[Congressional Record Volume 150, Number 93 (Thursday, July 8, 2004)]
[Pages S7782-S7819]
From the Congressional Record Online through the Government Publishing 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 


       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 
  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 
  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 
  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 
  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

[[Page S7784]]

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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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

[[Page S7786]]

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 
  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 
  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.
                                            Leonidas Ralph Mecham,

  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 
       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.
                                                    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 
       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 

  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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 
  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 
  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 

  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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

  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 

[[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 
  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 
  Mr. BYRD. Mr. President, what is the current business before the 
  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 
  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 
  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 
  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 
  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 
  Instead, the White House did nothing. Instead, the Department seems 
satisfied with a go-slow, business-as-usual approach to homeland 
  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 
  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 

       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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
       The 15,000 youths awaiting mental health services accounted 
     for 8 percent of all youngsters in the responding detention 
       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 
       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 
  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 
  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 
       Votes for cloture and in favor of S. 2062, the Class Action 
     Fairness Act, and against any weakening amendments (including 

[[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 
                                                 Jerry Jasinowski,

  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 
  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 
  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 
  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 
  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 

       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 
       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 

          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 
       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 
       ``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 

       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 
       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.
                                                       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 
  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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 

       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 
  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 
  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 
       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 
       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 
       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.
       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 
       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 
       Paul Schwartz, National Campaigns Director, Clean Water 
  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 
  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 
  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 
  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 
  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 
  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 
         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 
  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 
  The yeas and nays resulted--yeas 44, nays 43, as follows:

                      [Rollcall Vote No. 154 Leg.]


     Graham (SC)
     Nelson (NE)


     Graham (FL)
     Nelson (FL)

                             NOT VOTING--13

  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.