[Congressional Record Volume 150, Number 93 (Thursday, July 8, 2004)]
[Senate]
[Pages S7782-S7819]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
CLASS ACTION FAIRNESS ACT OF 2004
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 2062, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 2062) to amend the procedures that apply to
consideration of interstate class actions to assure fairer
outcomes for class members and defendants, and for other
purposes.
Pending:
Frist amendment No. 3548, relative to the enactment date of
the act.
Frist amendment No. 3549 (amendment No. 3548), relative to
the enactment date of the act.
Frist amendment No. 3550 (to the instructions of the motion
to commit), relative to the enactment date of the act.
Frist amendment No. 3551 (amendment No. 3550), relative to
the enactment date of the act.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. BOXER. Mr. President, I know that most in the Chamber, and those
who are in their offices, went home to their home States over the
Fourth of July break. It is always a treat for me to do that because,
frankly, I think I come from one of the most beautiful places in the
world. For me to go to California and get ``rooted'' in why I want this
job, to protect that beautiful place, and to protect the people who
live there and to work for them, it is always a joy.
Constituents asked me: What are you going to be doing when you come
back? They had asked me about a number of issues they cared about. They
are worried about this economy. They say it is uneven. They point out
that college tuition is going up more than 20 percent. They are
squeezed. They point out that gasoline prices in our State are raging.
It is costing them more. They point out that their health care premiums
are going up. They are worried about even keeping health insurance.
Some of them do not have any.
Those on Medicare are very worried about what they view as a false
promise of the administration's Medicare proposal which was supposed to
be so great for them in terms of prescription drugs. It turns out the
thing is so bureaucratic and such a nightmare they cannot figure it
out.
Not only that, they express shock when I tell them in that bill we do
[[Page S7783]]
something outrageous, saying to Medicare, you cannot negotiate for
lower prices for the people on Medicare. Constituents say: Wait a
minute. Why does that make sense? If you are sitting across the table
from someone and you represent 40 million senior citizens, you have a
good card in your hand that you can play. You can say, if you want to
have your high blood pressure medicine on our formulary, if you want to
have your heart medicine on our formulary, if you want to have an
arthritis drug on our formulary, you have to give us a better deal.
No, this administration and the majority in this body decided to tell
Medicare they could not negotiate for lower drug prices for our
seniors.
When I go home, people are flooding me with these questions. They are
very worried about Iraq. What is the plan? What is the plan to get more
help there? Why are we spending so much there? Why aren't we focusing
on our problems at home? This is what I heard all over my State.
They ask: Senator, what is on the agenda when you get back? Which one
of these issues are you going to take up? What about rail security? We
are worried about that because we have a lot of Amtrak ridership in
California. What about nuclear plant security? When are you doing more
about that? I have to tell them the truth; that is, I am not in charge.
My party is not in charge of the Senate. The Republican leadership has
chosen, instead of putting any of those issues you have mentioned on
the agenda, they are taking up class action reform because there is too
much forum shopping--at which point they look at me and ask, What?--and
we have to protect business from these consumer complaints.
They kind of look at me quizzically and say: There are other things
that mean a lot more to my family. Then they ask: What are you going to
take up after you take up class action reform? We are going to talk
about gay marriage. And they say: Well, wait a minute. Every day in my
life I have all these pressing issues; I thought the States handled
that issue. Well, I say, you are right; the States have always handled
that issue.
I find it amazing, given the Republicans are in charge of this Senate
and they always believe in States rights and local control, they are
now going to bring up the issue of gay marriage, and not only take it
up--it was taken up once before; Bob Barr in the House wrote the
Defense of Marriage Act, and Bob Barr said that would take care of
everything and still says it takes care of everything--but, no, they
are going it take the most precious document known to human kind, the
Constitution of the United States, and they are going to now talk about
marriage in the Constitution. In fact, marriage has been sacred in the
various religions, along with the rules surrounding marriage, and the
States have handled marriage for years.
My constituents are completely confused. They have many worries. They
have many concerns. They are worried about the fact they are not
respected abroad. They are worried about this recovery that they see as
very wobbly. They see better corporate profits--although those seem not
to be going as well--and they do not see the increases in their
standard of living.
If we look at the numbers, the increase in the take-home pay, when
you include inflation and the high cost of living, has only gone up
about 1 percent, while all the other issues have gone up over 20
percent, the issues people deal with every day.
Now I come back to Washington and I am called to a meeting in a
secret room in the Capitol. The press knows all about this. We are
called to a secret room in the Capitol. We have to discuss the threats
to our country. This is very serious stuff. Of course, I cannot go into
everything that was said, but I can state what has been reported in the
press, which is not classified. And that is, we need to be on the alert
at home. We have known since September 11 that al-Qaida has cells in
our country and that they never give up. If they fail, they go back
again. We know all this. We need to stay ahead of the threat.
That is why I am so proud to be on the Commerce Committee. I am so
proud to have as part of the portfolio of the Commerce Committee, rail
security, aviation security, and port security. These are key issues.
Since Madrid, for example, and the horrible bombing of the train there,
we need to be on our toes. That means we need to pass rail security
legislation.
This is the great news I have for my constituents and for all
Americans. At a time when we are in the middle of an election, where
there is a lot of disagreement, where we have even seen language that
is prohibited to be used in the Senate being used by the Vice President
of the United States--in other words, a time where emotions are running
high politically--guess what happened on rail security. Every single
member of the committee voted for that bill--every single member. From
liberal to conservative, to moderate, everybody voted for that bill.
That means we could easily take up that bill. That means we could
easily pass that bill.
But what do we have before the Senate? Class action. The people who
want us to pass this bill say there is a lot of abuse and that we need
to make sure we take these cases away from the States and put them more
into the Federal courts. Again, I find it unbelievable that we have a
Republican majority that keeps saying, States rights, States take care
of it, States do it, but when they are not happy with the way it goes--
oops, forget that. As Roseanne Rosanna-Dana used to say, ``Never
mind.'' Take it to the Federal court. Everyone knows what will happen
there.
A lot of these cases are very important. We remember Dalkon Shield
was one of those class action cases where women were dying. Not until
there was a class action lawsuit was that fixed. That does not mean
there aren't abuses. It does not mean that we cannot have reforms.
It does say to me that there is no crying need to take this up when
we are called to room 407 for a secret briefing about the threats that
face this country before the election. It is extraordinary to me. And I
believe the American people who are watching what we do here are
thinking: What is the Senate doing about my life, about my family,
about what I need for my kids?
I went to a press conference on the minimum wage. Do you know the
minimum wage has not been raised in 8 years? Every colleague here has
had a pay raise. For 8 years the minimum wage has not been raised.
People are living below the poverty line. Mr. President, 61 percent of
those people happen to be women, many single moms. All we want is a
chance to do that. We should do that by unanimous consent today. Why do
we need to debate it? Eight years long and no increase in the minimum
wage, zero.
These are people who work hard. These are not mostly teenagers; these
are grownups who are working hard to support their families on the
minimum wage. The cost of living has gone up 14 percent in those 8
years. The minimum wage has stayed stagnant. These people are falling,
falling, falling, falling--and we talk about family values here? And we
are rushing to do a marriage amendment when the States are taking care
of that?
My State has decided what it wants to do. They have a law. It is not
perfect. It says there are domestic partnerships and they have rights
and responsibilities. We could make it better. But do you know what. My
State has taken care of this, thank you very much.
It is all about politics, folks, let's face it. For 5 minutes, why
don't we put aside politics and pass the minimum wage and help the
millions of people who need it to be done? What are we talking about?
We are talking about an increase, over a couple years, of $3,800 a year
for these people, who will still be below the poverty line. I bet if
you had a vote in this Senate, the way it is made up, to give more tax
breaks to the people making a million bucks a year, it would fly
through here, it would fly through this place, even though those in the
million-dollar range are already getting back hundreds of thousands of
dollars a year. Imagine.
So every once in a while I come down to this Senate floor and I say:
Why am I here? What are we doing? Are we meeting the needs of the
people? And this is a perfect time to do it because there is a bill on
the Senate floor that not one person in my State, except
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high-paid lobbyists in very fancy suits, want to take up. This is true.
The things we should take up, the things we talk about in that room,
that secret room in the Capitol--making our rail systems safe, making
our ports safe, making our buses safe--oh, no, we do not have time for
that because after we do this for the big businesses in this country,
oh, we are going to go on to gay marriage before the Democratic
Convention so some people can cast a vote that might hurt them in their
election. Shame on us. We should be better than that as Senators. We
should be better. So I am going to give us a chance to be better.
Unanimous Consent Request--S. 2273
Mr. President, I ask unanimous consent that the Senate proceed to
calendar No. 536, S. 2273, the Rail Transportation Security Act, that
the bill be read a third time and passed, and that the motion to
reconsider be laid upon the table.
The PRESIDING OFFICER. The Chair informs the Senator from California
that in my capacity as a Senator from the State of Nevada, I object at
this time.
Mrs. BOXER. I understand.
Mr. REID. Mr. President, will the Senator yield for a question?
Mrs. BOXER. I will yield for a question.
Mr. REID. Is the Senator from California saying that we should be
engaged on the Senate floor today on issues relating to homeland
security; that is, the security of the State of California, the State
of Nevada, and the other 48 States, and that we should not be wasting
our time on class action? Next we are going to go to a gay marriage
amendment. Would the Senator acknowledge no matter how strongly people
feel about this gay marriage amendment, it has no--zero--I am from
Nevada; I do not gamble personally, but I know a little bit about it,
having been chairman of the Gaming Commission--it has zero chance of
passing. None. It won't pass. And we are going to spend valuable Senate
floor time on an amendment that stands absolutely no chance of passing
when we have at the desk the homeland security appropriations bill, and
I have been told today we are not going to go to that until September.
Now, is the Senator saying we should not be doing class action, we
should not be doing gay marriage, we should be doing things that make
my family and your family and the rest of America safe from these evil
terrorists?
Mrs. BOXER. Mr. President, I thank my friend. It is obvious he sees
it the way I see it.
We were called up to a secret meeting today to hear about all the
threats on our Nation. That is not an idle trip up to that room. If it
is to mean anything, we better get busy. I meet with my local police
and fire. Do you know what? When there is a terrorist attack, the White
House does not get the call; the Senate does not get the call; the
House does not get the call. They dial 911, and our local people--be
they in Nevada, be they in New Mexico, be they in California--get the
call. They are hurting.
The bill I wanted to get us to vote on today--and I have a couple of
others I am going to ask since we got objection to this one. The Rail
Transportation Security Act--this is one that passed out of the
Commerce Committee, I say to the assistant Democratic leader,
unanimously. It is very important. I will tell my friend what it does.
The bill authorizes grants to all of our railroads and to hazardous
material shippers for freight and passenger rail security. It is a
critical bill.
We saw what happened in Madrid. You do not have to haul me up to any
secret room. The minute we saw that happen in Madrid, the Commerce
Committee, which the Presiding Officer of the Senate is on and
participated in this, we for the second time voted in a unanimous
fashion--100 percent of the committee--for this rail security bill.
Unfortunately, there has been objection to it because the Republicans,
who control the Senate, are not interested in moving this bill.
Unanimous Consent Request--S. 2279
So I am going to give them a chance to move another bill, and that is
the port security bill. Port security is another bill that passed out
of our committee without one dissenting vote. We know the problem at
our ports. We have containers coming into them. They are not checking
them. We do not know who is going to be putting something in one
of those containers. We are doing better, but we are not giving it the
attention it deserves.
Mr. President, I ask unanimous consent that the Senate proceed to
calendar No. 530, S. 2279, the Maritime Security Act of 2004.
The PRESIDING OFFICER. The Chair again informs the Senator from
California that in my capacity as a Senator from the State of Nevada, I
object.
Mr. REID. Mr. President, will the Senator yield for a question?
Mrs. BOXER. I will be happy to yield.
Mr. REID. Ships coming into the United States today have on them
transponders. The purpose of that is so those people ashore can find
out where the ship is and have a better idea of where they are. As we
speak, there are about 43,000 very large ships on our oceans--43,000.
For them to come to the United States, one of the requirements is they
have a transponder on them, like an airplane has, like the situation we
had a few weeks ago where the plane was coming into National and the
transponder was not working.
I say to my friend from New York, even though those ships have
transponders----
Mrs. BOXER. I am from California. I was born in New York, but I am
from California.
Mr. REID. I am sorry?
Mrs. BOXER. You said: I say to my friend from New York. I was born
there, but I am from California and have been since I was 25 years old.
Mr. REID. We have only known each other 22 years.
Mrs. BOXER. I know. When we have known each other 23 years, you will
get it right, I know.
Mr. REID. So I say to my friend, there is a transponder on every ship
coming into the United States, but we do not have the equipment on
shore to have the transponders picked up on shore. Why? Because we have
not spent the money to do it.
The distinguished Senator from South Carolina has fought to have
money placed in these bills so we can have the transponders on shore so
we can do what they do with airplanes, with ships.
Is the Senator aware we don't even do that?
Mrs. BOXER. I am quite aware we have not done what Senator Hollings
has long asked us to do. We have not done the work of homeland
security. There is a lot of talk. There are a lot of meetings. There is
a lot of yack-yack about it. But when it comes down to where we are
putting the dollars and where we are putting the emphasis, we are on
some bill here I can honest to God tell you, not one person except a
highly paid lobbyist has ever talked to me about, class action. I can
honestly tell you, on the gay marriage, people have a lot of views in
my State, but they believe our State is handling that issue in a good
way. So there is no reason to go to this.
In Madrid, 200 people died, 1,400 people were injured in that rail
accident. And we go up to 407 up here and we hear all the talk about
what we need to do. I am suggesting as a result of my unanimous consent
requests today, both being objected to, when you have this majority
party, it is very clear: there is a lot of talk, but there is no
action.
That is a reason why people are disenchanted. It is the reason why
people want change around here. They want us to be strong at home. They
want us to be respected in the world. And it is time for many changes
to occur. I am looking forward to those changes, to the day when we can
vote these bills out of the Commerce Committee without one single
objection, and no one on the floor here would then object to taking
them up.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I came to the floor intending to talk
about an amendment I had prepared to offer to the class action
legislation, the underlying class action legislation. I think instead
of getting into a discussion of that amendment, let me express my
disappointment that we are not doing anything this week here in the
Senate.
I was asked last week, as I am sure all of us were by our
constituents, what are you doing in the Senate? What is
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Congress doing these days? I tried to answer honestly and said:
Nothing. We are treading water in the Senate. We are not doing
anything.
I checked with the Parliamentarian about the procedural status we are
in in the Senate this morning. I am informed this is the status: We
have S. 2062, which is this bill to reform class action procedures.
There is an amendment offered to that by Senator Frist, a perfecting
amendment. There is a second-degree perfecting amendment offered to
that. There is a motion to commit that has been made by Senator Frist.
There is a Frist perfecting amendment to the motion to commit, and
there is a Frist second-degree perfecting amendment to the first-degree
perfecting amendment to the motion to commit. So the obvious question I
put to the Parliamentarian is, what is there that is in order for us to
offer at this time for the Senate to consider? The answer is, nothing.
Nothing is in order. The tree is full, as the parliamentary expression
goes, and nothing can be offered.
There is also a cloture motion that has been filed on the underlying
measure. That would be a motion that will come to a vote presumably
tomorrow to bring the debate on the underlying bill to a close. Of
course, that motion will come up without Senators having been able to
offer amendments. I would doubt seriously that that cloture motion
would prevail, but that would be a surmise. I don't know that that is
the case.
All of this procedural mumbo jumbo I am reciting in order to make the
point that there is no effort I am aware of to move ahead with a lot of
the important items that need to be dealt with in the Senate. The
Senator from California raised a couple of those items that relate to
homeland security. There are many others also we could get unanimous
consent to move ahead on and that would be good policy initiatives that
would benefit our country. I am frustrated--as I am sure many Senators
are--that we are in this circumstance. I am frustrated this week is
essentially lost to any productive activity.
Next week I am informed we will be debating a constitutional
amendment on gay marriage. I concur with the comments of the Senator
from Nevada that there is no chance the necessary two-thirds vote of
the Senate is going to be there to pass that constitutional amendment.
The Founding Fathers had great wisdom in saying, when you are amending
the Constitution, you can't just do it with a majority vote. You have
to have a two-thirds vote. I can say with very little fear of
contradiction, there are not two-thirds of all Senators who favor going
ahead and passing a constitutional amendment at this time. So again,
that will be another wasted week next week.
We have one more week then, and then we are in recess for 6 weeks.
Then we come back in the second week in September and presumably have a
few weeks of work there before we adjourn. I regret we are not able to
do more. I regret our procedural circumstance we find ourselves in
prevents me from offering the amendment I had intended to offer. But I
will look forward to an opportunity to offer that amendment, if and
when we get to a point where amendments are in order on this pending
legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. What is the parliamentary situation?
The PRESIDING OFFICER. The pending question is the second-degree
amendment to the motion to commit.
Mr. HATCH. Mr. President, I would like to take a moment to address a
few remarks made by my colleagues on the other side of the aisle during
yesterday's debate on the class action bill. First, they repeatedly
accused the leader of jeopardizing the chances of getting this bill
passed by filling in the amendment tree. Give me a break. That is the
phoniest argument I have ever heard. The fact is, they are trying to
kill this bill, and they are probably going to be effective in doing
so.
I hate to give up--and I haven't given up yet--but that is what is
happening. I have been through it so many times around here that I know
when there is a real desire to kill a bill. The way you do it is with
nongermane amendments that are called killer amendments or poison
pills, because they are political amendments one side or the other does
not want. The leader filled the tree because he wanted to protect the
bill from extraneous amendments that would eliminate any chances of
this measure becoming law. Anybody who argues otherwise is being
deceptive.
Everyone here knows the class action bill was an extremely attractive
vehicle for extraneous amendments, especially those amendments that
were sure to be offered for the sole purpose of scoring political
points during an election year. But what my Democratic colleagues
conveniently overlook is this bill will find itself in the recycle bin
if it is saddled with a host of irrelevant amendments. While this is
certainly a win/win situation for those on the other side of the aisle
who oppose this bill, apparently including some of the Democratic
leadership, I find it a truly puzzling outcome for those who say they
support class action reform. Not only does a loaded bill risk peeling
away Senate votes from the underlying class action measure, it will, in
all certainty, undergo changes when it goes through the House. And what
happens then? Do we have a conference to resolve our differences? I
think the answer is a resounding no. I don't think the other side is
going to permit this because this bill flies in the face of the demands
of one of their greatest hard money constituent givers, and that is the
trial lawyers of America.
We all know there is little time left in this Congress to go through
the motion of doing a conference. I think the chances of getting a
conference done in this election year with two conventions and with all
the problems we have to address. The appointment of conferees is
further cast into doubt by virtue of the minority leader's threat
earlier in the year to the appointment of conferees for the rest of the
year. So if you add these poison amendments to this bill, these
extraneous amendments that have nothing to do with the bill, you are
basically killing the bill. Everybody knows that. The majority leader
had no choice other than to do what he did.
I certainly did not hear any assurances from the minority leader
yesterday on whether he would consent to the appointment of conferees
to this bill. As such, I am led to believe his position remains
unchanged. But even if he did consent, I don't think there would be
enough time to do a conference. We have 62 people who said they would
support this bill. That means all 62 should vote for cloture so we can
actually pass this bill. But unfortunately, we have some who agreed
they would vote for cloture--that was the whole reason for the
agreement last November--and are now changing their minds and saying,
well, this is something I can't support because we want our colleagues
to have their right to put poison pills on this bill.
(Mr. TALENT assumed the Chair.)
Mr. HATCH. Well, they cannot have it both ways. Let me be clear. It
is because of the potential feeding frenzy that the leader moved to
safeguard the bill from an open season on nongermane, nonrelevant,
extraneous amendments. He did it to advance the ball on this
legislation so it can be considered without the same initiatives we saw
with other measures that were considered by the Senate this year. He
did it with the hope of reaching a time agreement on amendments. He was
not being unreasonable. He even allowed one nongermane amendment the
Democrats have tried to get an up or down vote on all year, which
members on this side feel is a terrible amendment. But probably it
would pass, who knows. At least some think it would probably pass. I
think there needs to be a substitute amendment to it that would
probably pass.
I want to remind my Democratic colleagues the majority leader made
three extremely generous offers regarding the consideration of germane
and nongermane amendments.
First, he asked unanimous consent that amendments be limited to five
related amendments to be offered by each side. So nobody would be
foreclosed from offering the amendments they might think are important.
When the minority leader objected to the offer, he expanded the request
to include 10 related amendments on each side. I don't know how he
could have been more fair. When the minority leader rejected this even
more generous counterproposal, the majority
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leader yet again expanded the agreement to include an unlimited number
of related amendments. In other words, amendments that are pertinent to
the bill, that are at least germane. Again, the minority leader
rejected this third offer. Of course, let us not forget each offer
included an up-or-down vote on a nongermane amendment that the
Democrats demanded, which is an amendment by Senator Kennedy on the
minimum wage.
We also heard yesterday that filling the amendment tree was
unprecedented, and we are somehow committing a terrible wrong against
the institution of the Senate. How soon we forget the past. I remind my
colleagues that the minority leader filled the tree in October of 2002
on the homeland security bill, which was even a more important bill
than this one, although this is an extremely important bill for this
country. Mind you, he filled the tree after promising at the beginning
of his tenure as then-majority leader he would never fill the tree. But
he did so, anyway. To be sure, we even saw Senator Byrd do it when he
was the majority leader. Unprecedented? Come on, give me a break.
Terrible wrong?
Let us not hide behind Senate process in order to play both sides of
the fence on class action reform. I said it yesterday, and I will say
it again today: S. 2062 represents a bipartisan agreement we reached in
good faith with key Democrats who say they support class action reform.
We agreed to a number of their amendments in order to get them to agree
to vote for cloture. That was the agreement. And implied in that
agreement was to vote down poison pill amendments that would kill the
bill. Otherwise, they weren't sincere; we know they must have been at
the time, but they would not have been sincere in the bipartisan
agreement we reached. We reached a compromise because I thought the
ultimate goal was to get class action enacted into law.
Let me be clear when I say my agreement to further moderate this bill
was in no way predicated on letting this legislation become a
``Christmas tree'' for unrelated measures. This is never the way we
have done business around here. Our agreement was about getting class
action reform enacted, and that is the very direction our leader is
moving us toward. I can only hope my colleagues on the other side of
the aisle who say they support this bill can see that. A deal is a
deal. They should not break it because politically it might be in their
best interest to do so. That works both ways. We should not break it
because politically it might be in our best interest to bring up
extraneous, nongermane amendments and make them vote on them.
Another argument my colleagues on the other side raised repeatedly
yesterday was the Judicial Conference and the Chief Justice of the
United States are somehow opposed to this bill. I have heard this point
made over and over. I think it is about time to set the record
straight.
Let me start by saying Chief Justice Rehnquist has never written a
letter, issued a statement, nor published an opinion that comes out in
opposition to this bill. Rather, my colleagues who make this claim rely
on outdated letters from the Federal Judicial Conference espousing
opinions on prior iterations of this bill--prior iterations, not the
same language of this bill.
On two prior occasions, the Judicial Conference expressed opposition
to earlier bills, as offered in the 106th and 107th Congresses that
would have expanded Federal diversity jurisdictions over purported
class actions. But in March of last year, a substantial shift in
position occurred. In a March 26, 2003, letter to the Judiciary
Committee, the Judicial Conference expressed its position on the bill
by stating:
That Congress may decide to base a statutory approach to
remedy current problems with class action litigation by using
minimal diversity litigation. The Conference position
recognizes that the use of minimal diversity may be
appropriate to the maintenance of significant multi-State
class action litigation in the Federal courts.
The Judicial Conference also suggested employing provisions to raise
the jurisdictional threshold and fashioning exceptions that would
preserve a role for the State courts in the handling of in-State class
actions.
Senator Feinstein offered an amendment during the ensuing markup that
was directly responsive to these suggestions. Those changes were
reflected in the version of the bill reported favorably by the
Judiciary Committee in early April 2003.
Perhaps more important than what was said is what was not said.
Nowhere in the letter does the Judicial Conference express opposition
to the bill now in consideration. I think this silence is deafening and
speaks for itself on where the Judicial Conference stands.
I ask unanimous consent that the March 26 Judicial Conference letter
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Judicial Conference
of the United States,
Washington, DC, March 26, 2003.
Hon. Orrin G. Hatch,
Chair, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Chairman Hatch: I write to provide you with the
recently adopted views of the Judicial Conference of the
United States, the policy-making body for the federal
judiciary, on class action legislation, including S. 274, the
``Class Action Fairness Act of 2003,'' introduced by you and
other co-sponsors.
On March 18, 2003, the Judicial Conference unanimously
adopted the following recommendation:
That the Judicial Conference recognize that the use of
minimal diversity of citizenship may be appropriate to the
maintenance of significant multi-state class action
litigation in the federal courts, while continuing to oppose
class action legislation that contains jurisdictional
provisions that are similar to those in the bills introduced
in the 106th and 107th Congresses. If Congress determines
that certain class actions should be brought within the
original and removal jurisdiction of the federal courts on
the basis of minimal diversity of citizenship and an
aggregation of claims, Congress should be encouraged to
include sufficient limitations and threshold requirements so
that federal courts are not unduly burdened and states'
jurisdiction over in-state class actions is left undisturbed,
such as by employing provisions to raise the jurisdictional
threshold and to fashion exceptions to such jurisdiction that
would preserve a role for the state courts in the handling of
in-state class actions. Such exceptions for in-state class
actions may appropriately include such factors as whether
substantially all members of the class are citizens of a
single state, the relationship of the defendants to the forum
state, or whether the claims arise from death, personal
injury, or physical property damage within the state.
Further, the Conference should continue to explore additional
approaches to the consolidation and coordination of
overlapping or duplicative class actions that do not unduly
intrude on state courts or burden federal courts.
The Conference in 1999 opposed the class action provisions
in legislation then pending (s. 353; H.R. 1875, 106th Cong.).
That opposition was based on concerns that the provisions
would add substantially to the workload of the federal courts
and are inconsistent with principles of federalism. The March
2003 position makes clear that such opposition continues to
apply to similar jurisdictional provisions.
The Conference recognizes, however, that Congress may
decide to base a statutory approach to remedy current
problems with class action litigation by using minimal
diversity jurisdiction. The Conference position recognizes
that the use of minimal diversity may be appropriate to the
maintenance of significant multi-state class action
litigation in the federal courts. The use of the term
``significant multi-state class action litigation'' focuses
on the possibility of multi-state membership within the
plaintiff class. The actions to which this term applies are
nationwide class actions, as well as class actions whose
members include claimants from states within a smaller region
or section of the country. Minimal diversity in these cases
would facilitate the disposition of litigation that affects
the interests of citizens of many states and, through their
citizens, affects the many states themselves.
Parallel in-state class actions in which the plaintiff
class is defined as limited to the citizens of the forum
state are not included within the term ``significant multi-
state class action litigation.'' Parallel in-state class
actions might share common questions of law and fact with
similar in-state actions in other states, but would not, as
suggested herein, typically seek relief in one state on
behalf of citizens living in another state. Accordingly,
parallel in-state class actions would not present, on a broad
or national scale, the problems of state projection of law
beyond its borders and would present few of the choice of law
problems associated with nationwide class action litigation.
In addition, to the extent problems arise as a result of
overlapping and duplicative in-state class actions within a
particular state, the state legislative and judicial branches
could address the problem if they were to create or utilize
an entity similar to the Judicial Panel on Multidistrict
Litigation, as some states have done.
Further, the position seeks to encourage Congress to
include sufficient limitations
[[Page S7787]]
and threshold requirements so as not to unduly burden the
federal courts and to fashion exceptions to the minimal
diversity regime that would preserve a role for the state
courts in the handling of in-state class actions. The
position identifies three such factors that may be
appropriately considered in crafting exceptions to minimal
diversity jurisdiction for class actions. These factors are
intended to identify those class actions in which the forum
state has a considerable interest, and would not likely
threaten the coordination of significant multi-state class
action litigation through minimal diversity. (The factors do
recognize certain situations where plaintiffs from another
state may be included in an otherwise in-state action.)
The first factor would apply to class actions in which
citizens of the forum state make up substantially all of the
members of the plaintiff class. Such an in-state class action
exception could include consumer class action claims, such as
fraud and breach of warranty claims. The second factor would
apply to a class action in which plaintiff class members
suffered personal injury or physical property damage within
the state, as in the case of a serious environmental
disaster. It would apply to all individuals who suffered
personal injuries or losses to physical property, whether or
not they were citizens of the state in question. The third
factor recognizes that it may be appropriate to consider the
relationship of the defendants to the forum state. Such
consideration is not intended to embrace the term ``primary
defendants'' (or a similar term), which language has been
used in past and present class action bills as part of an
exception to minimal diversity. Such a reading could extend
minimal diversity jurisdiction to cases in which a single
important defendant lacked in-state citizenship. While the
relationship of the defendant to the forum may have some
bearing on state adjudicatory power, an insistence that all
primary defendants maintain formal in-state citizenship is
too limiting and may preclude in-state class actions where a
defendant has sufficient contacts with the forum state,
regardless of citizenship.
We would appreciate your consideration of these comments
and the position of the Judicial Conference. Should you or
your staff have any questions, please contact Michael W.
Blommer, Assistant Director, Office of Legislative Affairs,
Administrative Office of the U.S. Courts, at (202) 502-1700.
Sincerely,
Leonidas Ralph Mecham,
Secretary.
Mr. HATCH. To be sure, on the very day the bill was reported from
committee, the ranking member sent letters to the Judicial Conference
requesting comments on the revised version of S. 274 as reported out of
committee and further urging that the Judicial Conference propose
alternative legislative language reflecting its views on how the
jurisdictional provisions should be structured.
I ask unanimous consent that the letter of April 11, 2003, from
Senator Leahy be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, April 11, 2003.
Leonidas Ralph Mecham,
Secretary, Judicial Conference of the United States,
Washington, DC.
Dear Mr. Mecham: Today, the Senate Judiciary Committee
approved S. 274; the ``Class Action Fairness Act of 2003,''
with several amendments. The bill, as amended, would
determine whether a federal court has jurisdiction over a
class action based on the fraction of the plaintiff class
members that are citizens of the same state as the primary
defendant.
I value the unique perspective of the Judicial Conference
regarding class action litigation. Therefore, I request that
the Judicial Conference provide Members of the Senate
Judiciary Committee with its views on S. 274, the ``Class
Action Fairness Act,'' as reported out of the Committee
today, by April 25, 2003.
If you have any questions about this request, please do not
hesitate to contact Ed Pagano or Susan Davies of my staff.
They can both be reached at 202-224-7703. Thank you for your
assistance and continued insight on class action litigation.
Sincerely,
Patrick Leahy,
United States Senator.
Mr. HATCH. In its April 25 response, the Judicial Conference noted
that the markup changes to S. 274 were responsive to its previous
comments about changing the jurisdictional threshold and preserving the
role of the State courts in handling State class actions. Indeed, the
Judicial Conference expressed no opposition to the revised version of
S. 274 reported favorably by the Judiciary Committee.
The Judicial Conference explicitly declined Senator Leahy's
invitation to propose alternative language. The Judicial Conference's
resolution deliberately avoided specific legislative language out of
deference to Congress' judgment and the political process. The letter
further noted that:
[T]hese issues implicate fundamental interests and
relationships that are political in nature and are peculiarly
within Congress' province.
I ask unanimous consent that the letter of April 25, the Judicial
Conference response, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Judicial Conference
of the United States,
Washington, DC, April 25, 2003.
Hon. Patrick J. Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Leahy: Thank you for your letters of April 9,
2003, and April 11, 2003. In those letters, you requested
that the Judicial Conference provide the Senate Judiciary
Committee with legislative language implementing the Judicial
Conference's March 2003 recommendations on class-action
litigation and the views of the Conference on S. 274, the
``Class Action Fairness Act of 2003,'' as reported by the
Senate Judiciary Committee on April 11, 2003.
As you know, at its March 18, 2003, session, the Judicial
Conference adopted the following resolution:
That the Judicial Conference recognize that the use of
minimal diversity of citizenship may be appropriate to the
maintenance of significant multi-state class action
litigation in the federal courts, while continuing to oppose
class action legislation that contains jurisdictional
provisions that are similar to those in the bills introduced
in the 106th and 107th Congresses. If Congress determines
that certain class actions should be brought within the
original and removal jurisdiction of the federal courts on
the basis of minimal diversity of citizenship and an
aggregation of claims, Congress should be encouraged to
include sufficient limitations and threshold requirements so
that the federal courts are not unduly burdened and states'
jurisdiction over in-state class actions is left undisturbed,
such as by employing provisions to raise the jurisdictional
threshold and to fashion exceptions to such jurisdiction that
would preserve a role for the state courts in the handling of
in-state class actions. Such exceptions for in-state class
actions may appropriately include such factors as whether
substantially all members of the class are citizens of a
single state, the relationship of the defendants to the forum
state, or whether the claims arise from death, personal
injury, or physical property damage within the state.
Further, the Conference should continue to explore additional
approaches to the consolidation and coordination of
overlapping or duplicative class actions that do not unduly
intrude on state courts or burden federal courts.
S. 274, as reported by the Senate Judiciary Committee,
generally provides for federal jurisdiction of a class action
based on minimal diversity of citizenship if the matter in
controversy exceeds the sum of $5 million, exclusive of
interest and costs. (S. 274 as introduced established a $2
million minimum amount in controversy.) The bill also now
permits a federal district court, in the interests of
justice, to decline to exercise jurisdiction over a class
action in which greater than one-third but less than two-
thirds of the members of all proposed plaintiff classes in
the aggregate and the primary defendants are citizens of the
state in which the action was originally filed. The court
would be required to consider five specified factors when
exercising this discretion. (This discretionary provision was
not included in the bill as introduced.)
In addition, S. 274 as reported provides that the federal
district courts shall not have original jurisdiction over any
class action in which: (A) two-thirds or more of the members
of all proposed plaintiff classes in the aggregate and the
primary defendants are citizens of the state in which the
action was originally filed; (B) the primary defendants are
states, state officials, or other governmental entities
against whom the district court may be foreclosed from
ordering relief; or (C) the number of members of all proposed
plaintiff classes in the aggregate is less than one hundred.
As introduced, the second and third exceptions were the same,
but the first one originally precluded federal jurisdiction
where ``the substantial majority of the members of the
proposed plaintiff class and the primary defendants are
citizens of the State in which the action was originally
filed'' and ``the claims asserted therein will be governed
primarily by the laws of'' that state. The replacement
language in essence substitutes a numerical ratio for
``substantial majority'' and eliminates the choice-of-law
requirement.
We are grateful that Congress is working to resolve the
serious problems generated by overlapping and competing class
actions. The Judicial Conference ``recognizes that the use of
minimal diversity of citizenship may be appropriate to the
maintenance of significant multi-state class action
litigation in the federal courts.'' At the same time, the
Judicial Conference does not support the removal of all state
law class actions into federal court. Appropriate legislation
should ``include sufficient limitations and threshold
requirements so that federal courts are not unduly burdened
and states' jurisdiction
[[Page S7788]]
over in-state class actions is left undisturbed.'' Finding
the right balance between these objectives and articulating
that balance in legislative language implicate important
policy choices.
Any minimal-diversity bill will result in certain cases
being litigated in federal court that would not previously
have been subject to federal jurisdiction. The effects of
this transfer should be assessed in determining the
appropriateness of various limitations on the availability of
minimal diversity jurisdiction.
Mr. HATCH. The Judicial Conference concluded its letter by stating:
We are grateful that Congress is working to resolve the
serious problems generated by overlapping and competing class
actions.
Finally, another piece of evidence that counters the Judicial
Conference's purported opposition to the class action bill is Chief
Justice Rehnquist's 2003 year-end report on the Federal judiciary.
While this report criticizes various legislative measures considered by
the Congress, absolutely no mention is made of class action reform
efforts.
I suppose this begs the question then, if the Judicial Conference and
Chief Justice Rehnquist stand opposed to this bill, why is there no
reference to such a measure in their year-end report?
Again, I think the silence speaks for itself. I ask my colleagues to
refer to the 2003 Year-End Report on the Federal Judiciary which can be
found easily enough on the Supreme Court's website.
Mr. HATCH. With all of this said, is it credible to suggest that the
Judicial Conference, much less the Chief Justice of the United States,
stands somehow opposed to the class action bill? I think not.
I will refer to this ``myth'' chart. The myth is that the Federal
Judicial Conference opposes the Class Action Fairness Act.
These are the facts: The Conference's opposition was directed at
class action bills in previous Congresses. In March 2003, the
Conference strongly criticized the current class action system and
suggested several areas to modify the Class Action Fairness Act.
After the Class Action Fairness Act was modified during markup, the
Conference declined an invitation to criticize or revise the version
favorably reported by the Judiciary Committee and thanked the Senate
for its efforts to clean up the State court class action mess.
That certainly rebuts everything that was said on the floor yesterday
and today by those who are looking for any excuse they can to scuttle
this bill. Unfortunately, some of them are people who have agreed to
support the bill. That seems apparent to me. I hope it is apparent to
all of those in the various States who have relied on these agreements,
and at least this agreement made last November, that we would at least
vote for cloture. That was the whole issue. Then, of course, they could
still have any amendment they wanted to bring up that would be germane,
and they might even be able to bring up nongermane amendments if they
could get a supermajority vote on them. So nothing would stop them from
at least an attempt to bring up nongermane amendments.
I would like to also reply to comments made yesterday in defense--can
anyone believe it?--of Madison County, IL. I heard suggestions that the
Madison County court is not as renegade as we have portrayed it. After
all, the number of certifications has not escalated at the same rate as
the number of cases brought.
Now, this fact may have some appeal on its surface but when one looks
at why the certifications are so low, I think they will find themselves
right back to the inescapable conclusion that this court is a downright
embarrassment to our civil justice system. Any attempt to defend
Madison County's record on class certification must account for the
number of class actions that were not certified because the defendants,
knowing that the judicial deck was stacked against them, simply
conceded defeat and settled rather than go through the motion of
defending their lawsuit in this court.
As I said yesterday, the plaintiffs' lawyers who descend on this
small rural courthouse in southwestern Illinois know class
certification is a sure thing and that all they need to do is come up
with a complaint in order to extort a settlement from the unfortunate
defendants. These settlements come well before the class certification
phase of the lawsuit and is exactly why this court is so attractive to
greedy, dishonest lawyers--greedy, flagrantly dishonest lawyers--
looking to make a quick buck, money hungry lawyers looking to buy their
next Gulfstream at the expense of everyday Americans such as Hilda
Bankston, dishonorable lawyers looking to pay off their next
multimillion-dollar mansion in Palm Beach, FL, at the expense of
shattering public confidence in our civil justice system, and
unscrupulous lawyers seeking to fund the next campaign of a State court
judge who can tilt the playing field for them in yet another magnet
jurisdiction.
There is something clearly rotten in middle America, and when it
comes to Madison County, there is only one way to describe it: If you
go there, they will pay. If someone is brought in as a defendant there,
even though they do minimal business in that State, they are going to
pay.
Finally, I would like to respond to the wild accusations from the
other side of the aisle that the Republicans are trying to kill this
bill because the measure does not go far enough to achieve class action
reform. Give me a break. I do not think this accusation merits a real
response, other than to observe that my colleagues on the other side of
the aisle will resort to just about anything in order to justify their
vote against this bill, in order to justify this filibuster against
this bill.
Despite all the rhetoric we have heard from the other side about how
they support class action reform, about how terrible this system has
become and about how we have a modest bill that fixes the problem, we
will know their true colors when we vote on cloture either tonight or
tomorrow.
It makes absolutely no difference whether Senators vote no because
they oppose the bill or because they want to preserve the sanctity of
the Senate process. A vote against cloture is a vote against class
action reform. It does not get any simpler than that.
By the way, how can they make that argument when they have a right to
bring up any amendment they want to after cloture is invoked? True,
nongermane amendments will have to have a supermajority vote to pass,
but all germane amendments only have to have a majority vote to pass.
How can they make these types of clownish arguments?
To make a long story short, it is apparent that sometimes money does
count around here, and the only reason this thing is fought so hard is
because the major funding institution in this country happens to be the
trial lawyers for those on the other side of the aisle.
Now, what galls me is that last November, when we had 59 votes for
cloture, 1 less than was necessary to end the debate, we then made all
kinds of concessions to three more Democrats--and I think the business
community knows who they are--that are now in this bill to get their
agreement that they would vote for cloture when the time came. There
was no misunderstanding. Everybody knew there would be an attempt to
load this bill up with poison pill amendments or killer amendments, if
one wants to call them that. It meant that we at least go to cloture
and get 62 votes for cloture, and I believe it meant more than that.
I think when we make a deal, those who enter into that deal agree to
support the bill, against all amendments, unless we can agree
otherwise. Unfortunately, that is not the interpretation of some who
agreed to the deal last November. But there could be no
misunderstanding. Their agreement last November was to vote for
cloture. The whole issue was we lacked one vote in putting this bill
before the Senate as a whole and letting it have its day in court, so
to speak, in a court that is much more fair, much more balanced, and
much more considerate than the courts in Madison County, IL.
There is no excuse for the arguments that have been made by the other
side. If this bill goes down because we cannot get 60 votes for
cloture, then shame on those who entered into the agreement with us. It
was not an easy agreement for some of us because we had to make changes
that literally some of us would not have made otherwise. So anybody who
says this side does not want this bill to go forward is being less than
candid, and I will put it in those terms, although I think probably
more stark terms would be acceptable.
[[Page S7789]]
This is an important bill. This bill will correct some of the major
wrongs in our society from a litigation standpoint. This bill is fair.
It is not going to stop truly in-State lawsuits from being tried, even
in Madison County, but this bill does correct some tremendously rotten
situations in our country. It also would be supported by decent, honest
lawyers throughout the country, at least lawyers who do not always
think of the almighty dollar as the only reason they are practicing
law.
This is a very important bill. There are a lot of great trial lawyers
out there who I believe are embarrassed by some of the arguments that
have been made by my Democratic colleagues. There are a lot of great
trial lawyers who do not need phony courts, or dishonest courts, or
courts that go way beyond reasonability, or courts that favor them, or
magnet courts to win their cases. Great lawyers are going to be able to
win their cases whether they are in State court or Federal court. In
fact, I suggest they probably have an easier chance in Federal court
because people automatically think those courts are more august and the
cases more serious.
But here we have a case where true advantage is being taken of the
class action system by a limited number of lawyers in our society who
are getting fabulously wealthy and rich because of forum shopping to
courts like the Madison County court that are going to find for the
plaintiffs no matter what the law or the facts say. That is wrong. When
plaintiffs are right, they ought to recover, but when they are not
right, they should not recover. The courts ought to be the bulwark of
standing for what is right and not what is wrong. In the political
system that exists in Madison County, IL, it is a system that, if it is
not corrupt, it is the closest thing to it.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. TALENT. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Hatch). Without objection, it is so
ordered.
Mr. TALENT. Mr. President, I thank my friend from Utah for being
willing to assume the chair for a few minutes so I could make a brief
statement about the bill pending before us. I want to say, as I
listened when I was in the chair, I appreciated his eloquence on behalf
of the bill.
The Senate will realize pretty soon that I have a bit of a cold. If I
pause to take a sip of water now and then, it is not for the dramatic
effect but so I can finish the statement.
I had originally not intended to say anything about the legislation,
although I support it. Anybody who has gotten around their States and
heard about the destructive impact of abusive lawsuits on jobs and
economic growth has to support doing something. I was not planning to
speak on it, but the other night I was presiding when this debate
began, and I was fortunate to hear Senator Carper from Delaware give
one of his initial remarks. I don't think he realized I was listening
as I was presiding because I was doing a little paperwork, but I did
listen.
I heard him give examples of abuses of class actions that have
occurred around the country, items such as a class action lawsuit in
Illinois against a bottled water giant named Poland Spring which
claimed that the company's water wasn't pure and wasn't from a spring.
Under the settlement the consumers received coupons for discounts on
the water. The company didn't agree they had done anything wrong,
didn't agree to change the water, and all the plaintiffs got were
coupons to buy more of the water they were complaining about. But their
attorneys got $1.35 million.
In a Texas class action settlement with Blockbuster over late fees on
movie rentals, class members received coupons for more movie rentals.
The attorneys received $9.25 million. I don't know how my family missed
out on those coupons--I guess because we didn't live in Texas.
I could go on, but Senator Carper made the point that there was
obviously a need to remedy these abuses and a need to do that without
undermining the efficacy of the class action lawsuit in principle. In
other words, we need to be able to have class action lawsuits because
sometimes a whole lot of people will be done a small wrong. Each of
them will experience some wrong that is so small it is not worthwhile
for any one individual to sue, so if they can get together in a class
we can remedy that wrong and the attorneys can get reasonable
attorney's fees.
But when there is, in fact, no remedy for the plaintiffs, when there
may have been no wrong, and when there are these outside attorneys'
fees, it is obviously something unjust because it is unjust to make
people pay when they have not done anything wrong and it is not very
good for the rest of us.
We all know how it works. Those awards are paid and then it is passed
along in the form of higher prices or fewer jobs. Senator Carper's
point was it should not be all or nothing at all. We should not have to
have a system where either we have no class action remedies or we allow
these abuses to continue year after year. There is no reason in
principle why we should not be able to fix the abuses while keeping the
remedy.
He is right. There is no reason in principle we should not be able to
do that. There are people of good will on both sides of the aisle who
want to do that. There is obviously a solid majority of the Senate who
wants to do that. Yet year after year, we do not do that. Why?
It was his speech and my thinking about it that led me to decide to
come down here and make a statement because I think I know the reason
why. It is because of the filibuster, or more precisely it is because
of the way the Senate allows the filibuster to be conducted.
This principle of filibusters is actually a pretty good thing. I
think if a determined minority in any legislative body believes
something is really bad, it makes sense to give them some remedy to
stop that legislation from passing. In fact, I submit to you that the
filibuster has been consistently abused in the Senate. Why has that
happened? Because the discipline on the filibuster is public
accountability. The public doesn't like obstructionism for its own
sake. If they see that happening, they will not like it; and if the
American people do not like something happening here and focus on it,
it tends to stop. I have been around here long enough to see that.
But because of the way the filibuster is conducted in this body, it
is almost invisible. Therefore, the people do not know it is happening,
and therefore there is no accountability. That is why we have the
abuses of it. Why is it invisible? In the Senate, in the first place,
as you know, the passage of a bill requires many different steps: the
introduction of the bill, assignment to a committee, first and second
readings, and all of that.
In most legislative bodies, those steps are pro forma. In the Senate,
many of those steps are debatable. And anything that can be debated can
be filibustered.
The classic idea of a filibuster, as in ``Mr. Smith Goes to
Washington,'' with final passage of some bill, people speaking all
night to prevent it from being voted on doesn't have to happen in the
Senate. You can filibuster a bill on any number of points. You can
filibuster it after it has passed to keep it from going to conference.
The public doesn't know what is happening.
The second and bigger reason is that in the Senate, as all of us here
know--and I think the public may be beginning to realize--you don't
have to talk to filibuster.
I have served now in my third legislative body. It is a tremendous
honor to serve here. The pinnacle of the legislative career is to serve
in the Senate. In most legislative bodies, when people are finished
talking about the proposition that is pending, you vote on the
proposition.
Many times I have sat in the Chair where the distinguished Senator
from Utah is now sitting. When the last speaker has finished some
eloquent set of remarks, I have asked, Who seeks recognition? And
nobody seeks recognition. It doesn't mean we vote. It means we go to a
quorum call, as we did a little while ago. You don't have to speak
[[Page S7790]]
to filibuster. You don't have to debate. You just have to decline to
agree that debate will end. Unless everybody here either agrees to a
unanimous consent agreement, or vote by a 60-vote majority to end
debate on a cloture motion, which itself is a rather clumsy way to end
debate, the debate goes on and on.
To allow a filibuster in that way, and make it so invisible, tends to
empower the extremes in a legislative body in any given proposition.
In most legislative bodies the power in any given proposition, once
it reaches the floor of that body, belongs in the middle. It makes
sense, doesn't it? Because to pass it you have to have the middle with
you, typically. But here the filibuster empowers those folks who like
confrontation most. I am not running them down. Every legislative body
has to have people whose instinct is to say: I am not going to give in.
I am going to stand up for this. I believe in this, or I think it is
wrong, or I think it is right, and I am not going to give in much. It
is important to have those folks in a legislative body. But you can't
have them running the whole show all the time. It empowers those
people. It tends to educate people to the temper of partisanship.
It is so tempting when you are in the minority to stop everything
through the invisible filibuster and then blame the majority for not
being able to pass something. That happens in this whole Congress. I
don't blame my friends on the other side of the aisle.
It is so tempting it would require almost a heroic effort,
particularly given how divided the country is on a partisan and
philosophical standpoint, for them not to have done that.
The way the Senate does it makes interest groups more militant. This
bill is a classic example of that. Everybody who looks at this issue
knows that we have problems with litigation, at least in certain areas.
We have problems in State class action abuses. We have problems with
the whole asbestosis system which is driving dozens of big companies
into bankruptcy and reducing the number of deep pockets that are
available to pay for people who really are sick and have asbestosis. We
clearly need reform in these areas.
What would happen if the process was healthier is that our friends in
the personal injury bar would know that something was going to happen
and would sit down and negotiate, and we would come up with a moderate
bill, I think, probably pretty similar to what we have before us today.
We would pass it more or less by consensus. But what do you do when you
have this filibuster? You can just say no. You can say it doesn't
matter how bad it gets, we are going to pressure and lean on those in
the Senate who are generally with us philosophically, and we will stop
everything from happening. We are empowering the tactically more
extreme in this body. We are educating people to the temper of
partisanship. We are driving interest groups, which are pretty militant
anyway, to be even more extreme. Then we are gumming up the few bills
that do pass because now, if you are sitting here and you have some
constructive measure you are trying to pass, and you know the only
legislation that is going to get through this body this year is the
defense authorization, let us say, or the tax relief bill for
manufacturers that we have to pass--because if we don't pass it we are
going to get increasing trade sanctions all over the world--if these
are the two or three bills you know you are going to pass, what do you
do? You take your constructive measure which you have wanted to pass
for months but can't because nothing else is going through the Senate,
and you say: Well, that train is leaving the station and maybe none of
the others are, so I am going to put my bill on that.
You use the opportunity to offer nongermane amendments, which
personally I like and support. So you offer all kinds of amendments
that are completely unrelated to the bill before you just because you
know it is the only opportunity you are going to have to pass anything.
Then the public wonders how we get immigration bills on class action
reform bills, or how I did this: I put a bill that I believe in very
strongly to help fight sickle cell disease on a tax relief bill for
manufacturing, and I would do it again. But that is because of the way
we are running this place.
What is the effect? It affects everything that gets filibustered. We
have seen filibusterss so far in this Senate and in this Congress on
the Energy bill, medical malpractice reform, the welfare bill, a number
of judges, the asbestosis bill, the class action bill, and a number of
other bills which are slow-walked through--the highway bill, the JOBS
bill, the faith-based bill. And that doesn't even count all the bills
that aren't even brought up because the leadership knows they are going
to be filibustered.
Nobody is ever held accountable. The public wonders why the Senate
doesn't work.
I am going to say something. I get around this town and I get around
Missouri. I am afraid that we are being held in increasingly low
regard. I am afraid the Senate is being reduced to its constitutional
minimum of authority and effectiveness in this town. We are like a big
roadblock. Ideas don't come out of here and go places. It is like the
commercial about the roach motel. They check in but they don't check
out. That is what happens here. The legislative ideas check in and they
never check out.
I know some people say that is a good thing. We don't want anything
to pass.
I just sat down this morning preparing these remarks and I made a
list of the things which I think we are going to have to address. This
is a top 10 list: Keep America strong; a long-term solvency issue
involving Social Security and Medicare--I am on the Aging Committee. I
will go into that more in a moment. The Senator from Idaho, Mr. Craig,
has spoken eloquently on those issues.
The rising cost of health care is a problem, shortage of oil and
natural gas, need for alternative energy sources to protect our energy
independence and security, the failing electricity transmission grid in
all parts of the country, the need to renew the distressed and urban
neighborhoods, a burgeoning immigration system, a crumbling
transportation infrastructure system, shortages of water in parts of
the country, contamination of water resources, management of federally
owned natural resources, and a policy we are going to take regarding
defense both in the war on terror and also the potential rising power
of competitors, such as England and China.
This is the top 10 list. I am not even counting the more divisive
issues or the cultural issues on which it would be nice if we could
work them out and be able to act. Some of these problems may go away on
their own. I am a believer in that.
America is a great country. Maybe if we do not do anything, some of
them are going to go away. But they are not all going to go away. Some
of them are going to get worse. We cannot solve any of them without
some element of participation by the Federal Government. Maybe it is
just reform of regulations to allow people in the country to solve the
problem.
We are going to have to have Federal participation. That will
require, at some point, a Senate that works better than the Senate is
working now. We have reached the point where the paralysis in this body
is threatening the welfare of the people. Some may say--and I heard it
said with response to the motion for cloture--respect for the
traditions of the Senate means we cannot do anything about this.
Everyone who has been here a while, and I have not been here a while,
tells me that never before has the filibuster been taken to this
degree.
If we were to apply a corrective, we would be restoring rather than
overturning the traditions of this great body. And it is a great body.
It is a privilege to be here. I don't know that I have ever worked with
as motivated and passionate and intelligent a group of people. I call
on Members on both sides of the aisle to consider carefully whether it
is not time to change our practices in a way that permits us to work
together, that encourages those who seek compromise solutions to the
problems facing the country. Not to do so would be a historic
abdication of the responsibilities of this Senate.
I yield the floor.
The PRESIDING OFFICER (Mr. Talent). The Senator from Utah.
Mr. HATCH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S7791]]
The assistant legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I will speak in a moment about this
class action bill and why I oppose it. I want to start by noting my
strong disagreement with the procedural tactics used by the majority to
block amendments to the bill. I have some familiarity with the strategy
of filling the amendment tree. This was done time after time, year
after year, when campaign finance reform legislation was brought to the
Senate floor. This is the procedure that is used to block the Senate
from working its will on a bill.
The Senate has a long tradition of an open process for amendments.
Any Senator has the right under our rules to offer any amendment to any
bill. That is how the Senate works. It is amazing to me that the
majority leader would engage in this tactic when he has not only
majority support for the bill, but a supermajority in support.
Democratic supporters of the bill thankfully are not prepared to
block their colleagues from offering amendments. So I guess it appears
that this bill is going to be sacrificed in order to prevent amendments
from being offered. I commend my Democratic colleagues who support this
bill for not being intimidated by the arguments made on the Senate
floor that they somehow are breaking their agreement by standing up for
the rights of their colleagues to offer amendments. From the very
start, it was clear that these Senators had agreed to support the
motion to proceed in order to get the bill to the floor of the Senate
and to vote for cloture, if that motion was again filibustered. They
never agreed to vote against all amendments or to block all amendments.
Turning to the bill itself, I oppose the Class Action Fairness Act,
S. 2062, and I will vote against the bill.
The main reason for my opposition is that notwithstanding its title,
I do not think this bill is fair. I do not think it is fair to citizens
who are injured by corporate wrongdoers and are entitled to prompt and
fair resolution of their claims in a court of law. I do not think it is
fair to our State courts, which are treated by this bill as if they
cannot be trusted to issue fair judgments in cases brought before them.
I do not think it is fair to State legislatures, which are entitled to
have the laws that they pass to protect their citizens interpreted and
applied by their own courts. This bill is not only misnamed, it is bad
policy. It should be defeated.
Make no mistake, by loosening the requirements for Federal diversity
jurisdiction over class actions, S. 2062 will result in nearly all
class actions being removed to Federal court. This is a radical change
in our Federal system of justice. We have 50 States in this country
with their own laws and courts. State courts are an integral part of
our system of justice. They have worked well for our entire history. It
is hard to imagine why this Senate, which includes many professed
defenders of federalism and the prerogatives of State courts and State
lawmakers, would support such a wholesale stripping of jurisdiction
from the States over class actions. By removing these actions to State
court, Congress would shift adjudication away from State lawmakers and
State judges towards Federal judges, who are often unfamiliar with the
nuances of State law. In my opinion, the need for such a radical step
has not been demonstrated.
Class actions are an extremely important tool in our justice system.
They allow plaintiffs with very small claims to band together to seek
redress. Lawsuits are expensive. Without the opportunity to pursue a
class action, an individual plaintiff often simply cannot afford his or
her day in court. But through a class action, justice can be done and
compensation for real injuries can be obtained.
Yes, there are abuses in some class actions suits. Some of the most
disturbing have to do with class action settlements that offer only
discount coupons to the members of the class and a big payoff to the
plaintiffs' lawyers. I am pleased that the issue of discount coupons is
addressed in the bill, because the bill we considered in October 2003
did nothing about that problem. The bill now requires that contingency
fees in coupon settlements will be based on coupons redeemed, not
coupons issued. Attorney's fees will also be determined by reasonable
time spent on a case and will be subject to court approval. The bill
also allows a court to require that a portion of unclaimed coupons be
given to one or more charitable organization agreed to by the parties.
These are all good changes, but they do not change my view that the
bill, as a whole, unfairly interferes with the States' administration
of justice.
There are three possible outcomes of this bill being enacted. Either
the State courts will be deluged with individual claims, since class
actions can no longer be maintained there, or there will be a huge
increase in the workload of the Federal courts, resulting in delays and
lengthy litigation over procedural issues rather than the substance of
the claims, or many injured people will never get redress for their
injuries.
I don't believe any of these three choices is acceptable.
I appreciate that the supporters of S. 2062 modified the new
diversity jurisdiction rules for class actions in an effort to allow
plaintiffs in class actions more opportunities to remain in State
court. Under the new bill, a district court must decline jurisdiction
if two-thirds of the plaintiffs and the primary defendants are from the
state where the action was filed, there is at least one defendant who
is a citizen of that State from whom significant relief is sought and
whose alleged conduct forms a significant basis for the claims asserted
by the proposed class. In addition, the principal injuries resulting
from the alleged conduct of each defendant must have occurred in the
State in which the action was originally filed. Finally, the new bill
provides that district court can only decline jurisdiction if during
the 3-year period preceding the filing of the action, no other similar
class action has been filed against any of the defendants even if the
case is filed on behalf of other plaintiffs.
These criteria are an improvement on the underlying bill. But the
jurisdictional requirements for class actions to remain in State courts
are still too burdensome. Under the new language, for example, a class
action brought by Wisconsin citizens against a Delaware-based company
for selling a bad insurance policy would probably be removed to Federal
court even if Wisconsin-based agents were involved in selling the
policies. And the filing of a class action in one State court may lead
to the successful removal of a similar case filed in another State on
behalf of plaintiffs in that State. The bottom line is that this bill
will continue to send the majority of class actions to Federal court.
The proponents of this bill have chosen a remedy that goes far beyond
the alleged problem.
Furthermore, under S. 2062, many cases that are not class actions at
all are included in the definition of ``mass action,'' a new term
coined by this bill. S. 2062 simply requires that the plaintiff must be
seeking damages of more than $75,000 for the case to be considered a
mass action and removable to Federal court. This provision unfairly
limits State court authority to manage its docket and to consolidate
claims in order to more efficiently dispense justice.
A particularly troubling result of this bill will be an increase in
the workload of the Federal courts. These courts are already
overloaded. The Congress has led the way in bringing more and more
litigation to the Federal courts, particularly criminal cases. Criminal
cases, of course, take precedence in the Federal courts because of the
Speedy Trial Act. So the net result of removing virtually all class
actions to Federal court will be to delay those cases.
There is an old saying with which I'm sure we are all familiar:
``justice delayed is justice denied.'' I hope my colleagues will think
about that aphorism before voting for this bill. Think about the real
world of Federal court litigation and the very real possibilities that
long procedural delays in overloaded Federal courts will mean that
legitimate claims may never be heard.
One little-noticed aspect of this bill illustrates the possibilities
for delay that this bill provides, even to defendants who are not
entitled to have a
[[Page S7792]]
case removed to Federal court under the bill's relaxed diversity
jurisdiction standards. Under current law, if a Federal court decides
that a removed case should be remanded to State court, that decision is
not appealable. The only exception is for civil rights cases removed
under the special authority of 28 U.S.C. Sec. 1443. The original
version of this bill allowed defendants to immediately appeal a
decision by a Federal district court that a case does not qualify for
removal.
Fortunately, the revised bill now requires such appeals to be decided
promptly. It does not, however, do anything about the fact that the
lower court may take months or even years to make a decision on the
motion to remand. That means that a plaintiff class that is entitled,
even under this bill, to have a case heard by a State court may still
have to endure years of delay while its remand motion is pending in the
Federal district court. Where is the ``fairness'' in that? I plan to
offer an amendment, if I even get the chance to address that problem
and I hope the bill's sponsors and supporters will give it serious
consideration.
It is important to remember that this debate is not about resolving
questions of Federal law in the Federal courts. Federal question
jurisdiction already exists for that. Any case involving a Federal
statute can be removed to Federal court under current law. This bill
takes cases that are brought in State court solely under State laws
passed by State legislatures and throws them into Federal court. This
bill is about making it more time-consuming and more costly for
citizens of a State to get the redress that their elected
representatives have decided they are entitled to if the laws of their
state are violated.
Diversity jurisdiction in cases between citizens of different States
has been with us for our entire history as a Nation. Article III,
section 2 of the Constitution provides: ``The judicial Power shall
extend . . . to Controversies between Citizens of different States.''
This is the constitutional basis for giving the Federal courts
diversity jurisdiction over cases that involved only questions of State
law.
The very first Judiciary Act, passed in 1789, gave the Federal courts
jurisdiction over civil suits between citizens of different States
where over $500 was at issue. In 1806, in the case of Strawbridge v.
Curtiss, the Supreme Court held that this act required complete
diversity between the parties--in all other instances, the Court said,
a case based on State law should be heard by the State courts. So this
bill changes a nearly 200-year-old practice in this country of
preserving the Federal courts for cases involving Federal law or where
no defendant is from the State of any plaintiff in a case involving
only State law.
Why is such a drastic step necessary? Why do we need to prevent State
courts from interpreting and applying their own State laws in cases of
any size or significance? One argument we hear is that the trial
lawyers are extracting huge and unjustified settlements in State
courts, which has become a drag on the economy. We also hear that
plaintiffs' lawyers are taking the lion's share of judgments or
settlements to the detriment of consumers. But a recent empirical study
contradicts these arguments. Theodore Eisenberg of Cornell Law School
and Geoffrey Miller of NYU Law School recently published the first
empirical study of class action settlements. Their conclusions, which
are based on data from 1993-2002, may surprise some of the supporters
of this bill.
First, the study found that attorneys' fees in class action
settlements are significantly below the standard 33 percent contingency
fee charged in personal injury cases. The average class action
attorney's fee is actually 21.9 percent. In addition, the attorneys'
fees awarded in class action settlements in Federal court are actually
higher than in State court settlements. Attorney fees as a percent of
class recovery were found to be between 1 and 6 percentage points
higher in Federal court class actions than in State court class
actions.
A final finding of the study is that there has been no appreciable
increase in either the amount of settlements or the amount of
attorneys' fees awarded in class actions over the past ten years. The
study indicates that there is no crisis here. No explosion of huge
judgments. No huge fleecing of consumers by their lawyers. This bill is
a solution in search of a problem. It is a great piece of legislation
for wrongdoers who would like to put off their day of reckoning by
moving cases to courts that are less convenient, slower, and more
expensive for those who have been wronged. It is a bad bill for
consumers, for State legislatures, and for State courts.
This bill seems not to be about class action abuses, but about
getting cases into Federal court where it takes longer and is more
expensive for plaintiffs to get a judgment. The cumulative effect of
this bill is to severely limit State court authority and ultimately
limit victims' access to prompt justice. Despite improvements made
since the last time the Senate considered this bill, the bill will
still place significant barriers for consumers who want to have their
cases heard in State court. Remand orders are still appealable, and the
mass tort definition does not protect State courts' authority to
consolidate cases and manage their dockets more efficiently. All the
elements outlined in the bill before us will result in the erosion of
State court authority and the delay of justice for our citizens.
Therefore, I cannot support this unfair ``Class Action Fairness Act''
bill, and I will vote no.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. CLINTON. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Threats to Our Nation
Mrs. CLINTON. Madam President, this is a very difficult time for our
Nation. A few hours ago, the Secretary of the Department of Homeland
Security appeared at a press conference to discuss in some detail what
he could say publicly about the continuing threats our Nation confronts
because of the diabolical plots of the terrorists to undermine our way
of life, to destroy American life, to disrupt American life. Earlier
today there was a closed door hearing for the Senate that went into
even greater detail.
A few weeks ago I personally was briefed by representatives of the
Department of Homeland Security, the FBI, the CIA, others within our
Government who follow the terrorist threats on a daily, even hourly
basis. I believe it is fair to say there has been, ever since September
11 and I think one can argue even before, a concerted effort by those
who subscribe to the nihilistic philosophy or theology that underlies
the fundamentalist Islamic terrorists that whatever they could do to
strike against our country or American interests or American allies
anywhere in the world somehow furthered their perverted cause, their
sense of purpose to try to strike against freedom and democracy,
against women's rights and roles, against what the United States
represents as a beacon of opportunity for so many around the world.
Representing the State of New York, I saw firsthand the horrific
damage the terrorists caused because of their attacks on the World
Trade Center and of course at the Pentagon, and then the crash in
Pennsylvania of a plane thought to be headed toward either this
building or the White House.
I have met recently, about 2 hours ago, with a group of interns who
came to my office. I love meeting with the young people who work here
in Washington during the summer. They come with such energy and
enthusiasm. They were asking me a variety of questions. One of them
said: Senator, what do you spend most of your time doing?
I told them that certainly, because of September 11, I have spent the
bulk of my time worrying about and working on behalf of New York to
help us recover from the attacks, to help us rebuild, to help us try to
repair, so far as possible, the shattered lives and lost dreams of so
many thousands of people. Then, once having become a member of the
Armed Services Committee in January, a year and a half ago, I have been
immersed in the details and challenges of how we defend our country,
how we best protect our interests, how we take care of the young men
and women in uniform.
[[Page S7793]]
Running through all of that work has been a commitment to do
everything I could do as a U.S. Senator to ensure that we were
vigilant, we took every step necessary and possible to protect our
fellow men, women, and children.
I have taken that responsibility very seriously. I have introduced
legislation to try to put both more resources into homeland security
and to allocate those more effectively to ensure that our first
responders, our police and our firefighters and our emergency workers,
had the resources necessary to do the job we expected them to do
because, in effect, they are our frontline homeland soldiers.
I have worked to protect our rail lines and our courts, to ensure
that our critical infrastructure has been given whatever help can be
offered so we are prepared, so we are vigilant, because none of us can
predict whether there will be an attack or where one might occur. I am
well aware of that. That is not something that we can stand here today
and say we know is going to happen, but we can say with confidence
there are people right now, meeting throughout the world in cafes in
Europe, in tents in North Africa, in caves in Afghanistan, who wish us
ill and who will do everything they possibly can to kill as many
Americans, to injure as many Americans, and to destroy as much of
America as possible.
I don't think we have a higher priority in the Senate than to work
together in a bipartisan--frankly, a nonpartisan--way to provide the
resources and to do what is necessary to protect the people we
represent.
That is why it grieves me to come to the floor of this Senate having
watched now for several weeks as we have done nearly everything but
focus on the real business of America. We have an appropriations bill
standing in line for homeland security that we cannot get to the floor.
Instead, we are engaged in these nonsensical, futile, parliamentary,
politically partisan games. It is a shame, and it reflects on all of
us, but it reflects most on the majority leadership of this body.
It is one thing not to know exactly all we should be doing to protect
our homeland. It is something altogether different not to be doing the
business we are expected to do to provide as many resources effectively
deployed as possible to try to ensure that so far as humanly possible
we have done our job.
Look at what we are doing today.
One can argue about whether dealing with class action is a priority
given everything else going on in our world, but we can't even deal
with that.
The majority leader comes to the floor, and in a parliamentary move
makes it impossible to present any other issue, whether that issue is
to try to raise the minimum wage for people who haven't had a raise in
years or whether it is to try to bring about the reimportation of drugs
from Canada so that people can pay an affordable price for the drugs
they should be able to use for their prescriptions.
Some issues we hear about all the time. It is indeed frustrating that
we are not even dealing with what is allegedly on the Senate floor.
But what really frustrates and disappoints me is that this impasse,
this games playing, this pure, unadulterated partisan politics, is
preventing us from dealing with the urgent business, the threats, and
the dangers that confront our country. The Homeland Security
appropriations bill just sits there. We can't get it to the floor. We
have passed out of our requisite committees not once but several times
steps to make our ports safer, to make our rail lines safer. For
heaven's sake, we saw what happened in Madrid. How can we in good
conscience act as though we don't have an obligation and a
responsibility to protect our rail lines and our ports, our critical
infrastructure?
We have just appropriated some additional funds to make sure we have
more security in Boston and New York which will be the home of the
Democratic and Republican Conventions, part of our great political
democratic tradition in our country.
What about the people who do their job every day? What about the
police officers in New York who walk the streets every day picking up
information and conveying it to the intelligence-gathering operations
of our New York Police Department and detectives coordinating with the
FBI? What are we doing for them? We are cutting the COPS Program. That
is what we are doing. We are not even adding additional money to
homeland security. We are cutting the very lifeblood of what keeps the
police on the streets in a city such as New York and so many other
great cities around our country.
What about our firefighters? With budget cuts and cutbacks, we are
not fulfilling the needs they confront for interoperable communications
for hazardous materials, both training and equipment for the personnel
that are needed with the highly developed skills to deal with chemical,
biological, and radiological attacks.
I feel as if I am living in some kind of fantasy world, some parallel
area.
We have the Department of Homeland Security Secretary standing before
our Nation talking about the danger and threats we face. We have
closed-door briefings for Members of the Senate and the House. Yet we
don't get about the business of doing all we can to make sure we are
prepared. It is bewildering.
When Secretary Ridge announced this morning that we have credible
reporting that al-Qaida is moving forward with its plan to carry out a
large-scale attack on the United States, then I think we act as though
we have nothing better to do, at our peril. Shame on us. Yet here we
are. We have a person in our Government responsible for giving us this
information based on credible reports, and we are ground to a halt in
the Senate.
This is one of those times when I think history is watching and will
judge us harshly.
We are 4 days after our Independence Day, 4 months before the
November elections, nearly 5 months after the President submitted his
budget request to Congress, and the U.S. Congress has yet to send a
single appropriations bill to fund the U.S. Government to the President
for his signature.
The Department of Defense, Homeland Security, Department of Justice,
Federal Bureau of Investigation, Secret Service, responsible for
coordinating security at both conventions, Federal Emergency Management
Agency, and a host of others charged with the solemn responsibility of
protecting our country have not yet been funded. As is so painfully
clear, we haven't even taken up the Homeland Security appropriations
yet.
We could be right now debating on the floor of the Senate how much
money our first responders need and whether we are going to take
seriously the obvious threat to rail lines. And what about those ports
with those thousands of containers that come in?
Last week, I was privileged to be in Seattle, WA, with my good friend
and colleague, Senator Murray, who is the No. 1 champion of port
security in this body. In fact, she was named Port Person of the Year
because of her advocacy for our ports.
We went out across the water from downtown Seattle with the skyline
spread before us to an island that processes a lot of the container
traffic. We talked to the Coast Guard, Immigration, and other personnel
who run that operation. It is an overwhelming task. You think about
this, one of our ports--we have so many of them. The biggest are Los
Angeles and Long Beach, Seattle-Takoma, and of course, New York-New
Jersey. We have made some progress. I am proud of that progress. But we
haven't done what we know needs to be done.
We have had report after report after report by distinguished
Americans, by experts in security and intelligence, by people who
understand the perverse mentality of our enemies, and they have said
over and over again that we are not ready, we are not prepared, we have
not done our part.
Let us get back to business. Let us get serious around here.
Elections take care of themselves. That comes and goes. Our job is to
do the people's work right now, today, in July, to deal with important
pressing matters, and there isn't any that is more critical than
homeland security.
We still have time, although it is a little hard to believe, but we
only have about 2 more weeks, which usually translates around here into
6 days of work, and a day like today when nothing happens. It is
discouraging.
There are 100 very smart, energetic, able people in this body who
know how to work and how to get things done. They might as well be on a
beach somewhere for all their efforts amount to
[[Page S7794]]
with respect to the important issues facing us and the one I am most
concerned about; namely, the security in our country.
Every intelligence report, every briefing, always mentions New York.
It mentions other places, too, but it always mentions New York. The
people I represent, who have already gone through so much--the
firefighters and police officers I represent, who have already set the
world class standard for courage and class--I don't want to have to
look them in the face and say, We could not get around to giving you
the funds you needed to be sure you got those additional pieces of
equipment that were required. We could not figure out how we were going
to have the Senate deal with the business as to whether you live or
die.
I am proud and honored to serve in the Senate. I am especially proud
and honored to represent New York. But it is hard to understand how we
could be turning our collective backs on the most pressing need
confronting our country.
In 2 weeks we are going to be recessing--Democrats will go to Boston;
the Republicans, later in August, will go to New York--and I guess
everyone hopes and crosses their fingers and prays to God Almighty that
nothing bad happens.
I was raised in a faith tradition that believed God helps those who
help themselves; that we were given a soul, a heart, and head, and we
were expected to use all three. I can only hope we will get a signal
from our majority leader that we are going to go back to business, we
are going to get this process moving again, we are going to bring the
appropriations for the Department of Homeland Security to this Senate
and we are going to act--not that we can prevent every bad thing from
happening but that we will have done our duty. There is still time. I
hope, for all our sakes, we act.
Mr. REID. Will the Senator yield?
Mrs. CLINTON. Certainly.
Mr. REID. I say through the Chair to the distinguished Senator from
New York, there is no question the citizens from your State, more than
any State in the Union, are troubled every day because every day there
is a story that something bad is going to happen, and New York, as the
Senator indicated, is always mentioned.
I heard the Senator from New York state today that we, the Senate,
are wasting our time. Class action is important, but is it as important
to my family as having better security for my family? I have family
members in the Washington, DC area, in Nevada, and one of my sons moved
to Utah. I would rather we were working on this bill, Homeland
Security, to make my family members more secure.
To top this off, when we leave class action--and the majority has
decided they simply cannot allow a vote on immigration, or certainly
they cannot allow a vote on drug reimportation--we are going to move
off this legislation and are going to the gay marriage amendment. I
know people have strong emotions about that one way or the other.
However, I am willing to say the people for New York and the people of
Nevada, if we weigh on one side the gay marriage amendment and on the
other side the Homeland Security appropriations bill, this scale would
tip 95 to 5. Does the Senator agree we have our priorities mixed?
And let me ask one other question. I went to my luncheon today and
one of my friends in the press said, do you realize what the
Republicans are doing? They are going to say you are obstructing
everything.
Does the Senator from New York understand that is their game? They
will say we are the ones obstructing these bills, when, in fact, they
do not want to address these issues because they do not want to take a
vote on overtime, they do not want to vote on extending unemployment
benefits, they do not want to have a debate on immigration and drug
reimportation.
Would the Senator agree when a government is controlled by one
party--President, the House, the Senate and, I am sad to say, the
Supreme Court--it is a little hard to blame the other party for
obstructing? Does the Senator agree?
Mrs. CLINTON. Certainly, I agree with my good friend and my
distinguished leader who makes some excellent points.
Even more than that, as the Senator from Nevada knows so well, in the
face of a disaster or another attack, all of this becomes unimportant,
trivial, even frivolous.
I have enough respect for all of my colleagues that I hope we are not
putting ourselves in a position where in the event what has been
predicted, and given voice to today by Secretary Ridge, comes to pass,
and people rightly can turn and ask, Where were our elected
representatives?
This goes way beyond politics. This is not about Democrats and
Republicans. This is about us as Americans. What are our priorities?
What do we think is important? What are we willing to fight for, stand
up for?
As my good friend points out, the majority has made a different set
of choices. They have decided they want to create an atmosphere of
gridlock and obstructionism which means we go so far as not even to
take up the Homeland Security appropriations.
It is profoundly sad. It would be sad any time, but it is
extraordinarily disheartening that on a day when the Senate was briefed
behind closed doors about the threats, when the Secretary of the
Department of Homeland Security went before the world to talk about the
threats, that we cannot get a debate on the appropriations for the
Department of Homeland Security.
I have no doubt my good friend is right, there must be some political
machinations going on in some back room, there must be some pollster
whispering in someone's ear and saying, If you do this, that, and the
other, you can come. Maybe people will be fooled into believing--even
though you are in charge, and as my friend points out, you are in
charge of the White House, the House, and the Senate--that somehow the
fact that nothing has happened has to be the other side's fault.
I am sure people are saying that, but how pathetic is that. What does
that say about our values and priorities as a nation? If that is what
they care about, trying to score cheap political, partisan points at
the expense of bringing up the Department of Homeland Security
appropriations in the face of the warnings we received today, then it
is going to be clear for all to see the responsibility rests on their
shoulders.
It is not too late. There are a lot of Members who have worked day
and night to deal with the real business of America. I am sure my good
friend, our deputy leader on this side of the aisle who is literally
here every waking hour, would be here even more in order to deal with
the people's business. And what is the people's business? No. 1,
keeping the people safe.
Again, I hope we get about what is important, that our majority
leadership decide they want to put aside these petty, partisan,
political games dealing with scoring cheap points at somebody's
advantage, and work for the good of all of our people.
Mr. DURBIN. If the Senator from New York would yield for a question.
Mrs. CLINTON. Certainly.
Unanimous Consent Request--S. 2537 and H.R. 4567
Mr. DURBIN. Madam President, I would like to ask the Senator from New
York if she would allow me to make a unanimous consent request at this
time that the appropriations bills for homeland security be brought for
immediate consideration on the floor of the Senate.
These bills--S. 2537 and H.R. 4567--are currently on the Senate
calendar. After the warnings we received today from Secretary Ridge,
could there be anything more important for us to do at this moment in
time but to move to these bills so that units of government in New
York, in Illinois, in Alaska, in Nevada are provided with the funds
they need immediately, so we can move this process beyond all the
political rhetoric and debate on so many issues that take a distant
second place to the security of this Nation.
I wonder if it would be appropriate for the Senator to yield to me to
make that request, and then I would return the floor to her.
Mrs. CLINTON. I so yield.
Mr. DURBIN. Madam President, I ask unanimous consent that the Senate
take up for immediate consideration S. 2537, the Homeland Security Act
of 2005.
The PRESIDING OFFICER. In my capacity as a Senator from the State of
[[Page S7795]]
Alaska and on behalf of Senate Leadership, I object.
Mr. DURBIN. Madam President, I ask unanimous consent that the Senate
take up for immediate consideration H.R. 4567, the Homeland Security
Act of 2005.
The PRESIDING OFFICER. In my capacity as a Senator from the State of
Alaska, I object.
Mr. DURBIN. Madam President, I am disappointed with that decision
based on what we have seen today and heard. I hope and I pray nothing
happens in this country between now and the time we take these bills
up. It reflects so badly on the U.S. Senate that we have been given
fair warning by this administration that we face one of the most
serious security threats since 9/11 and the Senate is unwilling--there
has been an objection to even considering the Homeland Security bills
at this moment when, in fact, we have nothing else to do here. I hope
that history proves that this was not a wrong decision, but it is a
decision which, sadly, we will have to live with until the leadership
of this Senate decides to return.
At this point, I yield the floor.
Mrs. CLINTON. I thank my good friend from Illinois and I yield the
floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Illinois.
Mr. DURBIN. Mr. President, what those who are following the Senate
debate just witnessed is, sadly, a commentary on what has happened to
the Senate. We are embroiled in debate on a class action bill relative
to reforming the laws of America about how lawsuits can be filed. Many
Members, in frustration, have wanted to consider many other issues:
Should America now, after almost 6 years-plus of not increasing the
minimum wage, finally increase the minimum wage for American workers?
The Senator from Idaho has joined the Senator from Massachusetts in
addressing a very important issue about agricultural workers and
immigration. They would like to offer an amendment for that purpose,
and it has broken down. There can be no agreement reached--at least
there has not appeared to be an agreement reached.
Now we are just at rest, at ease, standing and doing nothing. It is
hard to imagine that any of us were elected to the Senate for that
purpose and particularly as many Members of the Senate, myself
included, were called to a secret meeting, classified meeting this
morning, with the Secretary of the Department of Homeland Security, Tom
Ridge, as well as the Director of the Federal Bureau of Investigation,
Robert Mueller, and were told at that briefing that we face an
extraordinary threat to America's security. I am not saying anything
out of school because I can tell you that Secretary Ridge had a press
conference immediately after that private meeting and said as much to
the American people.
It strikes me that under those circumstances we should be moving to
consider issues relative to homeland security, not just the
appropriations bills but issues relative to port security and railroad
security. There are bills on this calendar which have just been
languishing. At this moment in time, when we have nothing else going on
on the floor of the Senate, why are we not moving as quickly as
possible to consider those important appropriations bills?
Mr. STEVENS. Will the Senator yield for a question, Mr. President?
Mr. DURBIN. I will yield in just a minute. I will be happy to yield
after I make my statement.
I just pray that we can reach a point where we can get to these bills
before anything serious happens in America. But I know in my State of
Illinois and in every other State there are units of local government
as well as law enforcement units and those who are looking for the
resources to be able to respond to a national emergency.
If something serious should occur, God forbid, it is not likely that
people will be calling the Senate switchboard. They are going to be
dialing 911. They are going to be hoping that on the other end of the
line there will be a police department, a fire department, an
ambulance, or a hospital that can respond extremely quickly. And the
question is, obviously: Are we doing all we should do on a timely basis
to provide the resources to these units of local government?
Secretary Ridge said today--and I have the highest respect for him;
he is an old friend. I came to Congress with him over 20 years ago. He
was an excellent appointment by the President. But he said how much we
rely on State and local first responders. If that is the case, wouldn't
we want to move as quickly as possible to make resources available for
them so they can be prepared to defend America? That is why we should
consider this legislation.
The Senator from California, Mrs. Boxer, came to the Senate floor
today and made the same unanimous consent request to go to these
issues. Again, the majority said no, we are not going to consider these
issues. There is nothing more important. I would hope we would move to
them quickly.
I yield to the Senator from Alaska for a question.
Mr. STEVENS. Well, I will seek the floor when the Senator is through.
Mr. DURBIN. All right. I would just say, in conclusion, then, at a
time and place, I hope we can find this bipartisan agreement to move to
these issues. The sooner the better. Once having moved to these issues,
I think the Senate can dispatch them quickly, on a bipartisan basis, as
it should.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Unanimous Consent Request--H.R. 4567 and S. 2537
Mr. STEVENS. Mr. President, I am sort of surprised with the Senator
from Illinois. I attended the same briefing. The Homeland Security bill
has been reported by the committee to the Senate floor. We have been
trying to get it to the Senate floor. I am prepared to present a motion
to take up the bill right now, and I do.
I ask unanimous consent that at a time to be determined by the
majority leader today, the Senate proceed to consideration of Calendar
No. 588, H.R. 4567, an act making appropriations for the Department of
Homeland Security for the fiscal year ending September 30, 2005, and
for other purposes. Further, I ask unanimous consent that all after the
enacting clause be stricken, that the text of Calendar No. 583, S.
2537, the Senate-reported bill, be inserted and agreed to in lieu
thereof, without waiving any points of order by virtue of this
agreement, and that the bill, as amended, be considered as original
text for the purpose of further amendment; provided that no amendments
shall be in order which will increase total discretionary spending
provided by the bill in excess of the Senate-reported bill totals of
$32 billion in budget authority and $29.729 billion in outlays;
provided that no other points of order shall be waived thereon by
virtue of this agreement; provided further that 2 hours be equally
divided on the bill, that up to an extra hour be equally divided on
each amendment, that all amendments be relevant and germane, that all
votes occur before 5 p.m. on Monday, and that final passage occur by
the same time, 5 p.m. Monday.
Now, I have an urgency to get this bill before the Senate, too. I am
delighted the Senator has come to floor. I think it is the first time I
have ever seen a member of the committee come to the floor of the
Senate and ask to take up a bill without consulting the chairman. But I
am prepared to take it up. We were prepared to offer this motion today.
I ask for the unanimous consent agreement to start today--to start
today--and we will finish it by 5 o'clock Monday.
Just as Governor Ridge indicated, there is a real urgency behind this
bill. I would like to take it up. What this time agreement means is the
bill will be subject to amendment, but anyone who wants to add money
has to find some source to take it out. This bill is consistent with
the budget resolution we are operating under, which is the budget
resolution of 2004. We do not have a new budget resolution, but we do
have the budget resolution for 2004, which put caps on 2005.
So I am ready to take up this bill. The chairman of the committee is
ready to take it up. If the minority wants to come and ask that it come
up, I am ready. We are ready right now. We will finish it by 5 o'clock
Monday. We will have it to the President by 5 o'clock a week from
tomorrow, I guarantee you that.
So I present the unanimous consent request, Mr. President.
The PRESIDING OFFICER. Is there objection?
[[Page S7796]]
Mr. DASCHLE. Mr. President, I would object, but I would ask the
distinguished chair of the Appropriations Committee, who has worked
harder than anyone I know in this Chamber to try to move the
appropriations process forward, if we could not simply do what he is
suggesting; that is, bring up the Homeland Security bill this
afternoon. We can get agreement to go to the bill. No one has seen this
bill. To be limited to a time limit without having had the opportunity
to see it--we could even work out an agreement on relevant amendments.
We could certainly work out a time agreement on amendments themselves.
But there is no question that we could resolve these procedural issues
immediately.
I ask unanimous consent that we set aside the pending business and
take up the Homeland Security bill at 3 o'clock this afternoon.
Mr. STEVENS. My motion is before the Senate, Mr. President.
The PRESIDING OFFICER. The Senator is correct.
Mr. DASCHLE. Actually, I objected to that, and I have offered a
counterproposal.
The PRESIDING OFFICER. Objection is heard.
Mr. STEVENS. The bill I have referred to was reported to the Senate.
It was reported to the Senate on June 21. It has been before the Senate
for quite some time. All I have asked is we have the amendments--it is
open to amendment--and that there be an hour on each amendment. All I
have asked is the amendments be germane and relevant and that there be
an hour on each amendment. The only difference between what the
distinguished minority leader and I have requested is I asked that no
amendment would be in order which will increase total discretionary
spending provided by the bill in excess of the Senate-reported bill
totals which, again, is the amount that is consistent with the existing
budget resolution.
I resubmit that unanimous consent request.
The PRESIDING OFFICER. Is there objection?
Mr. DASCHLE. Mr. President, again, I think we are very close to
reaching an agreement here. That is probably the good news that comes
in this colloquy. I would object only because I am not sure I
understand the implications of the final provision within his unanimous
consent request having to do with the budget. There is no budget. We
don't have a budget resolution. So I don't know how we can be guided by
a budget resolution that doesn't exist. If anybody offers an amendment,
my guess is it would be declared out of order, as the distinguished
chairman is currently proposing. I don't think that is his intent, but
I think that would be the interpretation. And that would, therefore,
nullify any opportunity to make any alteration to the bill itself. If a
60-vote point of order is required on any amendment, it negates
whatever opportunity there is to amend the bill.
I would hope perhaps within the hour we could work through that
concern and come back and take up the bill this afternoon and, as the
distinguished chairman suggests, finish the bill by early next week.
I will talk, of course, with our distinguished ranking member who
would certainly need to be consulted before we agreed to do anything on
the Senate floor. The distinguished ranking member has also expressed
concern about our inability to move forward on this legislation, as
well as the ranking member of the subcommittee. But I am pleased that
the chairman has responded to our desire to move this legislation.
Let's hope before the end of the afternoon we can have an agreement in
place and take up the Homeland Security bill. No one could have been
upstairs and heard what we heard and not want as much as possible to
deal with all of the issues that are confronting us right now. The very
least we need to do is to provide the funding necessary for the
infrastructure that is already in place, and we have not even done
that. So it is time we do it. It is time we recognize the concerns that
are out there and deal with the responsibilities we have to fund the
Homeland Security Department and all the related departments and not
let this legislation languish as we tie ourselves up in procedural
knots on legislation that has no place, at least right now, given our
circumstances.
I will work with the chairman, work with the ranking member.
Hopefully, we can come back to the floor sometime this afternoon and
reach agreement.
The PRESIDING OFFICER. Objection is heard.
Mr. STEVENS. Mr. President, the distinguished leader has missed part
of my unanimous consent request; that is, that the final vote take
place at 5 o'clock on Monday. So we could go to conference with the
House and expect to bring this bill back before we leave for the
convention recess. Again, I state, I have a few years around here. I
don't remember any Appropriations Committee member raising an issue to
bring up a bill without consulting the chairman. I remember the days
when had a Member done that, the Appropriations Committee chairman
would not have forgotten it. So again, I say to the Senate, we are
prepared to take up this bill under this time agreement and only under
this time agreement today.
I yield the floor.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Let me again respond to the distinguished Senator from
Alaska, chairman of the committee. I don't know why we have to have all
these conditions for taking up an important bill like this. What is
wrong with coming to the floor, working through the bill, dealing with
amendments. I am frustrated, I suppose, by the extraordinary demands
put before the Senate. Here it is Thursday afternoon. One of the most
important appropriations bills we will confront and we must deal with,
the Senator from Alaska, as well intended as I know he is, is asking
the Senate to take it up on a Friday, when he knows most people travel,
and then resolve it before the end of Monday which is also a travel
day. We can argue how productive Fridays and Mondays are. And yes, we
ought to be able to work here 5 days a week.
That has not been the practice. And certainly if we gave Senators
warning, those who have already made travel arrangements could probably
cancel those travel arrangements. But here we are. He can't really mean
what he has suggested, that he is going to finish an important bill
like this over 2 travel days and a weekend. That doesn't work. That
certainly wouldn't be recognized by any standard as a good-faith offer.
Let's work this bill. Let's get it done. Let's have a debate. Let's
have amendments. But let's recognize if we are going to do this,
showcasing and posturing for purposes of trying to make it appear as if
we are getting the work done is not going to satisfy the Senate. We
need to lay this bill down. We need to work through it. We need to get
it done. We ought to be doing it rather than playing all these
political games with class action and all the other things that are
contemplated now by the majority.
Mr. REID. Will the Senator yield for a question?
Mr. DASCHLE. Yes.
Mr. REID. Mr. President, the Senator from Alaska--and we all care
deeply about him; he is our President pro tempore--said he wanted to
bring up the bill--that was objected to--the Homeland Security bill,
but under specific conditions, limiting debate and amendments. Does the
Senator from South Dakota believe every bill that comes up we want to
create a new Senate? We never want to do things the way the Senate has
acted for 200-plus years. We want to do things the way the House does
it. We want to have a rule on every piece of legislation.
This is my second question. Doesn't the Senator believe we could take
this bill up and do it in the ordinary course of business, as we used
to do things? We could finish this bill in a couple of days?
Mr. DASCHLE. The Senator from Nevada is absolutely right. There are
too many on the other side who want the House rules but the 6-year
term. If they want the House rules, I would advise them to run for the
House. We have rules in the Senate that allow for debate. One of the
advantages of being a Senator is, you have an opportunity to offer
amendments and have a good debate about issues. That doesn't mean they
have to be extended indefinitely. These issues can be resolved and have
been. But issues as important as homeland defense and appropriations
ought
[[Page S7797]]
to have an opportunity to be debated, to be vetted, to be discussed,
and considered in a thoughtful way.
What the Senator has suggested, that somehow we take up the bill this
afternoon and, with 2 travel days and a weekend, resolve all of these
questions is not reasonable and certainly not realistic.
Mr. REID. Mr. President, will the Senator yield for one more
question?
Mr. DASCHLE. I am happy to.
Mr. REID. We have completed on this floor--and we did it in expedited
fashion--the Defense Appropriations bill. The Senator from South Dakota
consented to going to conference. We agreed to do it the day after the
bill passed. The conferees were appointed. I have here the Senate
calendar. The conferees were appointed June 24.
Is the Senator from South Dakota, our minority leader, aware of the
fact that since this important bill passed the Senate, the House of
Representatives--and now it is July 8--has simply never even appointed
conferees? So all this about having to do it by 5 o'clock so we can go
to conference is yelling out words that mean nothing. The House hasn't
appointed conferees on the Defense Appropriations bill since June 24.
Mr. DASCHLE. Mr. President, I acknowledge the Senator from Nevada is
absolutely correct. It is mystifying that they would allow a bill as
important as this to languish and not appoint the conferees we had
every expectation would have been appointed the same day we did it in
the Senate. Again, it is another illustration of the hyperbolic
rhetoric we get about concern for conference and process, but when
given the opportunity, no action is taken. That has been true on
Defense, as well as many other bills. It is regrettable.
Clearly, this is another illustration of how unfortunate this whole
schedule has been. We have wasted another week. We wasted a week with
the Defense Appropriations conference report. We could have completed
our work on the Homeland Security bill this week. Instead, I don't
think we have had a vote. If we have had a vote, except for the
nomination, I don't recall it. We had one vote on a nominee and no
votes on any legislative substance. We have wasted this week.
We will waste next week, and as we continue to languish with all of
this legislative work before us, we inexplicably have no opportunity to
offer amendments and consider the legislative agenda that would make
this a secure country. That is very unfortunate.
Mr. DURBIN. Will the Senator yield for a question?
Mr. DASCHLE. Yes.
Mr. DURBIN. Does the Senator from South Dakota, our minority leader,
see any objection to our considering this appropriation bill first
thing Tuesday, taking this up on the same type of expedited schedule by
which we took up the Defense Appropriations bill, subject to the same
basic rules and completing it next week? This could be done quickly,
could it not, if we follow the precedence and rules of the Senate, and
there would not be a necessity for some of the conditions the Senator
from Alaska has asked for?
Mr. DASCHLE. The Senator from Illinois is exactly correct. We would
be prepared to accept virtually the same conditions we have agreed to
in the past on Defense Appropriations and other legislation. If that is
what it takes to expedite consideration of Homeland Security, I think
it is critical that we attempt to accommodate the Senate and try to
work through this very important legislative priority in an expeditious
way. So the Senator from Illinois makes a very good suggestion. This is
yet another approach. Let's decide to pick it up on Tuesday and move
through the legislation. We can probably finish by the middle or
certainly the end of the next week, and get to conference, even though
they have not appointed conferees in the House.
My hope is when it comes to Homeland Security, given what we have
heard today at the briefing, it would be imperative for us to deal with
both of these bills in the most expeditious manner.
Mr. DURBIN. Mr. President, I am not going to make a unanimous consent
request. The Senator from Alaska doesn't care for that from a member of
the committee. I would like to suggest to the Senator from South Dakota
that I hope there could be a conversation involving our leader on the
Appropriations Committee, Senator Byrd, and Senator Stevens, as well as
Senator Frist. I hope we can propose specifically to begin
consideration of the Department of Homeland Security Appropriations
bill on Tuesday morning and bring it to a conclusion and completion as
quickly as possible.
I ask the Senator from South Dakota if he would consider trying to
convene such a conversation with his fellow Senators.
Mr. DASCHLE. Mr. President, that will be, once again, the topic of
discussion as I discuss the schedule with the majority leader. There
cannot be a higher priority for our country and the Senate than dealing
with homeland security issues.
Why we have not taken up the railroad security issue is another
matter that is troubling to many of us. There are a number of bills
related to our security that ought to be addressed, ought to have the
highest priority. Certainly, Homeland Security Appropriations, railroad
security, a number of other issues continue to sit without
consideration. I cannot think of a better time to take it up than this
afternoon and tomorrow, but no later than Tuesday; and I think the
suggestion made by the Senator from Illinois is a good one. I will make
it to the majority leader.
Mr. REID. Will the Senator yield for a question?
Mr. DASCHLE. Yes, I will.
Mr. REID. Mr. President, I think we also have to project ourselves
into next week. I have read in the press that the majority, when we get
off of the bill we have been dealing with all week, class action, is
going to go to a constitutional amendment dealing with gay marriage.
Now is there anybody who believes that amendment, which is doomed to
failure no matter how you feel about it--how do the people in South
Dakota feel about going to an amendment dealing with gay marriage
instead of doing an appropriations bill dealing with homeland security?
Mr. DASCHLE. I am sure the people of South Dakota share the same
feeling as the people in Nevada, Illinois and across the country. They
want us to do our work and they want us to recognize there are very
serious obligations we have that ought to be met. I cannot think of a
more serious obligation than to provide for the security of this
country. The longer we ignore it, the more we put our country at peril.
I think it is critical we address these issues in a bipartisan way, a
nonpoliticized way, an expeditious way; and certainly by taking this
legislation up next week, we would be doing that.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so
ordered.
Mr. BYRD. Mr. President, what is the current business before the
Senate?
The PRESIDING OFFICER. The Senate is considering S. 2062, the class
action bill.
Mr. BYRD. I thank the Chair.
The Chair has indicated that the Senate is presently considering the
class action bill; therefore, I would think it appropriate for me to
add a title to the remarks I am about to make, a title which would be
as follows: ``Protecting the People's Interests Instead of the Campaign
Interests.''
This morning, Homeland Security Secretary Tom Ridge and FBI Director
Mueller briefed Senators, and I am told that he indicated that al-Qaida
cells are operating in the United States and that multiple and
simultaneous attacks are possible before the November elections.
Now, I have been listening, as I sat home with my sick wife, to talk
about an amendment to the Constitution. I have been married now more
than 67 years to a coal miner's daughter, and I have been listening to
all of the wrangling that has been going on on this floor. I therefore
felt it appropriate to make these few remarks, especially in the light
of what I am told Secretary
[[Page S7798]]
Ridge said; namely, credible reporting now indicates that al-Qaida is
moving forward with its plans to carry out a large-scale attack in the
United States in an effort to disrupt our Democratic process.
Just a month ago, the Attorney General announced that he had credible
intelligence from multiple sources that al-Qaida plans to hit the
United States hard in the next few months.
In the weeks following the Madrid railway bombing, the Washington
Post reported that the President informed the Republican congressional
leadership that he was all but certain that terrorists would attempt a
major attack on the United States before the November elections.
Why are we wrangling over this political bill? Why not be talking
about protecting the people of the United States and their properties
against such an al-Qaida attack? It would seem to me that should have
priority over politics.
Your lives, the people out there who are watching this Senate floor
through those electronic lenses, your lives, we are told, are at stake.
Then why do we have before this Senate this class action bill? Why not
talk about the people's lives that are at stake? The administration
says the people's lives are at stake and that we may expect multiple
attacks. What a sinister threat we are obviously facing in this
country. What are we doing on this floor? Wrangling, wrangling,
wrangling over a class action bill. That is not going to sit very well
with the American people, I don't believe, once they stop and think
about it.
It would also be appropriate at this point, although it isn't very
common that it is done on this floor--the Holy Bible is probably not
something that one should carry onto the floor of the Senate, but I am
going to read just two verses of Scripture from the book of St. Luke,
chapter 13. These two verses are the sixth and seventh verses:
He [meaning Jesus] spake also this parable; A certain man
had a fig tree planted in his vineyard; and he came and
sought fruit thereon, and found none.
Then said he unto the dresser of his vineyard, Behold,
these three years I come seeking fruit on this fig tree, and
find none: cut it down;--
Cut it down--
why cumbereth it the ground?
I believe there is a day of reckoning coming and it isn't afar off,
when the American people are going to look at this fig tree and say:
These 3 years I come looking for fruit on this fig tree and I found
none, cut it down. They are going to say that to this administration,
to this White House. These 3 years--these 3 years--behold, these 3
years I come seeking fruit on this fig tree and find none.
Where are all the wranglers? The people of this country are going to
render a reckoning to those who are in the leadership in this country
and they are going to say: Behold, these 3 years I came here seeking
fruit on this tree and found none: cut it down; why cumbereth it the
ground?
Just a few weeks ago, the 9/11 Commission released interim reports
concluding that the terrorists who are intent on doing us harm are
cunning and agile. These reports also indicate that our Government
agencies were not prepared to deter or respond to such attacks. I fear
that we are still not prepared to deter or respond to such attacks.
Despite the threats, despite the dangers, despite even today's warnings
from Secretary Ridge, the Senate this afternoon continues to debate
legislation to reform the class action lawsuit process.
The Senate has spent 3 days on the bill without a single rollcall
vote. Next week it is expected that the Senate will debate a proposed
constitutional amendment on marriage.
Now, hear me, listen to that, a proposed constitutional amendment on
marriage. There are few people in this Chamber who know as much about
that subject as I do. My wife and I having been married now 67 years,
going on toward 70, if it is the Lord's will.
It is expected that the Senate will debate a proposed constitutional
amendment on marriage. Well, these are important matters. Nobody would
say otherwise. But, frankly, they are not that urgent. They are not
life or death issues, but they are the priority for the Senate majority
leadership.
I believe there are other, more urgent matters that we should be
considering. The Senate Appropriations Committee unanimously reported
the Homeland Security appropriations bill 3 weeks ago, on June 17.
Since June 17, the bill has sat collecting dust. Why are we not
debating that bill? I say to the leadership: Why are we not debating
that bill?
In response to the Madrid train bombings, both the Senate Banking
Committee and the Senate Commerce Committee reported bills authorizing
new Federal programs to secure our mass transit systems and our rail
systems. The Governmental Affairs Committee has reported a bill
authorizing first responders grants. The Senate has passed an
authorization bill to increase resources for the Coast Guard. But where
is the bill? The bill is mired in conference.
Why are we not moving forward on these bills? Why are we piddling
around here, talking about a political bill, class action suits--class
action suits? In the face of all the dire warnings that this
administration, this White House, this Secretary of the Department of
Homeland Security, this President--all of the dire warnings that we
have heard, in the face of that yet we are here piddling around,
dawdling, arguing, wrangling over a class action bill. How about that,
those of you people out there in the prairies, out there on the rivers
and the river valleys, out there in the Rocky Mountains, those of you
in Appalachia? How about that? Your life, the lives of your children
are at stake.
They say these terrorists are prepared to strike in multiple places
and yet the Senate is dawdling, talking about a class action bill.
We only have 2 weeks left after this one. We need to act. Are we
going to wait until we go home? Are we going to wait until after the
conventions meet? Are we going to wait another 6 weeks and then come
back and bring up the appropriations bill making appropriations for the
Department of Homeland Security? Is that what we propose to do, daudle?
Fiddle-faddle? What is wrong with the Senate?
The Senate is a do-nothing place these days, a far cry from what the
Senate has been in the years I have seen go by.
While the Bush administration has consistently promised the American
people that they are making this country safe, the facts show the
administration has consistently put homeland security on the back
burner. Time after time after time, the distinguished Democratic whip
who sits on the Appropriations Committee of the Senate, not only a
highly respected member of that committee but a very able member of
that committee, knows that we have tried time and time and time again
to add moneys for homeland security in that committee and here on the
Senate floor. And time and time and time again, we have been turned
down by a Republican administration and by the Republican leadership of
this body. Deny that, if you may. I can furnish chapter and verse
regarding the amendments that we have called up trying to bring greater
safety to the American people against a terrorist attack, and time and
time again those amendments have been defeated on the floor of the
Senate.
For this administration, homeland security can wait and wait and wait
and then wait. What do they want to do, wait another 6 weeks now until
we come back after the August recess and then take up the Homeland
Security appropriations bill? Is that the game? What might happen in
the meantime?
This administration created a new Department of Homeland Security
that rearranges the deck chairs, but it cannot energize that Department
with the financial resources that it needs to make America and the
American people safer, and many of the resources that are provided to
the Department have yet to be spent. Get that. Many of the moneys are
still in the pipeline. They have been in the pipeline. They have yet to
be spent.
What a dawdling White House.
In response to the terrorist threat, one might have anticipated that
the President would have requested the supplemental appropriations for
securing our mass transit systems, for inspecting more containers
coming into our ports, for increasing inspections of air cargo, or for
increasing the number of Federal air marshals. One might have expected
that the President would have amended his 2005 budget request
[[Page S7799]]
to increase his anemic, 3-percent proposed increase for the Department
of Homeland Security. What a shame. What a sad commentary on a White
House that plays Russian roulette with the lives of the American
people.
Instead, the White House did nothing. Instead, the Department seems
satisfied with a go-slow, business-as-usual approach to homeland
security.
The Department issued advice to mass transit systems for improving
security but provided no funding to increase law enforcement presence
or to deploy K-9 teams.
Despite the approach of a busy summer season for airline passengers,
the Department of Homeland Security has allowed the number of Federal
air marshals to shrink precipitously, and the President's budget would
result in even deeper reductions next year.
I have worked with the distinguished chairman of the Appropriations
Committee, Senator Stevens of Alaska, year after year, month after
month, time after time to increase appropriations for the Department of
Homeland Security. Senator Stevens and his committee have brought out
bill after bill, and we brought bill after bill to the Senate floor
over these years. We have joined together hand in hand on many
occasions to seek the administration's help and have asked the
administration to send up Tom Ridge before the Senate Appropriations
Committee to testify back before he became a Secretary and subject to
the confirmation of the Senate. Our requests fell upon deaf ears.
Despite concerns about the safety of our borders, the Department, in
March, imposed a hiring freeze on Customs officers and Immigration
inspectors. Millions of dollars that Congress approved for port
security, for bus security, for hazardous materials grants 9 months ago
have not been awarded. Millions of dollars that Congress approved in
February of 2003, 17 months ago, for the purchase of additional
emergency equipment for the 28 urban search and rescue teams have not
been spent. Millions of dollars have not been spent.
Having this money sit in Washington, DC, does not make any American
citizen any safer.
As a result of the President's decision not to seek supplemental
appropriations, the Transportation Security Administration was forced
to cut funding for training passenger and baggage screeners and for
purchasing equipment for airport checkpoints.
You who listen today, it is your life and the lives of your family
members and your neighbors and your friends that are at stake.
As the lines at our airports get longer and longer this summer, our
citizens will wonder who is responsible. Who is responsible for this
lackadaisical, careless attitude on the part of our government? Where
are our government leaders? Where is the Senate? Why is the Senate so
mute? That great deliberative body, where is it? Why is it so mute? Why
are we today debating a class action bill when our lives are at stake?
It has been 2\1/2\ years since Richard Reid, the so-called shoe
bomber, tried to blow up an aircraft in flight over the ocean with
explosives that he carried onto the aircraft. Are we any closer to
deploying systems that could check passengers for explosives? Sadly,
sadly, the answer is no, no, no.
It has been over 2\1/2\ years since the Congress passed the USA
Patriot Act and set a goal of tripling the Border Patrol and Customs
officers on the northern border. Have we met the goal? Sadly, we are
1,428 officers short of the goal.
It has been nearly 3 years since 9/11 when police and firemen in the
World Trade Center could not talk to one another on their radios and
tragically hundreds of them perished never to rise in this world again.
Are we any closer to providing police and firemen across the Nation
with interoperable communications equipment? Sadly, the answer is no.
The EPA has estimated that there are 100 chemical plants in this
country--several of them down in southern West Virginia, where one of
the greatest chemical complexes in the Western Hemisphere exists. The
EPA has estimated that there are 100 chemical plants in this country,
each of which if attacked could harm over 1 million people. In February
of 2003, the National Infrastructure Protection Center, which is now
part of the Department of Homeland Security, issued a threat warning
that al-Qaida may attempt to launch conventional attacks on nuclear or
chemical plants. A year and a half later, has the Department actually
hardened the security of the chemical plants? Sadly, that same old
refrain: No.
More than 95 percent of the Nation's overseas cargo moves through our
ports. The U.S. Coast Guard estimates that a 1-month closure of a major
U.S. port would cost our national economy $60 billion. We inspect only
9 percent of the cargo containers that come into our ports. There are
361 ports.
In order to help secure the ports, the Coast Guard estimates $1.1
billion is required to implement the Maritime Transportation Security
Act in the first year and $5.4 billion over 10 years. How much did the
President request? The President requested only $46 million for port
security grants, a cut of 62 percent.
We need to do more than that. The American people expect more than
that. The American people have a right to expect more than that. The
American people have a right to expect from this administration, this
White House, better consideration, better safety, greater concern.
There is a day of reckoning coming, and it is not far off.
Let me turn to this old book our fathers and mothers read.
A certain man had a fig tree planted in his vineyard; and
he came and sought fruit thereon, and found none.
He found none.
Then, said he unto the dresser of his vineyard, Behold,
these three years I come seeking fruit on this fig tree and
find none; cut it down. Why cumbereth it the ground?
The owner of that vineyard is coming soon, just a few more months.
The American people are coming to that vineyard seeking fruit thereon
and they are going to say these 3 years we have come seeking fruit on
this fig tree and found none. Cut it down.
Listen to that, White House. Cut it down.
On March 11 of this year, terrorists attacked commuter trains in
Madrid, Spain, killing nearly 200 innocent passengers. The President of
the United States has not requested a dime for mass transit security.
No one is suggesting we set up a passenger screening system at our
train stations like we have at airports, but we should be investing in
additional guards, better training, additional K-9 teams, better
surveillance. Americans use public transportation over 32 million times
per workday. The Senate Banking Committee has reported a bill
authorizing over $3.5 billion for fiscal year 2005 for mass transit
security and the Senate Commerce Committee has reported a bill
authorizing $1 billion for rail and Amtrak security. Our citizens
deserve to be secure as they travel to work and back home again.
Time and time again over the last 3 years I have offered amendments
to provide funding for securing our mass transit systems and the White
House consistently called the amendments wasteful or unnecessary
spending. We need to do more.
The Hart-Rudman report on the terrorist threat in this country
recommended a $98 billion investment in equipping and training for our
first responders over the next 5 years, yet the President did not
request an increase in first responder funding. Instead, the President
has proposed to cut first responder funding in the Department by over
$700 million, including a $246 million cut in fire grants, and
governmentwide the President is proposing cuts of $1.5 billion. We need
to do more, not less. We are living in perilous times. Perilous times.
We are a country that faces increasing threats from terrorists right
here at home.
As Secretary Ridge was said to have explained to the country this
morning, there is a growing concern about a potential terrorist attack
before the November election. We are vulnerable, and the continual
warnings and calls for vigilance only magnify that vulnerability.
What is our response to the Secretary's warnings in this Senate, in
this dear old body which has been my home for almost 46 years? We give
whistles to staff in the Capitol and we hope for the best. We sit back
and wait and wait and wait on an appropriations bill that is right here
that could have been called up days ago. We sit back
[[Page S7800]]
and wait and wait on this appropriations bill that would improve
Homeland Security. Instead of action, we delay. Instead of action, we
call up a class action bill. Instead of action, we get wrangled in
political arguing. We delay Homeland Security funds for police officers
and firefighters. We delay immediate investments in border security and
port security. We say loudly for all the country to hear, Homeland
Security can wait.
No, it cannot wait. Homeland Security cannot wait. And remember,
there will be a day of reckoning. It will come as surely as I stand
here in this place, as sure as the sparks fly upward. That day of
reckoning is coming ever near around the corner.
Indeed, the majority leader could have scheduled the Homeland
Security appropriations bill this week, but rather than bring up that
critical legislation this week the majority chose to go to the class
action bill. And once the Senate began consideration of the class
action bill, then it was decided that Senators could only offer those
amendments the leadership deemed appropriate. Now, how is that? How is
that for filling the tree?
Here we are in the middle of July, with 11 more legislative days left
before the Senate recesses for the respective party conventions; and
that is going to be for 45 days we will recess, take or give a little.
So the Senate has acted on exactly one appropriations bill, the Defense
Appropriations bill.
Now that is not the fault of the Senate Appropriations Committee. No,
you can bet on that. That is not the fault of the Senate Appropriations
Committee.
It is said that actions speak louder than words, and I believe that
to be true in this case. Given all of the priorities facing this
country, the majority leader has said, I am told, the most urgent need
the Senate should consider is the class action bill and has further
indicated that next week the Senate will consider a constitutional
amendment that no one believes has the number of votes needed for
adoption. Amend the Constitution of the United States--here it is,
folks. I hold it in my hand. Let's just amend it one more time.
Homeland security funding will sit on the sidelines. Is that what the
Senate should be about, I ask you, the people out there? This Senate
should step back from this folly and put the people's interests first--
the people's business, the people's lives.
I simply do not understand why the Senate is twiddling its thumbs on
legislation that could be considered at some other time rather than
addressing homeland security issues when it matters most.
I watched them tear the building down,
A gang of men in a busy town;
With a ho-heave-ho, and a lusty yell,
They swung a beam and a sidewall fell.
I asked the foreman, ``Are these men skilled,
And the men you would hire if you had to build?''
He gave a laugh and said, ``No, indeed;
Just common labor is all you need.
I could easily wreck in a day or two
What builders have taken years to do.''
I thought to myself as I went away,
Which of these roles have I tried to play:
Am I a builder who works with care,
Measuring life by the rule and square,
Am I shaping my deeds to a well-made plan,
Patiently doing the best I can?
Or am I a wrecker who walks the town,
Content with the labor of tearing down?
Think about it.
Now, I had not been told about my dear friend's, the chairman's,
proposal about taking this up, even though I am the ranking member,
actually the senior member of the committee, the only person on that
committee who has been on it for 46 years, the senior Democrat in this
whole creation here. I was not told about any proposal that my chairman
was about to make.
I would be happy to consider any proposal. I want to work with the
chairman. I say, why not take up this bill on Monday of next week? Why
not? Why not bring this bill up on Monday, and let's have at it? I will
leave that question for the leadership. I hope it will receive some
consideration.
A certain man had a fig tree planted in his vineyard; and
he came and sought fruit thereon, and found none.
Then said he unto the dresser of his vineyard, Behold,
these three years I come seeking fruit on this fig tree, and
find none: cut it down; why cumbereth it the ground?
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SMITH. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Garrett Lee Smith Memorial Act
Mr. SMITH. Mr. President, there are many arguments hot and heavy
being made today about the important issues that confront our country,
issues about our security, about our troops, about the hot summer that
is threatened by terrorists, about our economy and its recovery, and I
know there are strong feelings on both sides of the aisle. But I hope
today to show the American people that we are bigger than just
partisans, that there are times when our Nation's elected officials can
come together, put aside political and party differences, and actually
debate and pass legislation.
My bill that I am talking about now in the company of Mike DeWine,
the Senator from Ohio--and I believe Senator Dodd of Connecticut will
soon join us--is a bill, I suppose, on a smaller subject than war and
peace and economic recovery, but it is nevertheless a bill about life
and death, so it is important. It is not a far-reaching bill. It is not
even all that expensive, certainly not in relationship to all that our
Congress will consider, but it represents an important milestone in our
country's battle against mental illness and specifically youth suicide.
Later tonight, this bill will be introduced by the majority leader. I
thank him for his sensitivity and willingness to proceed on this bill.
He has been of enormous help to my wife and me in this struggle. I
thank also Senator Daschle for truly making this a bipartisan issue.
See, what Senator Frist and Senator Daschle understand is that mental
illnesses do not register by party; they afflict Republican and
Democratic families alike.
I would like to thank Senator Gregg, the chairman of the committee,
and his staff for their willingness to proceed with this legislation.
It would not have happened without him.
I would like to thank Senator DeWine. He and his wife Fran know
something about family suffering, having lost a child of their own, so
he has been unusually sensitive to Sharon and me on this issue. He has
championed one of the bills, the major part of this bill we will take
up today.
I thank you, Senator DeWine.
I want to show further how we as partisans, as Republicans and
Democrats, are first Americans. During the hearing we had on this bill,
it was Senator Dodd, who is the ranking member of the committee, who
suggested that if we accomplish little else in this Congress, we at
least ought to do this much. Senator Dodd is one of the nicest and most
decent Members of this Chamber.
There are other Senators of whom I want to take note.
Senator Jack Reed has been especially sensitive and has helped to
write a big portion of this bill as it relates to campus suicide.
Senator Harry Reid, the Democratic whip--his family also having
suffered with a suicide--has been a champion of mental health issues
and specifically on the issue of how to intervene, interdict, and to
stop suicide when it is at all possible.
Finally, I would like to speak of Senator Kennedy. I have looked at
him often in this Chamber. I have thought of him as a lion in
winter. He certainly has a lion's roar in this Chamber. Yet underlying
the lion's roar, Senator Kennedy has a heart that is filled with
compassion for people. No one on either side of the aisle should ever
question his motive, and his motive is as good as gold even though you
can reasonably disagree with his method. He has been of unusual help to
me and to Sharon as we suffer the loss of our son. He has known much
suffering in his days, and I thank Senator Kennedy.
Finally, I must mention Arlen Specter, the subcommittee chairman of
the Appropriations Committee that helps fund the mental health issues.
For a long time, he has found ways to fund programs to help with mental
illnesses. And he has been helpful in a tight year with a tight budget
trying to find the resources that can be utilized for the authorization
of funds this bill will provide.
Enough of those things, and now to the substantial.
[[Page S7801]]
Most of you can probably discern by now that my emotions are still
somewhat tender. I didn't volunteer to be a champion of this issue. But
it arose out of the personal experience of being a parent who lost a
child to mental illness through suicide.
Last September, Sharon and I lost our son Garrett Lee Smith to a long
battle that he suffered from mental illness. He suffered emotional pain
that I cannot begin to comprehend, and he ultimately sought relief by
taking his life. While Sharon and I think about Garrett every day and
mourn his loss, we take solace in the time we had with Garrett and say
to all those who suffer the loss of loved ones that the very best
antedote for grief is the gratitude you had for your loved one for a
time on Earth. Sharon and I have committed ourselves each in our own
way to preserving Garrett's memory by trying to help others so that
other families and children do not suffer a similar fate.
Sharon and I adopted Garrett a few days after his birth. He was a
beautiful child, a handsome baby boy.
Forgive me.
He was thoughtful of everyone around him as he grew older. His life,
however, began to dim in his elementary years. He struggled to spell.
His reading and writing were stuck in the rudiments. We had him tested
and were surprised to learn that he had an unusually high IQ, but he
struggled with a severe overlay of learning disabilities, including
dyslexia.
However, it would be many years later until we learned how extensive
his true illness was because of his diagnosis, which was a bipolar
condition. Bipolar disorder, also known as manic-depressive illness, is
a brain disorder that causes unusual shifts in a person's mood, energy,
and ability to function. Different from normal ups and downs that we
all experience, the symptoms of bipolar disorder are severe. People who
suffer from bipolar experience swings from manic highs where sleep and
eating are not desired, to deep catastrophic depressions where simply
getting out of bed can be too much of a challenge.
In the United States, more than 2 million American adults suffer from
bipolar disorder. This illness typically develops in late adolescence
or early childhood. However, some people have their first symptoms
during childhood, while others develop them late in life. It can be a
debilitating illness. And, as in Garrett's case, it can lead to worse
tragedies.
As his parents, we knew how long and how desperately Garrett had
suffered from his condition and his very dark depression. While we knew
intuitively that suicide was possible in his case, there are simply no
parental preparations adequate for this crisis in one's own child, no
owner's manual to help one in burying a child, especially when the
cause is suicide.
So I have committed myself to trying to find meaning in Garrett's
life by helping to pass, with the help of my colleagues, an important
first step to ending the epidemic of youth suicide. It is no small
task, but one that I believe should be a top priority of this Congress
because every year approximately 30,000 Americans commit suicide in the
United States--a number that is almost twice as high as the number of
homicides in our country. Almost 700,000 Americans are treated in
hospitals every year for self-inflicted wounds and attempted suicides.
But keep in mind these figures don't tell the whole story. They do not
account for the families, the friends, the coworkers who are affected
by each suicide. Suicide and attempts do not simply leave an impression
on the individual's life, it leaves a deep impact on everyone who knows
the person or a family member of that person.
America's youth are committing suicide at staggering rates. Suicide
is the third leading cause of death for people age 10 to 24 years--the
third leading cause. That is why this bill, at Mike DeWine's
suggestion, named the Garrett Lee Smith Memorial Act, is so vitally
important. It takes the first significant step toward creating and
funding an organized effort at the Federal and State levels to prevent
and intervene when youth are at risk for mental and behavioral
conditions that can lead to suicide.
The loss of life to suicide at any age is tragic and traumatic. But
when it happens to someone who has just begun life, has just begun to
fulfill their potential, the impact somehow seems harsher, sadder, more
out of season, more tragic.
Garrett had just begun to reach his potential. His big smile and
generous spirit allowed him to befriend everyone, popular or not.
Wisely or not, his mother and I showered him with creature comforts as
yet another way to show him that we loved him and that we valued him.
But as a testament to his character, we later found out that much of
what we gave him in a material way he readily gave to others less
fortunate.
He also wanted to accomplish three things in life. He wanted to be an
Eagle Scout, he wanted to graduate from high school, and he wanted to
serve his church on a mission. He accomplished those three things,
largely because of the efforts of his angel mother. He loved his
mission companions, he loved his church, he deeply loved his Savior,
and a chance of serving others in his name. Unfortunately, his struggle
against his periods of deep depression became too much. We sought out
help from school and church counselors, psychologists, and ultimately a
psychiatrist. But words of encouragement, prayers earnestly offered,
and the latest medical prescriptions could not repair our son's hard-
wiring defects.
Garrett's bipolar condition was a cancer to him, as lethal as
leukemia to anyone else. It filled his spirit with hopelessness and
clouded his future in darkness. He saw only despair ahead and felt only
pain in the present, pain and despair so potent that he sought suicide
as a refuge, a release. The bill I offer today with these great
colleagues, Republican and Democrat alike, is intended to help other
people who suffer from mental illnesses that are so devastating it
places them at risk for taking their own lives. No family should
experience the pain we have suffered and no child should face the
challenges of mental illness alone.
When signed into law, this bill will authorize $60 million over 3
years to create a system focused on establishing in each State a
statewide early intervention and prevention strategy. It ensures that
85 percent of the funding will be provided to the entities focused on
identifying and preventing suicide at the State and community levels.
Entities apply to the State for funding and can utilize a variety of
options to implement the tenets of statewide strategy.
One option that Sharon and I have recently championed in our own
hometown is the Columbia University Teen Screen Program. We have chosen
to endow this program in our community in our son's memory, in the town
of Pendleton, OR, from which I hail.
All sixth graders who have their parents' consent will be screened
each year for mental illnesses that can lead to suicide and they will
receive referrals for treatment. Our hope in sponsoring this program is
to help as many children as possible at as early an age, as young as
possible, because if we identify mental illness early, we may be able
to prevent thousands upon thousands of youth suicides.
The bill also authorizes the Suicide Prevention Resource Centers that
will provide technical assistance to States and local grantees to
ensure they are able to implement their statewide early intervention
and prevention strategies. It also will collect the data related to the
programs, evaluate the effectiveness of the program, and identify and
distribute best practices to other States around the country. Sharing
technical data and program best practices is necessary to ensure that
Federal funding is being utilized in the best manner possible. That
information is being circulated among participants.
Finally, the bill will provide funding to help colleges and
universities establish mental health programs or enhance existing
mental health programs focused on increasing access to and enhancing
the range of mental and behavioral health services for students.
Entering college can be one of the most disruptive and demanding
times of a young person's life, but for persons with mental illnesses
the challenges can be overwhelming. Loss of their parental support
system, familiar and easily accessible health care providers can often
become too much of a burden to bear. That is why we have, for the first
time, focused Federal funding on improving the support structures
available at our colleges and universities.
[[Page S7802]]
I simply say with emphasis to my colleagues, we have a suicide
epidemic on American university campuses because kids leave their homes
and need support structures. As in the case of our son, when you are
not there and they do not have someone to fall back on, sometimes the
most innocent kinds of disappointments for you and me can be life
ending to them. These are the kinds of situations which we hope to
better predict.
I say in conclusion, the components of this bill will ensure that we
begin to address the staggering problem of youth suicide. I am pleased
to be a champion of this cause, not because I volunteered for it but
because I have suffered over it. This bill, with the support of my
colleagues, will be a marvelous beginning to say to the American
mothers and fathers, we care about you, we know your struggles, we know
your suffering, and we are trying to help.
Where you cannot be there, we are going to do our level best to make
sure there are professionals, there are people to help, so we can put
an end to this epidemic and let our youth know that mental illness is
not something from which they should shrink but something about which
they should seek help.
If we do this, my colleagues, I assure you, whatever else we may or
may not accomplish in this Congress, we can leave here with pride that
we did a very good thing for the young men and women of the United
States of America. I urge the passage of this bill.
I yield the floor.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. REID. As my friend from Oregon knows, my father committed
suicide. My situation was totally different than that experienced by my
friend from Oregon. With my dad there was nothing that had happened
that suggested a problem.
I went to watch Muhammad Ali work out, spent the morning with
Muhammad Ali. I had a wonderful time. I took somebody who was working
with me. Two of us were alone with Muhammad Ali for a long time. I
returned to my office and walked in the door. Joan was the
receptionist. I can still see her. This was many years ago. She said:
Your mother is on the phone. I picked up the phone and she said: Your
pop shot himself.
My dad had killed himself at home in Searchlight. For a long time, I
was embarrassed; I did not know how to handle that. I, of course,
acknowledged my dad was dead but like most people who deal with
suicide, it takes a while to accept that.
My acceptance came many years later when I was part of the Aging
Committee in the Senate. Bill Cohen was the chairman. We had a hearing
on senior depression. Mike Wallace, a reporter on ``60 Minutes,''
testified before the committee. He said: A lot of times I wanted to
die. I did the most dangerous things I could do, hoping that maybe
something would happen that I would not return. He said: But you know,
I now take a little bit of medication; I had the opportunity to talk to
someone and I no longer feel that way.
So I shared, for the first time ever publicly, what happened to my
dad. My dad was 56 or 57 years old, much younger than most members in
the Senate. I said at that time to Chairman Cohen that I thought we
should have a hearing on senior suicide. I shared, for the first time,
the story of my dad's death.
I didn't know Garrett. Gordon didn't know my dad. My dad was a person
who, as we look back, had been depressed his whole life. I cannot give
a long dialog about my dear dad other than to say he was a very strong,
physical person, bigger than I am, bigger than his four sons. He never
lifted a weight, but with his shirt off at the age he was, people would
think he had lifted weights. He had big arms, a big chest. He was very
strong.
He didn't like to be around people, only his family. About a week
before he killed himself, we came out to visit him in Searchlight. My
dad did not have much in the way of material possessions, but he had
one thing for which he was very proud. It was a specimen.
My dad worked hard all of his life, never made any money doing
anything, but he worked like a dog. One time he had a lease on a mine
and he found some very rich ore at the Blossom. The vein was very
small. It was in a talc-like formation, and it assayed at $18,000 a
ton. He got a few sacks of this. It was in such small quantities you
could not even fill up a truck with it.
He saved a specimen. All he had left was a specimen; that was
valuable to him, at least. Approximately a week before he died, he gave
it to me. It was unlike my dad. But, of course, as I look back, he had
been planning what he was going to do for some time. His health was not
good and he had miner's consumption, and I am sure other problems. He
smoked like a chimney all of his life. He coughed every night when I
was a little boy. I thought all kids' dads coughed like my dad.
But had this legislation, introduced by my friend, been in effect, my
dad may not have had all the problems he had as he proceeded through
life. Suicide is an American tragedy. We know that at least 31,000
Americans every year kill themselves. We know that because those are
the deaths that we can say: This was a suicide. But there are, I
believe, thousands of others--automobile accidents, hiking accidents--
that are really suicides.
So we have done a few things since my work with Senator Cohen. We are
now studying, for the first time--it is hard to comprehend this--but
for first time in the history of this country, we are trying to figure
out why people kill themselves. We do not know for sure. One of the
phenomenons is that most of the suicides are in the western part of the
United States. We do not know why. You would think just the opposite,
with the Sun shining and the wide open spaces. But we are studying
that. The Surgeon General of the United States has stated it is a
national problem.
I want my friend from Oregon to understand how important it is that
he is stepping forward on this issue. Landra and I attended Garrett's
funeral. We were so impressed because no one--no one--tried to mask
what happened to Garrett Smith. Every speaker talked about this fine
young man. Some of the speakers had known him his whole life. But there
was not a single speaker who tried to make an excuse or cover up the
fact that this young man had taken his own life.
You see, we have come a long way. After my dad died, killed himself,
I bought a book on suicide. It was not long ago that you could not bury
someone who committed suicide in a cemetery. Most religions would not
accept and allow the normal religious ceremonies to take place if
somebody had killed themselves. We have gone beyond that in most every
instance, and that is good.
I want the Senator from Oregon to know how I appreciate his moving
forward on this national problem. Nevada leads the Nation in suicide. I
believe that anything we can do to focus attention on this problem is
going to be of benefit to so many people.
Since this situation with my dad in the committee, we now have a
national organization. They have a full-time lobbyist now. SCAN is the
name of the organization. Their whole existence is based on dealing
with the suicide problem that faces this country.
I appreciate very much the Senator from Oregon, I say for the third
time, moving forward on this issue. It is a happy day and a sad day
because, as life is, I do not focus on that day when my dad--I went out
and saw my dad on the bed where he had killed himself. I do not focus
on that, but I did today, and it is good for me that I did focus on it.
It is good for us that we focus on this. I used to think suicides
happened to other people, but they happen to us. There are so many
people who I come in contact with who have had a father, a mother--I
had a wonderful TV reporter in Las Vegas--and you know it is all
business with these journalists--who said to me once: Could I talk to
you sometime alone? I said: Sure. She told me about the fact that her
brother committed suicide, her father committed suicide. This story did
not end there. She called me later, after we had our private
conversation; her own sister then killed herself.
Suicide is an illness of which we have to get ahold. It is something
that does not happen to others; it happens to us.
I am so glad I was able to hear the heartfelt remarks of the Senator
from Oregon today.
The PRESIDING OFFICER. The Senator from Oklahoma.
[[Page S7803]]
Mr. NICKLES. Mr. President, I compliment my colleague from Oregon,
Senator Smith, for his statement and also for the work he has done in
putting together this legislation. I ask unanimous consent to be added
as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, I also compliment my colleague and
friend, Senator Reid, for his statement. I have a similar experience.
My father also committed suicide. I am not going to go into the
details, but it is a lot of pain. It is very evidenced by the pain in
the expression by Senator Smith and Senator Reid that this is a very
serious problem throughout our country. It is a serious problem, as
Senator Smith has experienced, unfortunately, particularly with
teenagers.
For teenagers, this is a problem that most people cannot comprehend.
I did know Garrett. Garrett was a troubled young man with mental
illness. He was also a very fortunate young man because he had
outstanding and loving parents. He had an angel for a father and a
mother, and he received more love than most children would ever dream
of receiving. Now maybe he is in some ways giving a gift to the country
because Senator Smith, in trying to rationalize maybe, combat this very
serious problem, is trying to tackle it nationally. I have no doubt as
a result of us passing this legislation we will end up saving a lot of
lives, maybe thousands of lives. So I just want to associate myself
with my very good friend Gordon Smith but thank and compliment him
because we will never know--we will never know--did this save someone's
life somewhere in Oregon or Oklahoma or Nevada or New York because
there are a lot of troubled kids out there, frankly, who have not
received the attention they need. Maybe it will also lead to greater
research in combating suicide as a whole because it is a big problem
throughout this country for many ages, particularly for teenagers.
I compliment Senator Smith for the love and attention and focus both
he and Sharon focused on Garrett. Garrett was a very fortunate young
man to have such loving parents. The Senate is very fortunate, our
country is very fortunate, to have his leadership on this very
difficult, sensitive issue for them and, frankly, for our country. I
compliment him for his work and yield the floor.
The PRESIDING OFFICER (Mr. Coleman). The Senator from Connecticut.
Mr. DODD. Mr. President, first of all, let me thank both of my
colleagues from Nevada and Oklahoma as well. Their remarks were very
moving today. In the midst of all these other matters we debate and
discuss--matters we think are of such great and global and national
importance--I don't think anything we have listened to has been as
important as the comments that have been made by our good friend and
colleague from Oregon, Gordon Smith, and my good friends and
colleagues, Harry Reid and Don Nickles. I was aware of the circumstance
of my friend from Nevada. I was not aware of the circumstance of my
friend from Oklahoma. I appreciate both of them adding their voices
today to this discussion. Particularly, though, I think we all feel a
special bond with Senator Smith and what he and his lovely wife Sharon
have gone through. I commend him for his courage and determination to
share his story with us and the country today.
Time does heal wounds. I suspect my friend from Nevada and friend
from Oklahoma still feel tremendous pain, and I suppose that time does
remove some of the bitterness. But we know that our friend from Oregon
lost his son only a matter of months ago, and we know the fact that he
came to me, to Mike DeWine and Senator Reed, to others, asking with
great determination if there was a way to clear the legislation before
us this year. I am so glad that he came to us. I will forever remember
the hour or so we spent--not many weeks ago--talking about this
legislation in my office and trying to find a way to clear it. Gordon,
it is because of you that we are here today.
I commend the majority leader and the Democratic leader and others
for insisting that we find some time here to allow this legislation to
be considered and, I believe, adopted unanimously by our colleagues. I
know the other body is considering legislation as well.
If I could, I would like to spend a couple of minutes speaking about
this important issue, and I hope this time maybe there are people
listening. I know occasionally people follow C-SPAN. There are probably
times when they wonder why they are watching us at all, but maybe
today, as a result of our conversation and the tremendous remarks by
our colleagues who have talked about this issue in very personal terms,
in addition to the underlying legislation, there will be people
listening whose lives might be transformed. My admiration for the three
of our colleagues who have spoken today, particularly our colleague
from Oregon, is unlimited. He has done a great service, if nothing
else, by sharing his story with America. That has great value.
There are people listening to this who I know full well are going
through similar circumstances and wondering how to cope, or a child out
there who may be wondering whether anyone can pay any attention to his
or her needs, or trying to find a place he or she can go to try and
resolve these conflicts. I think this discussion is a worthy one for
this historic Chamber to be engaged in.
Adolescent years are the most difficult in many ways. We spend a lot
of time talking about early childhood development, and rightfully so.
Those are formative years in a child's life. There is much more we
could do to try and assist parents and young children beginning the
journey of life to get it right from the beginning. And we spend a
great deal of time talking about higher education, talking about the
cost and getting jobs and the like. Certainly that has great value as
well. However, we don't spend enough time talking about those
adolescent years, those middle years from age six to 24. I can think of
only a few instances where we have actually had hearings and talked
about the problems of adolescents, those tremendously changing years
that can be so terribly complex for an individual of that age.
I hope that as a result this discussion, the legislation we are
introducing will have some ability, some impact, maybe, in focusing our
attention on those questions. Let me go back and, first of all, again
thank my colleague Senator Mike DeWine, with whom I have worked on this
issue, Jack Reed of Rhode Island, who has done a tremendous job as well
on this legislation, and my colleague Richard Durbin of Illinois, who
wants to be added as a cosponsor. I ask unanimous consent that he be
added as a cosponsor to this legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. As has been pointed out by our friend from Oregon, suicide
among our Nation's young people is an acute crisis that knows no
socioeconomic boundaries. My State of Connecticut, as well as all other
states in the nation, suffer from this tragedy. In fact, my hometown of
East Haddam, Connecticut--a small rural community of 8,000 people--has
not been immune.
In 2001, I chaired the first Congressional hearing on youth suicide,
and I was alarmed at the disturbing statistics that were read at that
hearing. Well, those statistics have not changed and they are worth
repeating again today. According to the most recent data from the
Centers for Disease Control and Prevention, almost 3,000 young people--
10 percent of all suicides--take their lives in the United States every
year. It is the third overall cause of death between the ages of 10 and
24. Young people under the age of 25 account for 15 percent of all
suicides completed. In fact, more children and young adults die from
their own hand than from cancer, heart disease, AIDS, birth defects,
stroke, and chronic lung disease combined.
Equally alarming are the numbers of young people who consider taking
or attempt to take their own lives. Again, recent CDC figures estimate
almost 3 million high school students or 20 percent of young adults
between the ages of 15 to 19 consider suicide each year, and over 2
million children and young adults actually attempt suicide. Simply put,
these figures are totally unacceptable and of a crisis proportion.
[[Page S7804]]
Sadly, we rarely find these facts disseminated widely among public
audiences. We rarely read them in newspapers or hear them on
television. Individual cases, yes, but not the national numbers.
We know youth suicide is integrally linked to mental health issues
such as depression and substance abuse. Yet we also know all too well
that both youth suicide and children's mental health continue to carry
an unfortunate stigma, a stigma that all too often keeps these crucial
issues unspoken and discourages children and young adults from seeking
the help they so desperately need.
We have a societal obligation to break through this stigma attached
to youth suicide and children's mental health. Again, the comments of
our colleagues this afternoon have taken a major step in that
direction. When people in public life can address these issues in
public forums and talk about them in personal terms, then they help us
break down the barriers and stigmas that exist. That is why I feel so
strongly about the willingness of our colleagues today, particularly
Senator Smith, to share their personal thoughts with us.
We also have a societal obligation to instill in our young people a
sense of value, of self-worth and resilience. All too often children
and young adults considering suicide lose sight of themselves, their
talents, their potential in life, and all too often they lose sight of
the love their families, friends, and communities have for them, as our
friend from Oregon so eloquently described.
I am pleased our Nation has already taken positive steps toward
better understanding the tragedy of youth suicide and its emotional and
behavioral risk factors. Several recent reports like the President's
New Freedom Commission on Mental Health, the National Strategy for
Suicide Prevention, and the Surgeon General's Call to Action to Prevent
Suicide have made youth suicide a top national public and mental health
priority.
Today hundreds of community-based programs across the country offer a
variety of early intervention and prevention services to thousands of
children and young adults--services that include comprehensive
screening, assessment, and individualized counseling. Every State and
many tribal nations have begun developing or already have implemented a
youth suicide early intervention and prevention strategy that
coordinates appropriate services in schools, juvenile justice systems,
foster care systems, mental health programs, substance abuse programs,
and other youth-oriented settings.
Furthermore, the Federal Government has stepped up in its role in
both supporting these community-based activities and conducting
relevant research and data collection. Several mental health and public
health agencies have shown a great interest in youth suicide, including
the Substance Abuse and Mental Health Services Administration, the
Health Resources and Services Administration, the Centers for Disease
Control and Prevention, and the National Institutes of Health. However,
despite these important gains, we still face significant challenges.
Today a large number of States, localities, tribes, and service
providers are finding themselves with unprecedented budget deficits,
making the establishment of new services and the retention of existing
services increasingly more difficult.
Furthermore, youth suicide early intervention and prevention
strategies are often underfunded or understaffed to be properly
effective. And while a number of Federal agencies have supported youth
suicide activities, there have been no comprehensive interagency
strategies implemented to share data, disseminate research, or evaluate
the efficacy of youth suicide early intervention and prevention
programs.
Today I am introducing bipartisan legislation with my colleagues
Senators Mike DeWine, Jack Reed, Gordon Smith, Harry Reid, and Dick
Durbin, named in memory of Garrett Lee Smith. This legislation further
supports the good work being done at the community level, the State
level, and the Federal level with regard to youth suicide, early
intervention and prevention in four principal ways.
First, it establishes new grant initiatives for the further
development and expansion of youth suicide early intervention and
prevention strategies and the community-based services they seek to
coordinate.
Second, it authorizes a dedicated technical assistance center to
assist States, localities, tribes, and community service providers with
planning, implementation, and evaluation of these strategies and
services.
Third, it establishes a new grant initiative to enhance and improve
early intervention and prevention services specifically designed for
college-age students.
And last, it creates a new interagency collaboration to focus on
policy development and the dissemination of data specifically
pertaining to youth suicide. I continue to believe that funding for
concrete, comprehensive, and effective remedies for the epidemic of
youth suicide cannot be done by lawmakers on Capitol Hill alone. They
must also come from individuals, such as doctors, psychiatrists,
psychologists, counselors, nurses, teachers, advocates, clergymen,
survivors, and affected families who are dedicated to this issue or
spend each day with children and young adults who suffer from illnesses
related to youth suicide.
I believe we have made an important first step with this legislation
today. That step has been implemented by the comments of my colleagues
on the floor of the Senate. However, I also know that our work is not
done. I sincerely hope that as a society we can continue to work
collectively both to understand better the tragedy of this incredible
problem of youth suicide and to develop innovative and effective and
public mental health initiatives that reach every child and young adult
in this great Nation of ours, compassionate initiatives to give them
encouragement, hope, and love, and most important, life.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. DeWINE. Mr. President, let me first congratulate my colleagues
from Nevada and Oklahoma for their very moving statements in regard to
their dads. Let me also say to my colleague from Oregon that his
statement was certainly one of the most moving statements I think any
of us have ever heard in this Senate Chamber. Our hearts, collectively
as Senators, continue to go out to our colleague and Sharon for the
loss of Garrett.
Senator Smith and Sharon have taken their tragedy, the pain of this
tragedy, the loss of Garrett and there is nothing in the world worse
than the loss of a child--and focused it on trying to do good. We see
it today with this legislation for which Senator Smith has been such a
strong advocate. We are on the Senate floor, frankly, because of him.
We would not have been to this point without him, without his advocacy.
We saw it in the testimony when Senator Smith and Sharon came to our
committee hearing that Senator Dodd and I held several months ago. They
publicly talked about Garrett's death; they talked about him and talked
about the issue. Senator Smith described earlier the community teen
screening with sixth graders in Pendleton that they have established.
So they are courageous. They have taken this immense pain and, in spite
of that, in the face of that, they are doing something very positive.
Those of us in the Senate are blessed and we are burdened with the
opportunity to use the bully pulpit of the Senate to focus public
attention on issues. I say to my colleague that there are many parents,
tragically, as he knows, who have suffered as he and Sharon have this
year. He has the unique opportunity--and has taken that, as he is in a
public spotlight; it is a burden he has, but he has taken that burden
and done something with it. What he has done with it is he has taken
that spotlight and used the bully pulpit of the Senate to talk to the
American people about this issue. Many people today will watch this and
many more will read about it tomorrow. There are many people who read
about the committee hearing we held, and they heard when Senator Smith
and his wife talked about this issue. Many people they will never know
have been impacted, or maybe they were alerted to a problem they might
have with their child, and maybe parents
[[Page S7805]]
were given inspiration and encouragement to seek help. These are things
that individuals don't ever know about. But I know, and we all know,
that what they have done has truly made a difference. This bill will
truly make a difference.
I thank Senator Dodd and Senator Jack Reed for their work. This bill
we are introducing today is a combination of two bills. One was
introduced by Senator Reed as the lead sponsor. It was his idea; he
took the lead. I was the Republican cosponsor. We introduced a bill.
The other bill was Senator Dodd's bill. He was the lead on that, and I
was the cosponsor. We worked on that bill together. This is a
combination of those two bills that we bring to the floor today.
I also thank Senator Harry Reid for his great support and his work. I
thank the majority leader. I thank Senator Daschle and I thank Senator
Gregg. They all have been very supportive. We thank them for allowing
us to bring this bill to the floor today.
We have held hearings on the mental health concerns of youth and
children. As chairman of the Subcommittee on Substance Abuse and Mental
Health Services, I have been able to do this. The one hearing we talked
about, Senator Dodd cochaired with me. At the hearing on youth suicide,
it became clear that thorough and actionable plans are needed to deal
with this issue affecting our children and young adults.
At that hearing, as I indicated, Senator Smith, supported by his wife
Sharon, courageously shared the story of their son Garrett. They told
of his struggle, their family's brave struggle with his depression, and
Garrett's struggle with that depression, a battle that he tragically
lost this past September. In honor of their son, Gordon and Sharon are
dedicated to helping other youth and their families who are struggling
with mental illness.
At that same hearing in March, the Reverend Dr. Paul Tunkle
courageously spoke of the loss of his daughter. Reverend Tunkle is an
Episcopal priest now serving in Baltimore. His wife Judy is a
psychotherapist. Their daughter Althea, or Lea to those close to her,
began to exhibit symptoms of psychological problems when she was in
grade school. She began to experience additional problems as she began
her university studies. Her grades began to suffer. Exacerbating her
mental health problems, Lea was raped while away at school. After
attempting suicide twice, Lea killed herself on her third attempt at
the age of 22.
Tragically, these stories that we have heard are not uncommon.
Statistics tell us that approximately every 2 hours a person under the
age of 25 commits suicide. We also know that from 1952 to 1995 the rate
of suicide in children and young adults in this country tripled, and
that between 1980 and 1997 the rate of suicide in 15- to 19-year-olds
increased by 11 percent.
According to the National Institute of Mental Health, suicide was the
11th leading overall cause of death in the United States in the year
2001; however, it was the third leading cause of death for youths aged
15 to 24. Shockingly, we also know that suicides outnumber homicides 3
to 2 for the overall population. These alarming numbers emphasize the
need for early intervention or prevention efforts. Too often, the signs
may be subtle or hidden until it is too late. While research has
created improved medications and methods for helping those with mental
health problems to recover, there is still much work to be done in
identifying those who need help.
Study has been done in identifying and categorizing the risk factors
related to suicide. In children and youth, these are known to include
depression, alcohol or drug use, physical or sexual abuse, and
disruptive behavior. Of people who die from and who attempt suicide,
many suffer from co-occurring mental health and substance abuse
disorders. Children with these risk factors, as well as children who
are known to be in situations at risk for acquiring them, should be
included in comprehensive State plans.
Children and youth specifically addressed in State plans should
include those who attend school, including colleges and universities,
those already receiving substance abuse and mental health services, and
those involved in the juvenile justice system, as well as those in
foster care.
We also learned at our hearing that our colleges and universities are
suffering under an ever-growing caseload and they need additional
resources to help students in these critical years. We know that
suicide is the second leading cause of death in college students today,
and reports indicate there has been a dramatic increase in college
students seeking care at campus counseling centers.
From 1992 to the year 2002, Big Ten Schools, for example, noticed a
42-percent increase in the number of students seen at these counseling
centers. Surveys conducted over the past decade suggest the prevalence
of depression among college students is growing and eclipses the rate
of the general public. Many public and private schools have been
dealing with budget crises recently which do not allow them to respond
adequately for this growth in need. In fact, last year 27 percent of
counseling centers reported cuts to their budgets.
The accreditation standards for university and college counseling
centers recommend that the counselor-to-student ratio be 1 counselor
per 1,000 to 1,500 students; however, alarmingly, the 2003 ratio in
schools with over 15,000 students is instead 1 counselor per 2,500
students, and that is a problem. Due to these numbers, schools are
reporting that students are forced to wait, sometimes days, to see a
counselor. In the year 2002, 116 college students committed suicide;
however, only 20 of these students had been seen by a college counselor
before the suicide.
As a result of the need for increased attention to the problem of
suicide and the need for increased access to help, Senators Dodd,
Smith, Jack Reed, Harry Reid, and I are introducing the Garrett Lee
Smith Memorial Act. This bill will provide grants to States, tribes,
and State-designated nonprofit organizations to create statewide plans
for early intervention and prevention efforts in schools, juvenile
justice systems, substance abuse programs, mental health programs,
foster care systems, and other child and youth support organizations.
These plans will seek to serve the children where the children are.
This bill will help ensure that States with youth suicide rates that
are higher than the national average are given preference so they are
better equipped to combat this tragic problem.
This act also will authorize a suicide prevention resource center.
This center will provide information, training, and technical
assistance to States, tribes, and nonprofit organizations involved in
suicide prevention and intervention for a number of purposes, including
the development of suicide prevention strategies, studying the costs,
effectiveness of statewide strategies, analyzing how well new and
existing suicide intervention techniques and technologies work, and
promoting the sharing of data.
Further, the Garrett Lee Smith Memorial Act would provide competitive
grants to institutions of higher education to create or expand mental
and behavioral health services to students. These grants will help
financially strapped college and university mental health centers
obtain the necessary resources to serve the mental and behavioral
health needs of the students.
Let me again thank my colleagues for their support of this very
important legislation. Our children are simply too important to not
properly address their mental health needs. This is a good bill, and it
is the right thing to do.
I add one final comment. I think this bill will be signed into law.
This bill will save lives. This bill will make a difference. I thank
everyone who has worked so hard on it. I thank my colleague again for
being the spark behind this. He has been the person who has been
talking to Members, getting their support, making the plea. I thank him
so very much for doing it.
We are going to pass this bill and it is going to make a difference,
but there is something else we should be doing, and that is the Mental
Health Parity Act. This Senate, this Congress, must get around to this
bill. That bill also will save lives. It will make a difference. It
will make mental health services available to people.
I see my colleague from New Mexico, who just walked into the Chamber.
He has been an advocate for this bill. The time is ripe for the Mental
Health Parity Act to come to the Senate floor, to
[[Page S7806]]
be voted on, and to be passed. I thank my colleagues. I thank the
Chair.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I join my colleagues, Senators Smith, Dodd,
DeWine, and Reid, to discuss the Garrett Lee Smith Memorial Act which
will be introduced today. I thank and commend them.
I particularly commend Senator Gordon Smith. We are here today
literally because he has worked tirelessly to bring this legislation to
the Senate floor, to work with us and to advocate strenuously that this
legislation come to the floor of the Senate today. It is rightfully
designated the Garrett Lee Smith Memorial Act.
Garrett, unfortunately, struggled for years and sadly took his own
life last September. We heard this afternoon the heartfelt words of his
father talking about this wonderful young man. We all sense that as
Garrett struggled, he did it with loving and caring parents.
As my colleague Senator DeWine pointed out, the Smiths have taken
their pain and transformed it into purposeful action to ensure that
other families and other young people do not have to suffer and endure
even today the pain that lingers at the loss of this fine young man,
and I thank the Senator for his leadership and for his decent and
gallant heart.
We are here today because we are responding to an extraordinary
problem, a problem that seems to many of us to be difficult to
comprehend: why a young person, in the prime of life, with so much
ahead, would take their own life.
Sadly, suicide takes the lives of over 4,000 children and young
adults each year. It is now the third leading cause of death among 10
to 24 year olds in America. The rate of suicide has tripled from 1952
to 1995. Yet despite the astounding statistics, we still do not fully
understand what is driving so many young people to the extreme of
taking their own life.
What we hope to achieve with this legislation is to show them that
there is an answer, that suicide is not the way out, that there is help
for whatever is troubling them, and that they can live lives that are
full, happy, and complete.
A Chronicle of Higher Education survey found that rates for
depression in college freshmen are on the rise. Without treatment, the
Chronicle points out, depressed adolescents are at risk for social
failure, social isolation, promiscuity, self-medication with drugs and
alcohol, and suicide. That is a description of failure, not a
description of successful living.
A 2003 Gallagher's Survey of Counseling Center Directors found that
85 percent of counseling centers on college campuses are reporting an
increase in the number of students in need of services.
Mr. President, 81 percent were concerned that increasing numbers of
students are there with severe psychological problems; 67 percent
reported a need for more psychiatric services, and 63 percent reported
problems with growing demand for services without an appropriate
increase in resources. That is why, working with Senator DeWine,
working with my colleagues Senator Dodd and Senator Smith, we have
incorporated in this act support for college counseling centers. It is
not coincidental that Garrett was beginning his first year at the
University of Utah, had left home, was in a new environment, was
struggling with all of the powerful forces of independence and of
change young people experience when they go off to school. That is a
particularly vulnerable time.
We understand college is a time of great intellectual development,
but it is also a time of extraordinary personal and interpersonal
growth and change. When children go off to college, we need to make
sure they have the support they need during this critical transitional
period.
Additionally, there are many adults going to college and they have a
particular dilemma of balancing their studies with their family
responsibilities. Yet campus after campus lacks the resources to
support their counseling staffs to deal with these real issues, these
real psychological issues.
Part of what we seek to do through the Garrett Lee Smith Memorial Act
is ensure colleges and universities around the country have the
resources to reach out to students, to provide essential mental and
behavioral health services, and to educate families about potential
signs of trouble.
Part of this process is not only treating the youngster, it is making
parents aware of these signs so they can intervene successfully and in
a timely fashion. Our colleges and universities are struggling to
address the wide range of problems experienced by students--drug and
alcohol problems, eating disorders, depression, schizophrenia, suicide
attempts. With insufficient resources, many schools offer limited or
very cursory services to students. We hope to begin to change that with
this legislation.
We hope through this legislation to begin to shine a light on the
growing problem of youth suicide. This legislation provides resources
and technical assistance to States to develop and implement robust
early intervention and suicide prevention strategies across the Nation.
It also seeks to address the overwhelming need for mental and
behavioral health services on college campuses, as I have discussed.
This is an important bipartisan measure and a tribute, a fitting
tribute to Garrett and to the faith and dedication and decency of the
Smith family, Gordon and Sharon.
I again express my thanks to Senator Dodd and Senator DeWine. When
you look at legislation in this body that attempts to provide practical
support and help to young people, you usually find two names on the
legislation--Dodd and DeWine. It is always a privilege to join these
gentlemen.
I also want to thank Senator Harry Reid, who spoke movingly of his
own experience, the death of his father through suicide. Senator Don
Nickles similarly gave a moving tribute to Sharon and Gordon. Let me
also thank Dr. Harsh Trivedi, a fellow in my office, a psychiatrist who
is now on a fellowship up in Boston. He did most of the work on the
Campus Care and Counseling Act, which is the legislation incorporated
in this act. I also thank Lisa German of my staff, who does so much to
help us on these issues, and also Catherine Finley on Senator Smith's
staff, who has been of remarkable help and assistance.
Let me thank the leadership, Senator Daschle, Senator Frist, Senator
Reid, Senator Nickles, because they let us bring this bill to the floor
today to move forward to pass it.
This is an example of the kind of work we can do when we work
together, the kind of work the American people demand of us. It is, as
I said, a fitting tribute to Garrett and I hope an enduring tribute to
his father who worked so hard to get it to the floor today and to pass
it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, the leadership on the majority side asked if
we could move the vote to an earlier time tonight, rather than have the
cloture vote in the morning. I am sorry to report that the Senator from
Delaware, Senator Carper, has indicated he will not agree with that.
All other Members on our side have agreed to the vote tonight. It is
now set for the morning.
I apologize to all my colleagues that we cannot do this tonight.
There are a lot of things Members have to do tonight, and especially
tomorrow. It would save everyone a lot of time.
I want the record to reflect that I think it is unwise that that is
the case. I told my friend from Delaware I would indicate he is the
problem with our having the vote earlier.
I apologize, because I have had a number of calls from Senators on
this side of the aisle. We thought we were going to be able to work
that out, but we have been unable to do that.
The PRESIDING OFFICER. The Senator from New Mexico.
Campus Care and Counseling Act
Mr. DOMENICI. Mr. President, I first want to say to Senator Smith, I
want you to know that since we weren't going to do anything today, I
had gone home. I don't live very far, so it is not a terrible
sacrifice. But I was in less than good clothes, starting a restful
evening a little early when I heard what was going on and I decided to
quickly--maybe I look that way--dress up and come over here, after I
heard you speak.
[[Page S7807]]
Let me say to you, I am very proud of you. I am not totally familiar
with the bill, but I hope you will make me a cosponsor. I ask consent
that Senator Hutchison be made a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOMENICI. I want to talk to the Senate today about a very sad
situation. I want to address these remarks at a couple of Republicans,
whose names I don't know, but I will soon, who have holds on the most
important bill that has to do with mental illness in America. I am very
hopeful we can carve out a niche as you desire, to try to give some
help to those who are suffering so much that they commit suicide, and
all of the various participants in that activity from mothers and
fathers to doctors to counselors--everyone. I am hopeful we will get
that done.
Second, I didn't hear anyone mention, but I will mention to you,
Senator, the doctors, the general practitioners who see thousands and
thousands of our young teenage men and women who are most vulnerable.
Maybe we need an annual crash course for them because they are not
seeing the basic signals of mental illness in their patients. I tell
you, I am not a doctor and I am not a genius, but I can tell you,
because I have already learned, what I would look for in a patient who
came to me for anything so I could rule out whether they had
depression; so I could rule out whether they were manic depressive, or
one of the other serious mental illnesses. But I am afraid we are going
to have to start with some system of insisting that our doctors find
out about it as the first and biggest clearance mechanism in the United
States.
Having said that, I want to discuss a little bit about the worst
thing happening in the United States about mental illness. First,
Senator Smith, you are speaking of the effect of mental illness.
Because someone is a depressive, they have an illness, and the illness
may or may not lead to suicide. But there are five major illnesses that
are mental, and any of them might cause suicide. But the most important
thing is all of them cause tremendous sorrow and tremendous grief and
tremendous misunderstanding on the part of parents and friends of those
who have the disease.
I might say, Senators, we have at least moved away from the stigma
and everybody is at least willing to talk about these as illnesses.
Everyone is talking about how do we help rather than how do we hide.
Everyone is talking about getting these people who have symptoms to a
good doctor so they can get both discussions going and medicines that
are so helpful. Everybody is talking about that. But, my friends, the
real problem is all children with these diseases are not the fortunate
children of that Senator. They are the unfortunate children of poor
people, of people who make a little bit of money, with a loving mother
and father and a schizophrenic child who perhaps are living on $25,000
a year. The problem is they don't have enough money to have caregivers
help them. Guess what. The insurance companies don't help them either
because we have a definition of sick and illness in the insurance
policies that is 50 years old. They did not know anything about mental
illness. So they ruled it out.
I don't know if you know this, but almost every group insurance
policy in America writes coverage for cancer, coverage for
tuberculosis, and coverage for every major disease. But when it comes
to mental illness, it is either stricken or it has an asterisk down at
the bottom. It gets significantly less coverage, or none.
There are parents who have given up on their children because they
cannot pay the bills anymore. They go look for their children in the
slums; they go look for their children in jails, because there are more
children with mental illness in the jails of America than in the
hospitals to take care of the mentally ill people. Why are they there?
Because nobody takes care of them. Why doesn't anybody take care of
them? Because most people went broke trying to take care of them.
Sitting up there at that desk is a bill called parity--equal--parity
of insurance coverage for the mentally ill. It has been cleared on that
side. It came out of committee. And somehow or other a couple of
Republican Senators have a hold on it. I will try to find out who they
are and I will go beg them to let us pass the parity bill. But I tell
you: If it doesn't work, we are going to take it up. I know the leader
wants to get bills through expeditiously. But I am going to tell him
tonight, patience has run thin and we have to get it done. It has been
worked through the committee chaired by Judd Gregg. He has one
amendment. That is great. He has at least told us he wants one hour.
But others are not even letting us know who they are, and they are
holding up this bill.
Let me tell you what happened to America. America has the greatest
medicine, the greatest services, and the greatest caretaking machine
for the hearts of our people. If you have something wrong with your
heart, they know how to take care of it. They will put you in a
hospital. There is coverage by insurance if you have group insurance.
In the meantime, the tests, the knowledge, the information about
heart conditions gets a lot of resources. Clinics are built and
hospitals are built because there are resources because heart is
covered by insurance.
We take care of our hearts and we fail to take care of our heads, our
brains. We take care of our heart and spend money on it, and we will
not spend anything on mental illnesses. It is no longer a joke. It is
no longer a stigma. Everybody around knows. Our President, as recently
as 6 months ago, said, Don't bother me. I already know it is a disease.
Let us find some way to help. That is what I say. If your bill does it,
let's pass it. I am on it. I would like to pass it.
But we are ready to pass the most significant bill to help anyone who
has any of the major illnesses and be sure that the group insurance
policy covers them. Thus, their parents can take them to doctors,
parents can see to it their children get medical care rather than the
asterisk on the policy that says you get less or nothing if the disease
or illness is mental illness.
I came down here not because I wanted to set aside or argue or
contend that I have the most important bill. There were 80 Senators on
this bill at one time--79, bipartisan, the bill for parity.
I submit to my friend Gordon Smith, who came to the floor and told us
from his heart what this is all about, that you would agree and
probably would agree wholeheartedly that all of the medicines and
doctors you called upon to help your son did something good. You
probably are not bashful or regretful of what you paid. But how much
worse would you be in your heart if you couldn't afford it and you had
an insurance policy from your business group and you took them to a
doctor and they said schizophrenia isn't covered because it wasn't
covered when we knew nothing about it, so we are going to leave it
uncovered, even when we know something about it. It is still exempt.
This bill at the desk for parity is not a big cost. People say it is
going to break business, and insurance companies are going to have to
raise rates. We think we know what that is going to be. We are prepared
to answer it.
But let me tell you, I am as capitalist as anyone here. I am as
concerned about business and business men and women as anyone here. But
this society has a real problem when it exempts insurance companies
from having to pay the cost of mental illness while they pay the cost
of all other illnesses. That isn't right.
I saw my friend Senator Reid on the floor speaking about his family
and his father. I saw the great Senator, Senator Smith. I saw Senator
Nickles also. I don't have to tell you about my daughter. You all know
about my daughter. I have eight children and I have one who has been
sick since she was 13. So I know all about this. I am glad we can
afford to pay for what she needs. But I would feel bad if I had an
insurance policy and it covered everybody else in my family for
diabetes and a heart condition and didn't cover her.
I think we have to pass the bill. I am really tired. When it comes to
pushing, I am probably as easy a pushover as anyone around, so I just
let it go by. It will come up someday. But I am saying it is going to
get passed in this Senate before we get out of here.
I am going to tell our leader he has been patient with me. We weren't
going to do anything until it got out of committee. We told you that.
We worked
[[Page S7808]]
hard and long to get it out of committee. It took a long time.
Now it is sitting at that desk. We are taking up all kinds of things
while we are not able to send a signal to the 7\1/2\ million or 8
million parents who need this bill, who need some indication that we
care, that we are not going to have an insurance policy that covers our
heart and not an insurance policy that covers our brain.
That is what the issue is about. Can you imagine a country as great
as ours saying, Well, when we first started writing health insurance
policies we didn't know that schizophrenia was a disease. We did not
know manic depression was a disease. We did not know severe depression
was a disease.
We go through the years and we find out these illnesses are diseases,
but since they weren't originally known to be a disease, we are going
to let group insurance policies continue to exempt them.
Now we know. There is no one, I say to my friend Senator Dodd, who
has been a greater help on discussing the issue of whether these dread
mental illnesses I have just enumerated are illnesses or diseases. Yet
we let insurance companies continue to write policies as if we did not
know it was a disease.
From my standpoint, I will do anything in any area that will help us
help those with mental illness. If you have a bill that will help
prevent suicide, I am for it. But I can state that if we do not have a
bill that forces group insurance policies to cover mental illness as
other illnesses, the effect of the suicide bill is going to be
minimized to the extent that parents cannot afford what they need.
Mr. REID. Will the Senator yield?
Mr. DOMENICI. I would be pleased to yield.
Mr. REID. On our side, as the Senator knows, we have pushed very hard
for this bill authored by you and the late Senator Paul Wellstone. It
was an odd couple, Wellstone-Domenici, but it was one bound with
friendship. The two Senators found a place where they agreed and they
went to all ends to make sure that legislation passed.
As the Senator told me when I was talking a few minutes ago, we need
to do this for a lot of reasons, but one is to respect the memory of
Paul Wellstone.
On our side, we would be willing to take up that bill and spend 1
hour. We will do it at midnight, 6 o'clock in the morning. One hour is
all we want. We will only take 30 minutes of that hour. I want everyone
to understand, on our side, we want 30 minutes. If that is too much
time, we will cut it down.
Does the Senator understand we will do everything? Everyone knows we
have worked closely together for so many years on appropriations. What
the Senator has done on this mental health parity will go down in the
history books. We need to make sure it passes, and the history books
have something definitive, not a matter only initiated.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. DOMENICI. I yield to the Senator from Oregon.
Mr. SMITH. Mr. President, I ask unanimous consent that Senator
Domenici be added as an original cosponsor of the Garrett Lee Smith
Memorial Act, along with Senator Corzine and my colleague Senator
Wyden, from Oregon, and Senator Hatch, who have also requested they be
added as original cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH. Mr. President, I say to my friend, the Senator from New
Mexico, in the darkest of hours after my son's death, his call was one
of the most important that I received because he has struggled with his
daughter. He has now spoken here with a passion on mental health issues
so that I think all America better understands, if they listened to
him.
Pete Domenici of New Mexico was the first person who said to me that
my son had an illness that I could not fix. My son had an illness not
unlike leukemia or cancer or congestive heart failure; that it was, in
fact, a lethal illness and not to beat myself up about it. I beat
myself up, anyway--I still do--wondering, would have, could have,
should have, but Pete Domenici helped this Senator to go back to work,
to find joy again in living, and to share with him the passion that
comes from suffering and the understanding that comes from a loved one
who is beyond rational reach.
I have come to believe that it is true, what Pete Domenici taught me
in my darkest hour; that is, that mental health is just as real a
problem as physical health and that we need to learn more about it. We
need more professionals trained about it; we need more focus on it. It
has ramifications for business that result in lost worktime, no-shows,
layoffs, family tragedies.
With a little bit of intervention, a little more compassion, we can
get ahead of this and begin to treat it as we might other diseases.
I admit, we have a lot more to learn. My bill, our bill, does not
include parity. My bill is a start. My bill is a slice of the problem.
The Senator from New Mexico is right. His bill takes on the whole
problem in a way that ultimately we need to resolve as a Congress and
as a country.
I thank Senator Domenici for listening to me, for putting his clothes
back on, for coming back on down here, sharing with me, with all of
America who care about this issue, that this problem is bigger than my
bill addresses, our bill addresses, but it is legislating within the
realm of the possible.
It is a good beginning, an important beginning. Perhaps it is aimed
at just the most vulnerable among us, and that is our youth who need a
little more help than we have been giving as a country.
I thank the Senator. I turn back his time to him.
Mr. DODD. Will the Senator yield?
Mr. DOMENICI. Let me make an observation and I will yield.
When one is involved in an issue such as this for 15 years, as I
have, you go to a lot of meetings. You go to a lot of meetings with
mothers and fathers, with groups of those who are mentally ill. We hear
the saddest stories one could ever imagine.
I remember a gentleman and his wife came up to me and said: We have
two children.
I asked: Where are they?
She looked up at him as if, Should we tell him? He was a CPA, very
proud. She said: Tell him. He said: Senator, we don't know where our
two children are. Well, we think they are in the slums of some city or
in the jails of some city.
I said: What are you talking about?
He said: Well, they are both sick with schizophrenia and we don't
have any more money to pay for them. We are broke.
I said: Do you have insurance?
He said: Oh, we have a lot of insurance, but the insurance doesn't
cover our kids' illnesses. So we spent everything we had and then they
got arrested because they did not act right. They don't act right. They
do everything strange. They steal; if they see these little carts, they
steal hotdogs. Maybe somebody arrested them for that and put them in
jail.
When people start telling these stories, it is not an accident, they
did not tell of a one-time event. You know there has to be a lot more,
right? You run into one in your own constituency--if you start running
into one, two, or three problems that had to do with your mail, you
would come home and ask: What is wrong with the mail? You don't say:
What is wrong with the letter that came from Harry Reid that you didn't
answer, but you know something is wrong when you have two or three
people telling you, for a couple of days, about this thing that I just
described.
It is a big problem. I can tell you there is no reason it has to be.
Last, there are no shelters. There is nobody in the business of
providing facilities because there is no money to pay for anything,
right? If money flows from the back of a mentally ill person--there is
a little knapsack on him that says ``insurance''--if it flows from him,
it will flow to businessmen who might build these kinds of facilities.
But nobody is going to do that because there are no resources.
So with that, instead of yielding to my wonderful friend, Senator
Dodd, I am just going to yield the floor.
I yield the floor.
The PRESIDING OFFICER (Mr. Cornyn). The Senator from Connecticut.
Mr. DODD. Mr. President, I was going to ask my colleague to yield,
but he has spoken eloquently enough. I was
[[Page S7809]]
just going to once again thank him and Nancy, his lovely spouse, as
well, who have been real champions on this issue for as long as I have
been here, almost a quarter of a century.
I was thinking of the number of times, in my own public service of
now almost 30 years, that I have been with audiences--50 people, 100
people, 200 people--talking about this subject matter. I oftentimes
will turn to the audience and say to the audience: I want any of you
here who have not been affected by this issue to raise your hand. If
there is someone in the audience out here who has not had a father or a
mother or a sister or a best friend or a cousin who has been affected
by one form of mental illness or another, just raise your hand. I am
curious to know if there is anybody here who has not been touched by
this issue. I have never, in my 30 years of public service, in my home
State of Connecticut, when I have ever raised this issue, ever had
anybody raise their hand--in 30 years. Everyone--every single
American--has been touched by this issue.
You would think, in this kind of environment, when we all understand
this issue--and we have gone through one of the most moving moments of
my 24 years in the Senate today, listening to the eloquent comments of
my colleagues from Oregon and Nevada and Oklahoma speaking about their
own personal experiences--you might think at a moment like this we
would be able to come together to not only deal with the legislation
that we have authored together to deal specifically with teenage
suicide and related issues, but we might also find some time, right
now, in the midst of this, to bring up and vote on a bill that enjoys
overwhelming support in this body.
It would be one thing if the Senator from New Mexico and others who
have joined him in this matter were in a minority, but there is a
majority of us who believe exactly as does the Senator from New Mexico,
that it is the 21st century--we are not in the 17th, 18th, 19th, or
even 20th century--and we are still treating this issue as if somehow
it belongs in the recesses and shadows and darkness of some corner,
despite the fact that almost every single one of our fellow citizens
understands this issue because they have confronted it very directly in
their own homes and in their own neighborhoods. Yet we can't seem to
find, as the Senator from Nevada has suggested, the 15, 20, 30 minutes
or an hour to give us a chance to vote. Maybe people will want to vote
against it. If they do, that is their business. But I believe there is
a majority of us who would like to see this get done.
So I want to say to my friend from New Mexico, who I have worked with
on this issue--and I appreciate our colleague from Nevada raising the
name of Paul Wellstone, who was a great champion of this issue as well
during his service in the Senate--that I don't know when this is going
to happen--I hope sooner rather than later--but I want my friend from
New Mexico to know: Don't you ever doubt for a single second this is
not going to get done. It may not be today and it may not be tomorrow
or next week, but I promise you that before long--hopefully before
this session ends, if not sooner--we are going to get this legislation
passed, and we are going to give the President an opportunity to sign
it into law to begin to make a difference for the people in this
country. So then I can not only ask the question to those audiences in
my own State, ``Is there anyone who has not been affected by this?''
but I can ask, ``Is there anybody who cannot get help?'' because we
have insisted the insurance companies and others start treating this
condition as if it were any other ailment people can get coverage for
and their families get protection.
Once again, I thank my friend from Oregon, and I thank his lovely
wife Sharon and their family for their courage and their willingness to
share with the country their feelings.
There have been many moments of pride when you watch a piece of
legislation become law. There are very few that will equal the moment
we are going to have this evening. My hope is that we will adopt this
legislation named after Garrett.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, one of our very able Senate staff brought to
me something I need to share with everyone here today. This is a report
from the New York Times, dated today. Among other things, it says:
Congressional investigators--
This was a House committee, which I am sure does competent work--
said Wednesday that 15,000 children with psychiatric
disorders were improperly incarcerated last year because no
mental health services were available.
This was a report. This came out yesterday. The study:
. . . found that children as young as 7 were incarcerated
because of a lack of access to mental health care. More than
340 detention centers, two-thirds of those that responded to
the survey, said youths with mental disorders were being
locked up because there was no place else for them to go
while awaiting treatment. Seventy-one centers in 33 states
said they were holding mentally ill youngsters with no
charges.
The 15,000 youths awaiting mental health services accounted
for 8 percent of all youngsters in the responding detention
centers.
Dr. Ken Martinez of the New Mexico Department of Children,
Youth and Families said the data showed ``the criminalization
of mental illness'' as ``juvenile detention centers have
become de facto psychiatric hospitals for mentally ill
youth.''
Mental health advocates, prison officials, and juvenile
court judges all testified and recommended three types of
solutions. . . .
The main one is ``more extensive insurance coverage.''
Just a couple more things from this same report.
In Tennessee, a juvenile detention center administrator said:
Those with depression are locked up alone to contemplate
suicide. I guess you get the picture.
That is a direct quote.
Carol Carothers, who directs the Maine chapter of the National
Alliance for the Mentally Ill, says:
Surely we would not dream of placing a child with another
serious illness, like cancer for example, in a juvenile
detention center to await a hospital bed or community based
treatment. It is outrageous that we do this to children with
mental illness.
So I say to my distinguished friend from New Mexico, thank you for
coming down today and enlarging this debate. It needs to be enlarged.
We so believe that we need to pass Senator Smith's legislation that I
proudly cosponsor. But we also have to move to the next step because
the next step is just as important, if not more so, because it includes
so many more people.
The Senator from New Mexico is known for a lot of things, but his
resume will never have anything on it more important. I repeat, we need
to get it passed.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH. Mr. President, I received a note from Senator Hillary
Clinton asking that she be added as an original cosponsor to the
Garrett Lee Smith Memorial Act. So on her behalf, I ask unanimous
consent that she be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. Mr. President, this afternoon, I have listened to my
colleagues speak courageously about their family members they have lost
to suicide. My heart goes out to all of them, especially, my colleague
and dear friend, Senator Gordon Smith. By speaking openly about the
circumstances of his son, Garrett's death, he has raised awareness to
the serious matter of youth suicide. I am proud to be an original
cosponsor of the Garrett Lee Smith Memorial Act. I believe the Senate
will approve this legislation today due primarily to Senator Smith's
courage to speak openly about his own family's experience.
This legislation is necessary because it raises awareness of the
alarmingly high rate of youth suicide--it is much higher than most
would believe. Suicide is the third leading cause of death for young
people aged 15 to 24, and the fourth leading cause of death for
children between 10 and 14. My own State of Utah is ranked among the
top 10 states in the nation for suicide.
I cosponsored this bill because it provides grant funding to states
so each may develop a youth suicide and intervention strategy through
the administrator of the Substance Abuse and Mental Health Services
Administration in order to prevent teen suicide. This money may be used
to develop statewide early prevention and suicide intervention
strategies in schools, educational institutions, juvenile justice
[[Page S7810]]
systems, substance abuse programs, mental health programs, foster care
programs and other child and youth support organizations.
The bill also creates a federal Suicide Technical Assistance Center
to provide guidance to state and local grantees on establishing
standards for data collection and the evaluation of this data. Finally,
this legislation provides grant funding to colleges and universities to
establish or enhance their mental health outreach and treatment centers
and improve their youth suicide prevention and intervention programs.
I became deeply interested in this issue when I found out that my
home State of Utah suicide rates for those ages 15 to 19 have increased
almost 150 percent in the last 20 years. According to the CDC, in the
mid-1990s, Utah had the tenth highest suicide rate in the country and
was 30 percent above the U.S. rate. This is one statistical measure on
which I want to see my state at the bottom.
Teen suicide is an issue that is rapidly becoming a crisis not only
in my State of Utah but throughout the entire country. Young people in
the United States are taking their own lives at alarming rates. The
trend of teen suicide is seeing suicide at younger ages, with the
United States suicide rate for individuals under 15 years of age
increasing 121 percent from 1980 to 1992.
Suicide is the second leading cause of death among college students.
In a 1997 study, 21 percent of the nation's high school students
reported serious thoughts about attempting suicide, with 15.7 percent
making a specific plan. Although numerous symptoms, diagnoses, traits,
and characteristics have been investigated, no single fact or set of
factors has ever come close to predicting suicide with any accuracy.
We need to understand what the barriers are that prevent youth from
receiving treatment so that we can facilitate the development of model
treatment programs and public education and awareness efforts. This
bill provides the funding to get these types of initiatives started.
Again, I am proud to be an original cosponsor of this legislation and
I commend my colleague, Senator Gordon Smith for his commitment and
dedication on this matter. I know it is such a difficult subject for
him but his openness today will make a difference tomorrow.
In fact, I believe our floor discussion today on the Garrett Lee
Smith Memorial Act has already made a difference because families who
have lost someone to suicide now know that they are not alone. And, if
one life is saved because of our consideration of this bill today, we
have done our job.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, I might add, I think Senator Kennedy as well
wants to be added as a cosponsor. I ask unanimous consent that Senator
Kennedy be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered
Mr. DODD. Mr. President, I do not know if there is any further
discussion on this subject matter. If not, I want to move back to the
subject matter of the bill.
I see my colleague from New Mexico.
Mr. DOMENICI. Mr. President, I ask if I might speak for a minute.
Mr. DODD. Mr. President, I am glad to yield to my colleague.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I want to say that the parity bill,
which is now at the desk, had to go through a standing committee.
Senator Kennedy is the ranking member of that committee, I say to
Senator Dodd. I thank him because he was pushing very hard for a long
time that we get that bill taken care of. It took a long time, but it
is out now, and it is in a form that very few can object to.
So I say thank you to Senator Dodd and Senator Reid for giving me the
reassurance that we are going to get it done. I cannot believe we are
so inept that we cannot. I will, because of tonight, reinstate my
dedication, and we will get it done before the session is over for
sure.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LEVIN. Will the Senator from Connecticut yield?
Mr. DODD. I am happy to yield.
Mr. LEVIN. Mr. President, I ask unanimous consent that I be added as
an original cosponsor of the Garrett Lee Smith Memorial Act.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Mr. President, I want to let my colleagues know what I am
going to do at the end of these remarks. So that there will be no
surprises, I am going to ask unanimous consent that the anticipated
vote on cloture that is going to occur later today or tomorrow morning
be vitiated indefinitely. I am not making that motion yet, but I am
going to make the motion. I want to give them notice so they can find
someone here who may want to object. I am going to make the motion
because my view is that we have worked long and hard on getting this
class action reform bill done. This bill is not perfect, but it is a
reasonable bipartisan compromise that will reform the nation's class
action system.
Having worked on this legislation last fall with a number of my
colleagues, we now find ourselves in the middle of July dealing with
this issue. I still have never received an adequate explanation of why
this matter was not brought to the floor in January, February, March,
April, or any point earlier. Why we waited until as late as we have to
bring up an issue that has been as important as this makes little
sense.
But my plea to the leadership, particularly the majority leader, is
to not insist upon this cloture vote right now. Instead, I would like
to give the leadership some ample time over the weekend to see if they
can't fashion a compromise which would allow for the consideration of a
number of amendments, both relevant and nonrelevant, as is the normal
course of Senate business. Then we would come to a final vote and go to
conference on the class action reform act.
I thought the decision to invoke cloture was one that was made last
evening out of frustration because we were not getting very far with
the class action reform bill. We began Tuesday night, but there were no
votes that evening. On Wednesday morning, before any amendments were
offered at all, the majority leader filled the amendment tree,
precluding any amendments from being offered without getting his
approval. Then Wednesday night, the decision was made to file cloture.
I am looking at a piece of correspondence dated July 6, the day
before the decision to invoke cloture, from the National Association of
Manufacturers. In his letter to all 100 Senators--dated July 6, not
July 7--he notes a cloture vote will occur and that it is going to be
considered a vote that will be scored on their annual legislative
report card.
I ask unanimous consent to print the letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 6, 2004.
Dear Senator: On behalf of the 14,000 member companies of
the National Association of Manufacturers (NAM), including
more than 10,000 small and medium-sized manufacturers, I urge
you to vote for S. 2062, the Class Action Fairness Act; vote
in favor of cloture; and vote against all amendments except
managers' amendments.
Created for the purpose of efficiently addressing large
numbers of similar claims, far too many class action lawsuits
are brought solely for settlement value and fees as opposed
to helping aggrieved consumers. The Class Action Fairness Act
would help mitigate the current situation by giving federal
courts original jurisdiction over class action lawsuits where
diversity of citizenship occurs and by creating a ``Bill of
Rights'' for class members to stem the most flagrant abuses
of the current system. Federal courts more consistently
decide when class actions should be allowed, and these courts
are better equipped to deal with complex cases involving
interstate commerce fairly and efficiently. The current
system allows plaintiff-friendly jurisdictions to unduly
influence national policy through litigation.
S. 2062 does not make any changes to substantive law.
Rather, it is a reasonable response to an unanticipated
problem with the federal rules of judicial procedure and
simply reinforces the intent of the Founders that lawsuits
involving litigants from different states should be heard in
federal court. The NAM believes that this bipartisan
legislation will increase judicial efficiency and provide a
forum better suited to adjudicating complex class action
litigation.
Votes for cloture and in favor of S. 2062, the Class Action
Fairness Act, and against any weakening amendments (including
those
[[Page S7811]]
that would endanger final passage), substitutions or motions
to recommit will be considered for designation as Key
Manufacturing Votes in the NAM voting record for the 108th
Congress.
Sincerely,
Jerry Jasinowski,
President.
Mr. DODD. My point is, I would have thought this letter might have
been dated on July 7, not the day before the decision to invoke
cloture. It raises some suspicion that maybe the intention was all
along to file cloture and not to give us a chance to go through the
normal processes of debate and amendments.
Apparently the fix was in even before we started, which indicates to
this Senator that the intention was never to get to this bill. There
were numerous meetings over the last several. One of the things we
talked about was the importance of setting aside an adequate amount of
time for the full consideration of this bill.
The Democratic leader offered a proposal of limiting several
nongermane amendments and a limited number of relevant amendments. The
majority leader countered and offered to have even fewer nongermane
amendments and an unlimited amount of germane or relevant amendments. I
was mystified by that offer because had it been accepted, we could have
spent weeks on this bill without ever invoking cloture if we had had
hundreds of amendments filed that were germane to the underlying bill.
I am convinced there is still a formulation of germane/nongermane
amendments that would allow us to consider those in a relatively
expedited fashion and then get to final passage of the class action
reform bill. My plea will be at the appropriate time that we vitiate
the cloture vote, let the leaders over the weekend see if they can't
come up with some formulation on amendments, and then next week or so
to return to the legislation.
It is a great travesty that we are going to abandon this bill many of
us have worked long and hard on because a small minority are unhappy
over the possibility that we might consider as amendments several
proposals that enjoy broad support in this institution. I realize that
can be difficult. But nonetheless, it seems to me you don't shut down
the underlying bill entirely because there are some proposals that may
be offered that are unappealing to only a handful. Yet that is the
situation in which we find ourselves.
For those who have worked on this, we are about to miss this
opportunity, maybe not only for this Congress but for many years to
come. That can happen. I have been around here long enough to know if
you don't strike when the iron is hot, you may lose the opportunity for
a long time down the road.
I appeal to the majority leader, who filed the cloture petition last
evening, to vitiate that cloture motion. Give himself, the Democratic
leader, and others who are interested a chance over the next several
days to see if they can't come up with a formulation that will allow
for the consideration of several amendments under time agreements. That
ought to be the way we proceed, rather than abandoning this effort.
I am told the next two issues to be brought up--and the minority whip
can correct me if I am wrong--are a constitutional amendment on gay
marriage and a flag-burning constitutional amendment, neither of which
have any chance of passage in this body. I don't believe anyone agrees
there is any chance of them becoming the law of the land. Yet we are
going to shove class action reform, based on the decision of the
majority leader, off the table, maybe permanently, in order to consider
two matters that have no chance of being adopted whatsoever.
If that is in fact the situation, then those who have been such
strong supporters of this proposal outside of this Chamber ought to
understand what the game is. As I have often said, I was born at night,
but not last night. I think I understand what is going on here. Maybe
all this time was only a game to bring the issue up with the full
knowledge that once you close the opportunity for further amendments,
you are then guaranteeing the outcome we are about to have.
I am terribly disappointed, after a lot of time being spent on this
effort, that we have come to this particular moment. We just listened
to the eloquent comments of our colleague from Oregon on legislation
that will be adopted later this evening or next week dealing with
teenage suicide. We have listened to the Senator from New Mexico, Mr.
Domenici, who has worked for 15 years on trying to achieve parity in
the provisions providing coverage for people with mental illnesses.
There is a significant majority of us in this body who believe that
legislation ought to be adopted and then sent to the House for their
consideration. They may reject it. It may not be adopted in conference,
but we owe those who have fought long and hard a chance to vote on
these measures. Certainly the American public might be more impressed
with the Senate if we were to deal with the issue of mental health
rather than with the issue of gay marriage or flag burning.
Literally thousands of cases, I am told, by people out there are
being filed in State courts when they belong in Federal courts. I am a
strong supporter of that effort. Are people here to tell me the flag-
burning amendment and a gay marriage constitutional amendment are more
important than dealing with reforming the class action system or the
issue of mental health parity? I hate to see what the outcome would be
if I polled the American public what they felt about the priorities of
the Senate so close to the election.
What issues would America like to see us address? We have the issue
of the minimum wage. Senator Craig of Idaho has an issue dealing with
immigration and joblessness which enjoys the cosponsorship of three-
quarters of the Members of this body and the support of the White
House. We can't get it to the floor of the Senate. We have the
provisions offered by our colleagues from Hawaii who are seeking some
support for legislation that is critically important to their State. I
mentioned the minimum wage. I mentioned mental health parity. These are
only some of the issues.
On the question of importation of drugs, we are constantly being told
that matter is going to come to the Senate floor for debate. Yet we are
finding all of these issues being scuttled, including class action
reform, to the sidelines so we can deal with a couple of issues that
have limited support in this Chamber and I think marginal support if
people thought about them out across the country.
So I am disappointed by the priorities here. I realize the majority
has the right to set the agenda; it is their business to set the
agenda. The majority party controls this Chamber, they control the
other body, and they control the White House. They set the agenda. They
have decided that the agenda--America's agenda--ought not to be class
action reform, ought not to be mental health parity, ought not to be
the minimum wage, ought not to be immigration reforms, which the Latino
and Hispanic community and agribusinesses care about so much, and ought
not to be the legislation offered by my colleague from Hawaii. Instead,
it ought to be gay marriage and flag burning, neither of which have any
chance of being adopted by this body.
My colleagues know full well constitutional amendments require
supermajorities in order to leave here for consideration by the various
States.
I see the presence of a colleague on the other side. I wanted to make
sure someone was here before I make a unanimous consent request.
I ask unanimous consent that the motion to invoke cloture, scheduled
for tomorrow morning, be vitiated indefinitely, and that the reason for
doing it is to give the leadership an opportunity to try to formulate a
structure that will allow for the consideration of the class action
reform bill in some manner that we can all endorse, support, and allow
us to get to that issue. I make that request.
The PRESIDING OFFICER. Is there objection?
Mr. CHAMBLISS. Mr. President, I respectfully object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Michigan is recognized.
Senate Intelligence Committee Report
Mr. LEVIN. Mr. President, tomorrow's report of the Senate
Intelligence Committee will be intensely and extensively critical of
the CIA for its intelligence failures and mischaracteri-
[[Page S7812]]
zations regarding Iraq's possession of weapons of mass destruction.
That report is an accurate and a hard-hitting and well-deserved
critique of the CIA.
It is, of course, but half of the picture. Earlier today I released
an example of the other half.
A few days ago the CIA finally answered, in an unclassified form, the
question I have been asking them about whether the Intelligence
Community believes that a meeting between an Iraqi intelligence
official and Mohamed Atta, one of the 9/11 hijackers, occurred in
Prague in the months before al-Qaida's attack in America on 9/11. The
answer of the CIA illustrates the point that tomorrow's Intelligence
Committee report is extremely useful regarding the CIA's failure, but
it does not address another central issue--the administration's
exaggerations of the intelligence that the CIA provided to them. That
is left for the second phase of the Intelligence Committee's
investigation.
This newly released, unclassified statement by the CIA demonstrates
that it was the administration, not the CIA, that exaggerated the
connections between Saddam Hussein and al-Qaida. The new CIA answer
states that the CIA finds no credible information that the April 2001
meeting occurred and, in fact, that it is unlikely that it did occur.
A bit of history. On December 9, 2001, Tim Russert asked the Vice
President whether Iraq was involved in the September 11 attack. The
Vice President replied:
It's been pretty well confirmed that he [Mohamed Atta] did
go to Prague and he did meet with a senior official of the
Iraqi intelligence service in Czechoslovakia last April,
several months before the attack.
Vice President Cheney also said in his interview with CNBC on June 17
of this year that the report from the Czechs was evidence that Iraq was
involved in the 9/11 attacks. In his interview with the Rocky Mountain
News on January 9 of this year, the Vice President also said that the
alleged meeting between the hijacker, Atta, and an Iraqi intelligence
official in Prague a few months before 9/11 ``possibly tied the two
together to 9/11.''
President Bush frequently exaggerated the overall relationship
between al-Qaida and Saddam Hussein. For instance, on the deck of the
aircraft carrier, President Bush stated:
The liberation of Iraq is a crucial advance in the campaign
against terror. We have removed an ally of al-Qaida.
Now, relative to the alleged Prague meeting itself, Vice President
Cheney continues the misleading rhetoric by stating that we cannot
prove one way or another that the so-called Prague meeting occurred.
Vice President Cheney said on June 17 on CNBC:
We have never been able to prove that there was a
connection there on 9/11. The one thing we had is the Iraq--
the Czech intelligence service report saying that Mohamed
Atta had met with a senior Iraqi intelligence official at the
embassy on April 9, 2001. That's never been proven; it's
never been refuted.
But what the Vice President continues to leave out is the critical
second half of the CIA's now unclassified assessment that ``although we
cannot rule it out, we are increasingly skeptical that such a meeting
occurred.''
The Vice President also omits the key CIA statement:
In the absence of any credible information that the April
2001 meeting occurred, we assess that Atta would have been
unlikely to undertake the substantial risk of contacting any
Iraqi official as late April 2001, with the plot already well
along toward execution.
In summary, the CIA says there is no credible evidence that the
meeting occurred, and it is unlikely that it did occur. The American
public was led to believe before the Iraq war that Iraq had a role in
the 9/11 attack on America, and that the actions of al-Qaida and Iraq
were ``part of the same threat,'' as Deputy Secretary of Defense Paul
Wolfowitz has put it.
Well, it was not the CIA that led the public to believe that; it was
the leadership of this administration.
Mr. President, I ask unanimous consent that four documents, which I
referred to in the body of my remarks, be printed in the Record at this
point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Response of Director of Central Intelligence George Tenet to Senator
Levin Question for the Record, March 9, 2004, Armed Services Committee
Hearing
Question 8. Director Tenet, do you believe it is likely
that September 11 hijacker Muhammad Atta and Iraqi
Intelligence Service officer Ahmed al-Ani met in Prague in
April 2001, or do you believe it unlikely that the meeting
took place?
Answer. Although we cannot rule it out, we are increasingly
skeptical that such a meeting occurred. The veracity of the
single-threaded reporting on which the original account of
the meeting was based has been questioned, and the Iraqi
official with whom Atta was alleged to have met has denied
ever having met Atta.
We have been able to corroborate only two visits by Atta to
the Czech Republic: one in late 1994, when he passed through
enroute to Syria; the other in June 2000, when, according to
detainee reporting, he departed for the United States from
Prague because he thought a non-EU member country would be
less likely to keep meticulous travel data.
In the absence of any credible information that the April
2001 meeting occurred, we assess that Atta would have been
unlikely to undertake the substantial risk of contacting any
Iraqi official as late as April 2001, with the plot already
well along toward execution.
It is likewise hard to conceive of any single ingredient
crucial to the plot's success that could only be obtained
from Iraq.
In our judgment, the 11 September plot was complex in its
orchestration but simple in its basic conception. We believe
that the factors vital to success of the plot were all easily
within al-Qa'ida's means without resort to Iraqi expertise:
shrewd selection of operatives, training in hijacking
aircraft, a mastermind and pilots well-versed in the
procedures and behavior needed to blend in with US society,
long experience in moving money to support operations, and
the openness and tolerance of US society as well as the ready
availability of important information about targets, flight
schools, and airport and airline security practices.
____
New CIA Response Raises Question Again: Where Does Vice President
Cheney Get His Information?
On July 7th, I finally received an unclassified answer to a
Question for the Record that I had posed to Director of
Central Intelligence George Tenet after he appeared before
the Armed Services Committee on March 9, 2004. I am releasing
this response today, because it is further evidence that Vice
President Cheney has and continues to misstate and exaggerate
intelligence information to the American public. This
pattern, the record of which has continued to grow over time
suggests that Vice President Cheney is getting his
intelligence from outside of the U.S. Intelligence Community.
In February I asked him to clarify the basis for some of his
statements, but he has not yet responded to my request
(letter attached). I am therefore left to continue wondering
what his sources are.
alleged atta meeting in prague
Vice President Chency persists in his representation that a
leader of the 9/11 hijackers, Mohammed Atta, may have met
with an Iraqi intelligence official in Prague in April, 2001.
When asked on Meet the Press on December 9, 2001 about
possible links between Iraq and the 9/11 attacks, he claimed
that the April Atta meeting was ``pretty well confirmed.''
His subsequent statements on the Prague meeting have been
more qualified, but he continues to present the alleged
meeting as if it were something about which there wasn't
enough information to make an informed judgment, i.e., it may
have happened, or we don't know that it didn't happen. Most
recently, on June 17, he wrapped the suggestion in the
following verbal package: ``We have never been able to
confirm that, nor have we bee able to knock it down, we just
don't know . . . I can't refute the Czech claim, I can't
prove the Czech claim, I just don't know. . . . That's never
been proven; it's never been refuted.''
This characterization does not fairly represent the views
of the Intelligence Community. I have long been award of this
difference, and have pressed the Central Intelligence Agency
(CIA) to declassify their views on whether they believe this
meeting took place. Finally, a few days ago, they provided a
public, unclassified response to that question.
The CIA stats publicly, for the first time, that they lack
``any credible information'' that the alleged meetin took
place. They note that the report was based on a single source
whose ``veracity . . . has been questioned,'' and that the
Iraq intelligence official who was purportedly involved and
who is now in our custody denies the meeting took place.
Further, they assess that Atta is ``unlikely'' to have ever
sought such a meeting because of the substantial risk that it
would have involved. The full CIA response is attached.
As we learned Tuesday, the 9/11 Commission reviewed all of
the intelligence, including investigations by both U.S. and
Czech officials, and indeed all of the intelligence that the
Vice President received, and stands by its conclusion that
the meeting did not occur.
The CIA and 9/11 Commission staff statements are not
equivocal; while it is impossible to disprove a negative,
after a systematic and thorough review of the evidence it is
their judgment that the meeting was unlikely or did not take
place. However, the
[[Page S7813]]
Vice President continues to simply claim that the evidence is
some how ambiguous or unclear, and leaves out the conclusion
of the CIA. On June 17, Vice President Cheney said that ``we
just don't know'' whether the meeting took place. He went
further to suggest that the report has ``never been
refuted,'' but acknowledged that the only piece of evidence
he'd ever seen to support an Iraq connection to September 11
was ``this one report from the Czechs.'' This is the one
report from the single source that the CIA now publicly
acknowledges has been called into question.
Earlier this year in a January 9, 2004 interview with the
Rocky Mountain News, Vice President Cheney said that, after
the initial Czech report of a meeting, ``we've never been
able to collect any more information on that.'' But again,
this is simply not true: the 9/11 Commission lays out
information that was gathered by the FBI that places Atta in
the United States during the week of the alleged meeting in
Prague, and the CIA clearly had information about the
unreliability of the source as well as the refutation by the
other purported party in the meeting.
In his numerous public statements Vice President Cheney has
not been reflecting the view of the Intelligence Community on
the issue of the Atta meeting. On what information has the
Vice President been relying?
Outside of the Intelligence Community, the only other U.S.
government source of information I know on the Iraq-al Qaeda
connection, including the alleged Atta meeting in Prague, is
the Office of Under Secretary of Defense for Policy Douglas
Feith. Under Secretary Feith has acknowledge that his office
provided information to Vice President Cheney's office on
these matters.
In the summer of 2002, Under Secretary Feith prepared
several versions of a classified briefing on the Iraq-al
Qaeda relationship. The briefing was given first to Secretary
of Defense Rumsfeld, then to Director Tenet and the CIA in
August, and finally to the staffs of the Office of the Vice
President (OVP) and the National Security Council (NSC) in
September. The version of the briefing given to Vice
President Cheney's staff included three slides that were not
included in the version given to the CIA.
One of those slides, which has since been declassified at
my request and is attached, was critical of the way the
Intelligence Community was assessing the Iraq-al Qaeda
relationship. Under Secretary Feith has acknowledged to Armed
Services Committee staff that he added two other slides which
concerned the Atta meeting issue, and which were not part of
the briefing given to the CIA.
The two slides remain classified despite my request for
declassification.
The Atta meeting is, unfortunately, not the only instance
in which the Vice President appears to have relied on
analysis other than that of the Intelligence Community. As
the Intelligence Committee report to be released tomorrow
will indicate, the CIA intelligence was way off, full of
exaggerations and errors, mainly on weapons of mass
destruction. But it was Vice President Cheney, along with
other policymakers, who exaggerated the Iraq-al Qaeda
relationship.
weekly standard article on iraq-al qaeda cooperation
On January 9, 2004, Vice President Cheney told the Rocky
Mountain News that, on the question of the relationship
between Iraq and al qaeda, ``one place you ought to go look
is an article that Stephen Hayes did in the Weekly Standard
here a few weeks ago, that goes through and lays out in some
detail, based on an assessment that was done by the
Department of Defense and forwarded to the Senate
Intelligence Committee some weeks ago. That's your best
source of information.''
The article to which Vice President Cheney astonishingly
enough referred as the ``best source of information'' says it
was based on a leaked Defense Department Top Secret/Codeword
document. Aside from the sense of wonder that is engendered
when the Vice President seems to confirm highly classified
leaked information by calling it the ``best source'' of
information, the Intelligence Community did not even agree
with the Defense Department document on which the Weekly
Standard article was purportedly based. On March 9th, when I
asked Director Tenet, the Director of Central Intelligence,
about Vice President Cheney's comments, allegedly based on
the classified Defense Department document, he said that the
CIA ``did not agree with the way the data was characterized
in that document.'' He also said that he would speak to Vice
President Cheney, to tell him that the Intelligence Community
had disagreements with the Defense Department document.
The document in question was prepared by Under Secretary
Feith. It was very similar to the series of briefings that
Under Secretary Feith had provided to Secretary of Defense
Rumsfeld, then to Director Tenet and the CIA, and finally to
the staffs of the Office of the Vice President and the
National Security Council in the summer of 2002.
other examples of exaggeration by vice president cheney
Unfortunately, these are not the only cases where the Vice
President, as just one key Administration spokesman, has
exaggerated or misstated the intelligence on issues related
to Iraq. In fact, they are just two examples of a consistent
pattern of such exaggeration where the policymakers--not the
CIA--were the exaggerators, before and after the start of the
war, and continuing up to the present. There are others.
iraq's mobile biological weapons vans
As late as January 22, 2004, Vice President Cheney said to
National Public Radio that ``we know for example that prior
to our going in that he had spent time and effort acquiring
mobile biological weapons labs, and we're quite confident he
did, in fact, have such a program. We've found a couple of
semi trailers at this point which we believe were, in
fact, part of that program.'' He concluded by saying ``I
would deem that conclusive evidence, if you will, that he
did in fact have programs for weapons of mass
destruction.''
That is not what the Intelligence Community believed at the
time. David Kay, the CIA's chief inspector in Iraq said the
previous October that the Iraq Survey Group had ``not yet
been able to corroborate the existence of a mobile BW
[biological warfare] production effort,'' and that it was
still trying to determine ``whether there was a mobile
program and whether the trailers that have been discovered so
far were part of such a program.''
When I asked Director Tenet about Vice President Cheney's
comments, he said he had spoken to him about it, to tell him
that was not the view of the Intelligence Community.
aluminum tubes for nuclear weapons
On September 8, 2002, Vice President Cheney made an
unqualified statement about the aluminum tubes on Meet the
Press:
``He [Saddam] is trying, through his illicit procurement
network, to acquire the equipment he needs to be able to
enrich uranium to make the bombs.''
Tim Russert: ``Aluminum tubes.''
VP Cheney: ``Specifically aluminum tubes. . . . it is now
public that, in fact, he has been seeking to acquire, and we
have been able to intercept and prevent him from acquiring
through this particular channel, the kinds of tubes that are
necessary to build a centrifuge. . . . But we do know, with
absolute certainty, that he is using his procurement system
to acquire the equipment he needs in order to enrich uranium
to build a nuclear weapon.''
There was a fundamental debate within the Intelligence
Community before the war as to the intended purpose of the
aluminum tubes that Iraq was trying to import. The Department
of Energy, the Nation's foremost nuclear weapons experts, and
the State Department's Bureau of Intelligence and Research,
did not believe the aluminum tubes were for centrifuges to
make nuclear weapons. Instead, they believed they were for
conventional artillery rockets. But Vice President Cheney did
not acknowledge any division within the Intelligence
Community. He stated that the U.S. knew ``with absolute
certainty'' that Iraq was trying to obtain the tubes for
nuclear weapons purposes.
Tomorrow the CIA will be properly called to account for
their failures expressed in Phase I of the Intelligence
Committee report. Phase II will follow, regarding the
policymakers' use of intelligence.
The CIA's belated public acknowledgment to my earlier
question that the Intelligence Community has no credible
evidence of an Iraqi-al Qaeda meeting in April 2001
dramatizes the need for that Phase II review.
____
Fundamental Problems With How Intelligence Community Is Assessing
Information
Application of a standard that it would not normally
obtain: IC does not normally require juridical evidence to
support a finding.
Consistent underestimation of importance that would be
attached by Iraq and al Qaeda to hiding a relationship:
Especially when operational security is very good, ``absence
of evidence is not evidence of absence''.
Assumption that secularists and Islamists will not
cooperate, even when they have common interests.
____
U.S. Senate,
Committee on Armed Services,
Washington, DC, February 12, 2004.
The Vice President,
The White House,
Washington, DC
Dear Mr. Vice President: I am writing about two
intelligence matters related to Iraq: the first concerning
weapons of mass destruction, and the second concerning
alleged cooperation between Iraq and al Qaeda.
On January 22, 2004, you made the following comment during
an interview with National Public Radio concerning two
trailers in Iraq: ``we know for example that prior to our
going in that he had spent time and effort acquiring mobile
biological weapons labs, and we're quite confident he did, in
fact, have such a program. We've found a couple of semi
trailers at this point which we believe were, in fact, part
of that program. . . . I would deem that conclusive evidence,
if you will, that he did in fact have programs for weapons of
mass destruction.''
In his speech on February 5, 2004, Director of Central
intelligence George Tenet said that ``there is no consensus
within our community over whether the trailers were for that
use [biological weapons] or if they were used for the
production of hydrogen.''
David Kay, former leader of the Iraq Survey Group,
testified to Congress on October 2, 2003 that ``we have not
yet been able to corroborate the existence of a mobile BW
[biological warfare] production effort.'' He indicated that
the ISG was still trying to determine ``whether there was a
mobile program
[[Page S7814]]
and whether the trailers that have been discovered so far
were part of such a program.''
In July, David Kay was interviewed by BBC television for a
program that aired in England in late November, and here in
the United States on January 22, 2004. In response to a
question as to whether he thought it had been premature for
the Administration to assert in May that the two trailers
were intended to produce biological weapons agents, Kay said
``I think it was premature and embarrassing.'' He said ``I
wish that news hadn't come out,'' and concluded ``I don't
want the mobile biological production facilities fiasco of
May to be the model of the future.''
On January 28, 2004, Dr. Kay stated in testimony before the
Senate Armed Services Committee that ``I think the consensus
opinion is that when you look at those two trailers . . .
their actual intended use was not for the production of
biological weapons.''
Given those assessments, I would appreciate knowing what is
the intelligence basis for your statements that ``we're quite
confident [Saddam] did, in fact, have such a [mobile
biological weapons labs] program,'' that the trailers ``we
believe were, in fact, part of that program,'' and that those
trailers are ``conclusive evidence'' that Iraq ``did, in
fact, have programs for weapons of mass destruction?''
I would be pleased to receive that information on an
unclassified or classified basis.
With respect to the second intelligence issue, during your
interview with the Rocky Mountain News on January 9, 2004,
you recommended a source of information relative to the issue
of whether there was a relationship between al Qaeda and
Iraq: ``One place you ought to look is an article that
Stephen Hayes did in the Weekly Standard here a few weeks
ago, that goes through and lays out in some detail, based on
an assessment that was done by the Department of Defense and
was forwarded to the Senate Intelligence Committee some weeks
ago. That's your best source of information''
That article states that it is based on ``a top secret U.S.
government memorandum'' prepared by the Defense Department,
which was purportedly leaked to the Weekly Standard. The
article then goes on to describe in detail and quote
extensively from the document it says was leaked.
On October 15, 2003, the Defense Department had issued a
News Release about the article that seems to disagree with
what you said. According to the Defense Department, ``News
reports that the Defense Department recently confirmed new
information with respect to contacts between al Qaeda and
Iraq in a letter to the Senate Intelligence Committee are
inaccurate.''
Furthermore, the DOD news release noted that the
``classified annex'' sent by the Defense Department to the
Senate Intelligence Committee ``was not an analysis of the
substantive issue of the relationship between Iraq and al
Qaeda, and it drew no conclusions.''
I would appreciate if you would advise whether you were
quoted accurately.
I look forward to your reply.
Sincerely,
Carl Levin,
Ranking Member.
Mr. LEVIN. Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Coleman). Without objection, it is so
ordered.
Mr. CHAMBLISS. Mr. President, I rise today in support of S. 2062. I
am sorry the Senator from Connecticut is not in the Chamber.
Mr. REID. Will the Senator yield?
Mr. CHAMBLISS. Certainly.
Mr. REID. We have had a signoff--people heard me a little earlier
today say we had an objection to having a vote on the cloture motion
that the majority leader has filed. We can now do that. I understand
the majority wants that to take place. I ask unanimous consent that the
cloture vote on the matter now scheduled for tomorrow occur tonight at
6:30.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, as I was saying, I am sorry the Senator
from Connecticut is not in the Chamber because I have such great
respect for his opinion, particularly his opinion regarding this bill.
I know what a keen interest he has in this bill, and when he talks
about the fact that we ought to delay this for 1 more week because the
majority has set the agenda and the agenda next week calls for matters
that might not be relevant to this particular issue, I simply remind
the Senator from Connecticut, who is my dear friend, that this bill has
not just come to the floor.
As a member of the Judiciary Committee, I was there in April of 2003
when this particular bill was voted out of the Judiciary Committee. We
were all here in November of 2003 when we had a cloture vote on this
bill. So this is not something new that has just come about. This bill
has been under negotiation actually since the 105th Congress.
In 1996, the negotiations began on a class action bill. I think to
now ask for another delay for another week on the cloture vote is just
simply not called for, and that is the reason we need to go ahead with
the vote tonight. My colleagues are either for class action reform,
they are either for a bill that is a bipartisan bill, or they are
against it. It is that simple at this point in the negotiations.
There was a proposal made by this side of the aisle to the other side
of the aisle that when this bill came to the floor that we allow only
germane amendments, amendments that are relevant to the issue of class
action, to be brought to the floor as legitimate amendments that would
be debated and voted on. The other side of the aisle would not agree to
that. So therefore we have evolved into a different format on the floor
today.
I do rise in strong support of S. 2062, the Class Action Fairness Act
of 2004. It is a product of negotiations between Senators on both sides
of the aisle in an effort to gain the 60 votes needed to invoke cloture
and proceed to an up-or-down vote on the merits of the bill. To a great
extent, the bulk of the tort reform needed in this country will be
handled on the State court level, where most civil complaints are
filed.
That is a very significant point. As a trial lawyer, I remember that
I usually wanted to file my cases in State court, and they ought to
still have that right to do so. But there are times when it was
dictated to you as a lawyer that you had to go to Federal court. It is
because we have had a handful of State court jurisdictions in the
United States where a grossly disproportionate number of class action
suits are filed, and that is just not right. That is why these
negotiations were instituted in 1996. That is why over the last 8 years
we have been going back and forth with Members on both sides of the
aisle being involved and have come up with a fair bill that does allow
for certain exceptions that I am going to talk about in just a minute.
People have referred to these jurisdictions where a majority of the
class actions have been filed as magnet courts because they draw in
class action suits with their soft juries and their pro-plaintiff
judges. That is just a matter of fact. Under the Class Action Fairness
Act, businesses can break loose from these magnet State courts and get
a fair trial in a Federal jurisdiction.
S. 2062 differs from the previous versions of the class action bill
in several ways, and those changes have been negotiated on both sides
of the aisle over the period not from just last April or November, but
from 1996, over the last 8 years. I am going to focus my remarks on one
change I think makes a lot of sense, and that is the addition of a
local class action exception.
Under the provisions of S. 2062, class action cases will remain in
State court if the following conditions are met: First, more than two-
thirds of class members have to be citizens of the forum State. Second,
there has to be at least one in-State defendant from whom significant
relief is sought by members of the class and whose conduct forms a
significant basis of the plaintiffs' claims. Third, the principal
injuries resulting from the alleged conduct or related conduct of each
defendant have to have been incurred in the State where the action was
originally filed. Finally, there cannot be any other class action cases
asserting the same or similar factual allegations against any of the
defendants on behalf of the same or other persons filed in the
preceding 3 years.
Those are pretty fair and reasonable exceptions. You are still going
to have probably most of the class action suits filed in State court
with this exception being in place.
Under the local class action exception, a limited group of local
class action cases would be allowed to stay in State court where the
facts of the case warrant this treatment. Some examples would be a
plant explosion or an
[[Page S7815]]
oil spill, where one or more of the defendants are in the same State as
the catastrophe and a supermajority of the plaintiffs are there as
well. These are truly local actions and ought to be treated as such
because they do not lend themselves to the egregious forum shopping
that lands cases which should be filed in Federal court in one of these
so-called magnet courts around the country.
Despite all of the progress we have made in our negotiations on S.
2062, it seems we have some Senators who plan to offer amendments that
would weaken this bipartisan legislation or weight it down with
nongermane issues that will lead to the bill's defeat. The passage of
nongermane amendments to this class action reform bill will probably
doom its passage. For this reason, I will vote against all nongermane
amendments, and I plan to vote against any germane amendments that
would weaken S. 2062 in its present form.
In summary, we now have a class action bill which is supported by
both sides of the aisle. Despite the misinformation that has been
spread around, this bill will actually promote the proper assignment of
class action cases between State court and Federal court dockets. I
urge my colleagues to vote against any amendments that would weaken or
kill S. 2062 and then to vote in favor of this bill as a first step in
restoring fairness and balance to our Nation's tort system.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRAHAM of South Carolina. Mr. President, I ask unanimous consent
that the order for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM of South Carolina. Mr. President, I, like others of my
colleagues, would like to see closure on this issue. Before I got into
politics, I was a lawyer. I admire our legal system. In many ways,
people have their chance to be judged by their neighbors. I am very
respectful of the jury trial. However, in the class action arena of the
law, I find more abuses than solutions. I don't believe the
Constitution ever envisioned the class action litigation model that we
have come up with where you can create your own false diversity and you
can run everybody to Illinois or Mississippi because business is
involved.
I believe the removal process in this bill where the judge has
discretion to remove cases from State court to Federal court will
correct some abuses. I believe the coupon cases were never what the law
was meant to be about.
The legal reforms in this bill I support. I have an amendment. I hope
we can get to it. It would allow a procedure to be had in terms of
pursuing settlement. Consumers need to be told about the Pinto case and
need to be informed when products are dangerous, but companies need not
be required to give proprietary information without having their say.
I have an amendment that would allow the judge in a particular case
to rule on whether documents would be subject to seal. I think the
South Carolina rule is a very reasonable rule. But whether we get to
this, I believe this bill's time has come, and it is now time for the
Senate to act. The abuses that are going on in class action are not
about treating people fairly, they are about simple greed. These abuses
need to be stopped for the betterment of us all. Claimants and
businesses find themselves subject to this.
I urge my colleagues to vote in favor of cloture on S. 2062, the
Class Action Fairness Act of 2004. As a member of the Judiciary
Committee, I supported the bill during committee consideration and I
will be voting in favor of cloture and final passage as well.
The need for this bill is pointed out daily by stories of abuse. We
hear of attempts to sue McDonald's because people who eat there are
getting fat. We hear of lawyers negotiating coupon settlements for
their clients, while they receive millions of dollars in fees. We hear
of class members actually losing money on settlements.
I am a lawyer and I am not happy with that state of affairs. I don't
think anyone is more in favor of a strong legal system than I am. And I
define a strong legal system as one where all parties are treated
fairly, wrongs are redressed, and justice is afforded equally and
without bias.
The Class Action Fairness Bill of 2004 does not weaken our legal
system. It rectifies the current imbalance in some areas where some
parties are not treated fairly; new wrongs are committed, not
redressed; and justice is overlooked, if not outright disregarded.
I say to my friends who oppose this bill that, just as it is
important to make sure that victims have an opportunity to be heard in
our courts, it is just as important to insure that the defendant is
treated fairly. And I don't believe anyone can credibly claim that that
is the case today in many areas of our country. Justice requires that
we act to remedy that.
Although I may not believe this bill is perfect, and actually have an
amendment or two of my own, I do not believe we should delay this bill
one moment longer. My amendment is slightly technical, but very simple.
It would merely provide for uniform judicial scrutiny of sealed
documents. I have based my amendment on the South Carolina district
rule for how to obtain a protective order for trade secrets or other
proprietary information. I haven't heard from one person in South
Carolina who doesn't like the way it works.
It puts all parties on equal footing and preserves judicial
discretion. However, though I firmly believe my amendment would improve
the bill, I will be voting for cloture because this bill is more
important.
I firmly believe that the Class Action Fairness Act of 2004 is
exactly that, fair to all parties.
It is narrowly aimed at some of the most egregious abuses of the
class action system. In fact, I have heard from some folds that the
bill does not go far enough. However, in my opinion, it is a reasonable
first step in the effort to control what are clearly abuses of the
system.
It is reasonable because I don't think anyone in the chamber can
complain about judges taking a look at settlements to make sure the
class members are not being victimized further. I don't think anyone
can complain about giving federal judges the power to block worthless
settlements based on coupons or other gimmicks.
We have even had some firms sanctioned for filing cases just to
settle with no damages for the class, but significant attorneys' fees
for them. We have had other lawsuits end with the lead plaintiffs and
their lawyers receiving large sums and other class members receiving
nothing, but losing their right to legal action in the future.
When the very people class actions are supposed to help are being
hurt, it is time to do something different.
This bill is a reasonable step in the right direction. While some of
my friends on the other side of the aisle may not like some provisions,
they have to admit that there is a problem that needs to be addressed.
In closing, I would just like to urge my colleagues to help us move
this bill to conclusion. File your amendments, I have one myself, but
don't let your personal desire to offer your amendment get in the way
of this much needed legislation.
Mr. McCONNELL. Mr. President, I rise to speak about a case that I
think perfectly illustrates some of the problems produced by our
current class action system. This case is, unfortunately, not unique.
These outrageous decisions happen all too frequently. The bill
currently under consideration will help fix some of these problems.
Reproduced on this poster beside me is an actual settlement check
from a recently settled class action lawsuit. This check is made
payable to a member of my staff who received it in the mail earlier
this year. You will notice that on the check's ``pay to the order of''
line, I have covered the name of my staffer so that she may remain
anonymous.
I have also obscured the name of the defendant in this case.
Plaintiff's lawyers have soaked them once already. I would hate to see
others sue this company just because they heard the company settled one
class action suit.
Along with this settlement check, my staffer received a letter, which
says in part:
You have been identified as a member of the class of . . .
customers who are eligible
[[Page S7816]]
for a refund under the terms of a settlement agreement
reached in a class action lawsuit . . . The enclosed check
includes any refunds for which you were eligible.
Now as you know, Senate staffers are certainly not the highest paid
people in this town. So this woman on my staff reports she was excited
about receiving some unexpected money.
And then she looked at the enclosed check to see just how big her
windfall was. It was a whopping 32 cents. That is right, she received a
check made out to her in the amount of 32 cents.
I guess it goes without saying that she was a bit disappointed in her
newfound riches.
Now, don't misunderstand me. I am not suggesting my staffer deserved
a bigger settlement check. In fact, she tells me she had no complaint
whatsoever against the defendant. And she never even asked to be part
of this lawsuit.
Apparently, she just happened to be a customer of a defendant who was
sued, and it was determined that she theoretically could bring a claim
against the defendant, and so she became a member of ``a class'' that
was due a settlement.
If this doesn't precisely illustrate the absurdity of the current
class action epidemic in this country, I don't know what does.
To demonstrate just how far out of whack the system is, let's start
with the letter notifying my staffer that she was a member of a class
action lawsuit, and had been awarded a settlement. This letter and
check arrived via the U.S. mail. The last I knew, it cost 37 cents to
mail an envelope. The settlement check is for 32 cents.
You can probably see where I'm going with this.
It cost the defendant in this class action suit, 37 cents to send a
settlement check worth 32 cents. That sure makes you pause and think
about the absurdity of our class action system.
Now, I don't claim to have the economic expertise of some--like my
good friend, the distinguished former Senator Gramm of Texas--but I can
tell you that forcing a defendant to spend 37 cents to send someone a
32-cent check doesn't make much economic sense. And it certainly defies
common sense.
But let me point out the most disturbing element about this lawsuit.
My staff researched this case and it may interest my colleagues to know
that while the unwitting plaintiff received just 32 cents in
compensation from this class action lawsuit, her attorneys pocketed in
excess of $7 million.
All in all, not a bad settlement--if you happen to be a plaintiff's
lawyer rather than a plaintiff.
And in case you think this plaintiff received an unusually low
settlement in this litigation, let me quote from the letter
accompanying the settlement check:
At the time of the settlement, we estimated that the
average [refund] would be less than $1 for each eligible
[plaintiff]. That estimate proved correct.
So, you see, even before the settlement, it was clear that each
plaintiff would on average receive less than $1. Yet the attorneys
still got more than $7 million.
My colleagues may also be interested to know how much the defendant
was forced to spend defending this lawsuit.
Knowing the extent of the defendant's defense costs is instructive in
demonstrating how unjust these abusive suits can be. So we asked the
defendant how much it spent defending this suit that provided a
plaintiff with pennies and her lawyers with millions. But perhaps not
surprisingly, the defendant was not willing to discuss that matter.
You see, the defendant told us that if it were readily known just how
much they spent defending these types of suits, then that information
would almost certainly be used against them in the future.
This defendant feared that if their defense costs were known, then
another opportunistic plaintiff's lawyer would file another one of
these suits. And then that lawyer would offer to settle for just
slightly less than the millions he knew it would cost the defendant to
defend the action.
That perfectly illustrates how plaintiff's lawyers exploit and abuse
defendants under the current system.
Can there be any doubt that the current class action system is in
need of repair? When the lawyers get more than $7 million and a
plaintiff gets a check for 32 cents, something is terribly wrong. When
defendants fear disclosing how much they spend fighting these
ridiculous suits because to do so would invite more litigation,
something is terribly wrong.
Justice is supposed to be distributed fairly. This is clearly not a
fair way to distribute justice.
Let's try to correct some of the abuses in class action litigation by
passing this legislation.
We are not going to end every 32-cent award to plaintiffs and
multimillion dollar award to attorneys, but surely we can curb some of
this nonsense.
Mr. LEAHY. Mr. President, I rise to express my continued
disappointment in the Republican leadership's ability to manage the
Senate floor effectively. As my colleagues are aware, we have only a
few weeks left in this legislative session. Instead of negotiating
short-time agreements on a finite number of important amendments, the
Republican leader has decided that he would rather slam the door shut
for all nongermane amendments.
The Republican leader's actions have frustrated Members on both sides
of the aisle who sincerely want to have a productive legislative
session. The citizens of this country did not elect us to engage in a
staring contest. We should be using our remaining floor time to
accomplish consensus legislation.
I note that yesterday the Senior Senator from Idaho observed the
following:
We have watched an unusual process this morning. There are
a good many of us in a bipartisan spirit who are reacting to
and I am one of those who does not appreciate what the
majority leader has now just done.
Senator Daschle, who has frequently called for civility and
bipartisan action on the floor, similarly expressed frustration. I
could not agree with them more.
Senators have a right to have their legislation be considered by
their colleagues. And despite the majority leader's actions, even
Senators in the minority should be allowed to offer amendments to the
class action legislation before us.
Senate Craig acknowledged as much when he ``recognized that Senators,
unless effectively blocked by [the] procedural action that has just
occurred, do have the right to offer amendments. Germane or relevant
and non-relevant.''
Yesterday, the senior Senator from Idaho hoped to offer an amendment
with wide bipartisan support that would help protect the security of
our country. He should be allowed to offer this legislation. Similarly,
other Members of this body should be allowed time for the normal
amendment process.
Time and again, the Republican leadership has accused my colleagues
of obstructing and refusing to give certain measures an up-or-down
vote. Well, this most recent procedural tactic is the majority leader's
latest attempt at looking busy with full knowledge that nothing will be
accomplished.
Senator Frist's drastic action yesterday has stymied the legislative
process and threatened the underlying class actions bill that many of
my colleagues have worked so hard on over the past few years.
I am disappointed that the Republican leadership has decided that we
can afford to waste another week of floor time when bipartisan measures
could have been considered and enacted.
Mr. President, yesterday I received a letter on behalf of 16
environmental protection organizations--American Rivers, Clean Water
Action, Defenders of Wildlife, Earthjustice, Earthworks, Environmental
Working Group, Friends of the Earth, Greenpeace, League of Conservation
Voters, National Environmental Trust, Natural Resources Defense
Council, Sierra Club, The Ocean Conservancy, The Wilderness Society,
20/20 Vision, and the U.S. Public Interest Research Group--in
opposition to this class action bill.
These environmental protection advocates declare that this bill ``is
patently unfair to citizens harmed by toxic spills, contaminated
drinking water, polluted air and other environmental hazards involved
in class action cases based on state environmental or public health
laws.''
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S7817]]
July 7, 2004.
Environmental Harm Cases Do Not Belong in Class Action Bill
Dear Senator: Our organizations are opposed to the
sweepingly drawn and misleadingly named ``Class Action
Fairness Act of 2004.'' This bill is patently unfair to
citizens harmed by toxic spills, contaminated drinking water,
polluted air and other environmental hazards involved in
class action cases based on state environmental or public
health laws. S. 2062 would allow corporate defendants in many
pollution class actions and ``mass tort'' environmental cases
to remove these kinds of state environmental matters from
state court to federal court, placing the cases in a forum
that could be more costly, less timely, and disadvantageous
to your constituents harmed by toxic pollution. State law
environmental harm cases do not belong in this legislation
and we urge you to exclude such pollution cases from the
class action bill.
Class actions protect the public's health and the
environment by allowing people with similar injuries to join
together for more efficient and cost-effective adjudication
of their cases. All too often, hazardous spills, water
pollution, or other toxic contamination from one source
affects large numbers of people, not all of whom may be
citizens of the same state or may be from the same state as
the defendants who caused the harm. In such cases, a class
action lawsuit in state court based on state common law
doctrines of negligence or nuisance, or upon rights and
duties created by state statutes in the state where the
injuries occur, is often the best way of fairly resolving
these claims.
For example, thousands of families around the country are
now suffering because of widespread groundwater contamination
caused by the gasoline additive MTBE, which the U.S.
Government considers a potential human carcinogen. According
to a May, 2002 GAO report, 35 states reported that they find
MTBE in groundwater at least 20 percent of the time they
sample for it, and 24 states said that they find it at least
60 percent of the time. Some communities and individuals have
brought or soon will bring suits to recover damages from MTBE
contamination and hold the polluters accountable, but under
this bill, MTBE class actions or ``mass actions'' based on
state law could be removed by the oil and gas companies to
federal court in many of these cases.
This could not only make these cases more expensive, more
time-consuming and more difficult for injured parties, but
could also result in legitimate cases getting dismissed by
federal judges who are unfamiliar with or less respectful of
state law claims. For example, in at least one federal court
MTBE class action, a federal court dismissed the case based
on oil companies' claim that the action was barred by the
federal Clean Air Act (even though that law contains no tort
liability waiver for MTBE). Yet a California state court
rejected a similar federal preemption argument and let the
case go to a jury, which found oil refineries, fuel
distributors, and others liable for damages. These cases
highlight how a state court may be more willing to uphold
legitimate state law claims. Other examples of state law
cases that would be weakened by this bill include lead
contamination cases, mercury contamination, perchlorate
pollution and other ``toxic torts'' cases.
In a letter to the Senate last year, the U.S. Judicial
Conference expressed their continued opposition to such
broadly written class action removal legislation. Notably,
their letter states that, even if Congress determines that
some ``significant multi-state class actions'' should be
brought within the removal jurisdiction of the federal
courts, Congress should include certain limitations and
exceptions, including for class actions ``in which plaintiff
class members suffered personal injury or personal
property damage within the state, as in the case of a
serious environmental disaster.'' The Judicial
Conference's letter explains that this ``environmental
harm'' exception should apply ``to all individuals who
suffered personal injuries or losses to physical property,
whether or not they were citizens of the state in
question.''
We agree with the Judicial Conference--cases involving
environmental harm are not even close to the type of cases
that proponents of S. 2062 cite when they call for reforms to
the class action system. Including such cases in the bill
does no more than benefit polluters in state environmental
class actions at the expense of injured parties in those
cases for no reason other than to benefit the polluters. No
rationale has been offered by the bill's supporters for
including environmental cases in S. 2062's provisions. We are
unaware of any examples offered by bill supporters of
environmental harm cases that represent alleged abuses of the
state class actions.
More proof of the overreaching of this bill is that the so-
called ``Class Action Fairness Act'' is not even limited to
class action cases. The bill contains a provision that would
allow defendants to remove to federal court all environmental
``mass action'' cases involving more than 100 people--even
though these cases are not even filed as class actions. The
S. 2062 contains a narrow exception to the ``mass action''
removal rule if the injury to the plaintiffs is caused by a
``sudden, single accident,'' but has no exception for
injuries caused by toxic exposure that occurs over days,
months, or years, as frequently happens in environmental harm
cases.
For example, the bill would apply to cases similar to the
recently concluded state court trial in Anniston, Alabama,
where a jury awarded damages to be paid by Monsanto and
Solutia for injuring more than 3,500 people the jury found
were exposed--with the companies' knowledge--to cancer-
causing PCBs over many years. Documents uncovered in the case
showed that Monsanto kept the public in the dark for decades
regarding what the company knew about PCBs, so the ``sudden,
single incident'' exception would not apply in large measure
because of the companies' own bad behavior. There is little
doubt in the Anniston case that, had S. 2062 been law, the
defendants would have tried to remove the case from the state
court serving the community that suffered this devastating
harm. It is, at best, unjustified to reward this kind of
reckless corporate misbehavior by giving defendants in such
cases the right to remove state law cases to federal court
over the objections of those they have injured.
The so-called ``Class Action Fairness Act'' would allow
corporate polluters who harm the public's health and welfare
to exploit the forum of federal court whenever they perceive
an advantage to doing so. It is nothing more than an attempt
to take legitimate state court claims by injured parties out
of state court at the whim of those who have committed the
injury.
Cases involving environmental harm and injury to the public
from toxic exposure should not be subject to the bill's
provisions; if these environmental harm cases are not
excluded, we strongly urge you to vote against S. 2062.
Sincerely,
Ken Cook, Executive Director, Environmental Working Group.
Ed Hopkins, Director, Environmental Quality Programs,
Sierra Club.
Betsy Loyless, Vice President for Policy and Lobbying,
League of Conservation Voters.
William J. Snape III, Vice President for Law and
Litigation, Defenders Of Wildlife.
Sara Zdeb, Legislative Director, Friends of the Earth.
Karen Wayland, Legislative Director, Natural Resources
Defense Council.
Anna Aurilio, Legislative Director, U.S. Public Interest
Research Group.
Tom Z. Collina, Executive Director, 20/20 Vision.
S. Elizabeth Birnbaum, Director of Government Affairs,
American Rivers.
Kert Davies, Research Director, Greenpeace US.
Kevin S. Curtis, Vice President, National Environmental
Trust.
Stephen D'Esposito, President, Earthworks.
Linda Lance, Vice President for Public Policy, The
Wilderness Society.
Joan Mulhern, Senior Legislative Counsel, Earthjustice.
Julia Hathaway, Legislative Director, The Ocean
Conservancy.
Paul Schwartz, National Campaigns Director, Clean Water
Action.
Mr. JEFFORDS. Mr. President, I rise today to express my extreme
disappointment over the procedural bind the Senate is in on the class
action reform bill.
Last October I was one of the 59 Senators who voted to allow the
Senate to proceed to the Class Action Fairness Act because I believed
that it was an issue that should be considered and debated in the
Senate. I still believe that this is an appropriate matter to be
considered in the Senate, and was looking forward to a constructive
debate on the legislation this week.
In meetings with both supporters and opponents of the legislation I
have continually stressed that there needs to be a fair and open debate
on the matter. To me, this means that Senators must be allowed to offer
amendments to the bill. Unfortunately, even before the debate had even
really begun, the majority leader came to the floor and created a
procedural situation where no Senator would be allowed to offer an
amendment, on class action reform or any other issue.
It is regrettable that this path was chosen for consideration of this
legislation. I find this to be especially true when the minority leader
has offered to limit the number of amendments to the legislation, even
though he opposes the bill. If the Republican leadership had accepted
this offer we could have been working on substance rather than
discussing procedure for the last few days.
As this debate has not been free or fair, in fact no amendments have
been considered, debated and voted upon, I cannot at this time support
limiting debate on the Class Action Fairness Act. I am hopeful that the
majority will reconsider its rejection of the minority leader's offer
to proceed on this legislation with limited amendments and that we can
then begin to actually debate the legislation.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S7818]]
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I would like to be standing here today to
debate the merits of why we should be voting for cloture on this bill.
But since we all know how this vote will turn out, I just want to
congratulate in advance some of my colleagues on the other side of the
aisle for killing yet another civil justice reform measure this
Congress.
The constituents that they serve--the powerful and well financed
plaintiffs bar--owe them a deep debt of gratitude for not only killing
class action reform but also derailing the asbestos trust fund bill,
the medical malpractice reform bill, and gun liability reform bill, to
name a few. Their truly special interest constituent has survived yet
another year devoid of tort reform, and as a result, will continue
raking in millions of dollars in cash to help finance the Democratic
party in the coming months.
I am hoping the 62 people who committed to vote for cloture last
November will vote for it. We can even lose two of them as long as we
have 60 to vote for cloture. If we have 60, then I will feel a lot
better than I do in giving these remarks.
But unlike the caution chorus that they rolled out to kill the
asbestos bill, the tactics used by my Democratic colleagues to defeat
class action reform have been disappointing at best, and downright
disingenuous, at worst. We tried to proceed on this bill last year and
were led to believe that we would command enough votes to overcome a
Democratic filibuster. Indeed, before the cloture vote, we had certain
members declare their support publicly for the bill. But when the
moment of truth came, there was at least one member from the other side
who voted against proceeding on the bill despite statements to the
contrary. And what happened? We fell one vote shy of invoking cloture.
After the vote, we had three additional Democratic members come to us
just days before our Thanksgiving recess eager to strike a deal on
class action reform. So we listened, and we negotiated, and then we
compromised. And at the end of the day, we reached an agreement on a
more modest version of the class action bill. But the honeymoon
certainly did not last long as the supporters of the measure started
demanding extraneous labor-oriented amendments that included a measure
to raise the minimum wage; a measure to extend unemployment insurance;
and a measure to overturn the administration's overtime regulations.
We gave them votes on two of the three and then offered yesterday to
give them a vote on the third. But of course, we all know that three
was not enough.
We heard the stories of how the Senate must work its will, and how
the hallmark of this institution's procedures cannot be compromised;
that we must take on more extraneous amendments that have absolutely
nothing to do with the business at hand. But what these colleagues know
very well is that the more amendments this bill takes on, the less
likely it will become law.
We have a bipartisan deal on class action reform that now stands on
the verge of collapse--a broken deal that will forever stain the honor
of this hallowed institution the minute the supporters of this bill
cast a no vote on cloture. In a court of law, we would call it a breach
of contract, but in the Senate we are not governed by common law
principles when we legislate. Rather, we are governed by honor and
credibility--attributes that will lose stock the minute this bill
fails.
Let me just finish by saying that a vote against cloture means that
you are not committed to class action reform. Let us not dance around
the issue any further, and just call a spade a spade.
A vote against cloture means that you care more about helping certain
unscrupulous plaintiffs' lawyers rather than every day consumers like
Martha Preston, Irene Taylor and Hilda Bankston. These are the real
victims whose horror stories will fall on deaf ears.
And a vote against cloture means that a deal will never be a deal
unless strings are attached. That true bipartisanship will always come
at a price to be disclosed later.
I have been here 28 years. I have never seen, when we finally put a
deal together, people who have not been willing to live up to their
commitment.
Everybody knew back in November of last year that we needed one more
vote to get cloture. We compromised. We accepted amendments which we
probably wouldn't have accepted because we had--we had 59 who would
have voted for the bill as it was--to get those extra votes. Now there
is some indication that those three votes will not be there, and we
will probably lose on cloture again. I am hoping that is not true. I am
hoping all three votes will be there, or at least one that will be
there so that we can invoke cloture and proceed on this bill. If we
can't, then I have to say this is one of the few times that I have seen
where commitments are made that have not been honored that should have
been honored, and it is a disgrace to this institution, in my humble
opinion.
Keep in mind that if we invoke cloture, that doesn't mean those who
want to bring up extraneous, nongermane amendments or nonrelevant
amendments can't do it. They can bring them up after cloture, but they
are going to have to get a supermajority vote to win. That doesn't
foreclose them.
Anybody who argues that they ought to be able to bring up any
amendments they want when it is hurting the Senate, is not shooting
straight. The fact is, they can bring up any amendments they want. They
just have to get the votes to win. Maybe they will postcloture. I don't
know.
But in all honesty, we all know the game. It is either we are going
to get cloture and people are going to live up to their commitment or
not, and bipartisanship is even hurt more than it has been up until
now. It has been in shambles as far as I can see almost all year long.
This has been one of the worst years in my Senate career because of the
lack of partisanship, the lack of comity that normally exists in this
body in the desire to make everything political and the effectiveness
of making everything political as well.
This is one bill that does not deserve that kind of unfair treatment,
especially since we compromised last year and took amendments we would
not have taken and changed the bill we would not have changed, all for
the purpose of getting enough votes to vote for cloture. And now we are
here again this year--another year, 6 years in a row--whereby the same
people who said they were for this bill and talked us into all these
amendments on the basis that they would vote for cloture may not. I
personally hope they will. If they will, it will do more for comity in
this body, more for bipartisanship than we have seen all year. It would
be a ray of hope to everybody in this body that maybe there is a chance
of us getting together on things that are important, the things that
are right, things that we promised, things that will benefit the
business community, things that will correct the ills which literally
have been wrecking this institution and hurting our country
immeasurably and will put the screws to these jurisdictions, these
magnet jurisdictions, that do not seem to care about the law or
anything else.
Cloture Motion
The PRESIDING OFFICER. The clerk will report the cloture motion.
The legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Calendar No.
430, S. 2062, a bill to amend the procedures that apply to
consideration of interstate class actions to assure fairer
outcomes for class members and defendants, and for other
purposes:
Bill Frist, Orrin Hatch, Charles Grassley, Peter
Fitzgerald, Craig Thomas, Mitch McConnell, Ted Stevens,
Robert F. Bennett, Jim Talent, George Allen, Jon Kyl,
Rick Santorum, Jeff Sessions, Pete Domenici, Susan
Collins, Lamar Alexander, John Cornyn.
The PRESIDING OFFICER. By unanimous consent, the quorum call has been
waived.
The question is, Is it the sense of the Senate that debate on S.
2062, a bill to amend the procedures that apply to consideration of
interstate class actions to assure fairer outcomes for
[[Page S7819]]
class members and defendants, and for other purposes, shall be brought
to a close?
The yeas and nays are required under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Colorado (Mr.
Campbell), the Senator from Nevada (Mr. Ensign), the Senator from
Wyoming (Mr. Enzi), the Senator from Illinois (Mr. Fitzgerald), the
Senator from Nebraska (Mr. Hagel), and the Senator from Pennsylvania
(Mr. Santorum) are necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from California (Mrs. Boxer), the Senator from West Virginia
(Mr. Byrd), the Senator from New York (Mrs. Clinton), the Senator from
North Carolina (Mr. Edwards), the Senator from Massachusetts (Mr.
Kerry), and the Senator from Maryland (Ms. Mikulski) are necessarily
absent.
The yeas and nays resulted--yeas 44, nays 43, as follows:
[Rollcall Vote No. 154 Leg.]
YEAS--44
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Crapo
DeWine
Dole
Domenici
Frist
Graham (SC)
Grassley
Gregg
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Sessions
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--43
Akaka
Baucus
Bayh
Bingaman
Breaux
Cantwell
Carper
Conrad
Corzine
Craig
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCain
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Shelby
Stabenow
Wyden
NOT VOTING--13
Biden
Boxer
Byrd
Campbell
Clinton
Edwards
Ensign
Enzi
Fitzgerald
Hagel
Kerry
Mikulski
Santorum
The PRESIDING OFFICER. On this vote, the yeas are 44, the nays are
43. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
____________________