act that bars them from doing that. I just hope that as we make this effort to bring together technology companies, States, localities, and the mayors, we can recognize that it is possible today under current law to collect all taxes owed. The reason it is not done is, A, the technology doesn't exist to do it in a fashion that would not burden business and, B, a lot of the mayors and Governors don't want the political heat associated with collecting those taxes. Probably most illustrative of this point is what former Governor Celucci of Massachusetts, now Ambassador to Canada, said: Look, I am not going to put people on the border of Massachusetts to chase people down coming from New Hampshire. I am not going to have that kind of chaos on my hands. I hope we will continue this effort to try to bring the parties together in a constructive fashion. I wasn't aware there was going to be an effort today by unanimous consent to deal with this issue. I want to make it clear that I am anxious to work with all of the parties who have been involved in this issue. But there is absolutely nothing in the Internet tax freedom law that creates a Cayman Islands with respect to the Internet, No. 1; and, No. 2, there isn't anything that keeps States and localities from collecting taxes that are now owed; the reason it is not done is technology and politics. I hope, working cooperatively together, as we have sought to do for 18 months, it will be possible to do that. Senator McCain and I have introduced a bill that would bar discriminatory taxes on electronic commerce for 2 years. We introduced that legislation several weeks ago. It is virtually identical to what the House passed this week. I hope we can work from that. I want colleagues to know that before we come to the floor, we will be consulting with all the parties, and we will make an effort to bring people together on that.

Mr. WYDEN. Mr. President, to wrap up briefly, we have tried for 18 months to bring the parties together. For example, I proposed--in spite of the fact that I see absolutely no evidence that any jurisdiction in this country has been hurt by their inability to impose discriminatory taxes, I proposed, over the opposition of many in business, that when the mayors and Governors have a proposal that is ready to go, they be given an opportunity to have a vote in the Congress, an opportunity to vote on a proposal of their choosing. So I have clearly gone to considerable lengths to try to be sensitive to the concerns of mayors and Governors. I hope we will continue the effort to try to bring the parties together. I was not aware there was going to be an effort to proceed to this bill by UC today, otherwise there would have been many colleagues, who share my view and support the legislation I offered with Congressman Cox that passed 98 to 2 in this Chamber, to support those positions to carry on this debate. The only way we are going to get this done is to bring the parties together. I point out finally with respect to the time period, the National Conference of State Legislatures, known as NCSL, said recently they wanted a 4-year moratorium because they were not ready, from a technological standpoint, to advance the solutions that would address this issue without putting burdens on out-of-state sellers. We are dealing with an extraordinarily important issue. The technology sector has been very hard hit, as all of our colleagues know. The last thing they need is to be shellacked with discriminatory taxes. There are more than 7,600 taxing jurisdictions in this country. If you are talking about overturning the Quill case, which is what this debate is all about, which says that you cannot impose taxes unless there is physical presence in a particular jurisdiction--a case I strongly support--you are dealing with very serious matters with respect to the economy of this country. I would like to see us go back to the way we tried to deal with this for the last 18 months, which was in a conciliatory way, trying to bring the parties together. Starting Monday, there is an opportunity for considerable economic mischief. Fortunately, only four State legislatures are in session right now, but there is an opportunity for considerable economic mischief. The legislation that Senator McCain and I have advanced on a bipartisan basis provides the framework to proceed, but Senator Enzi, who has been very constructive on this issue for quite some time now, has made for me and others a copy of another proposal he has. I assure him and those with whom he is working that we will look at it very carefully and work with him. I yield the floor.

Mr. WYDEN. Will the distinguished Senator from Florida yield for a question?

Mr. WYDEN. I thank my colleague, and I think he knows I am very much committed to working with him and with Senator Enzi. I do not know how many hours we have put in over the last 18 months trying to do this. My question was designed really to get a sense of the thinking of the Senator on a particular point that may help us move this issue along. What I and many others are concerned about is sticking it to sellers who are located thousands of miles away from a local jurisdiction and that seller has no presence in the local jurisdiction other than a Web site. That is the only presence they have today. Of course, the Supreme Court has said there has to be physical presence, under a current Court decision, in order to do that. In the view of the Senator from Florida, what is the case for imposing these various taxes--of course, anything that is already owed can be collected under the current Internet tax freedom bill, so we are talking about something new. What is the case in the mind of the Senator for having changed treatment of that particular seller who is located thousands of miles from a local jurisdiction and who has no presence in that jurisdiction other than a Web site? Again, I do not ask this question for any other reason than I think it would be helpful for me and others who spent a significant amount of time to get the thinking of colleagues as we try to figure out a way to move forward on it.

Mr. WYDEN. Will the Senator yield for a question?

Mr. WYDEN

Mr. WYDEN. Mr. President, I wish to explain to my colleagues the reasons for my objection to a unanimous consent request for the Senate to take up the anti-terrorism legislation, the Anti-Terrorism Act of 2001, H.R. 2975, passed by the House of Representatives on October 12, 2001. My public explanation is consistent with the commitment I have made to explain publicly any so-called ``holds'' that I may place on legislation. I regret that I must object to any Senate action on the House-passed measure at this point. I do so because the national anti-terrorism legislation is in grave danger of being rendered useless. The Senate- passed anti-terrorism bill included an important, bipartisan provision, the Professional Standards for Government Attorneys Act of 2001, authored by Judiciary Chairman Leahy, Ranking Member Hatch and myself and supported by the Administration, the FBI and the Department of Justice. This provision corrected an immediate and severe impediment to the undercover investigations that must be employed to shut down terrorism in our Nation. The House failed to include this provision, which is section 501 of the Senate's anti-terrorism bill, that will untie the hands of Federal prosecutors in Oregon, allowing them to supervise undercover and other covert enforcement techniques. For more than a year now, the so-called McDade law has prohibited prosecuting attorneys working at the State and Federal levels in Oregon from advising and conducting law enforcement undercover investigations on narcotics, child sex abuse, prostitution, organized crime, housing discrimination and consumer fraud. Without advice of counsel, law enforcement operatives cannot conduct wiretaps, sting operations or infiltrate dangerous criminal or terrorist operations. If the Senate does not insist on this language, it will be an engraved invitation to terrorists and criminals to set up shop in Oregon with little fear of detection or apprehension through undercover or covert methods. This would endanger not just the people of Oregon, but all Americans. I do not believe the Senate should allow the security of every American to be jeopardized. As I stated on the floor of the United States Senate yesterday, I do not want to find six months from now that terrorists have made their homes in Oregon because this body failed in its resolve to shut them down in every State in our country. I regret having to take this action but I believe that leaving one State vulnerable makes each State in this country vulnerable.

Mr. WYDEN

Mr. WYDEN. Thank you, Mr. President. I yield the floor.

Mr. WYDEN. Mr. President, today I rise to say the national antiterrorism legislation passed by this body is in grave danger of being rendered useless. The bill passed by this body corrected an immediate and severe impediment to the undercover investigations that must be employed to shut down terrorism in our Nation. The antiterrorism bill passed by this body included legislation introduced by Senator Leahy, Senator Hatch, and myself that would untie the hands of Federal prosecutors in my home State of Oregon and remove the roadblocks that currently all but prohibit undercover investigations there. Unfortunately, the antiterrorism legislation passed by the House strips that provision and rips back open the enormous loophole that potentially makes Oregon a safe haven for dangerous criminals and terrorists everywhere. For more than a year now, State and Federal prosecuting attorneys in Oregon have been legally prohibited from advising or participating in law enforcement undercover investigations. Without advice of counsel, law enforcement operatives cannot conduct wiretaps, sting operations, or infiltrate dangerous criminal operations. Covert investigations in my State have been shut down for more than a year. If the Senate does not insist on antiterrorism language to restart these investigations in Oregon, the national antiterrorism legislation will not be national at all; it will cover 49 States and it will give dangerous criminals, including terrorists, not just a license but practically an engraved invitation to set up shop in Oregon with little fear of detection or apprehension through undercover or covert methods. It would endanger, not just the people of my State but all Americans. I wish to explain briefly how this situation came about. It started here in Washington in 1998. An amendment to the omnibus appropriations bill started the ball rolling in Washington, DC. A McDade-Murtha amendment required Federal prosecutors to abide by the State ethics laws and rules in the State in which they work. In Oregon, the State bar association enacted a disciplinary rule making it unethical for attorneys to take part in any practice involving ``deceit or misrepresentation of any kind.'' When an Oregon attorney misrepresented his identity to investigate a claim, the State supreme court found him guilty of an ethics violation. The McDade-Murtha amendment backed that up. It became very clear no matter how vital the investigation, no matter how great the need, no matter how dangerous the criminals, attorneys--including Federal, State, and local prosecutors--are simply absolutely not allowed to take a single step, not even to give advice, to help in an undercover investigation. If an undercover investigator cannot get advice from a Federal, State, or local prosecutor, that undercover investigator cannot go forward. It is that simple: no wiretaps, no sting operations, no infiltrating or gathering information on any criminal group no matter how dangerous their bent or how dastardly their plans. I have been working on a bipartisan basis for more than a year now with Senator Leahy and Senator Hatch. They have been very helpful, but the stakes are getting higher and the solution is more important than ever. Federal officials have informed me that criminals have admitted that they set up shop in Oregon because the McDade situation makes it easier for them to remain undetected and unpunished--even more particularly sophisticated criminals. But garden-variety criminals have recognized the opportunities the loophole allows, and certainly more sophisticated criminal elements and terrorists can as well. Criminals operating in my State involved in serious crimes such as child pornography, drug sales, and eco-terrorism have been breathing easier, safe in the knowledge that law enforcement will have a much tougher time catching them without the best weapon in the war against these criminals. Several important investigations have in fact been terminated or impeded. For example, the Portland Innocent Images Undercover Program, which targeted child pornography and exploitation, was shut down when the U.S. attorney's office informed the FBI field office it would not concur or participate in the use of long-used and highly productive techniques such as undercover operations and conventional monitoring of phone calls that could be deemed excessive. If unsophisticated criminals were aware of enough to be attracted to Oregon because of this situation, I am extremely concerned that more sophisticated criminals and terrorists are equally aware that they can exploit this loophole. The House-passed version of the antiterrorism bill undoes the important work that Senator Leahy, Senator Hatch, and I did on the bipartisan basis, because the House bill specifically excludes the language that would fix the McDade problem. I say today that that must not be acceptable to the Senate. This body must act, and act now, to find the solution. Senators Hatch and Leahy and I worked on a bipartisan basis with the FBI and the Department of Justice to introduce the language that would allow prosecutors in Oregon to once again advise, consult, and participate in legal undercover investigations with law enforcement agencies. But if it doesn't get done in this conference on antiterrorist legislation, my concern is it will not get done at all. When the differences between the Senate and House antiterrorism bills are taken up in conference, Senate conferees must insist that the McDade fix is in the bill that goes to the President's desk. Anything less would make this antiterrorism legislation a toothless tiger, seemingly strong but incapable of defending or protecting any Americans, including the language that could possibly allow Oregon to be an easy basing State for future terrorist attacks that would be devastating to our Nation. The terrorists made their homes in Florida and New Jersey before striking Americans in New York and Virginia. I don't want to find 6 months from now that the terrorists made their homes in Oregon because this body failed in its resolve to shut them down in every State in our country. Leaving one State vulnerable makes each State in this country vulnerable. I implore the conferees, and indeed the Congress, to act swiftly and judicially to guarantee that our Federal prosecutors and investigators have these essential tools that they have asked us to support on a bipartisan basis so they can conduct covert operations that are necessary to prevent and prosecute criminals in terrorist acts. I conclude by asking unanimous consent that several news articles that highlight the concerns Senators Leahy and Hatch and I have on a bipartisan basis be printed in the Record.

Mr. WYDEN

Mr. WYDEN. Mr. President, just over 2 weeks ago I came to this floor and talked about the 20-year history of aviation security. I did so for a simple reason. There has been a very clear pattern on this issue over the last 20 years. Again and again there has been a tragedy in the sky. Again and again there has been widespread public outrage. Again and again there has been widespread agreement on what needs to be done to improve aviation security. Again and again the real reforms weren't implemented because of political infighting. I come to the floor of the Senate today to say that this time it really has to be different. This time the Senate needs to come together on a bipartisan basis and make sure these changes are actually implemented. I wanted to make this appeal for bipartisanship because that is what Chairman Hollings--I see my friend Senator McCain on the floor as well--and Senator McCain are trying to do in the Senate Commerce Committee with the legislation that we would like to have taken up. I happen to believe that, as a result of the determination and the persistence of Chairman Hollings and Senator McCain, we are now talking about legislation that will bring new accountability on this aviation security issue. The bill is not about political ideology. The Hollings- McCain legislation is about accountability--about ensuring that the Federal Government on a national security issue is accountable. Nobody in the Senate would ever think about subcontracting out our national security. But that is regrettably what has happened in the aviation sector for so many years. I went back through some of the history almost 2 weeks ago on the floor of the Senate. It started really after the Pan Am Flight 103 bombing over Lockerbie in 1988. We saw it again after the TWA Flight 800 crashed near Long Island. In each case Presidential commissions were established, and there was unanimity about what needed to be done, with the General Accounting Office and the Department of Transportation inspector general outlining the vulnerabilities and then political infighting started. I am very hopeful the Senate will support the bipartisan effort being led by Chairman Hollings and Senator McCain. I have felt for way too long that there isn't enough bipartisanship on important issues of today. Senator Smith and I are trying to do it in our home State of Oregon. I think Chairman Hollings and Senator McCain are trying to do it in this Chamber with this legislation. If we don't get this done, I fear we will be back on the floor of this body in 6 months or a year with Senator after Senator taking their turn once again in a procession of floor speeches about how sorry and upset the Senate is that another tragedy has occurred--that another tragedy occurred because the Senate failed to act promptly to put in place the safeguards that I have documented on the floor of this Senate and that have been called for now repeatedly in the last 20 years. I am hopeful that in the hours ahead--I appreciate what Chairman Hollings and Senator McCain are trying to do--we can deal with the additional issues that are outstanding and get this legislation reported. Let me touch on two other matters. The second issue I would like to mention is this: The rule and the procedures that are going to be set out will define what the aviation industry is all about for years and years to come. I am talking now about the rule that is going to be set in place with respect to loans and loan guarantees that are going to go a long way in determining whether there is real competition in the airline sector, affordable prices, and whether places in rural Nebraska and rural Oregon are serviced. I have outlined what I think are six or seven key principles that ought to govern how those loans and loan guarantees are made. What concerns me is that those decisions are being made behind closed doors. They are being made outside the public debate. There is considerable discussion about whether the large airlines may, in fact, have an agenda that will crush the small airlines. I am very hopeful that Members of this body will weigh in between now and Saturday with the Office of Management and Budget as they make the rules that are going to govern these loans and loan guarantees. One last point: Something that I and Senator Smith are together on is the pride in our State and our citizens. A number of Oregonians, strong-willed people in our State, are mounting an operation that they call Flight for Freedom, answering the national call for all of us to get on with our lives and come to the aid of those hurt in the attacks of September 11. In a show of solidarity with their fellow Americans, more than 700 Oregonians are making the statement this weekend by heading to the hotels and Broadway shows and restaurants in New York City that are fighting for economic survival in the aftermath of the attack. With Oregonians' Flight for Freedom, the people of my State are standing shoulder to shoulder with the citizens of New York in an effort to make clear that no terrorist can break the American spirit. I congratulate Sho Dozono and the other organizers and participants in Oregon's Flight for Freedom for their generous efforts. I urge all Americans to follow their example. Oregonians are showing this weekend that we are going to stand against terrorism by reaching out to fellow citizens and enjoying what American life has to offer in our centers of commerce across this great Nation. Because of these kinds of efforts, we can send a message that terrorists can't extinguish the American spirit. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent to speak for up to 20 minutes as in morning business.

Mr. WYDEN. Mr. President, I will ask unanimous consent to speak in morning business when the Senator from Massachusetts concludes his remarks.

Mr. WYDEN

Mr. WYDEN. Madam President, less than 2 weeks ago, legislation providing $15 billion to the airline industry flew through the Congress like a runaway express. The legislation moved so quickly that I am of the view that additional steps are needed to impose accountability on the airlines for this unprecedented infusion of taxpayer money. One-third of the $15 billion is already on its way out the door of the U.S. Treasury and will be given to the carriers according to a formula that they sought. Saturday is the deadline for deciding the basic process and rules for apportioning the remaining $10 billion in loans and loan guarantees. The way this staggering sum of money is allocated will shape the structure of the airline industry for years to come. Yesterday the Wall Street Journal reported that the larger and financially healthier airlines have attempted to impose their terms for the $10 billion in loan guarantees on the smaller and the weaker carriers. If the Office of Management and Budget acquiesces to the demands of the larger carriers, it could crush the smaller airlines in the short term and squash significantly the hopes of competition and consumer choice in the long run. On the horizon of the aviation industry there may be only two or three carriers dominating routes, dictating prices, and reducing service to small and usually rural markets. It is for this reason that I come to the floor today, and I intend to outline several principles that I believe the Congress should insist upon in order to keep an eye on shaping the future of this industry so that there is real competition, affordable prices for consumers, and adequate service across this country. It is obviously critically important to focus on the short-term needs of getting people traveling again on those near empty planes and restoring consumer confidence. But it is just as important to put in place policies that protect the long-term interests of the flying public and the taxpayer. The $10 billion package of loans and loan guarantees is going to dramatically reshape the industry for years to come. On the question of competition, on whether flights are affordable, and whether rural areas are turned into economic sacrifice zones, the decisions that are going to be made in the next few weeks will have a dramatic impact. The entire Senate understands that there is a national airline rescue effort underway. Since September 11, Congress has heard much from the airline industry about what the industry believes needs to be done. Congress has responded. It is time now for the Congress to set out what the American people have a right to expect from the airline industry. Fortunately, this job is going to be easier because the Comptroller General, David Walker, and the Department of Transportation Inspector General, Ken Mead, are in place in order to provide a crucial reality check. Already Mr. Walker has performed an important service of pulling together a General Accounting Office team, getting me and other Members of the Senate a sense of what the industry's loss projections are, and particularly an analysis of their short-term needs. This type of independent third-party review is going to be essential in the weeks and months ahead. Let me give the Senate just a few examples of the important questions that the public has a right to have debated now, in order to know to what the end product of this debate involving the $15 billion is going to lead. For example, suppose that the $10 billion in loan guarantees is allocated in a way that favors a few large carriers, which is something that is being sought by some in the industry. The end result could be consolidation to just a couple of airlines, precisely the result the Government was trying to avoid when it blocked the proposed United-US Airways merger. Or suppose carriers use loan guarantees to strengthen their operations in ``fortress hubs" while pulling back elsewhere. The end result for many consumers would be a monopolistic environment with little competition and few choices. Of course, there is the risk that taxpayer dollars will be wasted on airlines that may not survive in any case or on airlines that really do not need the help. Care has to be taken to ensure that these dollars are used to get the maximum for the American public. Responsibility for avoiding these pitfalls lies, in the first instance, with the Air Transportation Stabilization Board. The Board has the authority to decide who will receive loan guarantee assistance and subject to what terms and conditions. The Congress, unfortunately, has not provided this Board with a lot of guidance. The legislation provides only general criteria, such as the requirement that the loan in question be prudently incurred. Congress has not told the Board where to place its priorities or what the goals should be. Therefore, I believe some guiding principles are needed with respect to how that $15 billion is allocated. I propose the following principles this morning: First, Government assistance must be allocated in ways that are going to promote and not hinder competition between the airlines. This must be a primary goal because without competition the entire premise of the deregulated industry relying on market forces makes no sense. The Government cannot afford to focus narrowly on each individual loan guarantee application while ignoring the big picture issue of how the overall assistance package affects the balance of competition in the industry. Second, companies receiving assistance need to be monitored closely to make sure they are using the money responsibly. Are the taxpayer funds being used to subsidize dividends to the shareholders, lucrative compensation for top executives, or increased lobbying? The legislation does contain some provisions with respect to executive compensation, but the additional issues I am raising could send a message, at a time when America is hurting, that some of the powerful may be profiting. Third, companies receiving assistance and their major stakeholders should be required to demonstrate that they are doing everything in their power to improve the situation. Companies would have to show that they have a plan for returning to profitability and that the plan is actually being followed. Top managers should take salary reductions and debtholders and employees should make sacrifices as well. Taxpayers who are funding that $15 billion legislative package should know that all of the company's stakeholders are helping to shoulder the burden. Fourth, there needs to be an upside for the taxpayer. In the Chrysler bailout legislation, the Treasury Department received stock options that eventually led to a substantial profit for the taxpayers. Similarly, this effort should be coupled with a mechanism for the public to recoup its investment when airlines return to profitability. Fifth, service to small markets must not be a casualty of this crisis. As airlines cut flights or routes in response to the current predicament, their first instinct may be to eliminate small market service and turn small communities in Nebraska and Oregon and other rural States into sacrifice zones. Americans need an airline system that connects the entire country and not just the large hubs. Any program of Government assistance to the airlines must seek to encourage the airlines to maintain and indeed improve service in the small markets. Sixth, companies should be rewarded for treating employees in a responsible manner. Approximately 100,000 airline workers have already been laid off--but there are significant differences from airline to airline in the type of severance arrangements offered, and also in the efforts the airlines make to rehire workers when conditions begin to improve again. When it comes to public assistance, companies with more responsible labor policies should have a significant leg up in those loans and loan guarantees. Seventh, and finally, the current focus on the interests of the airlines should not come at the expense of efforts to protect the interests of consumers. The fact is, this is a concentrated industry in which consumers often face limited choices. There is a real risk that, if some air carriers fail, the competition situation may get worse before it gets better. That makes consumer protection all the more important in a number of basic areas--areas where the Department of Transportation Inspector General has already said there is a serious problem, and that Members of this body have tried to address in passenger rights legislation. There may be a need as this new effort goes forward for proconsumer rules in order to protect consumers. Adhering to these seven core principles that I have laid out this morning is not going to be easy. There is no simple rule or formula that Congress should impose, or that the board could follow that would automatically achieve all of the objectives that I have laid out today. It is critical, in my view, in order to make sure this job is done responsibly, for Congress to obtain on a weekly basis the information necessary to exercise responsible oversight over the airline industry. This information must be real-time data, including load factors, yields per mile, fares, type of aircraft, dividend payments, service to small markets, cancellations, workforce statistics and route information. In the coming weeks, the Air Transportation Stabilization Board begins to implement the loan guarantee program. I am certain the Senate Commerce Committee under the leadership of Chairman Hollings will be actively engaged. I am anxious to work with my colleagues to put in place the principles that I have outlined today, as well, I am sure, as other Members of the Senate who will propose what they believe should govern how this $15 billion is allocated. The airline industry has been heard from. Now the public has a right to ask the airline industry to support policies and to work with the U.S. Congress to ensure that this is true competition, affordable prices, and decent service. In closing, I am of the strong view that the work of the Congress on that $15 billion legislation began when the bill passed. I hope and trust that my colleagues will join with me in doing everything we can to ensure that at the end of the bailout process the American people are left with a more competitive airline industry, one that offers high-quality service to every area of the country and gives the public what they have a right to expect will be the end process of that unprecedented legislation that the Congress passed a little less than 2 weeks ago. Madam President, I yield the floor.

Mr. WYDEN

Mr. WYDEN. Madam President, I urge my colleagues to support Chairman Levin on cloture this morning. As our country prepares to go to war against terrorism, this is not the time to be taking urgently needed national defense legislation hostage. Protecting our Nation's energy infrastructure from attacks may well need to be part of our national defense strategy. But there is not one single provision in the energy legislation that some want to graft onto the defense bill that will in any way help protect our energy facilities from attack. In fact, one of the bills that some are claiming is urgently needed for our energy security would actually undermine the security of our oil supply--by allowing Alaskan oil to be exported overseas. While the House energy bill would restrict exporting of oil from the Arctic refuge, a Senate version of that bill would allow that same oil--that some are claiming we need to reduce our dependence on foreign oil--to be exported overseas. Those who claim we need to address energy policy as part of the defense bill can't even seem to agree whether we need to restrict Alaskan oil exports in order to increase our energy security. The issue of energy security and the role of Alaskan oil ought to be debated in the Senate, but it should be done as part of the debate on energy policy. I think this is particularly important for all the residents of the west coast of our country because it is clear that it is a very tight market on the west coast of the United States. We have seen again and again evidence that the markets on the west coast have been manipulated, that oil has been sold to Asia at a discount, and the companies then make up for it by sticking it to consumers in Oregon, Washington, and California. This is an extraordinarily important issue. One version that has been presented to the Senate would allow the oil that is so important to our country to reduce our dependence on foreign oil to be exported. We aren't going to improve our Nation's energy security by short- circuiting the process on this legislation. I urge my colleagues to support Chairman Levin and support cloture this morning. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, today with Senators McCain and Leahy, I am introducing legislation that would extend the moratorium on discriminatory taxes on electronic commerce. Senator McCain is absolutely right. The moratorium expires in a few days, and we are very hopeful the bipartisan bill we are going to introduce today is going to help bring the Senate together on what has surely been a very contentious issue. Considerable confusion even exists as to what the current law entails. For example, there are countless stories written that say there is a ban on Internet taxes. That is absolutely incorrect. The only thing that is banned today is taxes that single the Internet out for discriminatory treatment. We are extending that ban. As Senator McCain has noted, there are strong feelings on both sides of this issue. I happen to believe very strongly that no jurisdiction in this country has shown they have been hurt by their inability to discriminate against the Internet. Certainly folks in State and local government feel very strongly about it, and they have a right, at this time of economic concern, to know where the revenue is going to be for their essential needs. Senator Dorgan, Senator Kerry, Senator Hollings, and I intend to continue the very constructive conversations we have had literally for 18 months on the issue, but because it is important to move forward quickly, given the fact the moratorium expires, Senator McCain, Senator Leahy, and I are introducing our bipartisan effort today and plan to continue our conversation with our colleagues.

Mr. WYDEN

Mr. WYDEN. Madam President, I ask unanimous consent that morning business be extended for an additional 15 minutes to accommodate my remarks this morning.

Mr. WYDEN. Thank you very much, Madam President. I know Senator Feinstein is here. I intend to be brief this morning.

Mr. WYDEN

Mr. WYDEN. Madam President, this morning I want to discuss a proposal which I think is important in light of the tragic events that unfolded on September 11, 2001. As all of us now understand, the communications infrastructure in New York, Washington, DC, and indeed the whole country, was severely challenged that day. Wireless telephone networks were severely overloaded and crashed. Wireless Internet access was suspended. Telephone lines were cut, and communications for people literally in communities around the east coast of the United States came to a standstill. Even the immediate communication needs of rescue workers, victims, families, and aid groups were a huge struggle to coordinate. Survivors often couldn't let family members know they were safe, and families of victims had no immediate central clearinghouse to find information or file missing person reports. The hospitals were inundated with searches, requests for help, and offers of aid but with no way to match them to each other. Even some of this country's premier aid organizations that have done such a marvelous job helping rescue workers, survivors, and victims' families faced immediate and severe challenges with respect to information technology infrastructure. The New York Times drew a conclusion with which I strongly agree. They said: There needs to be new ways to set up emergency information systems. That is what I would like to propose this morning. It seems to me that what this country needs is essentially a technology equivalent of the National Guard, an emergency technology guard--I have been calling it in my mind Net Guard, or a national emergency technology guard--that in times of crisis would be in a position to mobilize the Nation's information technology, or IT, community to action quickly, just as the National Guard is ready to move during emergencies. It seems to me that in our leading technology companies in this Nation there are the brains and the equipment to put in place net guard, or this information technology guard, that could be deployed in communities across the Nation when we face tragedies such as we saw in New York City. A national volunteer organization of trained and well-coordinated units of information technology professionals from our leading technology companies ought to be in a position to stand at ready with the designated computer equipment, satellite dishes, wireless communicators, and other equipment to quickly recreate and repair compromised communications and technology infrastructure. With congressional support, the leaders of our Nation's technology companies could organize themselves, sell their employees and their resource for this purpose. Medium- and small-sized businesses would be able to contribute once a national framework is put in place. Certainly the resources from the standpoint of the Federal level need not be extensive. Individuals could be designated from existing human resource programs of major and medium-sized firms and the technology professionals would be trained to perform specific tasks in the event of an emergency. I intend to use the subcommittee that I chair of the full Commerce Committee that is chaired by Senator Hollings to initiate a dialog among congressional, corporate, military, and nonprofit leaders to begin a new effort to mobilize information technology in times of crises. As we seek to prevent future disasters, I believe that the technology professionals of this Nation in many of our leading companies--as most Americans--want to use their skills, their equipment, and their talents to answer this call and do their part. I propose with a national emergency technology guard--what I call tech guard--that we give to the leading information technology professionals in this country a chance to use their ingenuity and creativity to ensure that there is greater safety and stability for our communities and our citizens in the coming days. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WYDEN

Mr. WYDEN. In a few hours the U.S. Congress is going to respond to the horrible tragedy in New York in an unprecedented way. The U.S. Congress is going to vote to send billions of dollars to the airline industry, while not making any funds available to the scores and scores of other businesses across this country affected by this tragedy that also teeter on bankruptcy. The process that the U.S. Congress is using is also unprecedented. The number being used to send these billions of dollars of taxpayer money to the airline industry comes from the airline industry itself. There has not been an independent, third party review of the numbers and the projections on which this legislation tonight is based. It is a leap of faith. The Congress tonight is responding to the airline industry's assertion that because this tragedy is so dire and the circumstances so enormous, we should waive the traditional process of saying that someone independent should evaluate a piece of legislation such as this involving billions and billions of dollars. But it is also unprecedented, the horror and the tragedy that the Congress must address. Tonight, in what has been one of the hardest decisions I have had to face, I am going to vote for this legislation because of one addition that has been made, and I am pleased to announce it tonight. Senator Daschle, the majority leader, has worked so hard on this legislation; Senator Hollings, chairman of the Commerce Committee, has done yeoman work on this bill; Congressman Doggett; and a variety of Members have indicated they expect the General Accounting Office to give a briefing to the U.S. Congress by September 28 on this legislation. I make it clear tonight, if it appears on September 28 or in the days that succeed that briefing that this legislation was in excess of what the airlines needed, I am going to come back on this floor and do everything in my power to send this money to the scores of other businesses across this country that teeter on bankruptcy tonight. This is unprecedented, first, because of the tragedy; second, because one class of those affected in the airline industry is receiving help while others are not; and third, because there has not been an independent analysis of what the claims actually constitute and what funds are truly needed. Because the circumstances are so dire, the Congress is going to vote for this legislation over the next few hours. I want the Congress to know, that briefing on September 28 will be critical because it will be our first chance to get an objective analysis of whether the industry needs this sum of money and needs it for the claims that are being made. I wrap up by saying in my view Senator Rockefeller and Senator Hutchison have done a first-rate job on this legislation. This is, as we all know, just the beginning of the debate about how to deal with the financial consequences of the horror in New York, but it is a particularly difficult choice the Congress is making tonight. I assure my constituents and others who are following this debate that the way this money is going to be spent is something that is going to be scrutinized with as much care as any subject that has ever come before the U.S. Congress. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WYDEN

Mr. WYDEN. Mr. President, I wish to bring to the Senate's attention a serious legal matter currently impeding Federal criminal investigations in many States, especially Oregon, and legislation that I am joining the Chairman of the Judiciary Committee, Senator Leahy, in introducing today to correct this problem. Enacted at the end of the 105th Congress as Section 801 of the Omnibus Appropriations Bill (Public Law 105-277), the Citizens Protection Act, commonly known as the ``McDade law,'' has hampered Federal law enforcement efforts aimed at combating child pornography, drug trafficking, and terrorism, particularly in the State of Oregon. In the Gatti case [Gatti, 330 Or. 517 (2000)] in early 2000, the Oregon Supreme Court held that a private attorney had acted unethically by intentionally misrepresenting his identity to the employees of a medical records review company called Comprehensive Medical Review, CMR. The attorney, who represented a client who had filed a claim with an insurance company, believed that the insurance company was using CMR to generate fraudulent medical reports that the insurer then used to deny or limit claims. The attorney called CMR and falsely represented himself to be a chiropractor seeking employment with the company. The attorney was hoping to obtain information from CMR that he could use in a subsequent lawsuit against CMR and the insurance company. The Oregon Supreme Court upheld the State Bar's view that the attorney's conduct violated two Oregon State Bar disciplinary rules and an Oregon statute, specifically, a disciplinary rule prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation; a disciplinary rule prohibiting knowingly making a false statement of law or fact; and a statute prohibiting willful deceit or misconduct in the legal profession. In doing so, the court rejected the attorney's defense that his misrepresentations were justifiable because he was engaged in an investigation to seek evidence of fraud and other wrongful conduct. The court expressly ruled that there was no `prosecutorial exception' to either the State Bar disciplinary rules or the Oregon statute. As a result of this decision, prosecutors in Oregon may not concur or participate in undercover and other covert law enforcement techniques, even if the law enforcement technique at issue is lawful under Federal law. Soon after this Oregon Supreme Court decision, the Oregon U.S. Attorney's Office informed the Oregon FBI Field Office that it would not concur or participate in the use of long-used and highly productive techniques, such as undercover operations and consensual monitoring of telephone calls, that could be disallowed by the State Bar. Several important investigations were immediately terminated or severely impeded. The Oregon U.S. Attorney even refused to certify the renewal of the Portland Innocent Images undercover program, which targets child pornography and exploitation. Without the U.S. Attorney's certification, the program was shut down and a significant criminal problem has since gone unchecked. The Federal Investigation Enhancement Act that I am introducing today with Senator Leahy will clarify that Federal attorneys may, for the purpose of enforcing Federal law, authorize, concur, direct, and supervise covert investigations even though such activities may require the use of deceit or misrepresentation. In doing so, our legislation will make it possible for Federal authorities to continue their efforts to investigate and apprehend the most dangerous criminals. It is my hope that the Senate will act quickly on this legislation that will correct the most serious problems caused by the McDade law. It will be of enormous help to Federal law enforcement efforts in Oregon and across our country who are prosecuting these crimes.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent to speak in morning business.

Mr. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WYDEN

Mr. WYDEN. Mr. President, I wish to bring to the Senate's attention a serious legal matter currently impeding Federal criminal investigations in many States, especially Oregon, and legislation that I am joining the Chairman of the Judiciary Committee, Senator Leahy, in introducing today to correct this problem. Enacted at the end of the 105th Congress as Section 801 of the Omnibus Appropriations Bill (Public Law 105-277), the Citizens Protection Act, commonly known as the ``McDade law,'' has hampered Federal law enforcement efforts aimed at combating child pornography, drug trafficking, and terrorism, particularly in the State of Oregon. In the Gatti case [Gatti, 330 Or. 517 (2000)] in early 2000, the Oregon Supreme Court held that a private attorney had acted unethically by intentionally misrepresenting his identity to the employees of a medical records review company called Comprehensive Medical Review, CMR. The attorney, who represented a client who had filed a claim with an insurance company, believed that the insurance company was using CMR to generate fraudulent medical reports that the insurer then used to deny or limit claims. The attorney called CMR and falsely represented himself to be a chiropractor seeking employment with the company. The attorney was hoping to obtain information from CMR that he could use in a subsequent lawsuit against CMR and the insurance company. The Oregon Supreme Court upheld the State Bar's view that the attorney's conduct violated two Oregon State Bar disciplinary rules and an Oregon statute, specifically, a disciplinary rule prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation; a disciplinary rule prohibiting knowingly making a false statement of law or fact; and a statute prohibiting willful deceit or misconduct in the legal profession. In doing so, the court rejected the attorney's defense that his misrepresentations were justifiable because he was engaged in an investigation to seek evidence of fraud and other wrongful conduct. The court expressly ruled that there was no `prosecutorial exception' to either the State Bar disciplinary rules or the Oregon statute. As a result of this decision, prosecutors in Oregon may not concur or participate in undercover and other covert law enforcement techniques, even if the law enforcement technique at issue is lawful under Federal law. Soon after this Oregon Supreme Court decision, the Oregon U.S. Attorney's Office informed the Oregon FBI Field Office that it would not concur or participate in the use of long-used and highly productive techniques, such as undercover operations and consensual monitoring of telephone calls, that could be disallowed by the State Bar. Several important investigations were immediately terminated or severely impeded. The Oregon U.S. Attorney even refused to certify the renewal of the Portland Innocent Images undercover program, which targets child pornography and exploitation. Without the U.S. Attorney's certification, the program was shut down and a significant criminal problem has since gone unchecked. The Federal Investigation Enhancement Act that I am introducing today with Senator Leahy will clarify that Federal attorneys may, for the purpose of enforcing Federal law, authorize, concur, direct, and supervise covert investigations even though such activities may require the use of deceit or misrepresentation. In doing so, our legislation will make it possible for Federal authorities to continue their efforts to investigate and apprehend the most dangerous criminals. It is my hope that the Senate will act quickly on this legislation that will correct the most serious problems caused by the McDade law. It will be of enormous help to Federal law enforcement efforts in Oregon and across our country who are prosecuting these crimes.

Mr. WYDEN

Mr. WYDEN. Mr. President, I come to the floor today to discuss the issue of aviation security. The Senate Commerce Committee, on which I serve, had hearings this week on this issue. I want to take a few minutes this morning to discuss the history of this issue, the history of the debate in Congress about aviation security. I do that with one overriding concern. I do not want to be back on the floor of the Senate in 6 months or a year taking my turn once again in the procession of somber floor speeches about how sorry and upset and how sad the Senate is that another air tragedy has occurred. I think it is important for the Senate to step back and take a look at this issue now so we are not dealing with it again in another 6 months or a year. Beginning my discussion this morning, I want to talk about the pattern of the past with respect to aviation security. Let's make no mistake about it. There is a very clear pattern. Again and again, there has been an air tragedy. Again and again, there is outrage in the Congress and in the country. Again and again, task forces are established and commissions are assigned to make reports and recommendations. Again and again, there has been incremental and ultimately ineffective implementation of changes that simply don't get the job done when it comes to aviation security. It would be an enormous disservice to those lives that have been lost and to the many who love them if the only response of this Congress is again to issue more reports, let more commissions go forward, and once again fail to act with respect to putting in place the actual provisions that are going to protect our citizens with respect to terrorism. The American people deserve quick, decisive, and sweeping aviation security reforms. It is time now to get the job done right. For a variety of reasons, for more than 20 years, plans to improve aviation security have not been put into practice. What I intend to do this morning is to outline specifically some of those specific proposals, to describe what happened to them, and why they didn't seem to be acted on. After the Pan Am Flight 103 bombing over Lockerbie in 1988, and again after the TWA Flight 800 crashed near Long Island in 1996, there was enormous support for tightening aviation security. In each case, the Presidential commission was established and reforms were initiated. In each case, studies by the GAO or the Department of Transportation inspector general made clear that there were vulnerabilities. And in each case, by the time the reports came out, the momentum was lost. Action was slow. It was incomplete and incremental at best. I am not interested this morning in talking about whose fault that was. Clearly, part of the problem stems from what Presidential administrations of both political parties did in allowing the process to bog down in redtape and regulations. Part of the responsibility lies with airlines that, indeed, did fight tougher security measures by claiming costs would cripple their operations. But we should be very clear. Part of the responsibility lies right in this Chamber, right where the Congress did not insist on action, and did not insist on safety for our constituents. For example, in 1998, the GAO warned that vigilant congressional oversight was essential. They made clear that momentum for reform would stall otherwise. But while there were spasms of interest on Capitol Hill, Congress didn't do the job with respect to oversight. I am going to make clear as a member of the Senate Subcommittee on Aviation that this time is going to be different. This time the argument between those in the various agencies and the airline executives over cost, inconvenience, and control of the system aren't going to be allowed to be used as an argument for delay. We are not going to sit by again and reap the grim harvest of congressional inaction. This is just a bit of the history on this issue. In 1987, the GAO recommended that the FAA establish a certification program setting performance standards for screening companies that operate the airport security x rays. After the 1996 TWA Flight 800 crash, a White House commission said the same thing, and Congress passed legislation calling on the Federal Aviation Administration to get it done. But the Federal Aviation Administration's rulemaking process dragged on for years with multiple rounds of public comment. In June of 2000, the GAO reported that the Federal Aviation Administration was then 2 years behind schedule. As of this morning, the certification process for screening these companies still has not gone into effect. In 1988, the GAO reviewed FAA's progress in implementing a variety of key improvements, including passenger profiling, bag-matching action, and a variety of other initiatives. Their conclusion was: Based on FAA's current schedule and milestones, this whole process for enhancing the Nation's aviation security system will take years to fully implement. To ensure followthrough on it, the same White House commission recommended an annual report from the Secretary of Transportation on the implementation of new security measures. That report happened exactly once: on the first anniversary of the TWA crash. Once again, the response was nothing. Under legislation passed in 1990 and 1996, anyone with access to a secured area in an airport is subject to a background check. The White House commission established after the 1996 TWA crash went further, recommending a full criminal background check and the FBI fingerprint check. However, the inspector general of the Department of Transportation recorded in 2000 that existing background check procedures were, in his view, ineffective. First, Federal Aviation Administration regulations required a criminal background check for some employees but not for others. Second, and more incredibly, some serious crimes, such as assault with a deadly weapon, were not on the list of offenses that would disqualify an employee. Many airports were not complying with the FAA's rules anyway. For 35 percent of the employee files reviewed by the inspector general, there was no evidence that a complete background check was ever performed. Let's reflect on that. In 35 percent of the instances, the inspector general found no evidence that a complete background check was ever performed. Last year, one screening company pled guilty and paid a $1.2 million fine for doing inadequate background checks and for hiring at least 14 airport workers who had criminal convictions. Congress passed legislation in 2000 directing the FAA to implement criminal fingerprint checks and expanding the list of disqualifying offenses. New requirements, however, apply only to large airports. And there still is no requirement to repeat fingerprint checks periodically. In 1993, the Department of Transportation inspector general reported weaknesses in airport measures to keep unauthorized persons out of restricted areas. A followup review in 1996 found no significant improvement. In 1999, the inspector general reported that in a test of eight major airports, undercover agents were able to penetrate secure areas in 117 of 173 attempts--a 68-percent success rate. In many of those cases, the test intruder, an individual who was testing the system, was able to actually board an aircraft. Now, the list goes on. I want to mention just several more in terms of laying out this chronology. Following the 1988 Pan Am Flight 103 bombing, there was a major effort to develop baggage-screening equipment in order to detect explosives. Technology was developed, but it was still not widely deployed at the time of the 1996 TWA crash. The White House commission created in response to that tragedy recommended the widespread deployment of such equipment. Congress provided funding, and machines were deployed in a variety of locations. But last year--just last year--the Department of Transportation inspector general found that these machines were significantly underutilized. The inspector general found that more than 50 percent of the machines were being used to screen fewer than 225 bags per day, even though their capacity is 225 bags per hour. According to a 1999 report by the National Research Council, at some locations ``the throughput rate has been so low that operators could even lose their skills for operating the equipment.'' The reason I am going through this 15-year chronology is that on September 11, 2001, known vulnerabilities in America's aviation system remained unaddressed. Last week's hijackers knew there were holes. The General Accounting Office, that serves the U.S. Congress, had documented these significant gaps in our system. The terrorists took advantage of those gaps, and the price paid by our country has been far too great. Now it is time to correct these vulnerabilities. The legislation should include action on at least four fronts: First, swift implementation of the specific to-do list that I have outlined this morning should be a top priority. This is a to-do list not made up from some sort of cavalier review by an interest group. This is a to-do list taken from recommendations from the inspector general of the United States and from the General Accounting Office. These recommendations have accumulated for years. It is time to focus on getting those tasks done rather than just perpetually creating more reports and more lists. Second, Tuesday's unprecedented attack points to the need for a number of additional safeguards. As we all know, a number of our colleagues have advocated armed sky marshals onboard many flights. Certainly this is a sensible recommendation, a credible deterrent; and I support that. I also think there needs to be significantly improved intelligence sharing of information. Background checks for students applying for flight training obviously need to be more thorough and more meticulous. If a passenger is on a terrorist watch list, the country is saying: How in the world can aviation security officials not be aware of that? The technology exists to coordinate efforts between law enforcement and the airline industry, so no more turf fights, no more lack of communication. Focusing on information sharing of the best and most current intelligence is absolutely key so that the names and faces of those who are apparently unknown to the airline industry but aware to some in the intelligence gathering can be out and available so as to serve as an important tier of protection for the public. Third, and perhaps most important, Congress must fundamentally rethink who should be responsible for carrying out day-to-day functions, such as the screening of baggage and access to restricted areas. A number of forward-thinking Members of the Senate have been after this issue for years, particularly the chairman of the Senate Commerce Committee, Senator Hollings. He has been suggesting this since 1996 and before. Obviously, between airlines and airports there have been conflicts in the past, with some wanting security, some wanting to maximize the number of flights and passengers and convenience. Certainly, security and speed and convenience do not always fit perfectly together. But aviation security functions need to be placed in the hands of those without any conflict of law, those whose sole and paramount focus will be the security of the American people. Finally, it is obvious there will be costs associated with this. If, in fact, the question of airline security becomes a function of the Government--which is something I support, and I believe has bipartisan support in this body--there are opportunities to use existing funds, such as the airport trust fund. I, for one, would be willing to look at additional ways to secure that revenue. And there has been a debate of an aviation security trust fund. We are all aware that our constituents are saying, in great numbers, that they would be willing to pay a bit more for aviation security. Let's look at using existing funds more efficiently, but if that does not do the job, clearly, responding to our constituents, and getting the job done, even if it requires some additional charges, will be necessary. Finally, I think we ought to be especially concerned about smaller, more rural airports. It is clear they are not going to be able to afford some security measures. Let's be clear to the public that we are not going to allow rural airports to be security-sacrifice zones, in effect, written off by the Congress. In considering the cost of the massive airline security overhaul, we are all going to remember the numbers of last week. It is going to require additional funds to rebuild the Pentagon, to rebuild New York City. To me, to say the cost of improving airline security is too great is not an argument that is acceptable. The country expects us to do what it takes and to work together to get the job done. Let me conclude this morning with one last point. I came to the Chamber this morning to go through the 15-year chronology of inaction with respect to aviation security so as to set out on the record how again and again the inspector general and the General Accounting Office have laid bare the vulnerabilities of our aviation system. I want to make clear, again, I am not interested in assessing blame. When we look at the various executive branch leaders, when we look at the Congress, when we look at those in the various interest groups, including the airline industry, all of them would now say that if they could do it again, it would be very different. We would not have this pattern, from 1987 until September 11, at the very least, that constantly resulted in this cycle of tragedy, outrage, recommendations, and then essentially slow motion implementation. I do not want to be back here in 6 months or a year. I don't want to be back in just a few months waiting with the distinguished Senator from North Dakota and the President of the Senate, waiting in a line to give speeches about yet another tragedy. The American people know their elected officials share their grief right now. What they want to see is that we can get the job done, that this time it is going to be different. This time the Congress is going to take the to-do list that has been spelled out by the General Accounting Office and the inspector general for years now and, without any more delay, that to-do list is going to be put in place and the American people will have every possible measure of security as they fly in our skies. I yield the floor.