E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 108 CONGRESS, FIRST SESSION

Vol. 149 WASHINGTON, WEDNESDAY, JULY 30, 2003 No. 115 House of Representatives The House was not in session today. Its next meeting will be held on Friday, August 1, 2003, at 4 p.m. Senate WEDNESDAY, JULY 30, 2003

(Legislative day of Monday, July 21, 2003)

The Senate met at 9 a.m., on the ex- The legislative clerk read the fol- electricity. The chairman has stated it piration of the recess, and was called to lowing letter: is his desire for the Senate to work its order by the Honorable JOHN E. U.S. SENATE, will on those second degrees and then SUNUNU, a Senator from the State of PRESIDENT PRO TEMPORE, vote on the underlying electricity New Hampshire. Washington, DC, July 30, 2003. amendment. We hope to reach an To the Senate: agreement to allow for that to occur at PRAYER Under the provisions of rule I, paragraph 3, a reasonable time this afternoon. In ad- The Chaplain, Dr. Barry C. Black, of- of the Standing Rules of the Senate, I hereby dition, there have been discussions appoint the Honorable JOHN E. SUNUNU, a fered the following prayer: Senator from the State of New Hampshire, about debating and voting in relation Let us pray. to perform the duties of the Chair. to several climate-related amendments Almighty God, You give strength to TED STEVENS, during today’s session. I certainly hope the weak and hope to the weary. You President pro tempore. we can reach reasonable time limits on provide us with songs in the night. Mr. SUNUNU thereupon assumed the the amendments as we go forward, so Great is Your faithfulness. We thank chair as Acting President pro tempore. we can have a productive day on the You for daily blessings, for the many Energy bill. Senators should be pre- f moments that are touched by Your pared to work into the evening with providence. We thank You for restoring RECOGNITION OF THE MAJORITY votes as we move through the remain- us every time we fail. Make our faith LEADER ing amendments. more sure and help us to be faithful The ACTING PRESIDENT pro tem- stewards of Your gifts. Give us ears to pore. The majority leader is recog- f hear Your voice and hearts to obey nized. You. Guide our Senators today. Teach RECOGNITION OF THE ACTING them Your paths. We pray in Your f MINORITY LEADER strong name. Amen. SCHEDULE The ACTING PRESIDENT pro tem- f Mr. FRIST. Mr. President, this morn- pore. The Senator from Nevada is rec- PLEDGE OF ALLEGIANCE ing the Senate will resume consider- ognized. ation of S. 14, the Energy bill. Under Mr. REID. Mr. President, while the The Honorable JOHN E. SUNUNU led the Pledge of Allegiance, as follows: the order, the Cantwell second-degree majority leader is on the floor, we have amendment to the electricity amend- had a number of conversations pri- I pledge allegiance to the Flag of the 1 United States of America, and to the Repub- ment will be debated for 2 ⁄2 hours. Fol- vately and publicly with the distin- lic for which it stands, one nation under God, lowing the disposition of that amend- guished Senator from New Mexico on indivisible, with liberty and justice for all. ment, we will have 60 minutes prior to this electricity title. As I indicated f the cloture vote on the Estrada nomi- last night, we have Senators FEINSTEIN, nation. This will be the seventh cloture FEINGOLD, BOXER, DAYTON, and CANT- APPOINTMENT OF ACTING vote on his nomination. WELL who have amendments to offer. PRESIDENT PRO TEMPORE Following the cloture vote, we will All of them but Senator CANTWELL The PRESIDING OFFICER. The resume the electricity amendment and, have single amendments. Senator clerk will please read a communication hopefully, we will reach an agreement CANTWELL may have two or three oth- to the Senate from the President pro for the consideration of the two Binga- ers. We will work with Senator DOMEN- tempore (Mr. STEVENS). man second-degree amendments on ICI to have time agreements on these. I

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10172 CONGRESSIONAL RECORD — SENATE July 30, 2003 am confident and hopeful that the Sen- passed a bill. We have not done that That, to me, is challenging. It is ators offering the amendments will and the American people deserve it. challenging that we work on this im- agree to time agreements. That is why we brought this bill to the portant Energy bill and, for the most I also note—and I say this as respect- floor on May 6. That is why we have part, these rollcall votes on the district fully as I can to the distinguished ma- spent 17 days on the bill. That is why judges are challenging. jority leader, who I know has such a we are working as hard as we can to To make that point, if we go back to difficult job—the electricity title is complete this bill in the next 3 days. I the 105th Congress, there were 100 very complicated. I think we are ap- think we are working well together. It judges—20 circuit and 80 district proaching this in the right way, to is a complex bill. We debated days and judges. In that Congress, there were 25 move through it as quickly as possible. days last year. It has been taken rollcall votes—7 circuit, 18 district. So We are cooperating in that regard. It through committee this year and on about 25 percent of the 100 judges, makes it really difficult, as somebody marked up and brought to the floor ap- rollcall votes were required. trying to help move this along and help propriately. We are making real If we move to the 106th Congress, the two managers, to have these stops progress there. there were 72 judges confirmed, and 18 and starts. We just get going on some- The issue of judges, though, bothers of those were rollcall votes. thing and then we have votes on me. It has been brought up every time If we go to the 107th Congress, there judges. I say we have to keep moving forward were 100 confirmed and 59 rollcall I want everybody to understand I and that we owe it to the American votes. know how important Senator HATCH people on this Energy bill, and then we And if we go to the 108th Congress, and others believe it is about these have a few votes on judges. That is the present Congress, 37 judges have judges. For example, on Estrada, this brought up as if that is slowing down been confirmed. We have had to have 28 will be the seventh vote. The votes are progress on the Energy bill. It disturbs rollcall votes. not going to change. We will take an me. What is interesting is that of those 28 hour of debate on that and get off the First of all, all we are saying is let’s rollcall votes, 23 were unanimous. So Energy bill, and then we will go back give Miguel Estrada an up-or-down we had rollcall votes, and all 100 Sen- on it. It makes it extremely difficult. vote. That is all we want. If you don’t ators, or everybody present and voting, like him and you want to vote against Senator DOMENICI told all his com- voted to confirm. Eighty-two percent him, do it. We think that when judicial mittee members during the committee of them were unanimous. nominees come from the White House markup that we know the bill isn’t per- We can see this trend going back to to us under advice and consent, we de- fect, but we will have an opportunity the 104th Congress when there were 73 serve the opportunity to express that on the floor to amend that. The leader judges confirmed, and there were zero advice and consent, and the only way rollcall votes. What has happened in has stuck by that. I think that is im- we can do that is by voting. Each seat this Congress, because of the request portant. here has one vote. Let people express Just as an effort to help, because you from the other side of the aisle, is this their will and, if the nominees are suc- have to move this bill along, for exam- cessful, fine. If not, we will move on. demand that all of these judges, not ple, the two Bingaman amendments— That is what we are saying. just the circuit judges, but the district Senator DAYTON cannot offer his I also want to make it clear on what judges, have rollcall votes. Therefore, amendments until those are disposed we are having to do this week. Clotures it has made it very difficult. of. That is another procedural matter filed on our side of the aisle don’t re- When it is brought up that our voting we have to deal with here. quire any debate. They require a vote on judicial nominees is slowing the We recognize we have a lot of work to and that is all we ask. Again, we want work of the Senate down, I ask the do. We squeezed in yesterday an hour to keep things moving. We have been other side to at least consider what on trade while everybody was at the willing, as I said time and time again, happened in the 103rd, 104th, and 105th White House. I know the leader wants to stack the votes among the other en- Congresses in terms of the number of these two bills done, and the White ergy amendment votes. We don’t re- rollcall votes required. House talked about how important quire the debate or time. It is the other f they are. I think it is good we have side that is requiring the time. ANNIVERSARY OF THE MEDICARE time down as low as we do on a bill Another issue we have not really ACT people feel so strongly about. From talked about, at least on the floor, is what I know, it should pass fairly eas- these votes on district judges, which is Mr. FRIST. Mr. President, I am going ily—both of those trade agreements. essentially unprecedented, which is to come back later today and comment In short, I want the Senator from being required of us today, if we look on the fact that today is the anniver- Tennessee, who, I repeat, has a tremen- to the past, if we compare it to the sary of Medicare. I know we want to dously difficult job, to understand we past. The whole issue on both sides of move on to the pending bill. It was a are doing everything we can to cooper- the aisle is that many, if not most, of historic day in 1965. On this day, Presi- ate. I stated yesterday twice, and I will these could be approved by unanimous dent Johnson took the historic and start the day off today saying, I don’t consent. Many, if not all, confirma- bold action of signing Medicare into know of a single Senate Democrat who tions have to be by rollcall votes. Be- law. doesn’t want an Energy bill. The time cause there is this call from the other Since that time, Medicare has helped line you have given us makes it really side of the aisle for rollcall votes, millions of seniors cover their health tough. We will cooperate in any way we which traditionally in this body have care needs, but Medicare, in 1965, was can to move the schedule along despite been handled, for the most part, designed to treat episodic illness and the difficulties I see. through voice votes, we are having to did not include the most powerful tool Mr. FRIST. Mr. President, first of factor those rollcall votes, which take in medicine today—prescription drugs. all, I appreciate the assistance of the time, into the Senate schedule if we I mention this only because we have distinguished assistant leader on the are going to demand justice around the an opportunity before us, this body al- other side of the aisle in moving the country. If we do not get these judges ready having spoken its will in passing Energy bill forward. We had the oppor- confirmed, justice is, in effect, delayed. a comprehensive Medicare reform bill tunity yesterday to have a bipartisan So they put a huge demand on us—real- that strengthens and improves Medi- meeting with the President of the ly me as majority leader—demanding care and includes prescription drugs. United States, who once again called what has not been done in the past, The House has done likewise. We are for this body to address energy as expe- rollcall votes, which take time and we currently in conference. By working in ditiously as possible, allowing appro- have to factor them into the schedule, conference, we will greatly strengthen priate time for debate and amendment. which does delay our schedule unneces- and improve Medicare. Over the course The President set out his energy pol- sarily, and it means later hours at of the day, I know there will be other icy 2 years and 2 or 3 months ago and night and starting 30 minutes earlier in statements, but there will also be a has called upon this body to work its the day to accommodate the demands service and a statement about Medi- will. The House has done that and they are putting on us. care at the White House later today.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10173 We have a great opportunity before ‘‘SEC. 219. PROHIBITION ON MARKET MANIPULA- I have a lot to say on this amend- us. I wish to share with my colleagues TION. ment this morning, but I know I am ‘‘It shall be unlawful for any person, di- that the conference is going well and rectly or indirectly, to use or employ, in con- going to be joined by many of my col- sometime after we come back from the nection with the purchase or sale of electric leagues from the West who have had recess, we will have a bill to bring back energy or the purchase or sale of trans- their economies wrecked by gouging to this body. mission services subject to the jurisdiction and illegal practices. I want to give Mr. REID. Will the Senator yield? of the Commission, any manipulative or de- them an opportunity to say something, Mr. FRIST. Yes. ceptive device or contrivance in contraven- too, because I think the face of the Mr. REID. Mr. President, I say not tion of such regulations as the Commission west coast economy and what it has may promulgate as appropriate in the public only did President Johnson sign that interest or for the protection of electric rate- meant for ratepayers needs to be clear. extraordinary bill—38 years ago? payers.’’. We are trying to say with the Cant- Mr. FRIST. Yes, 1965; 38 years ago. (b) RATES RESULTING FROM MARKET MANIP- well-Bingaman amendment that we do Mr. REID. As soon as he signed the ULATION.—Section 205(a) of the Federal not want to see this kind of action hap- bill, Congress went out of session. That Power Act (16 U.S.C. 824d(a)) is amended by pen on natural gas prices in other parts was a good example. inserting after ‘‘not just and reasonable’’ the of the country. We do not want to see following: ‘‘or that result from a manipula- this take place 4 months from now, or Mr. FRIST. Well said. tive or deceptive device or contrivance in f violation of a regulation promulgated under 2 years from now. Let’s be really clear. These kinds of RESERVATION OF LEADER TIME section 219’’. (c) ADDITIONAL REMEDY FOR MARKET MA- practices that were deployed by Enron, The ACTING PRESIDENT pro tem- NIPULATION.—Section 206 of the Federal the various schemes of Fat Boy, Rico- pore. Under the previous order, the Power Act (16 U.S.C. 824e) is amended by chet, Megawatt Laundering, and Load leadership time is reserved. adding at the end the following: Shift are illegal. ‘‘(e) REMEDY FOR MARKET MANIPULATION.— f I will yield 10 minutes to my col- If the Commission finds that a public utility league from Washington State, Mrs. ENERGY POLICY ACT OF 2003 has knowingly employed any manipulative or deceptive device or contrivance in viola- MURRAY, who knows all too well that The ACTING PRESIDENT pro tem- tion of a regulation promulgated under sec- this crisis has caused real hardship in pore. Under the previous order, the tion 219, the Commission shall, in addition to our State. She has been outspoken on Senate will now resume consideration any other remedy available under this Act, this issue as well and sent many letters of S. 14, which the clerk will report. revoke the authority of the public utility to to various entities, including the Fed- The legislative clerk read as follows: charge market-based rates.’’. eral Regulatory Energy Commission, A bill (S. 14) to enhance the energy secu- Ms. CANTWELL. Mr. President, I talking about how we need to make rity of the United States, and for other pur- thank the clerk for reading this changes. poses. amendment, particularly at such an I yield her 10 minutes this morning Pending: early hour of the morning. The reading to talk about some of the impacts she of the amendment by the clerk shows Campbell amendment No. 886, to replace has seen firsthand. ‘‘tribal consortia’’ with ‘‘tribal energy re- exactly what we are up to this morn- The ACTING PRESIDENT pro tem- source development organizations’’. ing; that this is a simple amendment pore. The Senator from Washington, Durbin modified amendment No. 1385, to and a simple action we are asking the Mrs. MURRAY. amend the Internal Revenue Code of 1986 to Senate to take. We are simply saying Mrs. MURRAY. Mr. President, I rise provide additional tax incentives for enhanc- market manipulation under the Fed- today to support the amendment that ing motor vehicle fuel efficiency. eral Power Act cannot be just and rea- has been offered by my colleague from Domenici amendment No. 1412, to reform sonable, and market manipulation Washington State, Ms. CANTWELL, that certain electricity laws. should be found, under the Federal will help protect our consumers from Bingaman amendment No. 1413 (to amend- this electricity market manipulation. ment No. 1412), to strengthen the Federal Power Act, by the Federal Energy Reg- I begin by thanking Senator CANT- Energy Regulatory Commission’s authority ulatory Commission, to be a wrongful to review public utility mergers. act. WELL for her tremendous work on the Bingaman amendment No. 1418 (to amend- It did not take long to read that energy commitment and her long-time ment No. 1412), to preserve the Federal En- amendment but, as I said to this body work on trying to make sure con- ergy Regulatory Commission’s authority to last night, the fact that such law is not sumers in my home State of Wash- protect the public interest prior to July 1, currently on the books has caused the ington finally receive the attention 2005. ratepayers in my State great harm. It and the help they need from us at the The ACTING PRESIDENT pro tem- has caused ratepayers in Snohomish Federal level because of the gouging pore. Under the previous order, there County, where I happen to live, a 54- that has gone on in this market manip- shall be up to 21⁄2 hours of debate on the percent rate increase. It has caused ulation. We have seen the dramatic im- amendment to be offered by the Sen- ratepayers in King County a 61-percent pacts that she has so eloquently talked ator from Washington, Ms. CANTWELL, rate increase. It has caused ratepayers about. with 30 minutes under the control of in Vancouver, WA, and businesses in I thank her for speaking out on be- the chairman, and 2 hours under the Vancouver, WA, that can easily move half of our Pacific Northwest con- control of the Senator from Wash- to other parts of the country, an 88-per- sumers who are hurting. We have had ington. The Senator from Washington. cent increase. In eastern Washington, the first, second, or the third highest unemployment rate for almost 21⁄2 AMENDMENT NO. 1419 TO AMENDMENT NO. 1412 the part of the State hardest hit eco- years, much of that precipitated by the (Purpose: To prohibit market manipulation) nomically, where jobs are few and farmers struggle, it has caused rate- fact of the energy spike costs that have Ms. CANTWELL. Mr. President, I payers a 71-percent rate increase. hit the west coast, causing many of our call up amendment No. 1419. We are not talking about a rate in- cold storage companies, the aluminum The ACTING PRESIDENT pro tem- crease that is just for 1 year. We are industry, to shut down. They are lay- pore. The clerk will report. talking about long-term Enron con- ing people off. The effects of that re- The legislative clerk read as follows: tracts that were manipulated—know- verberated throughout our economy, as The Senator from Washington [Ms. CANT- ingly manipulated—and my ratepayers other industries were hurt. Even our WELL], for herself, Mr. BINGAMAN, Mrs. FEIN- are stuck paying those contracts for schools were hurt as they had to lay off STEIN, Mr. HOLLINGS, Mr. WYDEN, Mrs. the next 5, 6, and 7 years without relief. teachers in order to pay energy bills. BOXER, and Mrs. MURRAY, proposes an We are here today to say one thing It has had a tremendous impact on amendment numbered 1419 to amendment and be clear about it: This kind of ma- our economy and continues to do so. No. 1412: Strike section 1172 and insert the fol- nipulation that gouges ratepayers Bringing this amendment to the Sen- lowing: should be prohibited. This body should ate floor today is absolutely critical. If SEC. 1172. MARKET MANIPULATION. be clear. We should be unequivocal. We we are going to have an electricity (a) PROHIBITION.—Part II of the Federal should say, as other entities have said, title, and if we do not deal with what Power Act (as amended by section 1171) is that this kind of manipulation is happened in market manipulation, we amended by adding at the end the following: wrong and needs to be corrected. are only going to see this continue.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10174 CONGRESSIONAL RECORD — SENATE July 30, 2003 We have a responsibility at the Fed- According to the Seattle Times, dur- Holding Company Act of 1935 which re- eral level to protect our consumers at ing the energy crisis the Northwest stricts utility ownership. home. In fact, that is the responsibility wholesale market averaged $276 per Although Senator DOMENICI’s sub- of the Federal Regulatory Energy Com- megawatt hour. That is 16 percent stitute electricity amendment—which mission. This amendment is so critical higher than the average prices in we have just gotten, we are reviewing, to making sure that we can go home northern California, and 28 percent and is now in this bill—does include and tell our consumers we are doing higher than in southern California. So some remedies to protect consumers, it the right job of protecting them and it was really disturbing to all of us to does not go far enough. Just look at the market manipulations that have see FERC agree that there was manipu- the devastating effects of the 2001 en- occurred in the past will not occur lation but then leave Washington State ergy crisis to see we have to do more to again. Without this amendment, we ratepayers holding the bag with no re- protect our consumers. It is our utmost will not have the ability to say that. lief for the harm they experienced and responsibility. I am concerned the elec- As Senator CANTWELL stated, all of continue to experience because of these tricity title in this bill fails to do that. us on the west coast remember the en- contracts. It is clear this Energy bill we are de- ergy crisis of 2001. Our consumers and Clearly, FERC needs to be more ag- bating does not do enough to protect our businesses were hit with massive gressive in protecting our consumers. consumers against market manipula- increases in the cost of energy. In Cali- It needs to uncover and it needs to re- tion and could actually facilitate more fornia, they saw shortages and brown- port market manipulation much ear- opportunities for manipulation. As cur- outs that were incredible. In Wash- lier. It needs to have the authority to rently written, it does not provide ington State we have felt the impact in take action against companies that de- enough remedies to help our consumers every sector of our economy and in fraud the public and defraud the people who have been victimized by market every home in our State. In fact, as I in our States by manipulating the elec- manipulation. will talk about in a moment, we in tricity market. The amendment that Washington State are continuing to be That is why I am in the Senate today Senator CANTWELL has offered will di- to support my colleague from Wash- penalized for the failures in the energy rect FERC to take aggressive action market and failures by our Federal en- ington State, Senator CANTWELL, and against predatory energy companies the amendment she has offered. We ergy regulators. that manipulate the market, and I There were certainly many causes for have the utmost responsibility to as- strongly urge my colleagues to support the energy crisis that hit us, but the sure market manipulation is not going this amendment. to continue again. We know the effects most disturbing is the fact that energy This amendment will improve the un- companies manipulated the market- in the Pacific Northwest. Senator derlying bill. It is extremely impor- place specifically to take advantage of CANTWELL has outlined the average tant. We need to have this kind of con- the customers. As we saw throughout rate increases that have hit our State fidence if we want to see our rate- that crisis, the Federal Regulatory En- because of market manipulation. En- payers able to survive in the coming ergy Commission did not take aggres- ergy price increases affect every sector sive action to protect consumers from years. of our economy. They affect every per- I do have a lot of other concerns market manipulation. The amendment son in our State. They affect every- about the Energy bill and about an ef- that has been offered by my colleague, thing from how we can operate our fort by Federal energy regulators. As Senator CANTWELL, will direct FERC, schools, how many teachers we can my colleagues know, FERC is now the Federal Energy Regulatory Com- have versus how many energy bills our pushing what they call a standard mar- mission, to revoke those market-based schools have to pay, to whether poten- ket design which would set uniform na- rate authority companies that have tial new homeowners can afford a tional standards for operating regional been found to knowingly engage in home. A 51 percent rate increase means transmission grids, transmission grids electricity market manipulation. we have more families in the State of that allow energy to be passed back Our experience on the west coast Washington who cannot afford to buy and forth between communities that shows why this amendment is so im- new cars, new refrigerators. That af- are in each region and their wholesale portant and why FERC needs to be bet- fects our economy in the Pacific North- energy markets. Unfortunately, what ter policed in the energy market. For west and has a rippling effect to our FERC does not understand, what the more than 2 years, many of us in the businesses, which have laid off thou- bill does not understand, is that a one- northwest delegation have been urging sands of employees because they can- size-fits-all solution is not going to fit FERC to better protect our consumers. not afford to pay their increased elec- the unique needs of the Pacific North- In fact, way back in March and April of tricity costs. 2001 and again in May of 2002, I sent let- west. In New England, if they want to in- The market manipulation amend- ters to FERC calling for relief from ment of Senator CANTWELL is an abso- this energy crisis. I asked for Federal crease or decrease energy production, they burn more gas or more coal. They lutely critical amendment to assure we price caps to stabilize the market. I can protect our consumers in the fu- asked for Washington State utilities to can regulate that industry. But in the Northwest, we cannot make it rain ture. Failing to pass it is a failure of receive refunds, as California utilities the responsibility we have as Senators. received, and I urged FERC to report more or less based on some kind of profit schedule. Standard market de- I urge its passage. criminal activity to the Department of I thank my colleague for yielding on Justice. sign does not work in the Pacific this critical matter. Finally, on March 26 of 2003, FERC Northwest. We cannot run our system found that market manipulation oc- that way because it is not designed to Ms. CANTWELL. I thank Senator curred during the 2001 west coast en- meet all of the needs we have. It means MURRAY for her articulate ergy crisis. Unfortunately, FERC indi- more opportunities for market manipu- capsulization of what this Energy bill cated it was highly unlikely that lation and price gouging by big out-of- and the Domenici title means to the Washington State ratepayers would be State energy companies. Northwest. reimbursed for the harm that was As we have already talked about, we The Senator has hit it right on the caused by that market manipulation. know FERC has already failed to pro- head, in that market manipulation has That is really unfair when we look at tect Washington ratepayers from mar- not been adequately dealt with in this what happened throughout that crisis. ket manipulation. Given that, I think legislation. Not only has there been no At the height of the 2001 energy cri- it is particularly unwise to allow FERC strong stand against market manipula- sis, when Enron and others were ma- to take authority away from our State tion, there are further attempts toward nipulating the system, FERC was urg- regulators through this standard mar- deregulation with standard market de- ing companies to enter into long-term ket design and other proposals that are sign and regional transmission organi- contracts. Many of our utilities in the floating around through Congress and zations that we in the Northwest find Pacific Northwest followed their re- in this bill. ludicrous. quest and entered into long-term con- I am also very concerned that the I ask unanimous consent to have tracts at highly inflated rates. Energy bill repeals the Public Utility printed in the RECORD a Seattle Post

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10175 Intelligence editorial from this morn- which the cost of electricity would be When I think about the little time we ing’s newspaper saying that the dubi- driven down. This is not like some- have, maybe 6 hours total to debate ous Energy bill might be better thing one can afford to have the price this amendment, we gouged the rate- shelved. go up. payers $1 billion and we are going to There being no objection, the mate- One county, Snohomish County, had talk $1 billion an hour here. That is rial was ordered to be printed in the a 54 percent rate increase. We had hardly the remedy for which I think RECORD, as follows: printed in the RECORD yesterday an ar- people are looking. What they are look- [From the Seattle Post-Intelligencer, July ticle from the New York Times that ing for is some immediate action, say- 30, 2003] Snohomish County has a 44 percent in- ing these kinds of activities will not DUBIOUS ENERGY BILL BETTER SHELVED crease. Consumers got disconnected take place again, in the future. Republicans hope to drive the Senate to- from their electricity because they So the Senator from California, Mrs. ward a new energy bill this week. We all could not afford to pay. This is not one BOXER, is correct. The impact has been know what happens when you drive too fast; of these schemes when the ‘‘free mar- devastating. It has been devastating to caution is lost in the rush to judgment. ket’’ does not drive down the price of a California’s economy, and obviously we For both the Northwest and the nation, the utility and ratepayers have something would like to see some relief. For the bill contains at least a trio of contenders for to do. They cannot go over to Nord- worst idea of the year—more deregulation of moment, what we are trying to say in electricity, nuclear power subsidies and a strom’s and buy a cheap electricity the Cantwell-Bingaman-Feinstein- new look at offshore oil drilling. contract and get electricity. They can- Boxer-Hollings-Wyden amendment is The West Coast is still trying to recover not go over to Wal-Mart and buy af- that this kind of market manipulation from cost increases created by deregulation fordable electricity. They are stuck ought to be outlawed specifically in the schemes and market manipulation. Loan with these rates. They are stuck with Power Act today so this does not hap- guarantees for nuclear reactors and a perma- the 54 percent increase and they will be pen again. nent cap on liability from accidents could in- stuck for years ahead. We had a 44 per- As we are looking at natural gas crease radioactive waste—as if Hanford cent disconnect rate in that county. didn’t have enough now. And, the idea of put- price increases and people are getting Mrs. BOXER. Will the Senator yield? anxious, why would we have an elec- ting oil drilling platforms on more of the na- Ms. CANTWELL. I yield. tion’s coast was rejected decades ago. tricity title that is unclear as to what The PRESIDING OFFICER (Mr. The plan would also tilt relicensing of hy- the penalties are? Actually, under the BROWNBACK). The Senator from Cali- droelectric dams in favor of industry-de- Oxley legislation of Senator SARBANES signed environmental provisions. Don’t ex- fornia. and Congressman OXLEY, on the SEC pect that to help salmon runs. Mrs. BOXER. I thank the Senator for Senators have a host of ideas for improving her leadership on this amendment. I side, on the auditor’s side, it said: We the bill: better vehicle mileage rules, new know there are several other amend- are going to get tough. These are new global warming standards and more incen- ments she will be offering. requirements. We are going to put this tives for renewable energy sources. The The Senator has explained very in the statute. Yet on the electricity White House has intervened to try to move clearly what has happened to real peo- title, we are repealing PUHCA, as my the bill forward, but senators must recognize ple who are trying to pay their bills on colleague from Washington State said, they are starting from a tough spot. The ex- something that is absolutely necessary the one consumer protection law that isting bill is tainted because its roots are in has been on the books since 1935. closed-door meetings between Vice President for life itself. Dick Cheney and his energy industry pals. I ask my colleague a question on this Why would you change a law that has That kind of abuse during the Clinton ad- point. In California, where we had this been on the books since 1935 when you ministration killed health care reform. If all begin, there was some ill-advised just had the biggest pyramid scheme senators hope to rescue the energy plan from legislation signed into law by then- ever to defraud consumers, knowingly its dubious origins, they had better plan on Governor Pete Wilson which brought admitted by Enron, knowingly admit- months of work. this deregulation to my State. Is my ted by FERC, knowingly admitted by Ms. CANTWELL. I thank my col- colleague aware that the rates started the Department of Justice, knowingly league for her diligence in expressing to double, triple, and more, in our printed by every newspaper in the her opinion on this issue. State, that our State government country that manipulation was going The RTO and standard market design under Governor Gray Davis said, the on? Why would you repeal the con- issues she mentioned this morning people cannot afford this. He went out sumer protection laws on the books? show how unsound this idea is, not and said that he would, in fact, take You would actually try to enforce only in not protecting us from market care of this crisis. them. manipulation but saying in a concep- As a result, our State is in deep debt. That is what the Cantwell amend- tual scheme, let’s have a nationwide About a third of our debt can be re- ment does today, as the clerk read this regional energy grid and let the people lated directly to what the electricity morning. It simply says the manipula- who will pay the most; that is, the companies did with their schemes that tion of those contracts cannot be just power source that is willing to pay the you are going to be explaining and I and reasonable and put that in the most to get on to the grid, let them de- will be talking about later. Power Act, plain and simple. Plain and cide how power will be distributed. Is my colleague aware that a third of simple, not the 43 pages we have in the For people in the Northwest, if we the problem in California is directly re- title addressing this issue, which I am had power produced at cost-based lated to the energy scam? sure tries to address the issue, but it rates; that is, cost plus what it takes Ms. CANTWELL. I thank the Senator falls far short. to deliver to consumers—but all of a from California for asking that ques- Mrs. BOXER. Will the Senator yield sudden FERC is pushing a concept of tion and for being a cosponsor. The for just a moment on this point? I am standard market design and saying, Senator understands all very well how going to go into a markup and then re- Enron or Reliance has more expensive painful this has been to the California turn. power, we will shove it on to your grid economy. Ms. CANTWELL. Yes. and you pay that higher rate. As Sen- I was not aware that a third of the Mrs. BOXER. My colleague points ator MURRAY adequately pointed out, problem could be directly attributable out that what she is attempting to do this is not a plan we endorse. to the crisis in California. I know busi- in this amendment, of which I am so Some of my colleagues from the nesses have closed in Washington proud to be a cosponsor, is to make South also have concerns. Not only State. I know people have moved to sure what happened to Washington and does this bill not do enough in pro- other regions and made other invest- Oregon and California is not going to tecting manipulation, it creates the ments because the rate is high in our happen to any other State, be it Kan- possibility for more loopholes, more State. I know the amount of money sas, be it Illinois, be it anywhere else. havoc, more chaos. Frankly, this is ex- paid by higher utility costs for our For the life of me, I guess I need to actly how California got in trouble. Re- west coast region is $6 billion. Rate- say to my friend, does she understand garding a lot of market-based deregula- payers in the West paid a $6 billion in- why anyone in this Chamber, knowing tion of the industry, everyone thought crease in their electricity bills because what happened to our States, knowing it would be competitive practices by of the market manipulation. what happened to our businesses,

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10176 CONGRESSIONAL RECORD — SENATE July 30, 2003 knowing what happened to our con- they then got paid for removing the line is this underlying Domenici title sumers, knowing what happened, in the congestion that they created. They ac- has some language about: Let’s make case of California, to our State budget tually deliberately cheated consumers, sure there is no false reporting. because our Governor protected the not to the tune of a couple of loaves of That is in the current statute. It consumers from these rates—can my bread but to the tune of billions and didn’t save us. It didn’t have anybody friend understand why there would be billions of dollars. stop this or basically put everybody in one vote against her amendment, given It seems to me, as this energy title is jail. what we know happened to us? written, there is not one person in the Frankly, every time I get home, I Ms. CANTWELL. My colleague from Senate—not one—who would stand up hear from a constituent who is paying California has asked a question that is and say: It is fine for consumers to be this high energy cost, paying this 61 very important. No, I cannot imagine confronted with that sort of manipula- percent or 88 percent rate increase, why any of my colleagues would want tion and cheating or criminal behavior. saying: Why isn’t Ken Lay in jail? Why to vote against this amendment that Not one would say we support that is it I am paying this rate increase and prohibits market manipulation and kind of behavior. I am going to be paying it for 5 or 6 puts that in the Power Act in a very If that is the case, if no one is going years and Ken Lay isn’t in jail? simple way. to support that, and they would not, The transparency clause here is al- She mentioned something very inter- then should we not write an electricity ready on the books, making sure people esting. A lot of people talk about this title that represents the best ideas of do not report false information to the as the California energy crisis—the both sides of the political aisle here; organization known as the Federal En- California energy crisis. Her economy that says we are going to stop criminal ergy Regulatory Commission. That is has been devastated, but California ac- behavior; we are going to stop the kind already on the books. The round trip tually had a retail cap, which meant of activities that attempt to steal from trading, yes, is eliminated. But we even though those prices were being consumers? have other schemes in this bill that are charged, and it left the California econ- I ask the Senator from Washington, not included in the electricity title and omy in disarray and a bill at the State have you had an opportunity, or per- are not outlawed. I think it should be legislative level that is exorbitant, haps has the ranking member of the simple. what happened in Washington State, committee had an opportunity, to sit The Power Act was created to pro- because we didn’t have retail caps, is down with those who wrote the elec- tect consumers. We decided in inter- that the ratepayers actually saw the tricity title, which we received last state commerce; that is, the selling of increase in their day-to-day electricity Friday, and talk to them about perhaps power between States, that the Federal bills. They saw it to the tune of 88 per- writing it together so we all accom- Government should play a role in pro- cent increases, 61 percent increases, 54 plish that which we say we intend to tecting consumers on wholesale power percent increases. Those disconnect no- accomplish—stopping this kind of ma- rates. tices are real. The companies that have nipulation and cheating? Because it did We gave to the States the ability left or are leaving the State are real. exist and it will again if we do not plug through their utility commissions the The long-term impacts on our economy the hole. responsibility to protect consumers’ are real. Ms. CANTWELL. I thank the Senator electricity that is sold within each No, I cannot imagine, if this had hap- from North Dakota for his question. I State. But we said as a Federal Govern- pened to any of my other colleagues know he has been diligent, being at the ment we want to make sure consumers from other States, that they would not committee hearings during the time have oversight of electricity. We said be in the same position I am in today, period in which the West tried to con- in the Federal Power Act we are going or Senator MURRAY, saying, at a min- vince the Federal Energy Regulatory to make sure that rates are ‘‘just and imum, outlaw this market manipula- Commission—the policeman on the reasonable.’’ That is our job—‘‘just and tion. watch, if you will, when this mugging reasonable.’’ We set up a commission So I appreciate the question the Sen- of ratepayers was happening—we tried to do it. Yet now we have seen that ator from California has asked. I appre- to convince the Federal Energy Regu- market abuse is continuing. And we ciate her keen attention to this issue. latory Commission that prices were too have colleagues on the other side of the I know she has spoken many times on high, that we were getting gouged. The aisle who are proposing we repeal the the floor about what has happened to Senator was very articulate at that only consumer protection law which our colleagues from the West and par- time and subsequently, on the Com- has been on the books since 1935—the ticularly how devastating it has been merce Committee, holding hearings, Public Utility Holding Company Act— to her State. I appreciate that. investigating the activities of Enron. and in its place put some language that Mr. DORGAN. Will the Senator from At that time, we were all speculating basically smacks the hand of Ken Lay the State of Washington yield for a that manipulation happened. What has but doesn’t have any teeth in it—teeth question? since come out is that the manipula- that will really bring to justice people Ms. CANTWELL. Yes. tion has been admitted to. It has been who have manipulated this market. Mr. DORGAN. Mr. President, I know admitted to in the memos by the com- We may have another day when we she has limited time. I will be very pany in those various schemes you can discuss what kind of relief might brief, but I did want to ask the ques- have talked about, and we have charts be given to California or Oregon or tion. showing the names, of Death Star and Washington. But this amendment It seems to me this electricity title is Fat Boy and various other schemes. We today is geared toward protecting peo- critically important. I heard my col- have had the Federal Energy Regu- ple from future abuse by simply saying league from California ask some ques- latory Commission own up: Yes, this is in the Power Act that manipulated tions. I chaired the hearings that dealt market manipulation. schemes are not just and reasonable; with the Enron abuses and other abuses I have a report here, that is almost that they ought to be banned in the in California and the west coast when I too heavy to handle, that basically Power Act. I don’t know what is wrong was chairing a subcommittee of the documents all the manipulation that with saying that. I would like to go Commerce Committee. What happened has happened. We have a Department over the specific details so my col- there was egregious. It was wholesale of Justice investigating and saying yes, leagues understand exactly what we stealing, and I use the word ‘‘stealing’’ manipulation has happened. Yet this are trying to say and why the current in a very direct way. There are massive electricity title is very scant on put- underlying title comes up short in the criminal investigations underway. ting those things in place. sense of not doing enough to protect We have heard the terms Get Shorty, The Senator is right. This new elec- consumers. Fat Boy, Death Star—the schemes we tricity title appeared last Friday night. As I said, first of all, the Power Act unearthed. The people, in memoranda I don’t know what time it was, but well put in place a broad prohibition on the inside the company, were saying: Here beyond the time, I am sure, that I was manipulation of electricity prices. We is the way we are going to cheat con- home in Washington State. We started want to continue that. We want to sumers. They created congestion, and in on it on Monday. But the bottom make sure that in this language we say

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10177 manipulated electricity prices are islation. We are the body that needs to just and unreasonable. Any company wrong. In the Domenici substitute, we take the responsibility. We are the that employs such tactics should not are going to say that round-trip trad- body that needs to say to the American have free rein of the market by having ing; that is, buying and selling of elec- people we got the message that market market-based rates allowed under the tricity at inflated rates and inflated manipulation has occurred. Federal Power Act and the Federal En- volumes, is illegal. That is a good thing My amendment would clear up any ergy Regulatory Commission. It is sim- to do. But that is particularly focused confusion and specifically declare in ple. on the shareholder. the Power Act that market manipula- I want to point out to my colleagues We are saying let us protect the tion is unjust and unreasonable. the fact that there are other entities shareholder to make sure these guys Lastly, this amendment would amend that are way ahead of the game; that who are in this manipulative practice the section 206 of the Federal Power is, they are way ahead of us. They are of buying and selling on the same day Act requiring the Federal Energy Reg- way ahead of this body in saying that and inflating the price and inflating ulatory Commission to revoke the Enron manipulated contracts and the volume is wrong and illegal. That company’s authority to sell at market- something ought to be done about it. is good in protecting shareholders. But based rates whenever the commission And that is bothersome. I think we are how are ratepayers protected? I want finds it ‘‘knowingly’’ employs a strat- the protectors of the consumers in the to see protection for ratepayers. egy to manipulate the electricity mar- oversight of how well an agency is In particular, my amendment would ket. It says when the Federal Energy doing its job and to which we have del- add a new paragraph to the act which Regulatory Commission finds people egated the responsibility. is based on language the Federal en- have manipulated a market that they I am sure there are people in this ergy commission has had in its power revoke their market-based rates. Mar- body who probably never heard of the since 1934. This language would make ket-based rates is when the company Federal Energy Regulatory Commis- it illegal for any company to use or decides what the rates are. sion until this crisis happened. I am apply any manipulative or deceptive As I said, we in the Northwest have not sure the agency has had the bright device to circumvent the Federal En- been traditionally comfortable with light of day shined on it too often in its ergy Regulatory Commission rules and cost-based pricing that the public Congressional history. regulations on market manipulation. Power Act provided. Why? Because In fact, the Government oversight It is simple. Let’s just say it. What is consumers get the power at the cost it committee, then chaired by Senator wrong with saying what Enron has ad- takes to produce it. As a former busi- LIEBERMAN during this energy crisis, mitted they have done? What is wrong ness executive, I am all for market- had some hearings on whether the Fed- with saying what the Federal Energy place competition. But marketplace eral Energy Regulatory Commission Regulatory Commission has put in the competition has to have some regula- was doing its job. I thought that was report? What is wrong about saying tion or some people basically end up very appropriate. It is very bothersome what DOJ has said about manipula- controlling the market and consumers to me there are many newspaper arti- tion? Why not be really clear and spe- get whacked whatever they want. In cles and accountants of Ken Lay actu- cific? Any company that uses or ap- this case, we know manipulation hap- ally lobbying members of the Federal plies any manipulative or deceptive de- pened. Energy Regulatory Commission on vice to circumvent Federal Energy Why is this issue so important that whether they should have a cap or a Regulatory Commission rules and regu- we have to actually say to the Federal plan in trying to control or mitigate lations on market manipulation should Energy Regulatory Commission make prices in the western energy market. be punished. sure when these contracts have been He lobbied for Commissioners he Second, we want to say specifically manipulated that you revoke the mar- thought would not put a cap in place. that electricity rates resulting from ket-based rate authority? Believe it or He lobbied for people he thought would manipulative practices are not just and not, even though Enron, months and continue the trend toward deregulation reasonable under the Federal Power months ago, admitted in various of the market. Act. memos that they manipulated the mar- I do not know why we should listen As we talked about last night and as ket, it wasn’t until about 2 weeks ago to Ken Lay’s energy plan and who he some of my colleagues have said, we that the Federal Energy Regulatory thinks should be the nominees in these have the establishment of the Power Commission actually revoked their instances. We even have one newspaper Act and the protections of ‘‘just and market-based rate authority. Maybe it article that suggested he was for the reasonable,’’ and it is our responsi- was 17 days ago. Sometime in the last renomination of the current Chairman bility as a Federal Government to reg- 21⁄2 weeks, the Federal Energy Regu- of the FERC but only if he would con- ulate wholesale energy prices between latory Commission finally took the ac- tinue to have a free market strategy States. Why? Because in the 1930s, tion they should have taken over a and make sure these prices that basi- guess what happened. A bunch of com- year and a half ago. We have a Federal cally had been charged were kept in panies had too much power and jacked agency that has been laggard at ad- place. I think that is unconscionable. up the price on consumers. They held dressing this issue. We need to do something to make sure them hostage. Electricity is something While we will have other amend- this agency has our trust in the Senate no one should be held hostage for, and ments to address the Federal Energy and the trust of the American people. I certainly no one should lose their home Regulatory Commission and address think that is critically important. because of a manipulated contract by a the fact they have not stepped up to Even though my colleagues have company that put a scheme in place. their appropriate role in being the po- been hearing about this crisis for a We had a hearing before the Energy liceman on the books as this mugging couple years and some may think it is Committee in which I asked the Fed- of ratepayers happens, because clearly over, it is not over for the ratepayers eral Energy Regulatory Commission they haven’t—it took us, the Members of Washington State. It is not over for chairman, ‘‘Do you think if you find of the Senate and House of Representa- the California economy. We are stuck market manipulation that it is ever tives pounding on them for months with this bill. We are stuck with the going to be ‘just and reasonable,’ or about the high cost of electricity in impact of these manipulated prices. ever in the public interest?’’ Chairman our region to finally get a mitigation But I want to be clear, there are peo- Wood told me, ‘‘I can’t think of an in- plan. Over a year later it finally took ple who knew this was going on. And stance when it would be.’’ the hearings of Senator DORGAN and they have admitted it—Enron itself. We have the chairman of the Federal many others and an investigation that Enron knew we were going to get ac- Energy Regulatory Commission saying we finally got the truth on the table cess to this information eventually, so I can’t think this would ever be in the that contracts were actually manipu- basically they produced the smoking public interest or ever be just and rea- lated. Now it is going to take the effort gun memos where the company said it sonable. So why not put it in the Power and focus of this body to say, Let’s engaged in practices to manipulate the Act? Guess what. Chairman Wood make it simple. Let us make it really western power market. And they knew doesn’t write legislation. We write leg- clear: Manipulation of contracts is un- it was wrong.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10178 CONGRESSIONAL RECORD — SENATE July 30, 2003 In fact, even when these memos were partment of Justice continues to con- certain consulting work for auditing starting to be uncovered, people real- duct investigations into Enron’s activi- clients so there is no conflict of inter- ized these tactics had these exagger- ties. It has filed criminal charges lev- est in who they work for. It requires ated names that were not going to ied against 16 different employees, the rotation of all the partners. It im- sound too positive, so they ended up most recently resulting in one of those poses new regulations on corporate saying: Well, let’s change the names. I 16 arrested, a trading desk manager. boards and executives. It increases gov- am not sure if it was Fat Boy—oh, yes, Already, two Enron traders have plead- ernment oversight and criminal pen- Death Star. Death Star was the name ed guilty on charges of conspiracy to alties. We took tough action as it re- of a tactic used to manipulate the mar- commit wire fraud. And charges are lated to the auditors. We protected the ket, and they said: Well, if that comes pending against another. shareholders moving forward from hav- out maybe that won’t sound like such a So DOJ knows it is wrong. Yet in the ing this kind of scheme from an audit- good name. Let’s change that to Cud- electricity title we have not put in ing perspective happen again. dly Bear. strict enough language to prevent it If we were so ready to jump on this So somehow we were not going to from happening again. issue as it related to the auditing prac- find out there was market manipula- One of the most recent criminal com- tices and the accounting practices of tion in place because Death Star all of plaints filed against an Enron trader these companies, and we protected the a sudden became Cuddly Bear. It does by the U.S. Attorney’s Office says: shareholders and the individuals who not matter whether you change the Based on the facts, there is probable may have had pension plans or invest- code name, the impact on my State is cause to conclude that between ap- ments in these companies, why aren’t the same. It is wrong, and this body proximately June 1999 and January 2001 we now going to protect the ratepayers ought to outlaw it. the Enron trader unlawfully conspired who actually got gouged with the high So when FERC finally began to in- to commit and did commit acts in vio- cost of these contracts? Why aren’t we vestigate, they realized this problem, lation of the Federal law. There is going to say this is so egregious that as their report concludes, was signifi- probable cause to conclude that the we should never allow it to happen cant and ‘‘epidemic,’’ and the epidemic trader committed the offense of wire again; that we, the Congress, believe market manipulation took place in the fraud in violation to title 18, United that we are no apologists for Enron? West. Their own report says there is States Code, and conspired to commit We are not going to condone market overwhelming evidence that suggests the offense of wire fraud in the north- manipulation. We are going to say, just ‘‘Enron and its affiliates intentionally ern districts of California and else- as we did with accounting rules and au- engaged in a variety of market manip- where. diting rules, we are going to have in ulation schemes that had profound ad- The Department of Justice knows the Power Act the same message; that verse impacts on the market out- these acts are manipulative and illegal. manipulating contracts is unjust and comes.’’ The fact that they only have two peo- unreasonable and anybody who partici- In fact, the report goes on to say: ple indicted so far—and we still don’t pates in market manipulation does not Enron’s corporate culture fostered a dis- have justice as it relates to Ken Lay; get to have free market power under regard for the American energy customer. and it was the diligence of those on the the Power Act. It is simple. The success of the company’s trading strate- west coast and Members here saying Let me talk about what is in here be- gies, while temporary, demonstrates the manipulation went on—bothers me; it cause I believe Chairman DOMENICI and need for explicit prohibition on harmful and has taken so long. So I certainly want his staff probably did try to say that fraudulent market behavior and for aggres- to make sure there is no question that some manipulations happen and we sive market monitoring and enforcement. we think these activities are wrong and ought to do something about it. But I That is what the Federal Energy that something should be done about don’t think we have covered the full Regulatory Commission is saying has it. That is why we need tough lan- gamut of issues that need to be cov- transpired and what we need. It ‘‘dem- guage. ered. The Domenici amendment refers onstrates the need for explicit prohibi- Now, this body did its job as it re- to round-trip trading. Round-trip trad- tion on harmful and fraudulent market lates to the auditing of regulators and ing is simultaneously buying and sell- behavior and for aggressive market reform after Enron. This CRS report ing electricity to stimulate both the monitoring and enforcement.’’ for Congress—basically that is part of amount of electricity trading that was It is not FERC’s job to write the law. the report about the Sarbanes-Oxley going on and to stimulate and increase It is FERC’s job to enforce it and inter- act—talked about how we stepped up the price. So the Domenici amendment pret it. Our job is to act. They are tell- and did our job as it related to the au- says round-trip trading is wrong. And ing us they need to have this market diting and accounting practices of that is good. It is good that we took behavior monitored and enforced, and these organizations. one of these schemes and shot a hole that this problem demonstrates the Now, why was that important? It was into it and said this is wrong. need for an explicit prohibition. Let’s important because not only did rate- But there are many other schemes give them that explicit prohibition. payers get gouged, but people counted that are not covered under the Domen- Let’s put into the Federal Power Act on those companies and their truthful ici title: Fat Boy, also known as Icing that the manipulation of prices cannot reporting in their businesses. And the Load, to create real-time power mar- be just and reasonable and companies investors investing in those businesses kets. According to Enron’s own memos that participate in that practice do not counted on that truthful reporting. We dated December 6 and December 8, 2000, deserve to have market-based rates. uncovered that there was a lot of ma- Fat Boy was ‘‘one of the most funda- As I mentioned, FERC just came to nipulation going on there as well. mental strategies used by the traders.’’ this conclusion recently, so it is a lit- There was a lot of misinformation According to one, ‘‘the oldest trick in tle troubling that it took them so long, about what really was the cash and the book’’ and ‘‘is now being used by after so much damage has been done— capital of these companies and whether other market participants.’’ $3-plus billion to the California econ- the investments by investors really What Fat Boy did, when you boil it omy, over $1 billion to the Washington should have been made, given that the down, is Enron submitted false power economy, and billions more to Oregon long-term outlook of the companies supply schedules to the California and, I am sure, other parts of the West. was not based on real numbers but on ISO—the California organization in So we don’t want them to be confused these manipulated schemes. which power was bought and sold—and or slow to pick up the regulatory So what did we do? We didn’t repeal other market participants for the pur- framework and to use it as a hammer accounting laws that were on the pose of receiving payments when it against these kinds of manipulations. books to protect consumers. We didn’t actually need the extra genera- So let’s make it really clear. stepped up and said: Let’s make this tion. So in essence Enron received un- DOJ thinks this manipulation is stronger. Let’s get the Sarbanes-Oxley told millions of dollars for pretending wrong. The U.S. Department of Justice act in place. In fact, the act creates a to keep the lights on in the West when believes what Enron did was, as they new oversight board for auditors. It it really didn’t need to. There is noth- said, wrong and fraudulent. The De- prohibits auditing firms from providing ing in this current Domenici title that

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10179 prohibits Fat Boy from happening. Yes, mission in the opposite direction of the were supposed to help control price. you say, you can’t lie to FERC. There congestion. No energy, however, is ac- That is where the misinformation was, is nothing in the act that says you tually put on the grid or taken off, ac- where the lying and fabrication of in- can’t lie to the California ISO, which is cording to the company’s own memos. formation took place. This underlying exactly what Enron did under the Fat So wait a minute. We were saying to bill does nothing to protect or say that Boy scheme. people this is what is going to be on those kinds of activities to the Cali- That was the whole point of Cali- the grid, but then we don’t really put it fornia ISO, an independent system op- fornia deregulation. That is what peo- on the grid. erator, are illegal. It has no teeth as it ple went to the legislature and sold The U.S. Attorney’s Office described relates to that. So nothing in this un- them, just as they are trying to sell us. in a June court paper that Enron sub- derlying Domenici electricity title will Hey, guess what, California. If you de- mitted schedules to the ISO that pre- protect us from load shifting. The regulate, market competition is going tended to move the electrons owned by Cantwell-Bingaman amendment will. to drive down the price. And we will Enron, but in reality it didn’t. Because Get Shorty. Like many Americans, I create this mechanism, the California of this, it appeared to relieve conges- thought this was a title of a movie. I ISO, which stands for the independent tion. So the ISO awarded Enron con- thought it was supposed to be a joke. system operator. We are going to make gestion relief payments. Basically by But in my State it was not a joke to this scheme where an independent sys- pretending it was putting power out the ratepayers who actually had a pre- tem operator is going to get you cheap there to relieve congestion, which it mium price increase. Basically, what electricity. And all those people in the really didn’t, the ISO gave them relief they did was they gambled that it marketplace who want to sell power payments. The ISO was deceived be- would be able to find service at a and sell it at a cheap price, we are cause part of the looping scheme was cheaper price the next day. Enron’s own memos admitted that ‘‘this was going to drive down the price. outside of California and, therefore, it That is not what happened. The price couldn’t be detected, thereby costing obviously a sensitive issue because of reliability concerns.’’ Indeed, the com- went up. It escalated. So they de- more money. frauded the California ISO. There is According to the Department of Jus- pany stated that it would be ‘‘difficult to justify our position if the lights go nothing in this underlying bill that tice, senior Enron traders denied they out because these services were not protects the ratepayers from having were doing this practice or violating available, and the reason was because Fat Boy happen again because it does any market rules. So basically what we we were selling them without actually nothing to prohibit lying under these are saying is that there were people at having them in the first place.’’ kinds of schemes to the California ISO Enron who told other fine people who They basically were saying: We are or any other organization like that. probably worked at Enron and who going to have a scheme where we are Richochet was also known as Ping were trying to do their jobs, there is going to say there is power available Pong. The sole purpose of this scheme nothing wrong with this. This is to- when there is not. And then when the was to evade California’s attempts to tally OK to do. lights went out, they knew they were put price controls in place. Knowing One of the trading managers was going to have concerns. They knew. that FERC wasn’t really paying atten- smart enough and said: We are worried How they could think the west coast tion, they were given market-based that the details of the strategy would economy would not be reached by this rates. They said: Go out and see if you be leaked to the ISO and other power havoc being laid upon them. I cannot can drive down the price of electricity. companies or the public. One of the understand. I cannot understand the And under this scheme, basically to get consequences of his concern was that corporate greed that goes into this out of the price controls that Cali- he was instructed to refrain from call- kind of thinking—that somehow this fornia was trying to put in place and ing this Death Star. That is when they kind of marketing strategy would be control, the traders, instead of trading said: Gee, employees are getting nerv- good for California, good for Wash- within the State of California, would ous about this scheme; they don’t ington, good for America, good for cor- ship their power outside of the State think it is right. Let’s change the porate business, good for our con- and then ship it back in. Yes, that is name to Cuddly Bear and maybe every- fidence as a country—confidence that right, just like the ping pong ball, back body will be OK with it. Well, we are we as a government are going to say and forth on a ping pong table, pushing not OK with it. this kind of manipulation is wrong. It power to one side and pushing it back— The underlying Domenici electricity has created a huge deal of unrest in the Ricochet. title does not prohibit Death Star from West. Nothing in the Domenici elec- If we push it out of California, then happening again. Only the Cantwell- tricity title prevents Get Shorty from we are not subject to those State regu- Bingaman amendment will do that. happening. lations, and guess what. When we ship Load shifting was another ploy. To Wheel Out. I am not sure what mar- the power back in, we can ship it in at employ this tactic, Enron would dis- keter came up with this one. Enron the price we want. That way we avoid tort its transmission schedule to create would submit schedules for a trans- the caps of the California ISO and the the appearance of congestion, or know- mission on line they knew was out of power exchange that is trying to en- ingly increase the congestion cost to service. In doing so, the company force them. all market participants. Again, more would earn extra payments for their So the prohibition on round-tripping misinformation. The underlying trouble. It is not even available. It is in the Domenici bill does nothing to Domenici title says nothing of falsified sort of like a cab driver heading prohibit Ricochet or Ping Pong from information provided to the FERC. straight for a traffic jam in order to happening again. This kind of practice Well, FERC already has language in keep the meter running on an of shipping out of State and shipping there about reporting. It didn’t get unsuspecting tourist, basically saying: back in is not illegal under the Domen- them to stop Enron from following I am going to get you into congestion ici title. But it will be under the Cant- these practices. It doesn’t require or and it is going to cost you a lot. The well-Bingaman amendment if this body make illegal any of these practices of poor passenger in the car doesn’t know will adopt it. providing misinformation to the Cali- there is a quicker route, a cheaper way, Let me talk about Death Star for a fornia ISO. a more expedient way to control the second. That is the one, yes, renamed Remember, the California ISO was an cost. But unlike a cab ride, the costs of Cuddly Bear. I don’t care what you call organization that basically was created this are not in the tens of dollars but in it, there is no way the American pub- after deregulation. After deregulation, the millions of dollars, and the cost to lic, the public in Washington State, people went to the California Legisla- our economy has been in the billions of doesn’t know that this wasn’t a cuddly ture and said: We will create a mecha- dollars. There is nothing in the Domen- bear. This was an unbelievable scheme nism where the marketplace buys and ici underlying amendment that would that has ruined our economy. The es- sells power at a cheap rate. We will let prohibit the Wheel Out strategy from sential strategy of Death Star was for the market do it. happening again. Enron to earn money by lying about its Under the California ISO, the inde- The Cantwell-Bingaman amendment transmission needs, scheduling trans- pendent system operators basically says that the Wheel Out strategy is

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10180 CONGRESSIONAL RECORD — SENATE July 30, 2003 manipulation of the market—it is ma- year and a half ago. I did not know at tell them that was a no-no. They are nipulation. Under the Federal Power the time she had sent this letter, but saying these are dire circumstances, Act, it cannot be just and reasonable she lives in a region of the State where these are life-threatening situations, that companies that deploy these kinds they have had a 71 percent rate in- these are public health risks. We ought of practices should not have market- crease—a huge increase. to stand up today and say this kind of based rates. This 11-year-old girl sent an emo- market manipulation is not just, it is I hope there are not any more tional letter about how the crisis was not reasonable, it is not in the public schemes. I hope I don’t have any more affecting her family, that her mom was interest, and these variety of schemes charts because this is enough. This is living paycheck to paycheck. That ac- from Ricochet to Fat Boy to Death enough of the tactics that were de- tually the job her mom had was de- Star are not legal, they are examples of ployed by a company that basically pendent upon affordable electricity. manipulation, and companies that thought that making a few more dol- She wrote: practice such manipulation should not lars through manipulative practices This is the first time I’ve lived in a house. be given market-based rates. was somehow OK to do. This is the most important thing in my life, I could go on about this issue and I read some of those quotes from em- that we get to live in a house. Please listen talk about how our Northwest econ- ployees at Enron who said: I don’t to what might happen to hundreds of kids, omy has been impacted by the number think this is right; I think this is a including myself, when my mom might lose of jobs lost. I know several of my col- concern. Yet they continued. her job and we might have to move out of our house. leagues wish to speak on this issue, and So the Cantwell-Bingaman amend- I am going to give them the oppor- The impact is being felt by young ment, which is supported by Senators tunity because I know they have been children, not just by the parents who HOLLINGS, MURRAY, BOXER, FEINSTEIN, engaged in such dialog and speaking might lose their job. Not just by the and others, simply says let’s put into out on this issue. I want to give them Snohomish County ratepayers who had the Power Act that manipulation is a chance to continue to express their 44 percent disconnect notices, but by not just and reasonable. opinion on this issue as well. We have had lots of support: The young children who are fearful that I do not know if the Senator from Northwest Public Power Association, their families are not going to make it Iowa wants to have a few minutes now, Northwest Energy Coalition, AARP, because these schemes caused these but I am happy to yield to him—for Consumers Union, International Broth- rate increases that we are stuck with how much time? erhood of Electrical Workers, Con- for years and years. Mr. HARKIN. For 10 minutes. sumers for Fair Competition, National There is somebody sitting in their of- Ms. CANTWELL. For 10 minutes of Association of State Utility Consumer fice somewhere in America saying: the time I have remaining, Mr. Presi- Advocates, Union of Concerned Sci- Gee, why don’t you just sue those dent. entists, U.S. Public Interest Research Enron people? Why don’t you just sue The PRESIDING OFFICER. The Sen- Group, and many other organizations, them and tell them that under the Fed- ator from Iowa is recognized. such as members of the AFL–CIO, and eral law, they cannot manipulate these Mr. HARKIN. I thank the Senator many people who are concerned about contracts? I think people in America from Washington for yielding to me. I the economic impact of manipulation would be surprised to know that Enron want to help her on this amendment. I happening prospectively on natural is suing these utilities. Enron is turn- ask unanimous consent to be added as gas. ing around and suing these utilities a cosponsor to the Cantwell amend- Why won’t somebody just take this and forcing them to pay these rate in- ment. experiment that happened in California creases. They are suing the Snohomish The PRESIDING OFFICER. Without and the West and say, OK, we will— County public utility district, saying: objection, it is so ordered. with the current Domenici language, That contract—that has been manipu- Mr. HARKIN. Mr. President, after lis- Congress barely smacks the hands of lated—that you signed for 5 years of tening to Senator CANTWELL’s expo- those Enron traders. Gee, only one of power, even though it is manipulated sition of the crimes, manipulations, them went to jail. I guess you have to and you are paying a 54-percent in- and the fraud perpetrated on the Amer- be smart enough not to be the one who crease, we are not letting you out of ican people by the Enron Corporation, gets caught with a memo on an elec- that contract; we are suing you. it is, again, amazing to this Senator tronic file on your computer, and, This is the only body that can pro- that we have not done something about guess what? You will get out of this. So tect people in the future. It is only the this situation before now. I am amazed let’s take this same kind of scheme and Senate and the Congress that can say: this is not taken care of in the under- deploy it for natural gas. This manipulation is wrong. This ma- lying bill. That is what this amendment is nipulation, moving forward, is wrong. We know that what Enron did can about. This amendment is about saying Then ratepayers in my State in the fu- happen again if we do not address it. If that natural gas in the future will have ture, if this happens, might have a we do not ban it, as Senator CANTWELL better protections of consumers in chance. does in her amendment, it will keep mind regarding potential rate in- We have had letters from senior citi- happening over and over. creases. So, if we have an increase in zens who are trying to live on a fixed In the 1930s, at the height of the natural gas prices, maybe because of income. This burden has made them Great Depression, Congress realized shortage of supply, guess what, we will make decisions about how they are one of the most important factors was really know that it is about shortage of going to live in the future. One woman the collapse of the electric utility in- supply. We will really know. We will be from Okanogan County said: My dustry. It turned out this basic indus- able to tell consumers in America that friends, myself, and my neighbors can- try had been built on fraud after fraud, we really know it was about not having not afford the higher rates: shell game upon shell game, and when enough supply; it was not because some I am in a total panic because I am disabled economic troubles hit, it collapsed like natural gas producer had tons of supply and barely can pay for heat now. With these a house of cards. but manipulated the market through a rates going up as much, it will make it a life- Congress’s attempt to prevent this threatening situation. This will become a variety of schemes and somehow public health disaster. To make matters from happening again was the Public gouged consumers, and that is why worse, many businesses are planning on Utility Holding Company Act of 1935, your rates are higher. Can we not give shutting down here due to the terrible econ- otherwise referred to around here as the American consumer that kind of omy and the power costs. This is putting the PUHCA. That was our attempt in the confidence about our energy? I sure last nail in our coffin in a dire economic sit- 1930s to prevent what was happening hope we can. uation in Omak, WA. then from happening again, with all This issue has a real impact on peo- That is what the ratepayers in my the frauds and the collapse of the house ple, and I know my colleagues are in State think. Not just: Oh, please, Sen- of cards of the electric utility compa- the Chamber, and they want to speak, ator CANTWELL, Senator MURRAY, nies. but I wish to share one letter from an please, Members of Congress, smack Then we go forward 60 years to about 11-year-old girl whom I met almost a the little hand of the Enron people and the midnineties, and we were told that

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10181 the restructured electric utility indus- But Enron showed more clearly than true, and I think it is time now that try would be built upon markets and any episode since the Great Depression the White House comes clean on this trading, that the markets would ensure that strong Federal oversight is needed issue. We do not know whether the the soundness of the industry, that the in the electric industry; that fraud President was aware at the time he PUHCA now was just a hindrance to hurts consumers, investors, and our made this statement that it probably cheaper power, more available power, whole economy. was not true, but somebody should for all of our consumers; that PUHCA The Domenici substitute bans one have known. was not only irrelevant but probably particular trading scheme, round-trip Surely, someone in this administra- even a hindrance. trading, but it leaves all the other tion knew that trillions of dollars of Enron was both the leading partici- schemes with these names we have tax breaks, combined with a downturn pant in and the leading advocate of heard of from Star Wars. It would still in the economy, would lead to massive this new scheme of electricity mar- leave them there, and Senator CANT- budget deficits. kets. They were not the only one, but WELL just laid all of those out for us. Following that speech, this adminis- they were the leading one. They were So it would leave all of those un- tration gave trillions in tax breaks to the ones that had the closest ties to touched. the wealthy, the economy softened, people in Congress and to the Bush ad- Why just ban one and leave all the and we have gone straight from record ministration. other ones there? Well, as one step to projected surpluses to record projected It turned out that Enron, like the restoring confidence in the energy in- deficits and debt. In fact, just 2 years electric companies of the 1910s and dustry and thus getting the economy later, the United States now faces mas- 1920s, was also built upon frauds, shell moving again, we need to ban all such sive, prolonged, record-setting pro- games, and out-and-out criminal activ- market manipulation. That is what the jected deficits—over $450 billion this ity. When troubles hit, Enron, too, col- Cantwell amendment does and that is year, $475 billion next year, and tril- lapsed like a house of cards. Again, this why I support it. lions of dollars of deficits over the is what we saw in the 1930s. The Presiding Officer is from the coming years. As Senator CANTWELL has brought State of Missouri, the home State of So, what the President said that day out, we had a whole new set of terms of one of my political heroes, Harry Tru- in 2001 was in fact woefully false. art that entered our vocabulary: Fat man, a great Democrat. Harry Truman Now, I know the other side is going Boy, Get Shorty, Death Star, and many once said when he was campaigning in to accuse me of making a mountain more. Enron had legions of employees 1948 in the Midwest and talking to a out of a molehill on this issue. They who were paid to dream up ways to de- bunch of farmers who had lost a lot in will say I am just taking 16 words from fraud the public and manipulate prices the Depression and he was telling them one speech and blowing them out of of electricity and transmission capac- that his opponent, Mr. Dewey, was proportion in order to challenge the ity. They ranged from affiliate struc- going to turn the clock back and they President’s credibility. They will ask: tures, creative loans, trading strate- were going to get rid of all of the sup- How can 16 words in one speech be the gies. port they had had for agriculture. Tru- test of a President’s credibility? We have heard about Wheel Out, man uttered one of his great lines. He Yes, I can hear the President’s de- about how they tried to sell electricity said: How many times do you have to fenders already. They will say: This through nonexistent lines. Again, get hit on the head before you figure speech was cleared by the Council of Enron was not the only one. FERC has out what is hitting you on the head? Economic Advisors. It is not the Presi- found dozens of companies were in- Well, I would like to take Harry Tru- dent’s fault. He relies on the technical volved in fraud, that market manipula- man’s line and apply it to us and the advice of experts on these matters. tion was epidemic. electricity industry. How many times Maybe that is the case. Maybe the The whole energy industry still has do we have to get burned by fraudulent President thought he was telling the not recovered. In fact, the whole econ- schemes in this industry before we fig- truth when he said we could reduce omy is hurt by investors who have lost ure out what we ought to do about it Government revenues by huge amounts their trust in American corporate man- and ban all of these activities? How without causing deficits. But somebody agement. many times do we have to get hit on should have known it was not true. Now we see that PUHCA, the Public the head before we figure out there are If not one in this administration Utilities Holding Company Act, was, in deep problems in the electricity indus- knew that passing enormous tax fact, irrelevant to Enron schemes. try and they have to be solved? Be- breaks for the wealthy, combined with Why? Because FERC had determined cause if they do not, it is going to con- an economic downturn, might lead to that Enron was exempt from the law. tinue to hurt our economy. exploding deficits, that does not ex- Even that was not enough for Enron’s Our economy right now is in terrible actly inspire a lot of confidence, either. chairman Ken Lay, who later threat- shape. I will divert just a little bit The President’s defenders on this ened to remove the FERC chairman if from this bill for a few minutes if the issue may also say: he did not back his beloved markets Senator does not mind. Well, actually, the statement is tech- and schemes more strongly. The PRESIDING OFFICER. The time nically accurate, and did not mislead any- Where is Ken Lay today? Is he in of the Senator from Iowa has expired. one. After all, it says we can proceed without prison? Is he behind bars? Well, of Mr. HARKIN. I ask for an additional fear of budget deficits. It does not say we course not. I understand he had to sell 5 minutes. will not actually experience massive budget a couple of his big houses, one in Colo- Ms. CANTWELL. How much time is deficits. It just says we do not need to fear rado and one someplace else, but he is remaining? them. out free. He may be on the French Riv- The PRESIDING OFFICER. The Sen- Unfortunately, that explanation will iera for all I know. I do not know ator from Washington has 32 minutes not work, either. As Alan Greenspan where he is. He made a lot of money. remaining. has reminded us repeatedly, large defi- He sacked it away and he is living a Ms. CANTWELL. Five minutes. cits do matter, and they are something grand life. The PRESIDING OFFICER. The Sen- to be concerned about. Now I guess a couple of his ator from Iowa is recognized for 5 min- In truth, it is pretty obvious that the underlings went to jail because they utes. White House intended to communicate got caught, but Ken Lay, the brains be- Mr. HARKIN. Mr. President, in that the President’s massive tax cuts hind the whole scheme, the person who March of 2001, President Bush visited would not create corresponding mas- threatened to remove the FERC chair- Western Michigan University to stump sive deficits. It is now apparent that man, is scot-free. So much for justice for his tax cuts. He said: someone misled the public in that in this regard. . . . we can proceed with tax relief without speech by the President. At this point I doubt this Justice De- fear of budget deficits, even if the economy ‘‘Well, but even if what the President partment is going to do anything to softens. said was not true,’’ I can hear his de- really go after Ken Lay because of his Of course, today we know that what fenders say, ‘‘it does not matter. What closeness to the Bush administration. the President said that day was not matters is that we did what we really

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10182 CONGRESSIONAL RECORD — SENATE July 30, 2003 set out to do. We provided the most af- of these schemes devised to defraud Mr. CRAIG. I come to the floor this fluent Americans with large tax utilities—and ultimately to defraud morning frustrated in part by some of breaks. We rewarded our largest cam- consumers—that have resulted in con- the debate that has occurred on the paign contributors with millions.’’ sumers paying substantially more floor. The Senator from Washington Now, I hope that is not the real ex- every month when they pay their util- and I agree the ratepayers of the Pa- planation. But that is what actually ity bills. They have very exotic names. cific Northwest have been injured by a happened. But the truth is, her amendment is ex- dysfunctional California market that These days the administration does tremely straightforward. was badly designed and badly conceived not want us to pay too close attention Let me read the operative part of from the beginning. In fact, it got so to what the President actually says. In this amendment and ask how this can bad and it has been so dramatically fact, sometimes they would rather we be objectionable to anyone. treated in the wrong political way that disregard it altogether, especially when It shall be unlawful for any person, di- we have a gubernatorial recall going on it is only 16 words. They say it does not rectly or indirectly, to use or employ, in con- in the State of California right now. really matter. nection with the purchase or sale of electric Finally, the ratepayers of California In this case, as in others, what the energy or the purchase or sale of trans- got it figured out. The politics of Cali- President of the United States says mission services subject to the jurisdiction of the Commission, manipulative or decep- fornia destroyed the market and the does matter. The President needs to ratepayers of Washington, Oregon, and come clean about these remarks. He tive device or contrivance in contravention of such rules and regulations as the Commis- Idaho had to help pay for it. needs to admit his mistakes. Otherwise sion may promulgate as appropriate in the To come to the floor this morning we are left with the distinct impression public interest for the protection of electric and say nothing is going on and nobody the President, his advisers, or both, ratepayers. is being prosecuted is, in fact, wrong. It purposefully misled the American peo- What is wrong with saying it is ille- is not telling the whole truth. The title ple about the economy in order to get gal to engage in manipulative and de- we have in front of us, the electrical tax breaks for the wealthy. ceptive practices? I cannot understand title, still allows thorough and aggres- If they were a mistake, these 16 why we are spending so much time de- sive prosecution of those who violate words, then the President ought to bating an issue that seems so straight- the law. admit it. The resulting policy is driv- forward to me. Where is the regulatory gap that is ing our economy into the ground. If The Domenici substitute does pro- being talked about this morning that they would acknowledge the statement hibit round-trip trades. And they the Senator from the State of Wash- was wrong, hopefully we could all come should be prohibited. Unfortunately, it ington, by her amendment, might together to remedy the President’s eco- does not go the next step and do ex- change? Here are the agencies involved nomic malpractice and get the econ- actly what I just read, which the Cant- at this moment: The President’s Cor- omy moving again. well amendment would do. We need to porate Fraud Task Force, the Federal I yield the floor. add this provision. We need to be sure The PRESIDING OFFICER. Who Bureau of Investigation, the Federal the tools are there in the Federal Reg- Regulatory Commission, the Securities yields time? ulatory Commission to do this job in Ms. CANTWELL. Mr. President, I and Exchange Commission, the Com- the future. yield 5 minutes to the ranking mem- modity Futures Trading Commission, I sympathize with the statements the the United States Postal Service, and ber, Senator BINGAMAN, who is a co- Senator from Washington has made sponsor of my amendment. He has numerous U.S. Attorney’s Offices. about the inaction of the Federal Regu- Their cooperative enforcement activi- worked hard in bringing attention to latory Commission in the early months everyone about this issue of market ties have focused on investigations of of the Bush administration. There was possible round-trip trading, false re- manipulation. a period when prices were going The PRESIDING OFFICER. The Sen- porting, fraud, manipulation of energy through the ceiling, particularly on the companies and their affiliates, employ- ator from New Mexico. west coast, and we were not seeing ac- Mr. BINGAMAN. Mr. President, I ees, and their agents. tion out of the Federal Regulatory thank Senator CANTWELL for yielding There is a list of some of the actions Commission as we should have. That time on this amendment. I am a co- taken on various Federal agencies. Let was corrected, in my view at least. It sponsor of the amendment. I commend me run through them: was corrected after the new chairman her for offering the amendment and fo- Starting on July 16, 2003, the FERC came in, Chairman Wood, and began to cusing the attention of the Senate on administrative law judge recommended assert the authority the Federal Regu- Enron be required to refund $32.5 mil- this important set of issues. latory Commission had and should The electricity title is perhaps the lion for violating section 205(c) of the have been asserting all along to go most complex part of this entire En- Federal Power Act. ahead and step in. June 25, 2003, FERC revoked the mar- ergy bill. We recognize and understand This is an additional tool. We should ket-based rate authority of the Enron there is a lot of complexity in writing give FERC this tool and make it clear power marketing entity. a provision or a title that governs the in the law that all of these deceptive June 3, 2003, John M. Forney, man- regulation of electricity. and manipulative practices are illegal. However, the issue that the Cantwell ager of the Enron real-time trading Once we make that clear, we are in a desk during 1999 and 2000, was arrested amendment deals with is not com- position to hold the Federal Regu- and charged with wire fraud and con- plicated. It is extremely straight- latory Commission accountable if, in spiracy. forward. Frankly, I am at a loss to un- fact, manipulative or deceptive prac- May 1, 2003, new criminal charges derstand why we cannot get agreement tices occur in the future. between Democrats and Republicans in This is not an academic inquiry. were filed against former Enron chief the Senate to go ahead and close this These practices resulted in increased financial officer, Andrew Fastow, in- loophole which has become so clear to utility bills for many Americans. The cluding charges of security fraud, in- everyone in the country who has paid Senator from Washington should be sider trading, falsification of Enron ac- any attention to energy prices and en- commended for stepping in to ensure counting records, tax fraud, and self- ergy markets in recent years. that does not recur in the future. dealing. Just a year ago, newspaper stories I yield the floor. I could go on, and I have numerous had almost daily headlines about power The PRESIDING OFFICER. The time lists. But that is Enron. marketers manipulating the market in of the Senator from New Mexico has Let me go to Reliant Resources: May California and in the Northwest States, expired. 12, 2003, Securities and Exchange Com- Washington and Oregon, in particular. The Senator from Idaho is recog- mission issued a cease and desist order Unfortunately, it seems something has nized. against Reliant Resources and Reliant been forgotten since those stories were Mr. CRAIG. I yield myself 5 minutes Energy arising from Reliant’s admis- written a year ago. of our time. sion in May of 2002 that it conducted Senator CANTWELL has outlined very The PRESIDING OFFICER. Without round-trip trading for the purpose of dramatically and effectively the parade objection, it is so ordered. artificially increasing trading volume.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10183 Dynegy, another energy company, Ms. CANTWELL. I yield to the Sen- which public utilities may charge mar- June 12, 2003; the U.S. Attorney’s Office ator from Louisiana 5 minutes. ket-based rates. This policy is to con- for the South District of Texas charged The PRESIDING OFFICER. The Sen- sider consumer protection, market three former Dynegy employees with ator from New Mexico. power and other factors deemed nec- conspiracy, securities fraud, mail Mr. DOMENICI. Mr. President, I will essary by FERC to ensure that market fraud, and wire fraud in connection yield and speak after Senator LAN- based rates are just and reasonable. with round-trip energy trades, and the DRIEU. FERC cannot switch to market base Securities and Exchange Commission The PRESIDING OFFICER. The Sen- rates if a monopoly exist or else will also filed civil securities fraud charges ator from Louisiana is recognized for 5 have to employ cost based rates. against the former employees. minutes. Let me talk a few moments about the How about El Paso Corporation? May Ms. LANDRIEU. Mr. President, I consumer protection provisions of this 9, 2003—in May of 2003 FERC deferred would like to ask, since it seems there amendment. This is an area where action in a pending proceeding stem- is enough time, if I could have 10 min- some of my colleagues say the Domen- ming from allegations of affiliate abuse utes. I ask unanimous consent for that. ici amendment does not go far enough. and anticompetitive impacts on the de- Ms. CANTWELL. The Senator is I believe that the provisions of the livered price of gas and the wholesale yielded 10 minutes. Domenici amendment are a significant electric market in California. The PRESIDING OFFICER. The Sen- first step in the right direction. Let me It goes on and on. I have four more ator from Louisiana is recognized for 10 tell you why. First, the Domenici pages of about seven items per page of minutes. amendment would require FERC for actions that have already been taken Ms. LANDRIEU. Mr. President, I rise the first time to issue rules to estab- against these companies. in strong support of the Domenici sub- lish an electronic information system The question is, Does the electrical stitute electricity amendment. There to provide information about the price title that we have before the Senate have been few other parts of the En- and availability of wholesale electric today create a regulatory gap? The an- ergy bill that have been more con- energy and transmission capacity. swer is quite obviously no. troversial or that have been the subject Transparency is key to well func- Does it change the problem in the of more debate than the electricity tioning and fair electricity markets State of Washington? Washington got provisions. The Domenici amendment and this amendment will significantly stiffed by the old law and the old proc- is a well-crafted compromise that rep- improve transparency. The amendment ess. Idaho’s ratepayers got stiffed by resents some of the best thinking on further seeks to ensure market trans- the old law and the old process. And electricity deregulation. It is worthy of parency and integrity by prohibiting the citizens of California have finally the support of all Senators because it the filing of false information regard- said: We have a Governor who will not addresses those issues that need to be ing the price of wholesale electricity do anything about it. He put us in a addressed and does so in a fair and bal- and availability of transmission capac- huge deficit problem, and we are going anced way. ity. The Domenici amendment deserves to throw him out of office. And that is Second, the amendment would pro- what that recall is about. It all stems the bipartisan support of the Senate because it provides Federal agencies hibit specific manipulative conduct from a phenomenally dysfunctional and practices, including simultaneous electric market that the people of Cali- such as the Commodity Futures Trad- ing Commission and Federal Energy trading of the same volumes of elec- fornia created, and they created it by tricity between two entities—round- deregulating wholesale and regulating Regulatory Commission with new tools to prevent and penalize anti-consumer trip trading. retail and in came the scammers and Third, the Commodity Futures Trad- the scammers are now being prosecuted and manipulative behavior, including false price reporting and simultaneous ing Commission is given important new as they should be. authority that will improve market I do not believe the amendment is trading of the same volumes of elec- transparency and further strengthen necessary. I believe the title in this bill tricity between two entities, known as anti-manipulation powers. These new on electricity appropriately addresses round-trip trading. It encourages dis- powers include a strengthening of the this. There is transparency. There is no tributed and renewable generation CFTC’s authority to investigate and regulatory gap. through a nationwide net metering punish fraud and manipulation in the The PRESIDING OFFICER (Mr. program; in other words, it allows enti- reporting of electric and natural gas CRAPO). The Senator from Washington. ties that use solar power or small gas prices and an expansion of the CFTC’s Ms. CANTWELL. Mr. President, I generators to put excess electricity general anti-fraud authority to cover know my colleagues from the other back into the grid. certain on-line trading platforms, like side of the aisle want a chance to use It moves the FERC’s refund author- those run by Enron. up some of their time. I do not know ity back to the filing of a complaint. whether the chairman wanted to speak Currently there is a 60-day grace period Fourth, the amendment substan- now. The Senator from Louisiana was before refunds can be issued—the pro- tially increases criminal penalties for going to be yielded a few minutes, also. posed language removes the 60 days. It violations of the Federal Power Act to I do not know if the chairman wanted expands FERC’s merger review author- $1,000,000 per violation and civil pen- to use time. ity by increasing the number of trans- alties are substantially increased as Mr. DOMENICI. Mr. President, how actions that will be subject to FERC well. much time does Senator CANTWELL review and approval; in addition to Finally, the refund effective date for have left? utilities FERC now will be able to re- violation of the ‘‘just and reasonable’’ The PRESIDING OFFICER. The Sen- view mergers of transmission assets. pricing standard under the Federal ator from Washington has 21 minutes This prohibits so-called ‘‘slamming’’ Power Act is moved back to the date of remaining. and ‘‘cramming.’’ This concept comes the filing of a complaint, thus giving Mr. DOMENICI. The Senator from from the telecom industry. Slamming consumers a greater likelihood of re- New Mexico has a half hour less than is when retail customers have their ceiving refunds where prices are found the Senator—— service switched unknowingly, for ex- not to be ‘‘just and reasonable.’’ The PRESIDING OFFICER. The Sen- ample, AT&T to Sprint. Cramming is In short, this is a good consumer pro- ator from New Mexico has 24 minutes when retail customers have items tection package and it is one that is remaining. added on to their bills unknowingly, worthy of our support. The Domenici Mr. DOMENICI. I inquire if the Sen- for example, call waiting. amendment also makes certain long- ator from Louisiana desires to speak? It requires the FTC to issue rules overdue reforms to our Nation’s out- Ms. LANDRIEU. Yes, Mr. President, I protecting the privacy of electric con- dated electricity laws. For example, desire to speak both in support of the sumers; and the customers information the amendment would carefully extend chairman—— cannot be shared without their con- open access requirements to trans- Several Senators addressed the sent. It requires FERC to issue a new mission systems owned by all large Chair. policy establishing conditions under transmission-owning utilities so that

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10184 CONGRESSIONAL RECORD — SENATE July 30, 2003 larger, more seamless regional whole- to you that overpriced contracts based the very distinguished Senator, Ms. sale electricity markets can be cre- on manipulation toward market prices CANTWELL. As I talked with her, I could ated. It would establish new trans- should not be avoided or at least re- just see how her very being was upset mission pricing policies to help ensure formed? I pointed out it was clear just with what has happened to her con- that those benefitting most from new on the basis of that short excerpt that stituents because of the pricing that transmission investments are obligated the traders were manipulating long- went wild in the State of California for to pay for them. It reforms PURPA term prices when they were talking which she got the aftermath in her while protecting existing investments, about the third quarter next year. State. But it is not only her State and contracts, and expectations. Lastly, it What is more, the Federal Energy her constituents, it is a whole section repeals PUHCA, while ensuring that Regulatory Commission staff’s inves- of the country which, in a sense, got it State and Federal regulators have ac- tigative report issued earlier this year in the neck because of California. cess to the books, records and informa- found that there was a particularly sig- While I am at it—I intended to do tion needed to ensure informed regu- nificant correlation between spot this later in my remarks, but let me do latory action. prices and shorter 1- to 2-year con- it right now—there was a lot of talk Mr. President, this is a good amend- tracts. Despite being caught in the act about what happened to bring those ment. I urge all my colleagues to sup- with a smoking transcript, despite hav- prices to that outrageously wild sys- port it. ing it read to them like a bedtime tem that ended up falling over on to However, there are some improve- story, despite the Federal Energy Reg- her constituents. And the word ‘‘ma- ments that should be incorporated. One ulatory Commission’s staff findings, nipulation’’ was used and that even such example would be Senator CANT- the majority of the Federal Energy FERC said, in a report, manipulation WELL’s amendment that places a broad Regulatory Commission—specifically caused it. prohibition on all manipulative prac- Commissioners Wood and Brownell— Let me suggest, the Senator from tices in electricity markets. still cannot see the connection between New Mexico has done everything he I yield the remainder of my time. these caught-in-the-act, smoking gun could to try to find out what the real The ACTING PRESIDENT pro tem- memos and transcripts and the higher experts say caused it, and none of them pore. Who yields time? energy prices my constituents are now say it was manipulation that was at the heart of the problem of prices going Ms. CANTWELL. The Senator from paying because of the market manipu- outlandishly high on the west coast. As Oregon would like a few minutes. I am lation detailed in these transcripts. a matter of fact, whether you ask the happy to yield to the Senator from Or- I am pleased to be able to have just Federal Reserve Board or whether you egon 5 minutes. a couple of moments here. But it seems look at the FERC report, the root The ACTING PRESIDENT pro tem- to me if the Federal Energy Regulatory cause is found not to be—not to be— pore. The Senator from Oregon is rec- Commission is unwilling or unable to manipulation. The meltdown was a sig- ognized. police long-term energy markets in nificant supply shortage and fatally Mr. WYDEN. Mr. President, I thank cases like this where people in the Pa- cific Northwest are being ripped off in flawed design statutes. the Senator from Washington, and I Let me repeat, the general consensus broad daylight, it is time for the Con- also thank the Senator from New Mex- of those who have looked at it care- gress to step in. That is why the Cant- ico for his courtesy. fully say significant supply shortfall well amendment is so important. I rise in strong support of the Cant- added to a fatally flawed design mar- I urge my colleagues to back the well amendment. What we have seen in ket and that blew up the California Cantwell amendment and outlaw the the Pacific Northwest with respect to market and, thus, its surrounding kind of manipulation that I have read the manipulation of our energy mar- States. kets is that the position of the Federal to the Senate today and that I read to On March 26, 2003, FERC issued its Energy Regulatory Commission has the Energy Committee. Unfortunately, ‘‘Final Report on Price Manipulation simply been see no evil, hear no evil, the Federal Energy Regulatory Com- in Western Markets.’’ Senator CANT- and ignore evil. mission is unwilling or unable to ad- WELL believes the report proves there The reason I have come to that con- dress it. was manipulation. However, not every- clusion is that when the Federal En- I yield the floor. one shares that view. ergy Regulatory Commission Commis- The ACTING PRESIDENT pro tem- As a matter of fact, the Cambridge sioners came to the Energy Committee pore. Who yields time? Energy Research Associates, CERA, is in March to discuss with us the ques- Mr. DOMENICI. Mr. President, we considered one of the top, if not the tion of manipulation of the Pacific will soon have a unanimous consent re- top, energy market analysts in the Northwest market, I read excerpts quest that will set up another amend- world. Daniel Yergin, the chairman of point by point from the Reliant Energy ment of the same class to follow this CERA, is the most respected expert in trading transcript to the Commis- afternoon immediately after the vote energy policy and the author of the sioners. I read to them pretty much on the judge. ‘‘Prize,’’ the Pulitzer Award-winning like a bedtime story. Here is the por- In the meantime, I have around 20 book on the global oil market. tion of the transcript that I read to the minutes to speak. I would like very CERA noted that FERC ignored the Commissioners. It involves the Reliant much to be as short as I can. But first, natural gas and electricity supply manager. let me say to fellow Senators that I am shortages and assumed scarcity was at- He says: very proud of the electricity amend- tributed to manipulation. It was scar- ment, with 13 bipartisan cosponsors, How did it work today? city first, and then it was flawed design Reliant Trader: 129. We’re talking about which is pending. Does anybody think statutes which permitted the scarcity the power exchange. we would have worked on that for days to go berserk. Reliant Manager: Yeah. I saw that. on end and not have provisions in it Now, that is aside from the question. Reliant Trader: Then we trade up to 1.31 that take care of the problems that Let’s get back to the issue of the bill for the third quarter next year. Senator CANTWELL is talking about? Is and whether we would bring before the Reliant Manager: Sweet. it conceivable that I would come to the body a bill that we would ask the en- Reliant Trader. We even had a senior man- Senate floor with what we perceive to tire Senate to support—that I am very ager down here. be a great American reform of an elec- hopeful, by the time we are finished, Listen, if you would, Mr. President, tricity system from top to bottom and will get in excess of 65, 70 votes—that and colleagues to this. leave out protection for the kind of does not protect the citizens from what The reliant trader said: people she is speaking of? I will answer happened on the west coast. He just wanted us to know that everybody my own question by saying that is im- Now, this amendment addresses the thought it was really exciting that we’re possible. It is impossible because we Federal Power Act and the Natural Gas gonna play some market power. wouldn’t let it happen. Second, it is Act in the following ways: After reading this transcript, I asked impossible because it didn’t happen. No. 1, it establishes an electronic in- the Commissioners, How can you reach Having said that, I understand full formation system at FERC to enhance the conclusion after what I have read well—and I have explained privately to market transparency.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10185 No. 2, it increases criminal and civil than in a normal market way. And we next amendment. It would be the Fein- penalties under the Federal Power Act will add to that authority in the bill gold amendment. and the Natural Gas Act. that is before us which does not have Mr. DOMENICI. People might want No. 3, it enhances FERC’s refund au- to be amended. to speak to which amendment? To the thority. The Commodity Futures Trading amendment you were referring to? No. 4, it requires FERC to issue regu- Commission has aggressively pros- Mr. REID. Well, to be very direct to lations establishing conditions under ecuted fraud and manipulation in en- the Senator from New Mexico, as I which utilities can charge market- ergy markets. They have committed 25 want to be, the majority leader has based rates. percent of their enforcement staff to told us we are going to vote on cloture No. 5, it prohibits the filing of false conduct investigations into misconduct tomorrow on the attorney general of information. in energy markets. Alabama, Mr. Pryor. We have had no And, last, it prohibits round-trip CFTC’s existing authority empowers opportunity to debate this. We will trading. it to prosecute fraud and manipulation. have a half hour tomorrow under the Further, the so-called Domenici Under the authority of the Commodity rules. We are going to have members of amendment—that is the master amend- Futures Trading Commission, they the Judiciary Committee come this ment we are operating under that I have filed civil action against Enron afternoon and speak to the competency have asked parenthetically of myself: and a former Enron vice president for and the professionalism of the attorney Would I bring it here without pro- manipulation of prices in natural gas general of Alabama to be a United tecting for the future events that are markets. They have filed civil action States Federal judge. People are going being alluded to by the distinguished against Enron for operating an illegal to take some time doing that. When Senator who is worried about her futures exchange. They have filed civil they will come, I don’t know. But we State—that Domenici amendment en- action against El Paso Merchant for wouldn’t want them to be prevented hances the role of the Commodity Fu- false reporting and have a $20 million from doing that because we are in a tures Trading Commission to provide settlement. And they have filed civil time agreement on the Feingold oversight over electricity and natural action against Dynegy Marketing for amendment. gas. false reporting and have a $5 million Mr. DOMENICI. Could we agree The Senate, in my humble opinion, settlement. They have filed civil action where we are going? There is an should reject amendments—all of against Encana Trading for false re- amendment up shortly, is there not? them—to the electricity title of the porting and Williams Trading for false Mrs. FEINSTEIN. Reserving the bill that would affect FERC’s and the reporting, both with a $20 million set- right to object. CFTC’s flexibility to react and deal tlement. The ACTING PRESIDENT pro tem- with bad actors and upset further the Criminal actions have been filed, and pore. No unanimous consent has been already beleaguered utility industry’s I have a complete list of those. Enron’s propounded. The Senator from New ability to respond to a changing mar- former head of CA trading pled guilty Mexico controls the time. ket. to conspiracy. Mr. DOMENICI. Mr. President, I have Now, I do not want to take a lot of We don’t need further amendments not propounded a unanimous consent time because, frankly, I am not sure, beyond the Domenici amendment that request. I just wanted to know how when we go on forever, that anybody is pending to be sure the constituents much time is left to Senator CANT- listens. But I want to tell you that of the distinguished Senator from the WELL. even without the so-called Domenici State of Washington are protected. The ACTING PRESIDENT pro tem- Modernization Act, the markets are They are protected. All we do by add- pore. The Senator from Washington being forced to respond, because FERC ing more is making the market more controls 7 minutes and 20 seconds. The is taking action in the form of initia- difficult. We would accomplish little Senator from New Mexico controls 91⁄2 tives to protect electricity consumers, but perhaps to say to ourselves we have minutes. increase market transparency, and done much. Mr. REID. If the Senator will yield strengthen the regulation of electricity The Natural Gas Supply Association, for a question. markets at the wholesale level. the Interstate Natural Gas Associa- Mr. DOMENICI. Yes. They have proposed to identify more tion, and the American Gas Associa- Mr. REID. The Senator from Cali- clearly transactions and practices that tion have all endorsed the market ma- fornia is here. The Senator from Wash- would be prohibited under electricity nipulation provisions in this amend- ington has 7 minutes left. She wants to sellers’ market-based rate tariffs and ment we call the Domenici amend- close. We have no more time than 7 gas sellers’ blanket certificate author- ment. I believe it is right as it is. It minutes. The Senator from California ity. These new market behavior rules need not be changed. wishes to speak on this amendment. would prohibit market manipulation or Mr. President, let me just generally She can only do that if unanimous con- attempts to manipulate the market talk about where we want to go. Soon sent is given to allow her to speak for through activities such as creating and we will have the unanimous consent re- up to 15 minutes. Otherwise, she will relieving artificial congestion. quest in writing. not be able to speak on the amend- They have proposed to require elec- I say to the Senator, maybe we can ment. She wants to. Is that a fair de- tricity sellers to operate and schedule just recite it here since you and I know scription? generating facilities in compliance it. Mrs. FEINSTEIN. It is a fair descrip- with the rules and regulations of the The ACTING PRESIDENT pro tem- tion. I have great respect for the chair- relevant power market. pore. The assistant majority leader. man of our committee. However, he did They have proposed to require sellers Mr. REID. Will the Senator yield? not correctly present the California to provide complete, accurate, and fac- Mr. DOMENICI. Surely. situation. I would like an opportunity tual information in all communica- Mr. REID. Mr. President, the next to set the record straight. tions with FERC, RTOs, ISOs, market amendment we will offer is an amend- Mr. REID. I ask unanimous consent monitors, and other similar entities. ment of the Senator from Wisconsin that on the Cantwell amendment, the They have proposed measures to assure dealing with the electricity section. He Senator from California be allowed to the accuracy of electricity and natural has agreed his time on it will take ap- speak for 15 additional minutes and gas price reporting. proximately a half hour. Senator FEIN- that, of course, the majority, if in fact They have established a new Office of GOLD is usually quite concise. The they want 15 minutes, would have Market Oversight and Investigations as problem is that if we lock in this time equal time. part of a stepped-up enforcement and agreement, people coming and wishing The ACTING PRESIDENT pro tem- audit program. to speak on other subjects would not be pore. Is there objection? And I could go on. able to do so. We have no reason to Mr. DOMENICI. Yes, there is objec- Clearly, they are enforcing the law. think anybody is going to or not going tion. They are taking out after those who to. We don’t want to have those time The ACTING PRESIDENT pro tem- are causing this market to react other constraints. We are going to offer the pore. Objection is heard.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10186 CONGRESSIONAL RECORD — SENATE July 30, 2003 Mr. DOMENICI. Mr. President, I he needs to, he will work the bill, but The report’s conclusion: The plant don’t want to object to the Senator when there are time agreements of 3 was shut down to intentionally drive from California speaking. I just want hours, this Senator will object to add- up prices. to remind the Senator and the Senate, ing more time. Another example. Following an ex- this amendment has been on the floor 3 Mr. DOMENICI. I wanted to ask the ternal tube leak, Merit held one of its hours—not 3 minutes, not 30 minutes, 3 Senator if he wanted to object at this plants offline for 2 extra days, from Oc- hours. We are supposed to vote, gen- point. He is not going to object. tober 20 until October 22, 2000, denying erally, when 3 hours is up. Three hours How much time did the Senator ask the western energy market much need- will be up in a few minutes. I would for? ed power and driving prices up. The re- like to proceed and vote. I have a few Mrs. FEINSTEIN. I asked for 15 min- port also submitted evidence that sup- minutes. I don’t know that I need it. utes. pliers bid higher after the California But I really don’t think I am being un- Mr. DOMENICI. I wonder if you independent systems operator declared fair in suggesting to the Senator that would take 10 minutes. emergencies, knowing full well the Mrs. FEINSTEIN. I will do my level perhaps, so we can vote on an amend- State would need power and would be best. ment that has been pending for 3 hours, Mr. DOMENICI. All right, 10 minutes, willing to pay any price to get it. Further, we learned that suppliers if you could take half the time you re- so long as we understand. I ask unani- submitted false load schedules to in- quested so we can proceed to vote, I mous consent that she have 10 minutes, crease prices. One example of this would have no objection. after which time we will finish the bogus load is demonstrated in an inter- Mrs. FEINSTEIN. If I may respond, time allowed and then we will vote on nal PowerX memo, which documents this is an amendment on market ma- the pending amendment. nipulation. You, Mr. Chairman, have The ACTING PRESIDENT pro tem- that PowerX entered into a contract just said there wasn’t market manipu- pore. Without objection, it is so or- with the explicit purpose of over- lation. dered. The Senator from California is scheduling and underscheduling and for Mr. DOMENICI. I have not. recognized for 10 minutes. congestion manipulation. Mrs. FEINSTEIN. I would like to Mrs. FEINSTEIN. Mr. President, I Other games were played in the west- present evidence specifically. I have 18 thank the chairman of the committee. ern energy market, including collusion to 20 disks involving 3,000 pieces of I wanted to say a few words in sup- among sellers, sharing of nonpublic paper which is evidence presented to port of what Senator CANTWELL is try- generation outage information, and the FERC of market manipulation in the ing to do. Perhaps those of us in the manipulation of the nitrogen oxide California market. This Senator has West are more disconnected from the emission market. Just look at one fact. done a great service because those of us Beltway than I ever believed, but let One company, CMS Energy Corpora- out west know what happened. What me give you a startling fact which will tion, has admitted conducting wash en- happened is so egregious as to give the demonstrate market manipulation. ergy trades that artificially inflated its senior Senator from California an op- The total cost of electricity in Cali- revenue by more than $4.4 billion. portunity to support the amendment of fornia in 1999 was $7 billion. It in- These round trips accounted for 80 per- her colleague. creased 400 percent in one year to $27 cent of that company’s trading that The ACTING PRESIDENT pro tem- billion the next year. There is no way year, in 2001. So 80 percent of the trad- pore. The Senator from New Mexico supply and demand can be responsible ing of a large company was bogus in has the floor. for a 400 percent increase. that year. The market was rife with Mr. DOMENICI. I don’t think it is What we now know is that power gen- fraud and manipulation. fair for the Senator—I am going to give erators, traders, and marketers manip- Senator CANTWELL’s amendment at- her time, but I don’t think it is fair for ulated the western energy markets, tempts to strengthen the Federal her to give a speech this way. She and the market abuse wasn’t simply Power Act, so that the fraudulent and knows she is going to get time, and she limited to Enron. Look at these manipulative behavior we witnessed in can just be patient like every other schemes. There are more than we ever the western energy crisis does not go Senator, if you don’t mind. knew: Ricochet, Death Star, Get unpunished. Mrs. FEINSTEIN. I have been pa- Shorty, Fat Boy, Nonfirm Export, Load The problem is that FERC could not tient. Shift, Wheel Out, Black Widow, Red go back. FERC would not accept find- Mr. DOMENICI. I thank you. Might I say to the Senate, the Sen- Congo, Cuddly Bear. This was not lim- ings from California to document the ator from New Mexico has responded to ited to Enron. It was a widespread se- fraud and manipulation. California, to an amendment. Never once did I say ries of schemes perpetuated by many this day, has not received $1 of refund, there was no market manipulation. I companies that supplied and traded in despite settlements. So that is what is don’t intend that every time any of us the West. I deeply believe this. really going on out there, and that is a The State of California, the Cali- gives a speech, that somebody come to huge problem. fornia Attorney General’s office, and To have an Energy bill that doesn’t the floor when there are time agree- the State’s largest utilities compiled adequately deal with fraud and manip- ments and decide they would like to the 3,000-page report detailing the per- ulation is something none of us should give a speech on something they heard. I said there are studies that say mar- vasiveness of fraud and manipulation vote for. I will tell you why. Under the ket manipulation was not the principal in the western energy market in 2000. present regulations, it can and will reason for what happened. If the Sen- Then they couldn’t present it to FERC. happen again. These companies will try ator would like to speak, I would ask They had to go to a Ninth Circuit to do it if they possibly can. Consumers her if she would speak for a little less Court of Appeals to get the ability to should be protected from fraud and ma- time so we can proceed, since the time conduct discovery and evidentiary nipulation perpetrated by people who is up. I can object, and we will vote. hearings to be able to bring the allega- are only motivated by profit, which we And then you can speak after the vote. tions of fraud and manipulation to know dominated the trading scenario Mr. CRAIG. Will the chairman yield? FERC. So the whole Federal system is in the western energy market. I can Mr. DOMENICI. I am pleased to. stacked against allowing a State to tell you terrible things traders said Mr. CRAIG. So you can sustain the make a presentation of fraud and ma- about shutting off power for the pur- goodwill of the rest of the colleagues nipulation. pose of inflating the bottom line of because you are managing the bill, you This report concluded that energy their company. That is wrong and it should. companies intentionally withheld should be dealt with. The ACTING PRESIDENT pro tem- power from the western market, driv- The fact is that FERC has not dealt pore. If the Senator will suspend. The ing prices up and creating false short- with it up to this point. So I very Senators are reminded to address one ages. For example, from August 30 to strongly support what Senator CANT- another in the third person or through December 3, 2000, Dynegy shut down WELL is trying to do. I hope the Senate the Chair. one of its units for repairs, yet repairs will accept it because I think the en- Mr. CRAIG. I simply say to the Sen- had already been done prior to August ergy title is weak. I hope at a later ator that to sustain the goodwill that 30. time to add natural gas to some of the

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10187 provisions that this bill achieves in market manipulation so there is no NORTH AMERICAN SECURITIES terms of increasing penalties in the question by the public. So the public ADMINISTRATION ASSOCIATION, INC., electricity market. Unfortunately, the doesn’t debate, if there was a shortage Washington, DC, July 29, 2003. bill does not harmonize penalties for of supply or manipulation going on? Hon PETE V. DOMENICI, Chairman, Committee on Energy & Natural Re- the natural gas market, and there is We know there was manipulation sources, Washington, DC. ample evidence of fraud and manipula- going on. We have proof of it. The Hon. JEFF BINGAMAN, tion as well in the national gas mar- FERC itself said: Ranking Minority Member, Committee on En- ket, specifically with El Paso Natural Enron and its affiliates intentionally en- ergy & Natural Resources, Washington, DC. Gas, and I hope to indicate that in an gaged in a variety of market manipulation Re: S. 14, the Energy Policy Act of 2003. amendment I will do at a later time. schemes that had profound, adverse impact DEAR CHAIRMAN DOMENICI AND RANKING I have tried to truncate my remarks on market outcome. MEMBER BINGAMAN: The North American Se- to cooperate with the chairman. I yield curities Administrators Association the floor. There it is. The FERC said itself that (NASAA) is writing to express its concern The ACTING PRESIDENT pro tem- market manipulation had profound, ad- over proposed language in the Domenici sub- pore. Who yields time? verse impact on the market. So we stitute to Title XI, (the electricity title) of Mr. DOMENICI. Mr. President, I know for a fact that market manipula- S. 14, the Energy Policy Act of 2003. tion had an impact in California, it had Proposed Sections 1171 and 1173 would re- thank the Senator for getting her re- quire that ‘‘any request by any Federal, marks down to 10 minutes. How much an impact in Washington, it had an im- pact in Oregon, and it had an impact in State or foreign government, department, time does Senator CANTWELL have? agency or political subdivision’’ to a ‘‘board The ACTING PRESIDENT pro tem- Idaho. The question is whether this to trade, exchange, or market’’ involving pore. She has 7 minutes 20 seconds. body is going to do enough to protect transactions in commodities ‘‘within the ex- Mr. DOMENICI. Does she want to de- consumers in the future. clusive jurisdiction’’ of the Commodity Fu- liver her remarks? So the chairman of the committee— tures Trading Commission (CFTC) ‘‘shall be I yield the floor. I appreciate his earnest time on the directed’’ to the CFTC. electricity title, and I appreciate the This prohibition on federal and state infor- The ACTING PRESIDENT pro tem- mation gathering directly from a board of pore. The Senator from Washington is fact that he wants to have some pro- trade, exchange or market would place un- recognized. tection in this legislation. But these necessary burdens on state securities regu- Ms. CANTWELL. Mr. President, how protections don’t go far enough. lators when they investigate violations of much time is available? Let me explain why. There is trans- laws regulating foreign exchange products, The ACTING PRESIDENT pro tem- parency language in the underlying energy products and financial instruments. pore. There are 7 minutes 20 seconds re- Domenici title. Some of those powers Over the years, state securities regulators have handled many of the foreign exchange maining. The Senator from New Mex- are already in place with FERC. They ico has 5 minutes. cases under authority contained in the are not doing us any good because re- Model Code and state securities laws. Ms. CANTWELL. Does the Senator porting to FERC is one thing; report- This language would prohibit state securi- from New Mexico wish to complete his ing to the California ISO, the inde- ties regulators from directly seeking infor- comments? pendent systems operator, who basi- mation from a CFTC regulated entity. State Mr. DOMENICI. I will wait for a cally was the cog by which all the ma- securities regulators do not have regulatory while. nipulations took place, you are not jurisdiction over a CFTC regulated entity, The ACTING PRESIDENT pro tem- under any kind of threat or penalty for but we must retain our authority to sub- poena documents from all relevant sources pore. Who yields time? reporting falsified information to Ms. CANTWELL. Mr. President, I ap- as part of our enforcement cases. For exam- them. That is where the manipulation ple, a registered representative of a securi- preciate the chairman of the com- took place, so the Domenici title does ties firm could illegally take investor funds mittee giving time to the Senator from not cover that situation. and trade in commodities, and our members California so she could explain and re- There is a lot of talk in the bill about might have to subpoena a futures exchange spond to her views on this issue. I ap- the Commodity Futures Trading Com- for trading records or other information. The CFTC and the states have a history of preciate my colleagues from the West mission, and there is a section in the engaging in this debate. I appreciate coordinating efforts and working success- bill that tries to beef up that language. fully toward our mutual goal of protecting the Senator from Idaho coming to the That is a noble attempt. I much prefer floor and reiterating to this body, yes, investors by recognizing potentially fraudu- the Feinstein amendment which has lent activity and bringing it to the attention how ratepayers in Washington, Oregon, very specific language about closing a of the public. However, mandating that regu- and Idaho got stiffed. That is the right loophole. lators go through the CFTC for information word. We got stiffed. We got stiffed I have a letter from the National could be burdensome, time-consuming and with paying a bill more exorbitant inhibit our ability to investigate wrongdoing than ratepayers should have to pay. American Securities Administrators in a timely and efficient manner. It may also The debate that has ensued in the Association. They basically say the place the CFTC in a difficult position of de- last few minutes is whether the Domenici language is flawed. These are ciding whether to send a state’s subpoena to Domenici underlying amendment has Federal regulators who are supposed to one of the exchanges it regulates. regulate this policy. They say the With the fallout from Enron and a variety enough protections in it to protect con- of financial scandals still in the news, now is sumers or whether we need the Cant- Domenici language is flawed because it will prohibit any Federal or State the time to strengthen, not weaken, our well amendment. It is a clear and sim- complementary system of state and federal ple and plain statement that market agency from obtaining information di- securities regulation. There seems to be no manipulation should be outlawed in rectly from a board of trade or ex- justification for limiting the ability of state the Federal Power Act as not being change or market involving commod- securities regulators to gather information just and reasonable. ities, and that State and Federal agen- directly from a futures exchange. I thank the Senator from Louisiana cies will be impeded from investigating We urge you to strike Sections 1171 and 1173 from the Domenici substitute. Please do for her comments. She supports the un- violations of these wide range of com- modities. not hesitate to contact me if I may be of fur- derlying Domenici title, but she sup- ther assistance to you. ports my amendment as well because I ask unanimous consent that this Sincerely, she knows that kind of language can be letter from the National American Se- CHRISTINE A. BRUENN, helpful and can be specific. curities Administrators Association, NASAA President, Let me be clear. If anybody thinks about how the Domenici language is Maine Securities Administrator. that the Enron manipulation didn’t trying to correct some of the problems Ms. CANTWELL. Mr. President, the have a profound and adverse impact on is actually causing a new problem and bottom line is, in this amendment, the marketplace and that this is all is not going to protect people, be print- while round-trip trading is covered and about poor management in California, I ed in the RECORD. some, I am sure, well-intentioned lan- can assure you that is not the case. There being no objection, the mate- guage on reporting and falsifying infor- This is about whether this body is rial was ordered to be printed in the mation to FERC, it does not cover a going to adopt tough standards against RECORD, as follows: myriad of other manipulative schemes

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10188 CONGRESSIONAL RECORD — SENATE July 30, 2003 that have been deployed and used by I could take out my preparatory Lieberman Pryor Schumer Lincoln Reed Smith Enron. books, where I spent hours talking to Mikulski Reid Specter Fat Boy is not outlined under the everyone of every ilk in every type of Murray Rockefeller Stabenow Domenici language. Ricochet is not industrial input and involvement as we Nelson (FL) Sarbanes Wyden outlined under the Domenici language. put this bill together, and read the lan- NAYS—50 Death Star is not outlined under the guage showing that what happened be- Alexander DeWine McConnell Domenici language. Load Shift, Get fore will not happen again. Allard Dole Miller Shorty, and Wheel Out are not outlined I could tell my colleagues what has Allen Domenici Murkowski under the Domenici language. happened is being broken up by those Bennett Ensign Nelson (NE) I understand the chairman wants to Bond Enzi Nickles in the criminal justice structure of our Breaux Fitzgerald see that the manipulation stops. In Roberts Government, and those involved with Brownback Frist Santorum this Senator’s opinion, that manipula- the civil part are filing their lawsuits. Bunning Graham (SC) Sessions Burns Grassley tion will stop when this body stands up Shelby Neither of the States involved are hav- Campbell Hagel and says to the American people with Snowe ing the same problem because there are Chafee Hatch Stevens simple language in the Power Act: Ma- Chambliss Hutchison protections being carried out, and Sununu nipulated prices are not just, they are there will be more when this bill is Cochran Inhofe not reasonable, and anyone who de- Coleman Kyl Talent adopted, without adding any more bur- Cornyn Lott Thomas ploys them are not doing so in the pub- dens, additions, or specificity to the Craig Lugar Voinovich lic interest, and we cannot give them bill. Crapo McCain Warner market-based rates. It is with great regret that I suggest NOT VOTING—2 If this body will say this, then any we keep—since it was worked out so future debate about natural gas prices Kennedy Kerry delicately with so many different will not be about whether some com- The amendment (No. 1419) was re- pany manipulated them, it will be units, institutions, and groups—that jected. about the real issues of the supply and we preserve the delicacy of this bill. Mr. DOMENICI. Mr. President, I demand. The Senator who proposed this knows move to reconsider the vote. Let’s give the consumers confidence that the cooperatives that are very Mr. CRAIG. I move to lay that mo- that market manipulation is prohib- worried have spoken to the fact that tion on the table. ited in Federal law and that this body they do not need any more protection. The motion to lay on the table was does not condone Enron’s activities but They have told her that. They have agreed to. is going to be aggressive in outlawing told her office that. And there are more f them. associations beyond them that say Mr. President, how much time do I their fears are alleviated by this bill. ORDER OF PROCEDURE have? I yield the floor, and we will proceed. The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- pore. Under the previous order, the pore. The Senator’s time has expired. pore. All time has expired. Senate will proceed to 60 minutes of de- The Senator from New Mexico. The question is on agreeing to the bate with 30 minutes under the control Mr. DOMENICI. Mr. President, the amendment. of the Senator from Vermont, Mr. bill before us does away with the Enron Ms. CANTWELL. Mr. President, I ask LEAHY, and 30 minutes under the con- loophole, there is no question about it. unanimous consent that Senator HAR- trol of the Senator from Kentucky, Mr. If I came from California or Wash- KIN and Senator ROCKEFELLER be added MCCONNELL. ington, I would come to the floor of the as cosponsors to the amendment. The assistant minority leader. Senate and offer an amendment that The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- was very precise and specific and pore. Without objection, it is so or- pore. The Senator from Kentucky. talked about the problems of the peo- dered. Mr. MCCONNELL. Mr. President, I ple of the west coast. That is what the Mr. REID. I ask for the yeas and ask unanimous consent that the time Senator is doing. But merely talking nays. under my control be as in morning about them does not mean that the bill The ACTING PRESIDENT pro tem- business. before us does not protect her people. pore. Is there a sufficient second? Mr. REID. Reserving the right to ob- The truth is, it does. There appears to be a sufficient sec- ject. The Domenici amendment protects ond. The ACTING PRESIDENT pro tem- consumers in the States of Wash- pore. The Senator from Nevada. ington, California, and others who were The clerk will call the roll. The bill clerk called the roll. Mr. REID. It is my understanding the victimized by the Enron scandal, and Senator from Kentucky is going to use Mr. REID. I announce that the Sen- many others, and market regulations the half hour under the rule now avail- ator from Massachusetts (Mr. KEN- in California that were doomed from able before the Senate on the Estrada NEDY) and the Senator from Massachu- the outset to cause the failures that cloture. He is going to use his time as setts (Mr. KERRY) are necessarily ab- occurred. To regulate at one level and in morning business; is that correct? sent. deregulate at the other level is clearly The ACTING PRESIDENT pro tem- I further announce that, if present to invite exactly what happened, and pore. That is the request. The Senator and voting, the Senator from Massa- then the spillover falls onto the adjoin- from Kentucky. chusetts (Mr. KERRY) would vote ing States, including that of the distin- Mr. MCCONNELL. I did not hear the ‘‘yea.’’ guished Senator from Washington, Ms. assistant Democratic leader. CANTWELL. The ACTING PRESIDENT pro tem- Mr. REID. I just said the half hour I commend the Senator from Wash- pore. Are there any other Senators in that you are entitled to under the ington for her genuine and abiding con- the Chamber desiring to vote? Estrada time for cloture, you are going cern for her people. I commend the The result was announced—yeas 48, to use that as in morning business? Senator from California for her stu- nays 50, as follows: Mr. MCCONNELL. I would say, Mr. dious and lengthy involvement in at- [Rollcall Vote No. 311 Leg.] President, that is correct. tempting to ascertain and articulate YEAS—48 The ACTING PRESIDENT pro tem- the problems. But neither of those Akaka Conrad Gregg pore. Without objection, the Senator qualities require serious amendment to Baucus Corzine Harkin from Kentucky controls the time. Bayh Daschle Hollings this bill. They require just what is hap- f pening: that the Senators representing Biden Dayton Inouye Bingaman Dodd Jeffords MEASURE READ THE FIRST those problems speak to the issues. Boxer Dorgan Johnson And speak they have—3 hours and 15 or Byrd Durbin Kohl TIME—S. 1490 20 or 30 minutes on this subject—and, I Cantwell Edwards Landrieu Mr. MCCONNELL. Mr. President, I Carper Feingold Lautenberg assume, before we are finished on col- Clinton Feinstein Leahy send a bill to the desk and ask for its lateral issues even more. Collins Graham (FL) Levin first reading.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10189 The ACTING PRESIDENT pro tem- President, Florida held by a large number of Americans. pore. The clerk will read the bill by Farm Bureau. The unfortunate side effect of that title. LARRY WOOTEN, from an economic point of view in a The legislative clerk read as follows: President, North Caro- State such as mine, which still has lina Farm Bureau. A bill (S. 1490) to eliminate price support DAVID WINKLES, 44,000 tobacco growers, is that their in- programs for tobacco and provide assistance President, South Caro- come continues to plummet. to quota holders and tobacco producers and lina Farm Bureau. Back in 1998, I first suggested a tobacco-dependent communities, and for WAYNE DOLLAR, buyout might be an appropriate direc- other purposes. President, Georgia tion in which to go. Ironically, at that Mr. MCCONNELL. I now ask for its Farm Bureau. time, that was roundly criticized by all second reading and object to further the farm organizations in my own proceedings on the matter. THE COUNCIL FOR BURLEY TOBACCO, State and across the burley belt and The ACTING PRESIDENT pro tem- Lexington, KY, July 25, 2003. flue-curing areas, the argument being Hon. MITCH MCCONNELL, pore. Objection is heard. The bill will U.S. Senate, that it would lead to the end of tobacco receive its second reading on the next Washington, DC. production. legislative day. DEAR SENATOR MCCONNELL: The Council It is interesting, as I go across my f for Burley Tobacco, Inc. believes that during State, that I am treated now as a vi- the 2003 Legislative Session is the best and sionary because it is now virtually the TOBACCO MARKET ADJUSTMENT maybe the only time to pass a Tobacco unanimous view of our growers and ACT OF 2003 Buyout Bill. We are concerned about the certainly the unanimous view of our lateness of the legislative session. farm organizations that a buyout is the Mr. MCCONNELL. Mr. President, I We appreciate very much your leadership rise today to introduce the Tobacco in developing a consensus buyout bill with only appropriate measure to take at Market Adjustment Act of 2003. This is the Senate Tobacco Group and we fully sup- this particular juncture in our history. truly a key moment in the history of port your effort to introduce and move for- The reason for that is the quota es- tobacco as each of the Senators from ward in the Senate the consensus bill. tablished under the tobacco program the leading tobacco-producing States Please let us know how we can help you back in the 1930s, which has been ad- stands united in support of changing with this process and again we thank you for justed year to year all of these years, your leadership and support. the Government’s involvement with to- has declined dramatically—up to 40 Sincerely, percent in the last 3 or 4 years alone. bacco. JOHNNY BULLOCK, This legislation enjoys the support of President. Our growers realize they are sitting on farm bureaus from Kentucky, North DEAN M. WALLACE, a declining asset that lowers the value Carolina, Virginia, Tennessee, South Executive Director. of their property and their farm values Carolina, Georgia, Florida, as well as and it is time to act and to move in a the support of the Burley Co-op, Burley JULY 29, 2003. different direction. Stabilization, and the Council for Bur- Hon. MITCH MCCONNELL Simply putting together a buyout U.S. Senate, ley Tobacco. proposal everyone could agree to—that Washington, DC is the various farm organizations as I ask unanimous consent to have let- DEAR SENATOR MCCONNELL: We are writing ters indicating their support printed in to thank you for your ongoing effort to help well as Senators from tobacco States— the RECORD. tobacco farmers and our communities and to has not been easy. In fact, we have There being no objection, the mate- offer our support to secure Senate passage of been working on this for 6 months to rial was ordered to be printed in the your newly-drafted tobacco buyout legisla- get to the point of actually introducing RECORD, as follows: tion. a bill, which as we all know around Our organizations and the farmers we rep- JULY 16, 2003. here is just the beginning. When you resent firmly believe that the Congress has a TOBACCO STATE SENATORS: For many to- introduce a bill, it is not easy. It has bacco dependent states in the Southeastern unique opportunity to establish a new vi- not been easy to get to this point, sionary tobacco policy in this country—one United States, tobacco buyout legislation, which many people would argue is just possibly coupled with FDA regulation of to- that will allow tobacco-producing commu- nities to adjust to the realities of the perma- the start. We have, however, almost bacco products, is the most important poten- total consensus. We have 100 percent tial federal legislative initiative for 2003. The nently altered marketplace while simulta- undersigned Presidents of State Farm Bu- neously protecting public health. We are consensus among tobacco State Sen- reaus believe this is the year to accomplish united in our view that the Senate consensus ators and almost total consensus a tobacco buyout. For that reason, we urge bill is a major step toward achieving that ob- among those involved in the produc- you to endorse the legislative language de- jective. tion of tobacco. We feel that is a sig- veloped by many meetings of Senate staff While we look forward to continued discus- nificant accomplishment although it and eventually pledge your willingness to co- sion on a few key provisions in the Senate bill, we intend to work vigorously to secure certainly doesn’t guarantee the result sponsor the legislation as it is introduced. we all would like to see, which is a law. We continue to believe there are some de- Senate passage of this legislation. Again, thank you for your leadership and We understand this issue is likely to tails yet to be ironed out in the legislation commitment to tobacco farm communities. go forward in the Senate in conjunc- and we look forward to working through We stand ready to work with you side-by- those as we continue the process, but we be- tion with an FDA tobacco regulation side to pass historic tobacco legislation in lieve that to move forward, it is imperative bill which is being worked on in the 2003. that all tobacco state Senators support one Labor Committee under the leadership Sincerely, bill and we believe the legislative language of Senators GREGG, DEWINE, and KEN- HENRY S. WEST, developed by the Senate staff gives all of us President, Burley To- NEDY. It is our hope at some point after the best shot at accomplishing a buyout this bacco Growers Coop- the recess to link those two measures year. erative Association. together with what we hope will be a We appreciate all the work you have done GEORGE MARKS, formidable coalition here in the Senate up to this point in ensuring that tobacco President, Burley Sta- farm families have a vibrant future, and we across an ideological divide to move us bilization Corpora- look forward to continuing to work through in the direction of achieving both of tion. this process in the weeks ahead. these goals. Sincerely, Mr. MCCONNELL. Mr. President, to- Frankly, accepting an FDA bill is a SAM MOORE, bacco was in the United States before bitter pill for this Senator to swallow, President, Kentucky Europeans arrived here. It is depicted and I think some other Senators from Farm Bureau. in various places here in the Capitol. the burley belt and flue-cured tobacco FLAVIUS BARKER, George Washington and other Founders areas. But that simply is the reality President, Tennessee of our country grew tobacco. It has Farm Bureau. which we confront today. These meas- BRUCE HIATT, been an integral part of our history. ures are likely to move in transition. President, Virginia It is also no secret that the use of to- I also want to commend my colleague Farm Bureau. bacco is dangerous to the health of from Kentucky, Senator BUNNING, who CARL LOOP, Americans. Increasingly that view is I know is here on the floor. He has been

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10190 CONGRESSIONAL RECORD — SENATE July 30, 2003 an integral part of the development of work is not required. Despite the dif- duced by more than 60 percent. Such this bill, as well as our new colleague ficult labor required, it has provided production cuts have forced domestic from North Carolina, Senator DOLE, generation after generation with the producers to vacate ever larger who is also here, both of whom will be opportunity to make a living. amounts of market share to foreign speaking momentarily. They have been However, the very qualities that have producers. As a result, domestic pro- completely involved in the formulation allowed tobacco production to continue duction levels have not been this low of this product from the very begin- through the years have also led to the since 1908. ning. As I said, it has not been easy to dependence of a culture, and a region, Despite financial help in the form of get to this point. We all understand it on this crop. There is no simple solu- tobacco loss assistance payments, the is going to be difficult to move the ball tion to the problems facing tobacco crisis imposed by the program is plung- even further down the playing field. farmers, but there are clear steps that ing rural farm families in Kentucky But today we begin with unity. We we can and should take to help these and throughout the tobacco belt into begin with an aggressive effort to individuals transition into a new era. poverty, bankruptcy, or simply elimi- achieve this buyout for our farmers. Most of the key tenets of the tobacco nating the ability of entire commu- America’s history is closely linked to program were established by the Agri- nities to remain engaged in agri- tobacco. It provided the early settlers culture Adjustment Act of 1938. The culture. with a key crop fro trade and barter, program implemented a system of sup- In less than a decade the number of and it provided gentleman farmers ply restrictions and price guarantees tobacco farms in the United States has throughout the colonies with liveli- aimed at stabilizing tobacco prices and declined from 123,000 individual farms hoods that sparked the first inklings of income. Under this program, farmers to right around 90,000, with 44,000 of the dream of an independent country. agreed to restrict supply via acreage/ those in Kentucky. At the same time Throughout this beautiful Capitol marketing allotments—or quotas—in the annual value of domestic tobacco there are depictions of tobacco leaves exchange for minimum price guaran- farm production has fallen from an av- signifying this crop’s importance to tees. The levels of production were set erage of $2.8 billion per year during the the founding of this country. George each year to best ensure that the prices 1990’s to $1.7 billion in 2002. In Ken- Washington, Thomas Jefferson, and received for tobacco would meet or ex- tucky, tobacco represented 24 percent James Madison all raised tobacco. Al- ceed the guaranteed price. of total cash receipts for agriculture most no crop in the history of agri- These marketing quotas were origi- products during the 1990s. By 2001, cash culture has provided so many with a nally divided among active growers, receipts for tobacco dropped to 16 per- living off of so little land. but this production right was then cent, and further quota cuts have con- In agriculture, it is popular to speak handed down to heirs or sold to others tinued to reduce the amount of tobacco about the importance of supporting the as an asset. As a result, much of the that can be sold by producers. small farmer. In reality, the number of quota is now controlled by non-pro- Imports have also had a significant small farms has declined as competi- ducers who rely on proceeds from rent- impact as the quality of foreign leaf tive forces have forced most farms to ing or leasing this production right to has improved, domestic production has consolidate and diversify to compete. growers. It is regarded as an inherit- been restricted, and the price of U.S. Many farmers now must work second ance and has been relied upon to sup- tobacco has been kept artificially high jobs in addition to farming just to get port many seniors’ retirements. by quota rent costs. These factors have by. However, over centuries, small In 1982, the first major modifications led to dramatic increases in the farmers with limited land have been to the tobacco program were made, re- amount of imported tobacco, with im- able to carve out a living farming to- quiring the program to operate at no- ports increasing by 25 percent between bacco. The average acreage per tobacco net-cost to taxpayers. Since then, Fed- 2001 and 2002 alone. farm is 6.7 acres—for my friends from eral funds have been prohibited from Simple put, 165,000 of my constitu- the South and the Great Plains, you being used for export promotion of ents and 44,000 rural family farms in know that these are some small farms. American tobacco or research relating Kentucky are facing financial ruin due In my home of Kentucky, tobacco to tobacco production, marketing, or to the continuation of a program that production is intimately connected to processing. As a result of many inter- we in the Congress have the power to the history and the culture of the national and economic factors, the change. In 1998, growers were divided State. In fact, the basis of agriculture price supports have been reduced sev- on the issue and no consensus could be in the State of Kentucky has been in- eral times since the 1980’s as well. reached. Today, the introduction of extricably tied to this crop. Home Under the current program, levels of this bill signifies the unified support of mortgages have been based on crops, production are cut in an effort to en- tobacco state Senators and growers to loans for small businesses, and even sure a stable price. With lower con- achieve the reforms. children’s educations have been funded sumption and increased foreign com- The Tobacco Market Transition Act through the performance of an individ- petition, the levels of quota have been represents months of hard work and ual’s tobacco crop. It has been said cut significantly and farmers are pay- negotiation. Such an undertakiing has that ‘‘A good crop is a good Christ- ing much higher quota rents to con- required input, debate and compromise mas.’’ tinue producing. over every element of the legislation At harvest time, families gather: sis- In 1998, I proposed a buyout of the to- ranging from the funding mechanism ters, brothers, aunts, uncles, cousins bacco program, but this measure failed to the health consequence of the and children all set about the hard due to a lack of support from grower changes that we are proposing. It pro- work of bring in a tobacco crop. In the groups and a lack of consensus among vides tobacco growers with a fair level late fall, when the markets open for elected representatives from tobacco of support for transition and tobacco crop, entire communities hold celebra- producing States. Since my effort in quota owners with a fair level of com- tions and ceremonies. The marketing 1998, the programmatic decline of pro- pensation for their asset. We also process along with the auctions have a duction has imposed severe economic worked to ensure that these payments particular significance as the liveli- hardships on tobacco producing com- are fully decoupled from current pro- hood of an entire family is dependent munities. During a time when most ag- duction, to avoid any possibility of on a good crop. riculture production in this country trade implications. Throughout Kentucky, tobacco has has had to consolidate into larger oper- The changes we propose represent a helped small communities construct ations to remain competitive due to radical shift in the way that tobacco schools and convention centers, it has economies of scale and foreign com- production will occur in this country. supported local governments, and most petition, tobacco farmers, faced with The current tobacco program has out- importantly, it has supported the small the same challenges, have actually lived its usefulness, and now represents family farmer. In Kentucky, tobacco is been forced through this program to a hurdle and a threat to the economic considered the 13 month crop, since simply cut production. While manufac- health of communities in tobacco pro- there is virtually no time during the turing needs have only declined slight- ducing states. Therefore, it is impor- year that difficult and labor intensive ly, production quotas have been re- tant to end the quota system and do

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10191 away with the strict production con- cant support to assist small tobacco small communities across the south is trol price support system to usher in dependent communities as they at- tied directly to tobacco. the necessary reforms. tempt to adjust to diminishing tobacco This is a complicated issue. Many to- This legislation will provide $8/lb on production. bacco quota holders are not even full- 2002 basic quota for quota owners and This legislation will not solve all the time farmers and hold off-farm jobs. $4/lb on effective quota for 2002 for problems that face small tobacco And even full-time farmers usually growers over 6 years. The funds re- farms, but it does set in motion a sys- do not raise only tobacco but grow it quired will be obtained from manufac- tem of reform and transition that will as only part of their total crop. But it turers and importers of all tobacco allow these individuals and these com- is a crucial part, and for many families products sold in the United States and munities a chance to continue or move it is absolutely irreplaceable, because shall total no greater than $13 billion. into new industries. Such continuation the money they get from tobacco pays Many quota owners and growers would or transition will not be possible with- their mortgage, puts their kids like to be compensated at higher lev- out this legislation. These commu- through school or allows them to keep els, while many companies claim that nities are suffering due to problems farming. the levels are too high. This bill rep- with a government program that we Outside of the western part of our resents our extensive efforts to take have the power to change. As elected State, Kentucky does not have tens of both the needs of the growers and the representatives, we have a responsi- thousands of acres of flat land. We need concerns of the companies into consid- bility to fix these problems, improve a crop that grows on rolling hills, that eration. the lives of thousands of small farmers thrives in our climate and can be prof- No longer will quota owners have and greatly impact the future of an en- itably raised on small plots that can- control over the right to grow tobacco, tire region. not accommodate other crops. Tobacco a right that has been handed down I salute my colleagues from tobacco does that, and economically it is the from generation to generation regard- producing states for their hard work only crop that can. Farmers get a yield of over $4,000 per less of their actual involvement with and willingness to compromise to reach acre of tobacco. They get less than $300 production. In doing so, this bill elimi- this consensus legislation. It has been per acre for corn, soybeans and hay. nates the increasing expense of quota a long and difficult process, but this is That is how big the difference is. This rent, which has artificially increased only the first step in addressing this is what has made tobacco the economic leaf prices without any benefit to ac- issue. For this exercise to have any linchpin for rural Kentucky. It is prof- tual growers or manufacturers. This re- meaning whatsoever, we need to enact itable and farmers rely on it. That quires that these assets, assets that this legislation and make these re- might not be popular today but it’s an were created and given value to forms as soon as possible. through government policies, be com- The worst thing that can happen is economic reality we have to face. This Senate cannot—and if those of pensated. The impacts on the growers nothing. So, I ask my colleagues from us from tobacco States have any say will be immediate and the reduced all 50 States for their support of the about it, it will not—work on tobacco costs of tobacco produced in the U.S. Tobacco Market Transition Act of 2003. legislation without taking care of to- will reduce leaf prices for manufactur- The ACTING PRESIDENT pro tem- bacco farm families. Time have been ers who utilize domestic tobacco. pore. The Senator from Kentucky is getting tougher and tougher for small However, in our consideration of the recognized. problems facing the farmers and the Mr. BUNNING. Mr. President, I rise farms and rural communities in Ken- manufacturers of tobacco products, it today in support of S. 1490, the Tobacco tucky. Plus, as I am sure most of my was essential to consider the adamant Market Adjustment Act. Since Daniel colleagues know, there is no tobacco opposition of health groups to the un- Boone first came through the Cum- subsidy. We do have a price support system restrained growth of tobacco through- berland Gap in 1775, farming has pro- and production control program. But out the United States. For years, to- vided the economic and cultural back- even the quotas have lost 60 percent of bacco production has been limited in bone of Kentucky. their value since 1998. No business both the area it could be grown and the The family farm is the foundation for would be around if it lost 60 percent of amount that could be produced. Our who we are as a commonwealth. And its income in 5 years, and we have lost proposal addresses these concerns by for over a century, the family farm in a lot of growers. limiting tobacco production to tradi- Kentucky has centered around one Many farmers are barely holding on. tional tobacco producing regions and crop—tobacco. They need help. providing a mechanism for producers Tobacco barns and small plots of to- We believe that the time has come to to limit the amount of acreage grown bacco dot the Kentucky landscape. We assist them and to get the Government for each kind tobacco to historically are proud of our heritage and proud of out of the tobacco business at the same established levels. the role that tobacco plays in our his- time. The key difference between the pro- tory. Recently, we have recognized Our bill, which has the full support of grams of yesteryear and the reforms we that we cannot rely upon tobacco for- the grower community, will buy out are proposing today is the removal of ever. We have seen the handwriting on the tobacco program. We will give our the price guarantee for every pound of the wall. In fact, in 1998 the Senate had growers relief and end the Federal tobacco grown. Under this new system, a long debate about the future of to- price support program. production will reflect the market re- bacco. Nothing passed then. But ever We will let many growers, whose av- alities of the tobacco industry. This since we have known that sooner or erage age is 62, retire with dignity. system provides key elements for to- later the subject was going to return to Dr. Will Snell, the highly regarded bacco dependent communities to tran- the Senate floor. agricultural economist at the Univer- sition out of tobacco production, while Back in Kentucky, we have over the sity of Kentucky, estimates 70 to 75 affording those who accept the risk, past few decades begun to diversify and percent of tobacco growers will get out the opportunity to continue and com- to prepare for the future. of the business with a buyout. pete in a shrinking and every more We have tried to broaden our agricul- In recent years tobacco has come competitive market. Should these indi- tural base. And we have had some suc- under fire from all sides. And while the viduals choose to continue, we have cess with vegetables, beef cattle, rais- antitobacco forces might not have in- created in this bill the opportunity for ing catfish and expanding into other tended it, their attacks are hurting to- growers to insure themselves—at no areas like ethanol production. bacco farm families and rural America. expense to the U.S. taxpayer—against But, at the end of the day, nothing In Kentucky, we have counties that disastrous market conditions that brings as much of a return to the small depend on tobacco for as much as 85 might emerge. farmer and tobacco quota holder in percent of their revenue. In addition to the buyout of quota, Kentucky as tobacco. Without a tobacco base, land values transition payments to growers, and Whatever the opponents of tobacco will collapse and rural communities the new regulations governing tobacco say, there is no denying that the future could fall into an economic death spi- production, this bill provides signifi- for thousands of family farms and ral.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10192 CONGRESSIONAL RECORD — SENATE July 30, 2003 Falling land values mean lower prop- We must not forget that behind every Tobacco farmers are at a crossroads erty tax revenues and eventually se- economic statistic is a human element. but, unlike most people who reach a vere cuts in services such as police, The tobacco farmer bears the brunt of point of decision in their lives, these fire, and emergency services, schools, these changing forces with nowhere to salt-of-the-Earth folks have no options sewers, and roads. turn. Unlike the companies that can, because the current tobacco program For decades farms and small commu- and most often do, pass their extra does not accommodate the changes nities have been built around the cul- costs on to the consumer, the tobacco needed for them to have an oppor- tivation of a legal crop. To change that farmer must absorb any extra cost and tunity to survive in this new market- now without accounting for the con- hope for better days ahead. place. To them it is like standing on sequences would be devastating. During the past 6 years, the amount the tracks while watching a train speed Our bill recognizes this reality and of tobacco allowed to be grown—also closer and closer and yet they can’t would offer some degree of economic known as quota—has been cut more move. They strain and try but they are certainty for tobacco farm families than 50 percent. In fact, not since 1874 shackled with nowhere to go. that toil at the mercy of forces more has so little been grown. This is why a tobacco buyout is so powerful than themselves. Let me explain what that really sorely needed. It will allow those who Mr. President, I am a realist. I know means. The tobacco farmer’s paycheck want to retire the opportunity to do so that passing any sort of tobacco legis- has been cut in half. They only get with dignity, the opportunity to know lation in Congress is a difficult, uphill that if they can produce a good crop. that all they have worked for has not fight. And I do not know if we are The weather, disease, and insect infes- been in vain. It will allow the widow going to be successful with this bill. tation make it all the more chal- whose sole source of retirement income But I do know that if any tobacco leg- lenging. Costs continue to rise. And is from quota rent and Social Security islation passes, it must include help for making this even more unbearable is the opportunity to get a fair return in tobacco farm families. It is the least the increasing cost of leasing quota. exchange for the taking of her quota. It In North Carolina, more than 60 per- we can do for them. will allow young farmers who want to I urge my colleagues in this Senate cent of quota is leased—a major factor continue to produce the opportunity to to understand this problem we are hav- in the increasing cost of production. As compete in the world market—and ing in these six tobacco States. quota has continued to decline, farmers compete very well because of their I yield the floor. have sought to rent more quota in skills. The ACTING PRESIDENT pro tem- order to maintain the economic viabil- Let me bring a little more perspec- pore. The Senator from North Carolina. ity of their operations. The quota own- tive to the buyout of quota. This pro- Mrs. DOLE. Mr. President, tobacco ers, trying to maintain their income gram was created in the 1930s. Right or farmers across the Southeast have been stream with less, demand a higher wrong, the Federal Government has al- anxiously waiting for this day—the day price for the use of their quota. It is lowed quota to be bought and sold. when they can see hope for the future. simple supply and demand, with an aim Rather than investing in stocks and During the past 6 months, Senator at meeting a bottom line. But you can mutual funds, as many Americans MCCONNELL, Senator BUNNING, and I only go on like this for so long—until have, tobacco farmers and their have been working with all of the other you reach the breaking point. Senators from major tobacco States to This is where the growers are today. spouses have invested in quota over the craft legislation that will enable to- Many have hung on and have continued years to prepare for their retirement. bacco-dependent communities to sur- to produce in hopes that things will get But they never predicted this massive vive. better, knowing that if they got out change in the environment for tobacco The Tobacco Market Transition Act, they would have to sell their farm and that has led to such a steep slash in which we are introducing today, will liquidate other assets to settle up their quotas. And how could they? Unlike a mark a major change from the current debt. Even then, many would still be stockholder whose shares lose value if tobacco program, and it will bring a short. the market tanks, the quota holder has major sigh of relief to countless farm Every week my office receives calls lost not only the value from this steep families across the Southeast. from farmers in desperation. They have decline in quotas but the quota itself— For years, the Federal tobacco pro- worked hard all their lives, sent their for good. Unlike the stock market gram created economic opportunity for children to college, contributed to where time is a prudent investor’s best farm families in North Carolina and their community, but now—now—all of friend, those who have invested in other tobacco-producing States. It al- that is passing before their eyes. There quota will never get that investment lowed towns to prosper that would is a deep feeling of helplessness. back. have been hard pressed to make it oth- It is estimated that more than 60 per- In the legislation we are introducing erwise. It provided stability when other cent of the tobacco farmers today will today, the Federal tobacco program is commodities suffered low prices. It was exit the business entirely if a tobacco eliminated. Quota owners are com- the standard bearer of all farm pro- buyout is achieved. Most are at retire- pensated for their investments—for the grams. Buyers of tobacco would come ment age, just hanging on a little while taking of their asset—just as the own- from all over the world to purchase longer in the hopes of being able to pay ers of the peanut quota were com- America’s leaf. America’s tobacco off their debt. Those who would like to pensated with the peanut quota buyout farmers held the world standard for continue to produce know their market in the 2002 farm bill. quality, and they still do today. But is shrinking, not because of a lack of Traditional producers are provided the environment in which they find demand in the world for tobacco but direct payments over a 6-year period in themselves is much different. And it is because the price of U.S. tobacco is too order to allow them to better transi- not of their own making. high as a result of the current tobacco tion into this new marketing environ- The current tobacco program was program. All they can do is watch as ment—again, mirroring what Congress never designed to accommodate the Brazil and other countries take their provided for all program crops under significant changes that have engulfed market share. the 2002 farm bill. this industry during the past decade. Many say: Well, why don’t they just There is no recreation of price sup- Extensive litigation has forced the produce another crop? The truth is, ports or a new quota program. Rather, companies to cut costs and thereby they are. North Carolina ranks third in this legislation keeps tobacco produc- purchase increasing amounts of cheap agricultural diversification, behind tion in traditional areas and on a tradi- foreign tobacco. The increasing cost of only California and Florida. Our farm- tional level of acreage while allowing U.S. leaf as a result of the current to- ers are very diversified but, as other private industry to develop insurance bacco program has caused more and Members from farm States will attest, products so farmers will be better able more foreign buyers to look elsewhere prices have been at historical lows for to manage their price risk in the free for their supply. The numbers do not every commodity over the past 5 to 6 market. lie: The United States now accounts for years—further exacerbating the prob- Perhaps the most important point for only 7 percent of all flue-cured tobacco lem for tobacco farmers in the South- my colleagues in the Senate: Every production in the world. east. penny that this buyout will require is

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10193 paid for in full by all manufacturers SPEECH BY PETER R. other three Great Powers which might, at and importers that sell tobacco prod- ROSENBLATT one time or another, wish to align itself Ger- ucts in this country. many. Bismarck saw Germany as what he Mr. SPECTER. Mr. President, I called a ‘‘satisfied’’ power which, after its Status quo is simply not an option. If thank my distinguished colleague from unification, wanted nothing further from the nothing happens this year, many of Kentucky. other powers and was therefore primarily in- these farmers will be forced to give up I have sought recognition to com- terested in a restoration of the stability that all they have. After 6 years of loaning ment about a very profound speech had prevailed since the Congress of Vienna. on collateral, there is nothing left for which was made by former Ambassador Understanding that in a constellation of five greats powers Germany must be, as he put it, the banks to do except foreclose. There Peter R. Rosenblatt to the American on the side of the three, he saw that it would will be no holding out for just a little Jewish Committee in Detroit, a speech be necessary for Germany to ally itself with while longer. This may sound like rhet- which has a unique historical perspec- Austria-Hungary and Russia. Of the other oric to some but it is the precise truth tive, makes an analysis of the new- two Great Powers, France was in permanent for countless numbers of farm families. fashioned war, the asymmetrical war of opposition and Britain, an active colonial The lenders who call my office confirm terror, comments about the trio of ter- rival of France, adhered to a policy of ‘‘mag- it. Status quo is simply not an option. rorists, those who harbor terrorists, nificent isolation’’ and therefore wished to become no one’s ally—and least of all I thank Senator MCCONNELL and his and the possession of weapons of mass France’s. staff for working so diligently to ad- destruction, and has a perceptive anal- When Bismarck’s chancellorship ended in dress this issue. It is vitally important ysis of the complex role of the United 1890, his brilliant diplomacy had secured Ger- that this legislation is achieved this States on working through the com- many as the linchpin of Europe, the leading power in an alliance structure of three, on year. plex relationships with so many coun- tries and the United Nations as we as- good terms with England and absolutely un- I am grateful, indeed, for Senator sert our role as the world’s sole super- assailable militarily. He had created a state MCCONNELL’s commitment and Senator system so stable that even the unrelenting power. hostility of France threatened neither the BUNNING’s commitment to making this This is a speech worth reading very a reality. I look forward to my contin- security of Germany nor the peace of Eu- broadly. I ask unanimous consent that rope. ued work with them and all the other it be printed in the RECORD. The old Emperor’s grandson and successor, tobacco State Senators on this impor- There being no objection, the mate- the arrogant and foolish young William II, tant legislation. It is either now or rial was ordered to be printed in the failed to understand Bismarck’s statecraft never. Many livelihoods hang in the Record, as follows: and in short order terminated the alliance balance, and with it the future of rural with Russia, throwing that country into the THEN, NOW AND TOMORROW: AMERICA’S ROLE arms of France and dividing the continent communities in North Carolina and IN A CHANGING WORLD other tobacco-producing States. These into two increasingly unstable alliance Throughout recorded history the relation- blocs, which left Britain holding precarious rural citizens, the very ones who have ship amongst states has been determined pri- balance. William then alienated Britain by a helped make this country great, have marily by the largest and most powerful vast naval building program designed to been caught in a battle between cor- among them and by their efforts to protect match Britain’s navy. Thus in a few years porate interests, some greedy trial law- their interests within a stable state system. time William II reversed Bismarck’s diplo- yers, and those whose true desire is to That may seem a statement of the obvious matic accomplishments, ending a century- ban tobacco from the face of the Earth. but it has become an issue now, as never be- long period of stability which had seemed to Let us allow these farm families who fore. In order to understand how, why and to make a major war unthinkable. In its place what extent such a basic condition of human have been trapped in this battle to the statesmen of the time substituted uncer- history may now be in question we must tainty, rivalry between two alliance blocs move on with their lives. They deserve reach back to the political roots of the mod- and fear, always the enemies of peace. With it. ern world. the destruction of Bismarck’s state system I yield the floor. It all goes back almost two centuries ago the world lost a stability which we have not to the Congress of Vienna in the immediate succeeded in regaining in 113 years. The out- The ACTING PRESIDENT pro tem- aftermath of the French Revolution and the come was World War I, in some ways the pore. The Senator from Kentucky. Napoleonic Wars. The victors of those wars, major tragedy of the 20th Century, which de- Britain, Prussia, Austria and Russia, joined Mr. MCCONNELL. Mr. President, I stroyed the optimistic and predictable post- with the restored royalist regime of defeated thank the Senator from North Carolina Napoleonic world of our ancestors. France to establish a new European order Out of that war there emerged an entirely and the Senator from Kentucky for which, to all intents and purposes, meant a new and different state system of five pow- their important contributions to the new world order. It endured, with modifica- ers, an exhausted and depleted Britain and development of this legislation. I also tions, for nearly a century. France, revolutionary Soviet Russia and the want to make clear to our colleagues Towards the middle of the century a num- newest entrants into the field, Japan and the this is a bipartisan bill. Senator ber of major events threatened to unravel United States. After fifteen years of turmoil EDWARDS of North Carolina, Senator the stable Great Power relationships that and economic depression the five were joined had prevented major wars. The popular revo- HOLLINGS of South Carolina, Senator by a resurgent Germany under Nazi rule. Un- lutions of 1848 undermined or overthrew tra- like the stable state system of the 19th Cen- MILLER of Georgia, and Senator BAYH ditional regimes, Italy was reunified in 1856 tury the inter-war state system was highly of Indiana are also cosponsors. In fact, and, most importantly, the reunification of volatile and ultimately collapsed due to the there are 13 cosponsors of this impor- Germany was completed in 1871. weakness and passivity of England and tant legislation. This is critical to our In 1862 King William I of Prussia had ap- France, the isolation of the United States section of the country. We are going to pointed Otto von Bismarck as his Chan- and the aggressive expansionism of the other work as intensely as we can to achieve cellor. In three brief military campaigns in three. the result for which our farm families seven years against Denmark, Austria and World War II produced an entirely new are hoping. France, respectively, Bismarck expelled the state system of two great powers with a three states with opposing interests in Ger- global reach engaged in a titanic struggle for With that, how much time remains many and in 1871 the new German Empire dominance and survival. The cold war was a on this side? was proclaimed by King William, now Em- zero sum game in which the advantage of one peror William I. became a loss to the other. The defeat of the The ACTING PRESIDENT pro tem- The German Empire emerged from this se- Soviet Union in this massive half century pore. The Senator from Kentucky has ries of events as the leading military power long struggle produced a result unprece- 71⁄2 minutes remaining. of Europe and Bismarck set to work to se- dented in world history; a single global Mr. MCCONNELL. I will reserve that cure the new state against the pressures that power militarily, politically and economi- time. I yield the floor. he knew would inevitably build up against cally vastly more powerful than all of its ac- the leading power. Chief among the sources tual or potential rivals. The ACTING PRESIDENT pro tem- of this pressure was defeated France, now in It would be a mistake, however, to think pore. Who yields time? Who yields to her Second Republic and deeply embittered that because this is so there is no longer the Senator from Pennsylvania? by her humiliation on the battlefield and the anything resembling a ‘‘state system’’ in the loss of two border provinces. Bismarck real- world today. There are now five other powers Mr. MCCONNELL. I will be happy to ized that French hostility to Germany had each one of which could, under appropriate yield such time to the Senator from become a fixture of European diplomacy and circumstance, present a challenge to the Pennsylvania as he desires. that France would ally itself with any of the United States over time and with which we

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10194 CONGRESSIONAL RECORD — SENATE July 30, 2003 must learn to live on a basis of mutual ac- ransom by threatening their use. The fact egy of asymmetrical warfare. All the ingre- commodation. These are Russia, Japan, that increasingly powerful weapons are be- dients are there, even if they have not China, India and Europe, when Europe be- coming ever easier and cheaper to buy or worked as the attackers have planned. Ter- comes significantly unified to act with one produce places them within the reach of the rorists are the delivery vehicles. The West voice. Each of these is currently unable to familiar rogue’s gallery of terrorist spon- Bank and Gaza were designed to be the har- present a significant challenge to the United soring or harboring states and to irrespon- boring states after the Palestinian Authority States because of severe internal problems sible non-state actors. It is not terrorists or was placed in charge of the so-called Area A which inhibit the full realization of its po- terrorist harboring states or WMDs alone under Oslo and after Israel’s withdrawal tential power. that are so terribly menacing and desta- from southern Lebanon. And WMDs? Well, Russia has not recovered from the wars, bilizing in today’s world, but the conjunction fortunately none have yet been used, but not misrule, economic mismanagement and in- of all three. for lack of will. The Israeli authorities tellectual distortions of the 20th century. The use of these terrible WMDs has been stopped an attempt to destroy Tel-Aviv’s Japan, having prospered under the U.S. de- largely avoided up until now through the largest office building, the Azrieli Tower, fense umbrella through the mobilization of doctrine of deterrence—the threat of retribu- and a fuel storage area north of Tel-Aviv. If its ancient social and cultural system, now tion as terrible or more so than the initial either of these efforts had succeeded the cas- suffers the downside of the very same sys- assault. That doctrine has depended for its ualties might well have matched those of 9/ tem. viability on an assumption that the nation 11. China will eventually become a great mili- to be deterred is managed by at least mini- The asymmetrical war of terror hasn’t tary power through the diversion of re- mally responsible leaders with enough judg- worked against Israel. The impact has been sources which are needed to bring its entire ment not to attack when the cost of so doing opposite that which the attackers expected. population into the modern world and to would be unacceptable. But how does one Israeli morale remains high, divisive inter- overcome vast internal demographic, social, deter a WMD assault by a fanatic or psy- nal disputes have been largely laid aside, and economic and even hydrological problems, chotic adherent of some doctrine who has no Israel has struck back with tremendous force any one of which would alone take a genera- regard for his own or any one else’s life? And and effect. Later, if not sooner, the impact tion to cope with. how does one deter a group if one cannot find intended for Israel may, in fact, be visited Much the same could be said of India it or if it is only one of many capable of upon the attacker’s own society. whose agenda, in addition, is still dominated mounting a devastating attack without leav- Just as the war of terrorism being waged by the unresolved consequences of the sub- ing a fingerprint? And even if one were able against Israel was a harbinger of the war continent’s messy partition in 1947. to identify and find such a group, and if one now being waged against us and the rest of Western Europe, though prosperous, is dis- were willing and able to buy it off, how much the civilized world, so Israel’s reaction fore- united and disarmed. It is as unprepared to security would that bring and for how long? cast ours. Israel long since identified this as- assume the responsibilities of a great global This new global configuration has come to sault as a war rather than a criminal prob- power as England and France were in 1939. be known as asymmetrical warfare, in which lem. Israel determined that it could not af- The wonderful professors who taught me the weak attack the strong without hope of ford to wait until terrorist attacks occurred my freshman European history course at victory in the conventional sense. The to take action against its sponsors. And it Yale were fond of saying that ‘‘history does attackers have only the power to destroy. determined that preemptive action, in order not repeat itself, only historians do.’’ But When Prussia defeated France in the Franco- to be effective, required military interven- certainly this maxim does not preclude even Prussian War of 1870 Germany replaced tion in the harboring areas and elimination the devoted student of Professors Foord and France as Europe’s strongest power. When of those who plan, lead and execute the as- Mendenhall from attempting the occasional the U.S. won the cold war it became the sole saults. historical analogy. We have arrived at this superpower. If Al Qaeda or some successor The administration has made quite clear, new phase of history very much more power- were, God forbid, to deliver a WMD to New through its actions more than its words, that ful in relation to the other major powers York, Washington or Chicago in a shipping it has gotten the message. It now rarely than was Germany after 1871. But like Ger- container or suitcase and detonate it, it criticizes Israel for pursuing policies locally many then we are a ‘‘satisfied’’ power which could kill many Americans and do grievous which it, itself, is pursuing globally. wants nothing from any other. Our diplo- damage to the U.S. economy, but it could Like Israel we are engaged in a twilight matic task, like Bismarck’s, is therefore to neither conquer the U.S. nor replace it. The war in which we can be certain of the full crate and preserve global stability. But our purpose of terrorist organizations which pur- support of only a few nations. Unlike Israel efforts to do so will have to be focused on sue this form of warfare is, rather, the sur- we do have some support from many others, new and different issues in addition to those vival of enough of them to attack again and but only we, Britain, Australia, Poland and a which preoccupied Bismarck; and they are again. Chaos, not direct conquest, is the ob- few others are willing to take the initiative just as subject to mismanagement, the con- jective. The theory of asymmetrical warfare in prosecuting the war with full vigor, and sequences of which could be even more cata- conducted through terrorism is to disrupt only our government does so with substan- strophic. the stronger power’s enconmy, social cohe- tial popular support. Now, why do I recite all of this history for sion and morale though massive human and This circumstance requires that we main- you if the facts of today’s world are so very material casualties so as to ease the path for tain an international diplomatic posture and different? Well, it is because the power poli- the terrorists’ political or other objectives. military force directed simultaneously at tics of the 19th and 20th Centuries persist The administration has reasonably con- maintaining our political primacy and mili- even as we cope with an entirely new class of cluded that a successful defense against tary superiority vis-a` -vis other major pow- threats arising from a totally different asymmetrical warfare requires us to seize ers, while waging active diplomatic and mili- source. It’s a bit like the science fiction and hold the initiative. We simply cannot tary warfare against terrorists, those who movies in which a world preoccupied with its wait until the fatal conjunction between ter- harbor or tolerate them and the proliferation normal conflicts and rivalries is suddenly rorists and WMDs occurs, most likely in the of WMDs. confronted with a unifying threat from outer relative security of a terrorist-harboring That is going to be expensive. We have space. But unlike the movies, there is little rogue state, and we are confronted either seen that it took most of our West European present evidence of a global appreciation of with a WMD attack or with blackmail allies only a decade of inattention and deep- the magnitude of the threat. threats of such an attack. ly slashed defense budgets to become nearly The old world has not been abolished. We are therefore required to embark on a irrelevant to the global strategic equation. International relations are still largely de- non-traditional policy of searching out, seiz- Far from cutting down on major weapons termined by the most powerful states—dis- ing or neutralizing through diplomatic, cov- systems we are going to have to keep on de- proportionately our own. Just as in Bis- ert or, if necessary, military means any veloping new generations of them while we marck’s day, armies, economic power and rogue states, terrorists, fanatics, criminals reconfigure a portion of our military to en- cultural influence still determine the peck- and psychotics who we believe are actively able it to intervene anywhere in the world on ing order among states. Nor is there the attempting to acquire and use, or threaten very short notice to carry on the new war slightest reason to expect that the major to use WMDs, or to harbor, support, supply and, if necessary, to conduct what President states will cease competing with each other. or passively tolerate those who would do so. Bush used to call ‘‘nation building.’’ But since September 11, 2001 Americans The administration has called this a policy We will also have to figure out how we are and a few others have become conscious of a of pre-emption and has explained that the going to pay for all of this without killing new and terribly destabilizing overlay on the threat is too urgent and the costs of failure the goose that has been laying all those gold- traditional state system which we are just in too grave to allow us to respond solely en eggs—by saddling ourselves with unac- the earliest stages of understanding. I refer through the usual diplomatic requests for in- ceptably high taxes or huge, escalating defi- not just to terrorism, but more broadly to vestigative assistance, extraditions and cits. the ever increasing capacity of small, poor, trials by jury. In other words, we are en- It will also take active and imaginative di- weak states, terrorist groups, criminal orga- gaged in war—a type of war for which there plomacy for us to avoid the fate of William nizations or even individuals to gain access is only one historical precedent—but a war II by alienating the rest of the world. We can to the most terrible weapons of mass de- nonetheless, and not a criminal prosecution. afford to ignore or exclude a France which struction (WMDs) and to use them against The precedent is, of course, Israel, which seeks actively to undermine our national in- the most powerful states or to hold them to has been made a testing ground for the strat- terests. But only if we can ensure that it is

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10195 France and not we that becomes isolated in the current version of the threat from outer in 1983, he has consistently served our consequence. We cannot win this war with- space. country. Prior to his service with the out the active support of most, at least, of So here we are, the most powerful nation U.S. Attorney’s office, Tom served in the world’s major powers who see themselves the world has ever known; and what is our the United States Army and is cur- to some extent as our rivals. And we will re- number one global problem? A collection of quire at least the acquiescence of much of small to medium third world countries none rently a LTC in the Army Reserve. the rest of the world, including the Islamic of which has ever won a war against anyone, Tom’s personal record is equally dis- world, whose governments are the terrorists’ with economies a tiny fraction of ours, most tinguished. Those who know him well primary targets but many of whose ordinary of whose people are still living in the Middle consistently praise his qualities as a people feel at least some sympathy for the Ages, and rag-tag gangs of fanatics and devoted husband and father of four terrorists’ proclaimed objectives. criminals which, if they should ever acquire beautiful children. Well, that brings us back to our starting the world’s most powerful weapons, may be I urge my colleagues to join me point this evening; our relationship with the undeterrable and unappeasable and may use today in commending Tom Swanton for world’s other major powers. Anti-prolifera- these weapons rather than submit. his service as a legal fellow and for his tion efforts and the war against terrorism The real authority in our world may be devotion and leadership to our country. cannot be conducted successfully by the U.S. distributed—albeit unevenly—among six alone. Therefore, it is necessary for us simul- major powers. But neither we, as the first f taneously to conduct our relationships and among them, nor a majority of them as in TERRORIST PROSECUTION ACT to contain our rivalries with these powers— Bismark’s alliance system nor all of them perhaps it would be more accurate to say acting together, as in Vienna, Berlin, Mr. SPECTER. Mr. President, this their rivalries with us—in the traditional Versailles or last year in Security Council morning a group of Senators met with manner on one level, even as we seek to lead Resolution 1441, can absolutely ensure our Israeli Prime Minister Ariel Sharon in them in a priority joint campaign against a safety. But we have no alternative but to try a very informative session as part of global threat which some of them do not re- to create sufficient harmony among the Prime Minister Sharon’s visit to the gard as seriously as we, but which has or world’s principal powers to turn back the United States where yesterday he met soon will target all of them. dark forces that threaten civilization. To some extent, this is happening even with President Bush. f now. France, with which we have serious and An item which has been worked on perhaps enduring differences of a geo- TRIBUTE TO ASSISTANT U.S. for many years has been the effort to political nature, is cooperating with us in in- ATTORNEY THOMAS P. SWANTON try in the U.S. courts Palestinian ter- rorists who murder U.S. citizens telligence sharing in relation to the war on Mr. SPECTER. Mr. President, I pay terrorism. China, which views us as a rival abroad. The Terrorist Prosecution Act, tribute to a very distinguished lawyer, for influence in East Asia, is beginning to co- which I wrote back in 1986, provides for Thomas P. Swanton, who has been in operate with us in dealing with the nuclear exterritorial jurisdiction where U.S. threat posed by its North Korean ally. And my office for more than 2 years on as- courts have jurisdiction to try a Pales- China and our old adversary, Russia, identify signment from the Department of Jus- tinian terrorist who murders an Amer- their campaigns against separatism amongst tice, and I thank the Attorney General their Moslem minorities with our war on ter- ican citizen. and the Department of Justice for this There are two prominent cases which rorism—a very uncomfortable fit for us. program which enables Senators to The United Nations Security Council, seen could lend themselves to this approach. after 9/11 as the logical instrument for orga- have excellent legal service and gives a One case involves a Palestinian ter- nizing the world consensus against ter- different perspective to those who are rorist who is in the United States, rorism, proved incapable in the face of dis- assigned to a Senate office. where we have jurisdiction over him, cord over Iraq among its permanent mem- Tom Swanton is an extraordinary where we need the cooperation of Israel bers. It was therefore bypassed, for much the lawyer. He has come to my office with in providing the witnesses. It was a same reason that it was bypassed during extensive trial skills and has done ex- matter which I discussed this morning most of the cold war. Its structure no longer traordinary work on counseling in my with the Prime Minister, and we are reflects the realities of the current global office, on post-9/11 legislation, on work- state system—if it ever did—and it is un- working to see if we can secure that likely to realize its full potential until it, ing on nominations, on legislative kind of cooperation. It was pointed out along with the entire United Nations system, packages involving the death penalty, that sort of cooperation has been is restructured. The UN today is a shambles, and the war on terrorism. present in the past, and we are seeking and not merely because Nauru with 6,000 He has worked hard on these issues— to bring that about here. citizens has the same General Assembly vote each time jumping in feet first, soak- Another possible prosecution would as China’s 1.2 billion, nor because Libya is ing up knowledge, and moving legisla- involve a Palestinian terrorist who elected to chair the UN Human Rights Com- tion forward in this often complicated confessed on television, so there is no mission, or Iraq the Disarmament Commis- process. From his first assignment, he issue about the voluntariness of his sion or Syria becomes a non-permanent earned the respect of my staff, as well member of the Security Council, or that the confession. There is a potential prob- UN and its agencies spend vast amounts of as mine. lem in that Israel opposes the death their time, effort and resources debating and Tom’s primary duty consisted of penalty and characteristically will ex- implementing annual resolutions directed working as my legal counsel for Judici- tradite only where there is assurance exclusively against Israel. No, the UN is a ary matters where he handled a wide from the country receiving the indi- shambles because so much of what it does is variety of issues. He also proved to be vidual that the death penalty will not irrelevant to the world’s major issues that it of invaluable assistance in crafting be sought. I believe there are excep- lacks credibility even among those of its several pieces of post-September 11 leg- tions under Israeli law where Israeli members who are chiefly responsible for its islation, all the while leading an inves- distortions. national security is involved. I believe But before we dismiss the UN as entirely tigation on terrorism financing. His the threat of the war on terrorism irrelevant let us recall a few salient truths: skills and judgment in this arena are would qualify under that section. Metternich could conduct the Congress of exceptional. My staff and I were con- There is a second aspect, and that is Vienna, Bismarck the Congress of Berlin and stantly impressed with the wealth of the vindication of U.S. rights where Wilson the Versailles peace conference with knowledge he demonstrated. American citizens are murdered by four other principles and reshape the world. Tom also provided a tremendous Palestinian terrorists in Israel. I think We are relatively far more powerful than any service to the people of Pennsylvania there is a very real issue about vindi- of those principals were, but we cannot be as effective as they were then in our war in working on issues such as class ac- cating U.S. interests. We are going to against terrorism, even with the co-oper- tion reform and the Patents Bill of continue to pursue that line. ation of the 15 members of the Security Rights. He demonstrated a remarkable One other observation in the brief Council. amount of enthusiasm and initiative amount of time remaining. The meet- The world has become so small and dan- throughout his entire fellowship. ing between President Bush and Prime gerous a place that we cannot even consider His dedication to each project was re- Minister Ariel Sharon was a very warm trying to stabilize it without the active par- markable, and the assistance he pro- and a very good meeting. One of the ticipation of much of the rest of the world. Therefore, if the UN did not already exist vided to my office will not be easily items which I think bears a little focus it would have to be invented. Only we, with matched. However, for Tom this level is the unusual rapport between these our enormous power and influence, can make of dedication is par for the course. two men, where President Bush re- it work to focus the world’s attention upon Since his graduation from West Point ferred to Prime Minister Sharon by his

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We believe we are following Sharon reciprocated by referring to one of the first nominees, John Rut- the will of the American people who President Bush as ‘‘George.’’ I think ledge from South Carolina, was re- don’t want judges either too far left or that signifies an unusually warm rela- jected by the Senate, which contained too far right. tionship. a goodly number of the Founding Fa- I assure you, Mr. President, and I as- It brings to mind comments by Prime thers themselves because they were ap- sure President Bush, and I assure my Minister Begin who visited the United pointed to the Senate in those days colleagues in the Senate that we will States back in June of 1982 and met right from the Constitutional Conven- continue to do this. You can prolong with a group of Senators, and at that tion. Rutledge was rejected because of this and put up all the visuals and time made a comment that President his views on the Jay Treaty. nasty ads you want, like the one just Reagan had asked Prime Minister So this idea that unless we find the run by one of the President’s associates Begin to call President Reagan ‘‘Ron.’’ candidate to have some kind of crimi- in Maine, accusing those who will vote Prime Minister Begin said that he de- nal record or has done something un- against Mr. Pryor of being anti-Catho- ferred, which led President Reagan to ethical, we should not be examining lic, including good Catholics in this say to Prime Minister Begin: Well, that record or speaking to that record Chamber. That is wrong. In fact, I Menachem, if you don’t call me Ron, I makes a good deal of sense. President think it is reprehensible. But I tell the won’t call you Menachem. Bush is a classic case of what the other side, not only will it not work, if Prime Minister Begin went through Founding Fathers were worried about anything it strengthens our desire to that circle but refused to call the in the way he has chosen his nominees do the right thing. Let’s talk about Miguel Estrada. President by his first name, referring because the Founding Fathers, I be- This nominee was unusual in this to the President as a Head of State. lieve, wanted nominees to be from the sense: He had no real record because he I think it is a very encouraging sign American mainstream. They wanted had not been a judge previously, nor when the President of the United them to interpret the law, not to make written law articles. By many reports, States and the Prime Minister of Israel law. his views were very extreme. But when are on a first name basis. That bodes There have been times when judges I approached the hearings for his nomi- have leaned to the far left—the 1960s very well for the relationship. nation, and when many colleagues did, I note the time of 1 o’clock has ar- and 1970s—and they now lean to the far we were willing to see what he rived. right. The bench becomes infused with thought. The bottom line is that he The ACTING PRESIDENT pro tem- ideologues and ideologies, and those didn’t tell us what he thought. The bot- pore. The time controlled by the Sen- judges want to make law, not interpret tom line is that when he was asked law—very much against what our ator from Kentucky has expired. very simple questions on issues that he Mr. SPECTER. Mr. President, I yield Founding Fathers wanted. That has had an obligation to expound upon, the floor in any event. been the case of President Bush. I don’t such as: What is your view of the first f think it is disputed that he has nomi- amendment; how broad or narrow nated judges through an ideological EXECUTIVE SESSION NOMINATION should it be; what is your view of the prism more than any President in our OF MIGUEL A. ESTRADA TO BE commerce clause; what is your view of history. You don’t have a sprinkling of UNITED STATES CIRCUIT JUDGE the relationship between the States Democrats or liberals or even mod- FOR THE DISTRICT OF COLUM- and the Federal Government; he kept erates—you have a few moderates, but BIA CIRCUIT hiding behind this idea that canon 5 of the overwhelming majority of the lawyers ethics says you should not The PRESIDING OFFICER. The Sen- President’s judges have been hard core, comment on a pending case if you are ator from New York is recognized. hard right. A few of them have been so nominated to be a judge, so that he Mr. SCHUMER. Mr. President, I be- far over that they don’t deserve nomi- could not comment on anything. If Mr. lieve the regular order is for the minor- nation. They include Miguel Estrada Estrada were asked how should Enron ity to be given a half hour on the pro- and Priscilla Owen, and they include, be treated, he would rightfully say: I posal to proceed with the Estrada nom- in my opinion, two nominees we may cannot answer that because I might ination; is that correct? vote on later this week: Carolyn Kuhl, judge Enron on the bench. But if he is The PRESIDING OFFICER (Mr. and the attorney general of Alabama, asked what his views on corporate eth- HAGEL). The Senator from New York Pryor. ics are, of course, he has an obligation has one-half hour under his control. If you look at the records of these to answer that question. He did not. Mr. SCHUMER. Mr. President, we are judges and you put scales, left to right, And doing so was an affront, not to any back to voting on whether to proceed 10 being the most liberal and 1 being one individual, but to our Constitution. with the Estrada nomination. Before I the most conservative, these judges are If Mr. Estrada were correct, then get into the merits of Mr. Estrada, I ones, to be charitable. When Bill Clin- probably most of the judges we have want the record to show that we have ton nominated judges, he nominated nominated in the last two decades now confirmed 140 of the President’s mainly sixes and sevens, people who should be cited for violation of canon 5. nominees. By the end of the week, it tended to be a little more liberal, but They all answered these questions. could be over 150. By the end of the were moderate and mainstream—very Judges nominated by President Bush week, we may be blocking as many as few legal aid lawyers or ACLU charter before and after Estrada have answered 4. So right now it is 140 to 4 and could members, much more prosecutors and these questions. So why would Mr. be at the end of the week 150 to 4. That partners in law firms. Estrada not come clean and tell people is a record that even Yankee fans This President, for whatever reason, what he thought? Why would he not do would be jealous of. has chosen to nominate judges way what every American has to do? We have this view of some, including over to the far right side. When every American applies for a the White House, that we are obstruc- I am proud of what we have done in job, the employer says: Please fill out tionist because we have tried to block this Chamber. I am proud that we are this questionnaire. Can you imagine 4 out of 140 nominees. My guess is if bringing some moderation to the someone saying I refuse to fill out the James Madison or George Washington bench. I am proud that we are fol- questionnaire in getting the job? It or Benjamin Franklin or any of the lowing the wishes of the Founding Fa- would be rare to do that. That is what Founding Fathers were looking down thers and not just being a rubber he did. He is applying for a job—not on this Chamber, they would say: Why stamp. For those who try to beat us just any job, but one of the most im- are they blocking so few? We wanted with a two-by-four, by calling names, portant jobs this Government has—a the President and the Senate to come by saying we are anti-Black, anti-His- Federal judge, with awesome power. He together on judicial nominees. panic, anti-Catholic, anti-women, when kept refusing to fill in the job applica- It outlines in the Federalist Papers we oppose a judge who happens to be of tion form by answering the questions that the Founding Fathers didn’t want that description, we are not going to we had asked. the President to have sole power to win. We believe in what we are doing. We then came to the question: How choose judges, nor did they want the We believe it is mandated by the Con- could we tell what his views were? We

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10197 did not stop. We asked him, and we Mr. President, I reserve the remain- I will make another prediction. This asked the Justice Department to give der of my time and suggest the absence vote will not change. If we do it 18 us some documents about issues on of a quorum. more times, it will not change. So we which he had worked when he was in The PRESIDING OFFICER. The can continue to waste our time or we the Solicitor General’s Office. There clerk will call the roll. can continue to find ways to work to- were some in that office who reported, The assistant legislative clerk pro- gether to use our time a lot more effec- again, that his views were way over, ceeded to call the roll. tively than we are using it now. that they were extreme, and we were Mr. DASCHLE. Mr. President, I ask I yield the floor. refused our request. unanimous consent that the order for The PRESIDING OFFICER. The Sen- I will tell you this, Mr. President, the quorum call be rescinded. ator from Illinois. and I will tell every Member of this The PRESIDING OFFICER. Without Mr. DURBIN. Mr. President, I thank Chamber, as long as Mr. Estrada re- objection, it is so ordered. the minority leader for his comments fuses to answer questions about issues Mr. DASCHLE. Mr. President, I will on this Miguel Estrada nomination. over which he is going to have virtual use some of the allocated time on the As a member of the Senate Judiciary life and death power in terms of gov- nomination to make a comment. We Committee, I can say we have been erning the American people and we do have been debating the Energy bill for very cooperative with the Bush admin- not know how he feels, we are going to the last couple of days and, of course, istration. Of the 146 judges, if I am not continue to block him. We are proud of for good reason; the distinguished ma- mistaken—the minority leader can cor- that fact. jority leader has said he wants to move rect me but I think it is in the range of At first when it started, most people this legislation forward and that we 140, and then there are five or six said: Don’t do it; politically they will ought to do all we can to find a way to judges in another lifetime category attack you—and this and that. I told resolve the many issues that are still that some add in, but whatever the my colleagues I thought we ought to do pending on energy prior to the end of number, 140, 146, it is significant—only it because it is the right action to the week. two nominees to date have been held. take, regardless of politics. I cannot think of a more counter- We have a responsibility under the productive effort, a more counter- Constitution, as Members of the Sen- A funny thing has happened. Politics productive device, than to bring back a ate, to advise and consent to the Presi- seems to be rolling in our direction. nomination that has already been be- dent’s nominees, and that means more People are beginning to understand fore the Chamber six times. I certainly than a rubberstamp. In the Miguel that this President is not nominating am not questioning the majority’s mo- Estrada case, he is a person with ex- mainstream, moderate judges. People tives. I do not question their desire to traordinary academic credentials and are beginning to understand that there finish the Energy bill, but I do question an extraordinary legal background who is a desire to pack the courts and turn the management of our time when I has refused to provide the Senate and the clock back. think with every bit of sincerity our members of the Judiciary Committee Congress will not turn the clock Republican friends tell us they want to important writings he generated which back. The President himself will not finish this bill. would reflect on his view of the law. He turn the clock back. We are elected. We are now in a quorum call in the has said we cannot see them. But if you put judges in, they can turn middle of the day on a nomination that A few months ago, when we first con- the clock back for a whole generation. has already been before the Senate six sidered this nomination, the Repub- There is a view out there that this is separate times this year. Six times we lican Senator from Utah came to the happening. have debated whether Miguel Estrada floor—not Senator HATCH but his col- What started out as something done ought to be required to do what every league Senator BENNETT—and sug- out of a deep conviction remains a deep nominee is required to do, which is an- gested maybe the answer to this im- conviction, and our view about the di- swer the questions and fill out the job passe is for the White House to release rection of this country, our view about application. Six times, without equivo- these documents for us to review, and the appropriate role of the Senate in cation, Senators said you do that and once having reviewed them we can de- the nomination process of judges is not we will take another look at your nom- cide whether to move forward with this ending up to be the political loser that ination. nomination. some prognosticated. Here we are now for the seventh I was here and I said I applaud that; We will continue to block this nomi- time, in the middle of an energy debate I think that is a reasonable standard of nation. If nominees stubbornly and ar- that we are told by the majority must conduct. Within hours, the White rogantly refuse to answer legitimate be done, debating once more this very House came out and said publicly, we questions of members of the com- issue. will not release them. We do not be- mittee, we will not allow them to be- That is not all. Yesterday we debated lieve we have to, and we are not going come judges. That is not our doing in Priscilla Owen, and I think that was to generate this kind of paperwork an ultimate sense; it is their own for the third time. Tomorrow we may that may make Estrada’s nomination doing. If nominees are so far out of the debate another nominee, William more controversial. That was the end mainstream that it is quite clear they Pryor, for the first time. Who knows of the story. That has been the end of will make law, not interpret the laws what could come on Friday. his nomination. So it was a conscious that others have made, we will oppose The majority needs to show us they decision by the White House not to re- them as well. are truly intent on working with us lease documents which may give us an We will vote on the nomination of through these many important issues insight into Miguel Estrada and his Mr. Estrada for the seventh time. I before they can convince us that they lifetime appointment to one of the make the point that my good friend want to finish the job on energy. highest Federal courts in the land. from New Mexico was saying we have It is 1:25 and for the life of me I can- In the Priscilla Owen situation, she to move the Energy bill forward. Our not understand why we are in the mid- is a classic judicial activist. We have majority leader is saying we have to dle of a quorum call on a judicial nomi- nominated and approved scores of con- move the Energy bill forward, but we nation that has come before us on six servative judges for the Bush adminis- are taking out time to vote on this other occasions. That is not good time tration. She reached a new level, a nomination again. The purpose I do not management. It is not a good practice. level of judicial activism which has put know, a purpose grander than I can It obviously has not generated much her in a special category with Miguel think of. But we are here and we are interest, and I think it is a huge waste Estrada. doing it. of time. Now because of those two nominees No one has changed his or her minds. I only come again to express my dis- being held up, we see practices in the Mr. Estrada has not answered the ques- appointment and my puzzlement, my Senate Judiciary Committee that are tions, and as long as he continues not lack of ability to answer the question unprecedented. Rule 4, which is this ob- to answer these important vital ques- why is this happening now, when we scure rule of the committee, was put in tions, he will not be approved. have so much work to be done. place by Senator Strom Thurmond

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10198 CONGRESSIONAL RECORD — SENATE July 30, 2003 years ago to protect the minority. It is understand who he is and what he be- for the D.C. Circuit. The last cloture now being ignored on a regular basis, lieves, I am afraid is going to face the vote on this nomination was scheduled twice in the last few months by Sen- same fate over and over again. on May 8. The only thing that has ator HATCH. This rule basically says if The Republicans can call this to a changed since that unsuccessful vote is the majority wants to, they are going vote as often as they want. that the administration and some Re- to move a nominee regardless of wheth- Our Senate Democratic leader, Sen- publicans in the Senate have ratcheted er there is minority opposition. That ator DASCHLE, is right: The Democrats up their unprecedented partisanship was never the practice of the com- will hold fast to the position. Until he and the use of judicial nominees for mittee. It is now. It is an effort by the is forthcoming and honest and open as partisan political purposes. Bush administration and their sup- to who he is and what he believes, he I spoke yesterday about the new low porters and the Senate Judiciary Com- does not deserve this high appointment to which some Republican partisans mittee to basically ignore the prece- to a Federal circuit court. That spells have stooped in political ads and dent. out why we are here. charges that should offend all Ameri- In the next couple of days, we are I also add, I listened for days last cans. I again challenged Republicans going to consider two other nominees, week and this week as the Republicans and the administration to disavow and they are fraught with controversy. complained we were not spending those despicable efforts but, instead, William Pryor of Alabama has become enough time on the Energy bill; we they are choosing to continue to sup- a lightning rod on Capitol Hill. If one were finding all sorts of excuses not to port the smear campaign of insult and looks at his background, what he has get down to the work of the Energy division. Yesterday I inserted into the done as attorney general in the State bill. We are certainly not on the En- CONGRESSIONAL RECORD some of the ar- of Alabama, they can understand why. ergy bill right now. We were not yes- ticles and editorials that comment This is a man who goes far beyond con- terday when we voted on Priscilla upon this most troubling development. servatism. His positions on issues far Owen, nor will we be later in the week Yesterday I also had the opportunity and wide are so controversial. I said when other judicial nominations come to meet with representatives of the during the course of the committee, to the Senate. Any excuse will do to Interfaith Alliance. I thank them for when one looks at the controversial po- get off that bill, it seems. I had hoped condemning these unwarranted attacks sitions that have been taken by Wil- we would stay on it and do our work. I and for standing up for the Constitu- liam Pryor, the Attorney General of offered my amendment early. Others tion and the first amendment rights of Alabama, it is like an all-you-can-eat have done the same. We will continue all Americans. Reverend Gaddy, Father buffet. You do not want to fill up your to make the symbolic votes. Drinan, Reverend Veazy, Right Rev- plate early on with his controversial If we are going to have true comity erend Dixon, and Rabbi Moline under- statements, discriminating against in this institution, if we are going to stand what is afoot and have spoken women, because you have to save room have a cooperative relationship, it will out in the best tradition of this coun- for his controversial statements when require us to deal with this on a bipar- try, and I thank each of them. it comes to the environment and to tisan basis. I urge my colleagues to I do not expect the vote on this nomi- civil rights. continue to oppose the nomination of nation to change today. Nothing has When it is all over, you are going to Miguel Estrada. been done to accommodate Senators’ need more than one plate to get Mr. LEAHY. Mr. President, yester- concerns. No arrangements have been through the William Pryor all-you-can- day the assistant minority leader made made to provide access to the docu- eat buffet of controversial positions. some cogent observations about how ments requested in connection with This man is headed for the floor. How the Senate is being required to expend this nomination that are available to did he get here? He got here by circum- hours on matters that are leading no- the administration and that Mr. venting an ethics investigation which where and take away from debate on Estrada said he had no objection be was not completed. A decision was the Energy bill. If the Republicans provided. Thus circumstances have not made by the Republicans in the Senate were truly serious about finishing the changed since the first vote on this Judiciary Committee that we do not Energy bill this week, they would not nomination or the most recent vote need to finish that investigation; we be scheduling hours of debate on con- back in May. are just going to send him to the floor. tentious judicial nominations. Nor for There continues to be, in the phrase Then they went through that shameful that matter would they break for sev- favored by the White House, ‘‘revi- display on the issue of his religion, eral hours yesterday to have a pep sionist history’’ regarding the prece- which I hope never again is brought up rally at the White House. From the dent of providing the Senate with legal in the Senate Judiciary Committee but Senate schedule, an objective observer memos to the Solicitor General and by was brought up for William Pryor. Fi- would have to think it is more driven the Solicitor General and similar docu- nally, they jammed it through, strong- by partisanship and trying to score po- ments in connection with nominations armed his nomination to the floor, litical points than a desire to make for both lifetime and short-term posts. under rule 4. progress on the business of the Senate Senator SCHUMER, Senator KENNEDY, So here we sit in the minority and and on the issues that are the most im- and I have detailed those earlier prece- what are we supposed to do? Are we portant to the American people. dent in earlier debate. It has not been supposed to ignore these tactics, this This week we have not proceeded to refuted. It cannot be refuted. Facts are departure from the precedent of the the foreign operations appropriations stubborn things. Nonetheless the ad- Senate Judiciary Committee? Are we bill, which contains a number of mat- ministration and Republicans continue supposed to ignore the fact that at ters of overriding importance to the to ignore the facts seeking political least two, maybe four or five, of these country and the world, although Chair- gain and have chosen to use Mr. nominees clearly would never have man MCCONNELL and I have been ready Estrada as a pawn in their efforts. That passed through the Senate Judiciary to proceed. We have not proceeded to is unfortunate and regrettable. Committee under any other cir- the energy and water appropriations We have worked hard to try to bal- cumstances but for these tactics? I bill or the other appropriations mat- ance the need for judges with the im- think if we did that, we would be ignor- ters that need to be concluded soon for perative that they be fair judges for all ing our constitutional responsibility. the Government and Government pro- people, poor or rich, Republican or Whether the nominee is William grams to continue to operate in the fis- Democrat, of any race or religion. This Pryor, Miguel Estrada, or Priscilla cal year that will soon be upon us. Usu- has been especially difficult because a Owen, time and again we have to stand ally we devote July to appropriations number of this President’s judicial and accept our constitutional responsi- matters but the Republican leadership nominees have records that do not bility to really stand in judgment as to has chosen to take this week off in demonstrate that they will be fair and whether these individuals deserve a that regard. impartial. In response, the White lifetime appointment to the Federal Today we must again return to the House and its allies have bombarded court. Miguel Estrada, until he is ready controversial nomination of Miguel the airwaves with all manner of mis- to come clean with his writings so we Estrada to the U.S. Court of Appeals leading information to try to bully the

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10199 Senate into rolling over and rubber- courts than at any time in U.S. his- mistakes made in a slipshod confirma- stamping every one of its these nomi- tory. tion process. nees. These confrontations and problems In their quest to limit public scru- The claims that we are anti-Hispanic with nominations are of the White tiny, Republicans have invented inter- or anti-Catholic or anti-woman or anti- House’s own making. It is true that pretations of the Constitution without Christian are part of Republican poli- some of this President’s judicial nomi- any basis in tradition or history. Al- tics of attack and division as taught by nees with troubling records have not though they now contend that the Con- Presidential advisor Karl Rove and as been confirmed. It is also true that stitution requires an up-or-down vote implemented by the administration’s Democrats have supported as many on every judicial nominee, the plain allies in the Senate and C. Boyden nominees as we could responsibly. facts are that they blocked up-or-down Gray and his so-called Committee for Democrats have not been spoiling for a votes on more than 60 of President Justice, who paid for the most recent fight. Clinton’s judicial nominees and more volley of ads. These dirty tricks are We did not seek out the nomination than 250 of his nominees to short-term nothing new to this gang. Earlier this of Judge Pickering or Judge Owen. But positions in his administration. year, Mr. Gray and his group ran ads we treated them fairly and much more Did they engage in wholesale con- insinuating that Democrats oppose the fairly than Republicans had treated stitutional violations during President nomination of Mr. Estrada because he President Clinton’s nominees to the Clinton’s Presidency? I did think their is Hispanic, ads which were refuted by Fifth Circuit by according them hear- one-person filibusters by anonymous, the courage of many Latino leaders ings, debate, and a committee vote. secret holds were unfair, and that is and Latino civil rights groups which They were rejected. For the first time why I made blue slips public as chair- spoke out against confirming Mr. in history a President nonetheless re- man and have supported ending anony- Estrada. Mr. Gray’s group recently ran nominated those rejected by the Sen- mous holds. Our Democratic Senate leadership print and radio ads calling Democratic ate Judiciary Committee. That it was worked hard earlier this year to cor- Senators anti-Catholic because they unprecedented is part of the difficulty rect some of the problems that arose oppose President George W. Bush’s with these controversial and divisive from some of the earlier hearings and most controversial and divisive appel- nominees. Justice Owen is someone actions of the Judiciary Committee in whom Republican judges on the Texas late nominee, Alabama Attorney Gen- violation of rules that have served the Supreme Court criticized as a judicial eral Bill Pryor. These are despicable committee and the Senate well for a and false charges intended to distract activist. We did not seek out the nomination quarter of a century. However, once the public from the serious evidence again just last week, the Republican of Miguel Estrada, but we accorded him that Mr. Pryor was chosen because he members of the Judiciary Committee a hearing and sought to consider the would be an unfair, results-oriented decided to override the rights of the nomination responsibly. We are being judge. This type of demagoguery, in its minority and violate longstanding required to vote without all the infor- shameful effort to mislead and inflame, committee precedent under rule IV in mation we need. The committee did should be disavowed. order to rush to judgment even more vote, which was more than was ac- The cynical political games are all quickly for this President’s most con- corded President Clinton’s nominees to the more disappointing from a Presi- troversial nominees. That was another the DC Circuit. The Senate is resisting dent who campaigned claiming that he sad day in committee. And yet Repub- a vote without knowing more about was going to be a uniter not a divider licans persist in their obstinate and and set a new tone in Washington. The Mr. Estrada’s work and judgment. single-minded crusade to pack the Fed- reality is that on nominations this ad- Democrats did proceed to vote on and eral bench with right-wing ideologues, ministration goes out of its way to confirm the nomination of another to regardless of what rules, longstanding choose divisive nominees. The tone set the DC Circuit in spite of Republican practices, personal assurances, or rela- by the White House has been unilateral obstruction of President Clinton’s tionships are broken or ruined in the and been marked by a refusal to con- nominations to that important court. process. sult with Senators in advance of nomi- We did not seek the controversial These rules and precedents are not nations and to accommodate concerns nominations of Jeffrey Sutton, Tim- just ‘‘inside baseball.’’ They are the raised. othy Tymkovich, or Dennis Shedd, but core of the rule of law in our system of Senate Democrats have more than we proceeded with them. They each re- government. If those elected will not demonstrated our good faith. We inher- ceived more negative votes than re- follow rules to confirm judges or create ited 110 vacant seats in the Federal ju- quired to prevent cloture, but we pro- statutes, then we have little hope that diciary in July 2001, vacancies that ceeded. We proceeded on Deborah the rule of law will prevail in our were increased and perpetuated under Owen, Michael McConnell, and a num- courts and in our country. Republicans Republican control of the Senate. In 17 ber of strongly conservative and con- in the Senate seem intent on sacri- months, Democrats worked hard to troversial nominees. ficing the role of the Senate as a check have the Senate confirm 100 of Presi- We have not chosen these fights this on the Executive for the short-term po- dent Bush’s judicial nominees. week. They have been staged by the litical gain of this White House. Second, as of July 28, 2003, the Senate Republican leadership. We have fought The Framers expressly protected has confirmed 140 of President Bush’s them for the sake of the American peo- Members’ freedom of debate in the judicial nominees, including 27 circuit, ple, the independence of the Federal Constitution. The Constitution also or appellate, nominees. This is more courts, and to preserve the Senate as a gives the Senate the power to devise its circuit court judges confirmed at this check on this expansive court packing procedural rules. There is no require- point in his Presidency than for his fa- by the Executive. ment in the Constitution that matters ther, President Clinton, or President Republican partisans have responded be decided by simple majorities or that Reagan at the same point in their to the sincere concerns of numerous all bills or nominations be brought to a Presidencies. It is more judges than a Senators about the records of con- vote. Republican-controlled Senate allowed troversial nominees by demanding that As the Supreme Court has recognized be confirmed in any 3-year period serv- Senate rules be changed to force votes that ‘‘Certainly any departure from ing with President Clinton. on the most extreme nominees. This ef- strict majority rule gives dispropor- We are finally below the number of fort is in the wake of repeated viola- tionate power to the minority. But vacancies Republicans inherited in tions by Republicans of longstanding there is nothing in the language of the 1995, and earlier this year we reached committee rules and agreements to Constitution, our history or our cases the lowest number of vacancies in the allow sufficient time to review the FBI that requires a majority to always pre- Federal courts in 13 years. This from investigations and legal careers of the vail on every issue.’’ Gordon v. Lance, the 110 vacancies that Democrats in- President’s nominees for these power- 403 U.S. 1 at 6, 197l, finding constitu- herited from Republican obstruction. ful positions with lifetime tenure. With tional local voting rules requiring a Indeed, today there are more full-time the Constitution’s guarantee of life- majority of 60 percent to pass a meas- Federal judges serving on the Federal time jobs for judges, we cannot correct ure. The notion that every nominee is

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10200 CONGRESSIONAL RECORD — SENATE July 30, 2003 entitled to a vote on the Senate floor is If we give up the genius of the checks The nomination we vote on today, defied by decades of practice over the and balances of the Constitution as em- that of Mr. Estrada, is another divisive past two centuries. bodied in the role of the Senate exer- nomination of this President. Despite Filibusters and other parliamentary cising its independent judgement to the overtures that have been made to tactics to delay matters were known to confirm or reject lifetime appointees, the White House to ask them to honor the Framers. There was even a fili- by vote or inaction, the American peo- past precedent and provide Mr. buster in the first Congress over locat- ple will be the losers. Yet some Repub- Estrada’s memos to the Senate, the ing the Capitol. licans seem intent on inflicting more White House has refused to budge. In- More importantly, the Framers cre- damage, to the process, to the Senate, stead of honoring that precedent, the ated the Senate to be unique from the and to the independence of the Federal White has sought to break other prece- House in the protections for the rights courts. dents and understandings in the quest of each Senator and the stability and Republicans claim there has never to win confirmation at any cost. continuity in this body. Unlike the been a filibuster of a circuit court Just last week, the White House sig- House, the Senate is not reborn every 2 judge. This is false. As recently as 2000, naled again its refusal to seek com- years but two-thirds of its Members re- Senator FRIST and his Republican col- promise or accommodation for the main through every election. The leagues filibustered two of President sake of the fairness of the courts. The Framers gave the Senate special pow- Clinton’s circuit court nominees. One President nominated two more con- ers, as a check on the executive of those nominees, Judge Richard Paez, troversial individuals to the DC Cir- branch, to confirm nominees or to de- a Mexican American nominated to the cuit. This is just one more sign in a cline to do so, affirmatively or by inac- Ninth Circuit was subject to filibuster long line that this White House is de- tion. procedures and other blocking tactics termined to continue to divide the History shows that since the early that prevented him from being con- American people with its nominations 19th century, nominees for the highest firmed for more than 1,500 days. That and to pack the courts in order to win court and to the lowest short-term post was a circuit court filibuster, even judicial victories for its ideological have been defeated by delay, while oth- though it was ultimately unsuccessful. agenda and its allies at the expense of ers were voted down. Not even Presi- At the same time, Republicans were si- dent Washington’s nominees were all fairness for all. multaneously filibustering the nomina- Since the administration has not pro- confirmed. One of President Washing- tion of Ninth Circuit nominee Marsha vided the information requested more ton’s short-term nominees, Mr. Ben- Berzon. This was in addition to nearly than a year ago with respect to Mr. jamin Fishbourn’s nomination to the 2 dozen other circuit court nominees Estrada, nothing has been done to al- port of Savannah, was defeated on the who were languishing or defeated in leviate concerns about this nomina- floor of the Senate because of the oppo- committee without a vote in com- sition of both Georgia Senators. Many tion. mittee or on the floor as well as dozens Mr. HATCH. Mr. President, I rise Supreme Court nominations were de- of other district court nominees. today to speak on the nomination of feated through inaction or delay, rath- Republicans who now claim that the Miguel Estrada for the United States er than by failed confirmation vote. Constitution requires a majority vote For 160 years, until 1949, there was no Court of Appeals for the District of Co- way, other than through unanimous on every judicial nominee should ex- lumbia Circuit. It is truly a sad record consent, to bring a judicial or execu- plain how Republicans through secret that the Senate is now being ob- tive nomination to a vote. For the past objections, blocked votes on more than structed by multiple filibusters on ju- 86 years, the Senate has required a vote 60 of President Clinton’s judicial nomi- dicial nominees and that we are re- of two-thirds to end debate on chang- nees, including nearly 2 dozen circuit quired to conduct an unprecedented ing any rule of procedure, made ex- court nominees. For Republicans to seventh cloture vote on this particular plicit in 1959. For the past 54 years, the claim that the process is now broken extremely qualified nominee. Senate has required more than a sim- because a few of President Bush’s cir- Let me state that a clear majority of ple majority, ranging from two-thirds cuit court nominees are being debated this body supports this nomination, as to three-fifths, to bring a judicial nom- in the light of day, rather than de- has been demonstrated in the past six ination or legislation to a vote. For the feated in the dark of night, is breath- cloture votes. So it is regrettable that past 25 years, the Senate has required taking in its hypocrisy. a minority number of Senators have three-fifths of the Members sworn to Republicans also blocked more than followed their script of extraordinary vote to end debate on any matter, 250 of President Clinton’s nominees to obstructionism to prevent the Senate other than amending the rules, two- short-term positions in his administra- from concluding the debate on this thirds. tion. For example, they successfully nomination and proceeding to a final The Senate and the Nation not only debated to death his nominations of an vote. have survived all of these years while ambassador, Sam Brown, and of Dr. It has now been 6 months since Mr. respecting freedom of debate but have Henry Foster to be Surgeon General, in Estrada’s nomination was reported by thrived, strengthening our democracy addition to the other more than 300 ju- the Judiciary Committee and placed on by ensuring a forum that honors the dicial or executive branch nominees the Senate Executive Calendar. It has passionate views and interests of a mi- blocked in the dark of night by one of been nearly 8 months since he was re- nority of its members while checking more Republicans. I mention this be- nominated by President Bush. It has the caprice of temporary majorities, cause I just cannot imagine how they been more than 10 months since his particularly regarding the lifetime ap- can get away with these false claims, hearing before the committee, and I pointments to our Federal courts. which the most recent history of nomi- has been more than 2 years since he As the late, eminent Professor Lind- nations clearly refutes. This data is was first nominated by President Bush say Rogers observed, ‘‘the fact of the publicly available. on May 9, 2001. matter is . . . that, as the much The Senate, unlike the House, has In all of that time my Democratic vaunted separation of powers now ex- never had a rule allowing a simple ma- colleagues have had unlimited opportu- ists, unrestricted debate in the Senate jority to force a vote on any matter. nities to make their case. Some of is the only check upon president and Only for the past 54 years have Senate them oppose him; others support him. party autocracy.’’ The American Sen- rules allowed fewer than the agreement But one thing has remained clear ate 164, 1926. We would all do well to re- of all Senators to force a vote on a through this debate: There is no good member that, as the scholar Charles nomination, reducing the number need- reason to continue this route of ob- Black observed, ‘‘If a President should ed to end debate from unanimous struction by denying Mr. Estrada an desire, and if chance should give him agreement to the current number, 60 up-or-down vote. the opportunity, to change entirely the votes. These rules help ensure that life- We are at a troubling point in Senate character of the Supreme Court, shap- time appointees have wide, rather than history. Over the past few months I ing it after his own political image, narrow, support because consensus have spoken frequently on the cal- nothing would stand in his way except nominees are more likely to be fair culated effort to stall action on Presi- the United States Senate.’’ than extremely divisive ones. dent Bush’s judicial nominees. There

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10201 have been efforts to bottle up nominees fully suggest that everyone who is With regard to the first demand, the in committee, to inject ideology into nominated is entitled to have a shot, to record is clear that Mr. Estrada spent the confirmation process, to delay by have a hearing and to have a shot to be hours during a day-long hearing an- demanding production of all unpub- heard on the floor and have a vote on swering my Democratic colleagues’ lished opinions of nominees who are the floor.’’ questions. He answered written ques- sitting Federal judges and making de- The qualifications of Miguel Estrada tions submitted after the hearing. He mands for answers to questions that are well known to the Senate. However gave answers to questions that were are unanswerable. And, in the case of I would like to briefly remind my col- substantially similar to answers given Mr. Estrada, opponents have demanded leagues of his outstanding record of ac- by Clinton nominees who were con- he produce confidential internal memo- complishment. Miguel Estrada rep- firmed. Yet my Democratic colleagues randa that are not within his control. resents an American success story. still complain that he has not answered When these tactics have failed, oppo- Born in Honduras, he immigrated to their questions. Really, their com- nents have turned to their ultimate the United States as a teenager to join plaint is that, in answering their ques- weapon—the filibuster. his mother. Overcoming a language tions, Mr. Estrada did not say anything Filibusters of judicial nominees barrier and speech impediment, he that gives them a reason to vote allow a vocal minority to prevent the graduated magna cum laude and Phi against him. Simply put, they are not majority of Senators from voting on Beta Kappa in 1983 from Columbia Col- interested in his answers to their ques- lege. At Harvard Law School he was an the confirmation of a Federal judge, a tions—they are interested in defeating editor of the Harvard Law Review and prospective member of our third, co- his nomination. equal branch of Government. It is tyr- graduated magna cum laude in 1986. This is why every effort to make Mr. Mr. Estrada’s professional career has anny of the minority, and it is unfair Estrada available to answer additional been marked by one success after an- to the nominee, to the judiciary, and to questions has gone virtually other. After graduation he clerked for the majority of the Members of this unacknowledged. He has been made Second Circuit Judge Amalya Kearse— body who stand prepared to fulfill their available to answer written questions a Carter appointee—then Supreme constitutional responsibility by voting and to meet with individual senators. Court Justice Anthony Kennedy. He on Mr. Estrada’s nomination. There has even been an offer to make I am not alone in my disdain for de- worked as an associate at the distin- guished firm of Wachtell Lipton in New Mr. Estrada available to answer ques- laying or defeating judicial nominees tions in a second hearing. But only one through a cloture vote. I think that it York. He then worked as a Federal prosecutor in Manhattan, rising to be- Democratic Senator has met with Mr. is appropriate at this point to note Estrada since these offers were ex- that many of my Democratic col- come deputy chief of the appellate divi- sion. In recognition of his appellate tended, and only one has submitted leagues argued strenuously on the floor written questions since the floor de- of the Senate for an up-or-down vote skills, he was hired by the Solicitor General’s Office during the first Bush bate began, to which Mr. Estrada has for President Clinton’s judicial nomi- responded. We have met our Demo- nees. administration. He stayed with the cratic colleagues more than halfway on The distinguished minority leader SG’s Office for most of the Clinton ad- this, but they insist on continuing himself once said, ‘‘As Chief Justice ministration. When he left the SG’s Of- Rehnquist has recognized: ‘The Senate fice, he joined the D.C. office of Gibson, down this path of obstructionism. Their second demand, for the Solic- is surely under no obligation to con- Dunn & Crutcher, where he has contin- itor General memoranda, has been firm any particular nominee, but after ued to excel as a partner and has risen fully debated. The short response is the necessary time for inquiry it to the top of the ranks of oral advo- that never before has a Presidential ad- should vote him up or vote him down.’ cates nationwide, having argued fifteen ministration released confidential ap- An up-or-down vote, that is all we cases before the Supreme Court. peal, certiorari, and amicus rec- ask. . . .’’ The legal bar’s wide regard for Mr. The ranking member of the Judiciary Estrada is reflected in his evaluation ommendations on the scale that my Committee echoed these sentiments by the American Bar Association. The Democratic colleagues seek for Mr. when he said, ‘‘. . . I, too, do not want ABA evaluates judicial nominees based Estrada. This is a full-scale fishing ex- to see the Senate go down a path where on their professional qualifications, pedition, pure and simple, and the Jus- a minority of the Senate is deter- their integrity, their professional com- tice Department is right to oppose it. mining a judge’s fate on votes of 41.’’ petence, and their judicial tempera- Despite these supposed reasons for Another one of my Democratic col- ment. Based on its assessment of these denying an up-or-down vote on Mr. leagues, Senator KENNEDY, himself a factors, the ABA has bestowed upon Estrada’s nomination, I think there are former chairman of the Judiciary Com- Mr. Estrada its highest rating of unani- other factors. Last fall a Democratic mittee, had this to say: ‘‘Nominees de- mously well qualified. staffer on the Judiciary Committee serve a vote. If our Republican col- His supporters include a host of well- was quoted in The Nation magazine as leagues don’t like them, vote against respected Clinton administration law- saying, ‘‘Estrada is 40, and if he makes them. But don’t just sit on them— yers, including Ron Klain, former Vice it to the circuit, then he will be Bush’s that’s obstruction of justice.’’ President Gore’s chief of staff; Robert first Supreme Court nominee. He could The distinguished Senator from Cali- Litt, head of the Criminal Division in be on the Supreme Court for 30 years fornia, Senator FEINSTEIN, who also the Reno Justice Department; Ran- and do a lot of damage. We have to stop serves on the Judiciary Committee, dolph Moss, former Assistant Attorney him now.’’ likewise said in 1999, ‘‘A nominee is en- General; and Seth Waxman, former So- So it appears that the real reason for titled to a vote. Vote them up; vote licitor General. I have, on previous oc- this filibuster is the threat of a Justice them down.’’ She continued, ‘‘It is our casions, placed letters of support in the Estrada on the Supreme Court. An edi- job to confirm these judges. If we don’t record. I would refer my colleagues to torial appearing in the Atlanta Jour- like them, we can vote against them. previous statements regarding Mr. nal-Constitution said it best: ‘‘The fear That is the honest thing to do. If there Estrada’s qualifications and endorse- with Owen and Estrada is that one or are things in their background, in their ments. both will be nominated to the U.S. Su- abilities that don’t pass muster, vote Yet, despite the superb record, quali- preme Court should a vacancy occur. no.’’ fications, temperament and experience Senate Democrats are determined to My other colleague from California, of Mr. Estrada, he continues to be keep off the Circuit Court bench any Senator BOXER, said in 1997, ‘‘It is not blocked in his nomination. In support perceived conservative who has the cre- the role of the Senate to obstruct the of their obstruction, our Democratic dentials to serve on the U.S. Supreme process and prevent numbers of highly colleagues have repeatedly raised red- Court.’’ qualified nominees from even being herring issues with two demands that There is an additional factor that is given the opportunity for a vote on the Mr. Estrada answer their questions, not based on any substantive objection Senate floor.’’ and that the administration release to his nomination. I believe that some My colleague from Delaware, Senator confidential memoranda he authored Senate Democrats do not want the cur- BIDEN, also said in 1997, ‘‘I . . . respect- at the Solicitor General’s Office. rent President, a Republican President,

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10202 CONGRESSIONAL RECORD — SENATE July 30, 2003 to appoint the first Hispanic as United The fear with Owen and Estrada is that one complaint with Mr. Estrada—that he’s con- States Circuit Judge for the District of or both will be nominated to the U.S. Su- servative, unconventional and unapologetic. Columbia Circuit. preme Court should a vacancy occur. Senate That when he had the chance to hand them Let me read from an editorial pub- Democrats are determined to keep off the the rope with which to hang him during his Circuit Court bench any perceived conserv- hearing before the Senate Judiciary Com- lished by the Dallas Morning News ad- ative who has the credential to serve on the mittee, he refused to hold up his end. dressing this point. On February 17, U.S. Supreme Court. Democrats haven’t liked Mr. Estrada from 2003, the News wrote, ‘‘Democrats Kerry, then, and the legions of presidential the beginning. Part of that is due to his ide- haven’t liked Mr. Estrada from the be- soundalikes who campaign with him, have to ology—which is decidedly not Democratic. ginning. Part of that is due to his ide- come to a region where conservatism is the But part of it also has to do with the fellow ology which is decidedly not Demo- mainstream to explain how reducing federal who nominated him. Democrats don’t relish cratic. But part of it also has to do taxes is bad and cheating exemplary women giving President Bush one more thing to with the fellow who nominated him. and minorities of the fair hearing they have brag about when he goes into Hispanic neigh- earned before the U.S. Senate because they borhoods during his re-election campaign Democrats don’t relish giving Presi- might be conservative is good. next year. They are even less interested in dent Bush one more thing to brag ‘‘I can help you wage a fight down here and putting a conservative Republican in line to about when he goes into Hispanic rebuild this party for the long,’’ Kerry said become the first Hispanic justice on the Su- neighborhoods during his reelection in Birmingham. Republicans have carried preme Court. campaign next year. They are even less Alabama in all but three presidential elec- And so they have talked and talked, in interested in putting a conservative tions in the past 50 years. Jimmy Carter in hopes that Republicans will back down. They Republican in line to become the first 1976 was the last Democrat to carry the won’t. Nor should they. Hispanic justice on the Supreme state. George W. Bush carried every South- Republicans certainly stalled their share of ern state in 2000, including Tennessee, his appointments during the Clinton administra- Court.’’ Democratic opponent’s home state. Al Gore tion. But Democrats are being shortsighted Miguel Estrada will be an excellent Jr. thought so little of his Southern pros- in seeking retaliation. It is precisely these Federal judge. Today, once again, we pects that he actively campaigned in just sorts of narrowly motivated temper tan- have a choice either to continue to three states—Tennessee, Florida and West trums—from both sides of the political block another highly qualified nominee Virginia. aisle—that turn off voters and make cynics for partisan reasons or to allow each Some Democrats, said Kerry, were ‘‘sur- of the American people. When that happens, Senator to decide the merits of the prised’’ that he visited Alabama. it doesn’t matter which nominees get con- nomination for himself or herself. I No surprise that he visited. The real sur- firmed or rejected. Everybody loses. prise is the party baggage he hauled. choose to vote against obstructionist The PRESIDING OFFICER. The dis- Opposition to tax cuts is comprehensible. tinguished majority leader. tactics and permit an up-or-down vote Politicians loathe interruption in the flow of on the nominee. I urge my colleagues spendable revenues. Opposition to the war is, Mr. FRIST. All time has expired? to do likewise. too. Too confrontational. Angers adver- The PRESIDING OFFICER. That is I ask unanimous consent the Atlanta saries. Provokes understandable aggression, correct. Journal-Constitution editorial to be for which we bear unexpurgated sin. Mr. FRIST. I will use a couple min- printed in the RECORD. While some positions are understandable, utes prior to the vote in response to There being no objection, the mate- not so their party-line opposition to Owen some of the comments that have been rial was ordered to be printed in the and Estrada. Owen, the new filibusteree, made, specifically in response to the drew the American Bar Association’s highest Democratic leader’s comments which I RECORD, as follows: rating. She is a cum laude graduate of the understand really are two. [From the Atlanta Journal-Constitution, Baylor University Law School who scored May 4, 2003] the top grade in Texas on the bar exam. She Are we committed to addressing en- ergy issues and completing this bill? DEMOCRATS USE WRONG ROUTE TO WIN SOUTH practiced 17 years before becoming a judge and has been widely praised for her integrity We are. We will continue to work ag- (By Jim Wooten) and ability. Liberal groups say, gressively on this bill starting earlier U.S. Senator John Kerry (D-Mass.) brought unconvincingly except when they are talking than we normally would and con- his presidential aspirations to the South last to each other and Senate Democrats, that week, promising in Alabama that he will tinuing later tonight. Again, I ask for she is anti-abortion and pro-business. amendments to come forward. We are make the national party competitive here Being a neighborly people, Southerners of once again. course welcome Kerry to visit the region and going to address them one by one in a Make competitive, he neglected to men- to indulge himself in its hospitality. But the systematic way with adequate time for tion, a party that has positioned itself in op- senator should not indulge himself into be- debate and amendment. position to the war in Iraq and anything lieving that a party that opposes tax cuts Second, the question has been raised other than token tax cuts, and as Democrats and filibusters nominees such as Owen and as to why we are considering these reminded the nation once again about the Estrada has the slightest chance of carrying votes today, such as cloture on Miguel elevation of conservatives to the federal this region. bench. While the White House may appeal to Estrada. The answer is, the American people deserve it. They understand we some as inside work with no heavy lifting, [From the Dallas Morning News, Feb. 17, getting there through the South toting this 2003] are not fulfilling our responsibility in party’s agenda will be a task requiring Her- this body without an up-or-down vote. RUSH TO JUDGMENT: ESTRADA NOMINATION culean labor. That is our job. That is our responsi- HAS BEEN BLOCKED TOO LONG Just this week, for example, Kerry’s Demo- bility. It is advice and consent of the There is a time for talking and a time for cratic colleeagues—Georgia’s Zell Miller ex- judicial nominees sent by the President cepted—began to filibuster the nomination voting. The time is past for the U.S. Senate of Texas Supreme Court Justice Priscilla to talk about Miguel Estrada’s nomination of the United States. That is being de- Owen to the New Orleans-based 5th U.S. Cir- to the federal Court of Appeals for the Dis- nied by the other side of the aisle. That cuit Court of Appeals. trict of Columbia circuit. It’s time to vote. is unacceptable to us. That is why that Kerry and other Democrats are already Having emigrated from Honduras as a is being voted on today. filibustering the nomination of Miguel teenager unable to speak much English, Mr. I made it very clear in my request Estrada to the District of Columbia Circuit Estrada went on to graduate magna cum both publicly and otherwise that we Court of Appeals—the first time simulta- laude from Columbia University and Harvard would like to stack these votes as we neous filibusters against judicial nominees Law School, to clerk for a Supreme Court have occurred in the U.S. Senate. justice, to serve two administrations in the are voting on other energy amend- Both Owen and Estrada are superbly quali- U.S. solicitor general’s office, to win more ments; it is not us who requested the fied in every respect. Yet on Owen, those than a dozen cases in the Supreme Court. In time. who complain that a ‘‘glass ceiling’’ exists short, the 42-year-old lawyer is talented. The complaint was made we were in for women of achievement are busily con- Who knew that talent would extend to tying a quorum call; why were we sitting in structing one to keep her in her place. And the Senate in knots for days on end. a quorum call in the middle of this those who complain that the federal bench Democrats by now are in full filibuster. bill? It should be made very clear that lacks ‘‘diversity’’ find Estrada to be too Senate proceedings, as carried on C-Span, re- they requested that time and it was on much diversity for their taste. He is consid- semble the firm Groundhog Day, where the ered to be a conservative, and the interest main character has to relive the same day their time that we were in a quorum groups that drive the Democratic Party na- over and over again. Every day, it’s the same call. I, once again, make this plea for a tionally fear Owen is, too, at least on their thing. Democrats get up, march over to the vote like today. When the initial re- abortion litmus test. podium, shuffle papers and recite their main quest was made, it was that we have

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10203 the vote and not spend a lot of time of Miguel A. Estrada to be United Mr. DOMENICI. Does the Senator discussing the issue. States Circuit Judge for the District of want to offer a second-degree amend- Second, let me reinforce a point I Columbia Circuit shall be brought to a ment to the electricity amendment? made this morning; that is, we are close? Mr. FEINGOLD. Yes. being required by the other side of the The yeas and nays are mandatory Mr. DOMENICI. I did not know that. aisle to use a lot of our valuable time, under the rule. The clerk will call the I did not understand that. time that is increasingly valuable as roll. Mr. FEINGOLD. My attempt was to we get closer and closer to the recess, The legislative clerk called the roll. set aside what I thought was a pending Mr. REID. I announce that the Sen- to rollcall votes on district judges. amendment to your amendment and ator from Massachusetts (Mr. KEN- That has not been done in the past. then to offer a different amendment to NEDY) and the Senator from Massachu- Once again, I ask and, in fact, plead your amendment. And I make that re- setts (Mr. KERRY) are necessarily ab- with the other side to change this re- quest again. sent. quest they have made that we spend so Madam President, I ask that in the much time on rollcall votes which his- I further announce that, if present and voting, the Senator from Massa- form of a unanimous consent request, torically have been unnecessary. that the pending amendment to the On the issues of Chile and Singapore, chusetts (Mr. KERRY) would vote Domenici amendment be set aside. I have made it very clear that we will ‘‘nay.’’ move those to a time after energy un- The PRESIDING OFFICER (Mrs. Mr. DOMENICI. Well, they have all less we are not dealing with an issue on DOLE). Are there any other Senators in been currently set aside for amend- energy. I will talk to the other side of the Chamber desiring to vote? ments to the electricity amendment, the aisle. If there is debate on Chile The yeas and nays resulted—yeas 55, Madam President. That is why I won- and Singapore, we will probably do it nays 43, as follows: dered, what is the need for the unani- after we have the final energy votes [Rollcall Vote No. 312 Ex.] mous consent request? this week. Then we will take up Chile YEAS—55 The PRESIDING OFFICER. There and Singapore trade issues at that Alexander Dole Murkowski are currently pending second-degree point. Allard Domenici Nelson (FL) amendments which would have to be The same issue will come up tomor- Allen Ensign Nelson (NE) set aside. Bennett Enzi Nickles row because we will be voting on Judge Bond Fitzgerald Mr. DOMENICI. I have no objection Roberts to the request. Pryor. I am sure the same issues will Breaux Frist Santorum come up about spending time and peo- Brownback Graham (SC) Sessions Mr. REID. Will the Senator from Wis- ple will come to the floor and spend Bunning Grassley Shelby consin yield? Burns Gregg Smith time. Campbell Hagel Mr. FEINGOLD. I yield to the Sen- Snowe I make it clear, our request last Chafee Hatch ator from Nevada. Specter Chambliss Hutchison night was to set aside time, some time Stevens Mr. REID. Madam President, I direct in the future—not necessarily this Cochran Inhofe Coleman Kyl Sununu this question through you to the dis- week—to debate and discuss Pryor and Collins Lott Talent tinguished manager of the bill for the have an up-or-down vote on Pryor. Cornyn Lugar Thomas majority. I have had a number of in- That was refused. Again, it would not Craig McCain Voinovich quiries during the vote as to whether have been this week—it could be some- Crapo McConnell Warner DeWine Miller or not, when the Secretary of Defense time during September—but there was comes here at 4 o’clock this afternoon, NAYS—43 an objection to that unanimous con- we are going to take a recess. We have sent request. Thus, we will proceed Akaka Dorgan Levin a number of Democrats who are going Baucus Durbin with a vote tomorrow. Lieberman to attend. I assume there will be mem- Again, I make it clear my initial re- Bayh Edwards Lincoln Biden Feingold Mikulski bers of the majority attending that quest is not to use a lot of time simply Bingaman Feinstein Murray briefing also. to be able to go to Pryor but that we Boxer Graham (FL) Pryor Byrd Harkin The PRESIDING OFFICER. The Sen- proceed aggressively on energy. The Reed ator from New Mexico. Cantwell Hollings Reid American people deserve it. We will do Carper Inouye Rockefeller Mr. DOMENICI. Madam President, if it in an orderly way as we go forward Clinton Jeffords Sarbanes somebody is discussing an amendment, today. I am confident we can complete Conrad Johnson Schumer and there is business on the floor of the this Energy bill if we stay focused, Corzine Kohl Daschle Landrieu Stabenow Senate, we will not recess; we will work together. The American people Dayton Lautenberg Wyden work. deserve it. I am confident we can do Dodd Leahy The PRESIDING OFFICER. Without that. NOT VOTING—2 I yield the floor. objection, the request of the Senator Kennedy Kerry from Wisconsin is granted. CLOTURE MOTION The PRESIDING OFFICER. Under The PRESIDING OFFICER. On this Mr. FEINGOLD. Thank you, Madam the previous order, the clerk will re- vote, the yeas are 55, the nays are 43. President. port the motion to invoke cloture. Three-fifths of the Senators duly cho- AMENDMENT NO. 1416 TO AMENDMENT NO. 1412 The bill clerk read as follows: sen and sworn not having voted in the Madam President, I have an amend- CLOTURE MOTION affirmative, the motion is rejected. ment at the desk. We the undersigned Senators, in accord- f The PRESIDING OFFICER. The ance with the provisions of Rule XXII of the LEGISLATIVE SESSION clerk will report. Standing Rules of the Senate, do hereby The legislative clerk read as follows: move to bring to a close debate on Executive The PRESIDING OFFICER. The Sen- Calendar No. 21, the nomination of Miguel A. ate will now return to legislative ses- The Senator from Wisconsin [Mr. FEIN- Estrada to be United States Circuit Judge sion. GOLD], for himself and Mr. BROWNBACK, pro- for the District of Columbia Circuit. f poses an amendment numbered 1416. Bill Frist, Orrin G. Hatch, Judd Gregg, ENERGY POLICY ACT OF 2003— Mr. FEINGOLD. Madam President, I Norm Coleman, John E. Sununu, John Continued ask unanimous consent that reading of Cornyn, Larry E. Craig, Saxby Cham- the amendment be dispensed with. bliss, Lisa Murkowski, Jim Talent, The PRESIDING OFFICER. The Sen- Olympia Snowe, Mike DeWine, Michael ator from Wisconsin. The PRESIDING OFFICER. Without B. Enzi, Lindsey Graham of South Mr. FEINGOLD. Madam President, I objection, it is so ordered. Carolina, Jeff Sessions, Lincoln Chafee, ask unanimous consent that the pend- The amendment is as follows: Wayne Allard. ing amendment be set aside. (Purpose: To protect the public and investors The PRESIDING OFFICER. By unan- The PRESIDING OFFICER. Is there from abusive affiliate, associate company, imous consent, the mandatory quorum objection? and subsidiary company transactions) call has been waived. Mr. DOMENICI. I object. Beginning on page 35, strike line 10 and all The question is, Is it the sense of the The PRESIDING OFFICER. Objec- that follows through page 35, line 15, and in- Senate that debate on the nomination tion is heard. sert the following:

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10204 CONGRESSIONAL RECORD — SENATE July 30, 2003 SEC. 1156. AFFILIATE, ASSOCIATE COMPANY, AND and enforce standards for the corporate and savings for electrical consumers. How- SUBSIDIARY COMPANY TRANS- financial separation of public utilities that ACTIONS. ever, it can also reduce competition, are more stringent that those provided under increase costs, and frustrate effective Section 204 of the Federal Power Act (16 the regulations under paragraph (2). U.S.C. 824c) is amended by adding at the end regulator oversight. This amendment ‘‘(4) PROHIBITION.—It shall be unlawful for the following: a public utility to enter into or take any protects consumers from assuming the ‘‘(i) TRANSACTIONS WITH AFFILIATES AND step in the performance of any transaction costs and risks of utility diversifica- ASSOCIATED COMPANIES.— with any affiliate, associate company, or tion into non-utility businesses, pre- ‘‘(1) DEFINITIONS.—In this subsection, the vents utilities from subsidizing affil- terms ‘affiliate’, ‘associate company’, ‘public subsidiary company in violation of the regu- utility’, and ‘subsidiary company’ have the lations under paragraph (2).’’. iate ventures and competing unfairly meanings given the terms in section 1151 of Mr. FEINGOLD. Madam President, I with independent businesses, and pro- the Energy Policy Act of 2003. rise today to offer an amendment on tects utility investors. It does so by re- ‘‘(2) REGULATIONS.— behalf of myself and the Senator from quiring FERC to issue regulations that ‘‘(A) IN GENERAL.—The Commission shall Kansas, Mr. BROWNBACK. I am pleased require affiliate, associate, and sub- promulgate regulations that shall apply in that the Senator from Kansas is join- sidiary companies to be independent, the case of a transaction between a public separate, and distinct entities from utility and an affiliate, associate company, ing me in this effort, and he has done or subsidiary company of the public utility. so because I know he shares my view public utilities; maintain separate ‘‘(B) CONTENTS.—At a minimum, the regu- that the repeal of the Public Utility books and records; structure their gov- lations under subparagraph (A) shall require, Holding Company Act in the under- ernance in a manner that would pre- with respect to a transaction between a pub- lying bill creates a serious regulatory vent creditors from having recourse lic utility and an affiliate, associate com- void and market flaw that Congress against the assets of public utilities; pany, or subsidiary company of the public should correct. and prohibit cross-subsidizing, or shift- utility, that— I am so pleased this is a bipartisan ing costs from affiliate, associate, or ‘‘(i) the affiliate, associate company, or effort. I believe we have broad support subsidiary companies to the public subsidiary company shall be an independent, separate, and distinct entity from the public in this body and beyond for these utilities. utility; amendments. The Public Utility Holding Company ‘‘(ii) the affiliate, associate company, or These amendments would improve on Act was enacted in 1935 to rein in the subsidiary company shall maintain separate the bill by making clear the actions pervasive economic and political sway books, accounts, memoranda, and other that the Federal Energy Regulatory that holding companies held over the records and shall prepare separate financial Commission—or FERC—must take to Nation’s public utilities at that time. statements; ensure that deregulated holding com- Studies conducted by the Federal ‘‘(iii)(I) the public utility shall conduct the panies do not outcompete our small Trade Commission and the U.S. House transaction in a manner that is consistent with transactions among nonaffiliated and businesses, damage their financial of Representatives at the time dem- nonassociated companies; and standing, and then pass the costs of bad onstrated that the holding companies, ‘‘(II) shall not use its status as a monopoly investments to consumers. which controlled approximately 80 per- franchise to confer on the affiliate, associate Our amendment is supported by a cent of the Nation’s gas and electric company, or subsidiary company any unfair wide and impressive coalition of busi- utilities, were exploiting both con- competitive advantage; ness, labor, financial, and consumer sumers and investors. At the time ‘‘(iv) the public utility shall not declare or groups which include: the Independent PUHCA was passed, 16 major holding pay any dividend on any security of the pub- Electrical Contractors, Air Condi- companies and their utility subsidi- lic utility in contravention of such rules as tioning Contractors of America, the Commission considers appropriate to aries produced more than three-quar- protect the financial integrity of the public Plumbing-Heating-Cooling Contrac- ters of the electric energy in this coun- utility; tors, Associated Builders and Contrac- try. ‘‘(v) the public utility shall have at least 1 tors, National Electrical Contractors Individual States and localities en- independent director on its board of direc- Association, Mechanical Contractors, acted their own laws, but were unable tors; Sheet Metal Air Conditioning Contrac- to control these multi-State holding ‘‘(vi) the affiliate, associate company, or tors, the International Brotherhood of companies—many of which also held subsidiary company shall not acquire any Electrical Workers, the National Alli- investments in foreign countries—and loan, loan guarantee, or other indebtedness, ance for Fair Competition, the Small their utility subsidiaries. Holding com- and shall not structure its governance, in a manner that would permit creditors to have Business Legislative Council, Con- panies created organizational struc- recourse against the assets of the public util- sumers for Fair Competition, and the tures that extended across State lines, ity; and Association of Financial Guaranty specifically to place the holding com- ‘‘(vii) the public utility shall not— Insurors. panies beyond the regulatory reach of ‘‘(I) commingle any assets or liabilities of The Senator from Kansas and I are the individual State commissions. In the public utility with any assets or liabil- concerned because electricity is not fact, registered holding companies ities of the affiliate, associate company, or like other commodities. Electricity is were formed specifically for the pur- subsidiary company; or essential to public well-being. When pose of avoiding regulation. Holding ‘‘(II) pledge or encumber any assets of the this bill is enacted and the Public Util- public utility on behalf of the affiliate, asso- companies leveraged their utility as- ciate company, or subsidiary company; ity Holding Company Act is repealed, a sets to gain financing for risky invest- ‘‘(viii)(I) the public utility shall not cross- strong incentive will exist for large ment ventures and engaged in anti- subsidize or shift costs from the affiliate, as- utilities with the financial resources competitive behavior. sociate company, or subsidiary company to and the potential to exercise market PUHCA requires that proposed in- the public utility; and power to get larger. Already, the elec- vestments benefit the utility system, ‘‘(II) the public utility shall disclose and tric utility industry is undergoing and not harm ratepayers, shareholders fully value, at the market value or other rapid consolidation. In the past 3 years or the public interest. value specified by the Commission, any as- alone, there have been more than 30 PUHCA requires that holding compa- sets or services by the public utility that, di- nies seeking to acquire utilities obtain rectly or indirectly, are transferred to, or major utility mergers and acquisitions, otherwise provided for the benefit of, the af- creating large multistate holding com- preapproval from the Securities and filiate, associate company, or subsidiary panies, including several in my own Exchange Commission. In addition, a company, in a manner that is consistent home State and with utilities in Min- particular class of holding companies, with transfers among nonaffiliated and non- nesota that serve Wisconsin. Many known as ‘‘registered holding compa- associated companies; and companies have seen their stock plunge nies,’’ those holding companies with ‘‘(ix) electricity and natural gas consumers and credit ratings downgraded, and utility subsidiaries in more than one and investors shall be protected against the these companies are now prime buy-out State, must obtain SEC approval also financial risks of public utility diversifica- for acquisitions of nonutility busi- tion and transactions with and among affili- targets. ates and associate companies. I acknowledge that deregulation is nesses. The SEC has authority to over- ‘‘(3) NO PREEMPTION.—This subsection does not inherently bad and should not al- see and provide advance approval for not preclude or deny the right of any State ways be prevented. It can produce effi- the complicated financial transactions or political subdivision of a State to adopt ciencies, economies of scale and cost of the registered holding companies,

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D.L. said: Look, what is taking properly recover the true costs of sult, registered holding companies will place is we are having to compete with equipment and services provided by the be able to freely diversity into unregu- these large utility companies that he utility to such unregulated operations. lated businesses, and to engage in asserts are using their regulated busi- These advantages arise neither from interaffiliate transactions in which the ness to subsidize the unregulated busi- size, nor efficiency, but rather from the holding company and nonutility busi- ness and drive the small contractors corporate relationship such operations nesses drain financial resources and out of business. That is my 15-minute have with its related utility. key assets from the utility businesses. speech, what he said and the examples The utility companies are doing, by In California, for example, holding he gave. and large, a great job in serving the company maneuvers have left Cali- What he does now is help in the con- public, providing utility rates at as low fornia utilities in a weakened financial tracting of electrical services into a cost as possible. That is a good thing. condition. Billions of dollars have been homes. He is having to compete now They work conscientiously to do that. moved out of their utility companies with very large utility companies that We have a number of very good utility into the holding company and then are looking at other areas they can ex- companies in the State of Kansas. into their unregulated affiliates which pand into to be able to do contracting When they use the cross-subsidization, are protected by laws that now put this work and, in the process, are driving which is what we are trying to prevent cash beyond the reach of even the hold- these small to mid-size businesses out in this bill, to run out small and ing company. As a result, the utilities of business. midsize businesses, that is when we have had too little cash to carry out Such diversification on the part of have a problem, particularly when de- their utility obligations. the utility companies has been the nying access to newly emerging mar- In addition, even with PUHCA, we cause of significant and continuing kets, a key to future expansion, job are already experiencing concerns harm to many small private sector growth, and profitability for this coun- about utilities expanding into elec- firms. Utility-owned subsidies and af- try. tricity-related services and filiates now operate in almost every For those reasons, I support this outcompeting small businesses in my imaginable type of business, from auto amendment. I also recognize my col- State. Small contractors can’t compete salvaging to resort management to real leagues who wrote the bill, the Sen- against big utilities in areas like en- estate brokerage to, more frequently, ators from New Mexico, particularly electric and mechanical contracting. ergy efficiency upgrades to private Senator DOMENICI. They are trying to Utilities now routinely sell appliances, homes, when big utilities can use exist- address this issue. We put forward an provide plumbing, heating and cooling, ing assets like personnel, equipment, amendment that we hope will strength- and service contracts, engage in insula- and vehicles to perform those services. en the bill, help it out, one that doesn’t tion work, sell and install storm win- When PUCHA is repealed, utilities will negatively impact the electrical utility dows and doors, provide outdoor light- be able to expand into other business businesses, other than to say here is ing and interior lighting fixtures. the area in which you can operate. Out- areas, and we should make certain that Normally as a free market Repub- we protect small businesses. side of that, this should be left to other lican, I wouldn’t have much problem businesses, particularly small and This amendment is good public pol- with that. This is a free country. Peo- icy, and it will strengthen the Senate’s midsize ones, to allow them to grow. ple can compete the way they want to, The amendment we put forward has position in Conference with the House the way they choose. The problem with broad support from the contracting of Representatives. I urge my col- this is, you have a regulated utility community, electrical contractors, leagues concerned about ensuring fair- that has a clear income source that is plumbing, heating, and mechanical ness in a deregulated system to support dependent upon ratepayers that is set contractors because they are feeling this amendment. by the Government, and they have a this onslaught. Most of my colleagues, Let me say how delighted I am to be flow of resources that is established by I guess, have been contacted by the working with the Senator from Kansas the public sector. And it is a rate of re- contractors, most of which are small to who I know has a deep and abiding turn based upon cost plus. midsize businesses operating in com- commitment to small businesses as The challenge—and what the D.L. munities throughout the country, that well. Smiths of the world are feeling—is the want this Feingold-Brownback amend- The PRESIDING OFFICER. The Sen- subsidization of that regulated busi- ment to be added to the Energy Policy ator from Kansas. ness going into the unregulated field Act of 2003. Mr. BROWNBACK. Madam President, and driving small to mid-size contrac- I recognize the work that the chair- I thank my colleague from Wisconsin tors out of business. Too many compa- man and ranking member have put on for offering this amendment. I join him nies are doing a very natural thing— this particular topic. We hope this on it. trying to grow, get a little more busi- amendment can be accepted because we The amendment my colleague from ness here and there for their share- think it strengthens the bill. Wisconsin has described first came to holders to try to be able to hold down With that, I yield the floor. my attention by a constituent and a the cost of electrical rates to their cus- The PRESIDING OFFICER. The Sen- friend of mine, D.L. Smith, Topeka, tomers. That is understandable. The ator from Wisconsin is recognized. KS. D.L. is a great K-Stater, loves his problem is, you are using that regu- Mr. FEINGOLD. Madam President, I country, has a medium size contracting lated utility where they don’t have thank the Senator from Kansas for his business. He employs between 57 and competition coming in there to com- excellent work. It is an excellent exam- 100 Kansans. Founded in 1972, the DL pete against an unregulated field and, ple of why this is so important. I appre- Smith companies provide commercial, in many cases, driving out small to ciate his support in working with me institutional, and industrial electrical mid-size contractors like the D.L. on it. services and, in recent years, even a Smiths of Topeka, KS, and others. I ask unanimous consent that the little bit of telecommunications. They Private sector businesses both small Senator from Oregon, Mr. WYDEN, be have been expanding slightly. D.L.’s and large welcome competition. Unfor- added as a cosponsor of the amend- service trucks can be seen as far west tunately, there have been numerous in- ment. as Salina and as far south as Pittsburg, stances where utilities have engaged, The PRESIDING OFFICER. Without KS. in some cases, in unfair and abusive objection, it is so ordered. DL’s is a successful medium size competitive behavior which under- Mr. FEINGOLD. Madam President, I business by Kansas standards. It might mines true competition in these im- ask unanimous consent that a list of grow and could become more success- pacted markets. organizations in support of the amend- ful. But it might not be able to grow The primary obstacle to free, fair, ment be printed in the RECORD at this and could falter. The success or failure and open competition in these markets time.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00035 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10206 CONGRESSIONAL RECORD — SENATE July 30, 2003 There being no objection, the mate- for others who, in the case of the Sen- fered earlier yesterday, by requiring rial was ordered to be printed in the ator from Kansas, pointed out there FERC to establish real firewalls around RECORD, as follows: are many contractors in the private the utility affiliate of a holding com- SUPPORT FOR FEINGOLD-BROWNBACK sector who feel an amendment such as pany to prevent the assets of the util- AMENDMENT ON AFFILIATE TRANSACTIONS this is essential if they are going to be ity from being used to prop up risky di- The following organizations support this able to compete and not face some type versification ventures. That is, you amendment: of unfair competition from companies cannot use the assets of the utility to American Association of Retired People. that are part of holding companies that support a contracting company, as an AFGI: Association of Financial Guaranty are owned by utilities or that also own example, which is the kind of thing Insurors; ACE Guaranty Corp.; Ambac Assur- utilities. that the Senator from Kansas was ance Corp.; CDC IXIS Financial Guaranty Let me back up here and talk a little North America, Inc.; Financial Guaranty In- talking about having to compete with. surance Company; Financial Security Assur- about the Public Holding Utility Com- I think the language of the amend- ance; MBIA Insurance Corp.; Radian Rein- pany Act, because that is the basic ment is extremely clear. It makes it surance Inc.; RAM Reinsurance Company; issue that causes this amendment to very clear that the Federal Energy XL Capital Assurance. come to the floor. As part of this bill, Regulatory Commission shall promul- American Iron and Steel Institute. the proposal is that we repeal the Pub- gate regulations, shall apply in the Consumers for Fair Competition. lic Utility Holding Company Act. That case of a transaction between a public Consumers Union. was in the bill passed in the previous utility and an affiliate or associate Electricity Consumers Resource Council Congress—the repeal of that. I have company of the public utility—and (ELCON): A.E. Staley Manufacturing Com- pany; Air Liquide; Alcan Aluminum Corpora- supported that but I have only sup- that is what the chart shows—where tion; Anheuser-Busch Companies, Inc.; BOC ported it if it were clear that we were you have a utility and another affil- Gases; BP; Central Soya Company, Inc.; replacing those authorities and those iate. It basically builds a firewall and Chevron Texaco; Delphi Automotive Sys- responsibilities for regulation and gets at the issue I was talking about tems; Eastman Chemical Company; E.I. du oversight at the Federal level with when I offered my amendment yester- Pont de Nemours & Co.; ExxonMobil; FMC other effective authorities for over- day evening; that is, the public utility Corporation; Ford Motor Company; General sight and regulation. shall not cross-subsidize or shift costs Motors Corporation; Honda; Intel Corpora- My conclusion is that the Domenici from the affiliate or associate company tion; International Paper; Lafarge; MG In- dustries; Monsanto Company; Occidental substitute, as it now stands, does not to the public utility. It cannot encum- Chemical Corporation; Praxair, Inc.; Rock- put in place effective regulatory tools ber the assets of the public utility in well Automation; Shell Oil Products; to ensure that at the Federal level we order to prop up some other business. Smurfit-Stone Container Corporation; can prevent the abuses that caused the That is only fair as far as the ability of Solutia Inc.; Weyerhaeuser. Public Utility Holding Company Act to the other business to compete in the IBEW. come into existence in the first place. marketplace, but it is particularly im- MBIA Insurance Corporation. There is a very useful article that I portant as security for the ratepayers Municipal Electric Utilities of Wisconsin. commend to all of the Senate in to- of that public utility. National Alliance for Fair Competition, day’s business section of the Wash- which includes: Independent Electrical Con- There are an enormous number of ex- tractors; Mechanical Contractors Associa- ington Post, written by Peter Behr. It amples. I went through several of them tion of America; National Electrical Con- is called ‘‘Energy Monoliths Could Re- yesterday. Let me refresh people’s tractors Association; Plumbing-Heating- turn; Law Limiting Companies’ Reach memories. There are many examples in Cooling Contractors-National Association; Faces Repeal.’’ the last year—in recent months, in Sheet Metal and Air Conditioning Contrac- Well, the law that limits a company’s fact—where utilities have been getting tors’ National Association; Air Conditioning reach that this article is talking about into other activities and have encum- Contractors of America; Associated Builders is the Public Utility Holding Company bered the assets of the utility, and the and Contractors. Act. As I say, there is general agree- National Association of State Consumer ratepayers of the utility have been ad- Advocates. ment that the act has become an versely affected. Public Citizen. anachronism; it is way too complex; One example I mentioned yesterday, Small Business Legislative Council (90 that we need to modernize the Federal and I will mention it again because it small business trade associations). regulatory scheme in regard to utili- does relate to Kansas, is West Star. It U.S. Public Interest Research Group. ties. So the Public Utility Holding is the largest utility in the State of Wisconsin Public Power, Inc. Company Act should be repealed but it Kansas. It is owned by a holding com- Sierra Club. needs to be replaced with something pany. West Star came under scrutiny Mr. FEINGOLD. Madam President, I that also constitutes effective regula- last year because of problems that it am pleased that the ranking member of tion. Let me refer to the chart. I don’t encountered with nonutility affiliates. the committee, Senator BINGAMAN, is know if anybody can see it. West Star had invested in a number indicating positive remarks about this This tries to rapidly describe what is of unregulated ventures, including a amendment as well. I wonder if he may involved with the Public Utility Hold- home security company, and the home wish to make some remarks in support ing Company Act, or PUHCA, jurisdic- security company did not do well. So at this time. tion. It basically says that for a com- the holding company, which owned Mr. BINGAMAN. Yes. Madam Presi- pany which owns, as the chart shows, both the utility and the security com- dent, first, I ask unanimous consent other affiliates—a utility generating pany, shifted $1.6 billion of debt from that I be added as a cosponsor, if I am and marketing affiliate—there are real its unregulated companies to the util- not already one, on the amendment. restrictions on what that holding com- ity. It loaded these debts onto the util- The PRESIDING OFFICER. Without pany can do with regard to any other ity, and then you have essentially the objection, it is so ordered. acquisitions of utilities. Essentially, ratepayers of that utility left having to Mr. BINGAMAN. Madam President, I you can acquire one more utility, or pay $100 million per year because of the compliment the Senator from Wis- you can own one utility, and then if activities of unregulated affiliates that consin and the Senator from Kansas for you own any more than that, you come had nothing to do with the utility proposing this amendment. In my view, under a very strict set of requirements itself. it is offered in the same spirit in which that are presently in the Public Utility Some would say this is something the earlier amendment I offered related Holding Company Act. Those require- the States should handle. The Kansas to mergers was offered, and also the ments should be repealed but we need Corporation Commission began an in- amendment by Senator CANTWELL re- something that is effective. vestigation this last summer into this lated to market manipulation. This amendment tries to do that and situation. The Justice Department I think all three of those amend- would do it in an effective way. It ac- began an investigation. The Federal in- ments have somewhat the same pur- complishes the same goal that I was vestigation resulted in the indictment pose, which is to strengthen this bill, trying to accomplish as part of—or one of the CEO of the company for bank to ensure there are necessary protec- of the two goals I was trying to accom- fraud, and the investigation of the tions for consumers, ratepayers, and plish in the merger amendment I of- Kansas Corporation Commission, which

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00036 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10207 is the State regulatory agency, re- Madam President, I say to the author we ought to get rid of PUHCA. It is an sulted in a dramatic restructuring of of the legislation, I very much appre- unfair holding down of these companies the company to separate the utility ciate the fact that during these dif- by an old law. Everyone wants to get from the unregulated companies of the ficult times when we are trying very rid of it except these two Senators holding company. hard to get so much done in a short pe- want to say now if we do, let’s go back Some would say: They solved it at riod of time the Senator came to the and put some more handcuffs on these the State level. Why should we be hav- floor, put an amendment down, and, in companies because we are scared, we ing any authority at the Federal level? his typical manner, got to the point, are frightened, that they will do wrong. They solved it at the State level for and in short order is going to let the We are saying, if that is done, the the period going forward, but they did Senate vote. very pluses, the positives, that come not solve it prior to this arrangement Frankly, what he is asking us to do is from the repeal are going to be negated being put in place and, accordingly, the exactly the wrong thing for the situa- because what is being done is not need- ratepayers are paying $100 million a tion that exists today in the energy ed, and investment is going to be year to repay the debt that the utility markets. There is an article that was scared off. has acquired because of this activity. quoted from which is on all our desks: The Domenici underlying bill says One other example I mentioned yes- Energy Monoliths Could Return. that when we get rid of PUHCA we bet- terday that I will mention again is It was quoted from, excepting on the ter put in something, although this job Portland General Electric. Portland second page there is an absolutely suc- is principally the job of States. When General Electric was in the unfortu- cinct paragraph that this Senator be- Senator BINGAMAN read about the two nate position of having been acquired lieves is totally, unequivocally correct. cases, in both cases State commissions by Enron, and the Oregon Public Util- I quote three-quarters of the way down were involved in cleaning up the mat- ity Commission required that a number the paragraph starting with the word ter, but nonetheless, we have put in of conditions be met before it approved ‘‘repeal’’: here the Federal Government, FERC, is that acquisition. That was helpful. Repeal could restore confidence in energy given this authority in this particular Frankly, they acted wisely in requir- companies shunned by shareholders after the area, because of PUHCA going away, to ing those conditions. But even that was Enron scandal and encourage badly needed make sure there is no improper com- not adequate to fully insulate that expansion of power transmission networks. mingling of utility and affiliate assets. utility from the collapse of Enron and From the financial market standpoint, re- There is more. In fact, the underlying from the collapse of the other many peal— amendment also says, with reference to businesses in which Enron was en- And let me add ‘‘of PUHCA,’’ repeal merger, acquisitions and dispositions, gaged. The fate of the parent company of PUHCA— leasing, or other transactions: has had a very adverse effect on the would be the single most important part of Will not impair the ability of the Commis- ability of Portland General to gain ac- the energy bill. It certainly is what investors sion or the ability of the State commission cess to capital markets. As I say, that are looking for. having jurisdiction . . . to protect the inter- is just one of many other examples The problem with the amendment is ests of consumers or the public. that can be cited. that it probably will take the intent in And: This amendment Senator FEINGOLD that paragraph, the indication of what Will not impair the financial integrity of and Senator BROWNBACK are offering is most probably will happen when any public utility that is a party to the extremely meritorious. It is an essen- PUHCA is repealed, and it will prob- transaction or an associate company of any tial part of what we ought to be doing ably destroy it, wilt it, make it very party to the transaction. if we are going to avoid getting back vulnerable, and we will not get the re- So it even says when PUHCA is gone, into a situation where cross-subsidy is sult. The result is the need for huge in- we have all of these entities that will permitted. We ought to have a bright jections of capital into the energy com- be worried about mergers and the like, line requirement that the Federal En- panies because of what has happened to but we put new language in that I just ergy Regulatory Commission ensure them in the past 18 months. read, which says, nonetheless, if we are that cross-subsidy will not occur in That is why it is good news that talking about merger, acquisition, or these acquisitions and mergers. We owe PUHCA is being repealed. That is why disposition, there are these additional that to ratepayers. We owe it to the it is bad news when an amendment powers. public generally. comes along and says: This is just a lit- Frankly, I understand that an I hope very much we will adopt this tle ’ole amendment to make sure the amendment which is, in fact, a bill— amendment. I commend the authors of electric companies keep their money that is the Domenici amendment—it is the amendment for their proposal where it ought to be, that they ought that big. I understand Senators and today. not invest it anyplace else, and that their staff could read it and they could The PRESIDING OFFICER. The Sen- their boards of directors be governed say, well, yes, we get rid of PUHCA, ator from New Mexico. by this statute, the kinds of issues that and then somebody back home might Mr. DOMENICI. Madam President, tie up the potential of a company that tell them if you are getting rid of before I start, I ask the distinguished is involved in the utility business. PUHCA you better be sure you do so sponsor of the amendment how much We have already given FERC in this and so, and this amendment could be additional time does he think he needs carefully balanced bill the enforcement given birth. on his amendment. I am not pressing power to make sure that the companies If one looks at this carefully, they the Senator. are properly invested, to make sure will find it did not come to the floor Mr. FEINGOLD. Madam President, I they are taking care of their business without the staff which worked on it do not expect a great deal of time at and of the stockholders’ money and of helping the Senator make sure we all. I would like the opportunity to re- the electrical business. know, when we get rid of PUHCA, we spond to any comments the chairman We have actually said that is a power have to do something to be sure we of the committee might make. FERC has. This title already includes have taken care of some problem chil- Mr. DOMENICI. Since it looks as if enhanced books and records authority dren that might arise along the way. we will not be very long, does the Sen- for both State and Federal regulators I want to repeat, this is not a little ator from New Mexico know if there is to ensure that ratemaking bodies have proposition. If it was, I would accept it another amendment ready on his side all the information necessary they because these are very good Senators. since we are close to completing the need for retail ratemaking, to ensure But I know if I took it, I would be send- debate on this amendment? there is no cross-subsidization or im- ing the wrong signal to all of those Mr. BINGAMAN. Madam President, proper commingling of utility and af- companies across this land that have let me check with the Democratic floor filiate assets. That is what the authors reviewed this bill very closely, some leader. I will get an answer back on of the amendment are worried about, small, some large, some of them mu- that question. that if PUHCA is not there—and re- nicipal, some of them co-ops. They Mr. DOMENICI. I thank the Senator member, everybody has said so far, in- have looked at it carefully and they very much. cluding my friend Senator BINGAMAN, know we are through with PUHCA. I do

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00037 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10208 CONGRESSIONAL RECORD — SENATE July 30, 2003 not want them to say, well, we got rid away to these affiliates. Then they will Mr. CRAIG. Madam President, I will of one and they turn right around and not have the confidence in investing, speak briefly to the Feingold-Brown- make it difficult for us to do what we and I want that investment to happen. back amendment. ought to do, what we can do, what we Regulatory insulation, and that is There is the illusion, or at least the should do, to make sure we got all the what the Feingold-Brownback amend- concern, on the part of some of our col- assets invested in our companies in ment does, will help restore investor leagues that the title we have before these faltering days in terms of re- confidence. It will actually help the Senate in S. 14 somehow creates a sources. achieve the chairman’s goal. Our be- type of regulatory gap that I don’t be- So I say to the two Senators, I wish lief, and our hope, is our amendment lieve exists. The chairman of the com- that were not the case so I could thank will help bring order to what is a belea- mittee, in his thoughtful processes them and accept it, but I honestly do guered sector, not that it will wreak that brought us to this amendment and not believe those who analyzed it did a havoc. the time he has spent working on it careful job. No aspersions. Utilities provide an essential public with staff, would agree it does not A better way might be that we service. Our amendment insulates exist. looked at it carefully, we watched out, these utilities wherever they are in a Certainly Senator FEINGOLD and oth- and we were certain we protected the corporate family. So what we are doing ers have reason to be concerned, as do public and the consumers, those who is providing a clear distinction of what I. My constituency, my ratepayers of will take electricity, and indeed the entities are regulated or not. Idaho, for a period of time spent a good stockholders, so the kinds of things Now, if we are looking at invest- deal more than they should have on they are worried about will not happen. ments, that is what we want to see. We their electrical costs because of the I do not know what it means, but the want to know exactly what we are get- dysfunctional markets in the State of horror cases they are speaking of oc- ting into. We want to know what our California. Those dysfunctional mar- curred while PUHCA existed. That is dollars are going to be used for and it kets occurred with all of these laws in interesting, just as an observation. helps restore investor confidence and place that we are talking about now I yield the floor. consumer confidence, not the reverse. changing. What is most important to The PRESIDING OFFICER. The Sen- This is a good amendment. It has recognize is, those who misused the ator from Wisconsin. strong bipartisan support. There have market are now suffering. Those who Mr. FEINGOLD. First, I thank the not been a lot of Feingold-Brownback misused the market are now being Senator for the kind remarks. I do not amendments over the years, even prosecuted. Those who misused the believe we disagree with the goals with though I thoroughly enjoy working market to line their pockets, I trust, regard to the underlying amendment. with the Senator. I think what it rep- are having their pockets stripped of ill- In fact, I regard this, and I think Sen- resents is a powerful commitment on gotten gold. ator BROWNBACK regards this, as a the part of those of us who are working Why? Because our President has a friendly amendment; that is, an at- on this to protect small businesses in Corporate Fraud Task Force, we have a tempt to make sure this dramatic our State. little organization called the FBI, we change, the repeal of PUHCA, gets off I will not read again the list of the have the Federal Energy Regulatory the ground properly and does not, in ef- contractors and small business organi- Commission, the Securities and Ex- fect, throw out the baby with the zations that support this effort, but it change Commission, the Commodity bathwater. is the kind of mainstream people that Futures Trading Commission, and, yes, My amendment does not attempt to made my State. It is the kind of main- even the U.S. Postal Service and the repeal the repeal. I think if one was lis- stream people that made the Chair’s U.S. Attorney’s Office that seek to tening to the remarks of the Senator State. It is the kind of mainstream look at and have found what they al- from New Mexico they might have got- people that made the Senator from legedly suggest is postal fraud. ten the impression we were sort of pre- Kansas’s State. They do not want to be Whether it is Enron, whether it is tending we were repealing PUHCA and driven out of business by utilities able Dynegy, whether it is Reliant or then putting it back in effect. That is to somehow move these assets back whether it is El Paso Corporation, time not in any way, shape, or form what we and forth through affiliates that are and time again, and currently, many of are trying to do. not properly regulated. That is a rea- the major operatives within those or- We are trying to address a very spe- sonable request. ganizational structures are being cific problem the Senator from Kansas Even more importantly and in re- brought before the Federal justice sys- laid out very well, the cross-subsidiza- sponse to the Senator from New Mex- tem and will be or are being prosecuted tion problem, when a utility holding ico, we are trying to make sure inves- because of what they are now alleged company owns other affiliated entities tors feel comfortable so it will help the to have done or are accused of having and the problems that occur when utility industry. The worst thing we done as it relates to wire fraud, con- those assets are moving back and forth can do is raise the specter of another spiracy, manipulation, round-trip trad- in a way I and many people think Enron. The phrase ‘‘cooking the ing, all of those things we suggest threatens ratepayers as well as inves- books’’ dominated our headlines a year ought not happen. tors. ago, and our amendment is about mak- What we have done in this title ap- Specifically, the Senator from New ing sure there will not be any accusa- propriately protects the consumers of Mexico talks about the fact that there tions or reality of cooking the books this country, but, as important, we are those who are poised and ready to when it comes to a utility and its af- protect the capital that comes to this invest in the utility industry if filiates, that they will have two sepa- market to be invested, to create the changes are made, presumably such as rate sets of books. generational capabilities, the trans- the repeal of PUHCA. It is my belief Yes, the Senator’s underlying amend- mission capabilities, the pipeline capa- that is exactly what our amendment ment is good. It allows FERC to look bilities, all the things we need to inter- helps do. I think it helps create a sce- at the books. If they look at the books lock an energy system in our country nario that will make investors more and there are no standards or rules and to continue to make it as reliable positive rather than less positive. about keeping the entities separate, as it has been in the past and as reli- The Senator’s argument about some- what is the good? There need to be able and abundant as it should be, how our amendment will scare off in- some teeth in it. That is what our hopefully at the least cost to the con- vestors is really a 5-year-old argument. amendment does. sumer. PUHCA repeal, without the bottom-up I suggest this is a reasonable, fairly Clearly, the consumer got gouged. regulation these ring-fencing provi- modest amendment that will make the My consumers got gouged. There was sions of this amendment provide, will Domenici substitute even better. I urge ill-gotten gold. We darned well ought continue to keep capital away. We do my colleagues to support it. to strip it from the pockets of those not have some kind of insurance for in- I yield the floor. who were out to steal it from the con- vestors in utilities that the resources The PRESIDING OFFICER. The Sen- sumer. Tragically enough, that steal- of those utilities will not be spirited ator from Idaho. ing was going on long before this

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00038 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10209 amendment, under the current laws time as Mr. Rumsfeld is here. I don’t the amendment the repeal of PUHCA, that some argue we ought to keep in know if that is what people want. At but we are adding this provision that is place, 1930 laws that have rendered least half of the Senate will be going to necessary in 2003, not 1935. themselves relatively obsolete in a the Rumsfeld meeting—maybe even The only other alternative, if we do modern-day energy system. more. It is up to the Republican leader, not do at least our amendment, is we We are asking that we have the right of course, what he wants to do with the are going to be returning to the envi- enforcement in place. We have given Secretary of Defense. But whatever the ronment that we are just coming out FERC the authority it ought to have wish of the leader is, we will certainly of, the environment that everyone ad- within the confines and the limitations go along. mits was a disaster for consumers and in which we believe it ought to operate. We are ready to vote on these three that it destroyed consumer confidence There is no regulatory gap. Any reason amendments. and investor confidence because of the to add to what we have done simply Mr. DOMENICI. Madam President, if recklessness and the cooking of the frustrates the multibillion-dollar mar- we could reduce the debate time before books that went on all over this coun- ket, the revenues that will come, the each amendment. We don’t need 10 try, particularly in the utility indus- investment that will be created, to- minutes; 5 minutes would do. try. ward once again creating the finest Mr. REID. I would be happy to do We have to make sure what we do electrical and energy market in the that, although I have conferred with here does not undercut the confidence history of the world. That is what we Senator BINGAMAN. On one amendment we want to increase for consumers and ought to have. That is what we need. he needs 5 minutes, and on the other for investors. That is the purpose of Without that, our investors and our amendment he could use 21⁄2 minutes. our amendment. We are not trying to economies look elsewhere, beyond the Mr. BINGAMAN. In response, I don’t undo the chairman’s primary purpose bounds of our country where they can believe I will use 5 minutes; I will prob- of his amendment. find stability of economy, stability of ably use closer to 3 minutes, but I I yield the floor. Assuming that is resource and, most importantly, an would like to have the ability to go on the end of the debate, I yield the floor. abundant supply of energy. if I get warmed up. The PRESIDING OFFICER. The Sen- In the absence of energy, in the ab- Mr. DOMENICI. Let’s prepare the ator from West Virginia. sence of an abundant, least cost supply unanimous consent request on all Mr. BYRD. Madam President, I of energy, our economy is in trouble. If three, with 5 minutes each, 10 minutes thank the distinguished Senator from our economy is in trouble, most as- equally divided. New Mexico. I thank him for the suredly our men and women who want The PRESIDING OFFICER. The Sen- knowledge he brings to the Senate on to find work in that economy are of- ator from Wisconsin. many matters. For these several years tentimes without work. We believe this Mr. FEINGOLD. Madam President, I I have worked with him on the Appro- is a full employment bill that will cre- want to bring this debate to a close, priations Committee, he has shown ate literally hundreds of thousands of but I want to quickly respond to a cou- himself to be one of the most knowl- new jobs because of the stability it will ple of comments from the Senators edgeable persons on that committee bring. from New Mexico and Idaho. and, with respect to energy, he has I yield the floor. When the Senator from New Mexico shown time and again that he is well The PRESIDING OFFICER. The Sen- was making his comments he talked equipped to enter into debate and to ator from New Mexico. about the fact the State commissions, help to form good legislation, better Mr. DOMENICI. Madam President, I public service commissions, and others legislation, or the best legislation. was informed a while ago by my good would be able to sort of take care of I have always found him to be one friend, the whip, Senator REID, that as these kinds of problems that would who is easy to work with. I enjoy work- soon as we finish this amendment—and exist in a post-PUHCA repeal era. I ing with him and I compliment him for I think we are finished; I am not quite don’t think that is an adequate answer. the time he has put in on this matter sure whether the proponents have fin- The fact is, as I mentioned in my that is before the Senate. He arrives at ished—Senator BYRD wanted to speak. opening remarks, in many cases these his conclusions after due and deliberate I ask Senator BYRD, since he is here, if are interstate utility entities, and it is examination, and he is a first-class leg- that is the case. And then I ask if I that very fact that has made it so dif- islator. could speak following Senator BYRD, if ficult, prior to PUHCA, for there to be Mr. DOMENICI. Madam President, I he has no objection. I ask that after any appropriate regulation at all. So say thank you very much, Senator the distinguished Senator BYRD com- we do need some kind of appropriate BYRD. I greatly appreciate your re- pletes his remarks, the Senator from law that homes in on this problem of marks. It is always my pleasure to be New Mexico be recognized. utility holding companies and affili- serving with you. Mr. REID. Reserving the right to ob- ates and the cross-subsidization prob- Mr. BYRD. I thank the distinguished ject—and I shall not object—the Sen- lem that exists. That is the first point Senator. He has distinguished himself ator has that right. We are in the proc- I want to make, that the State level is in many fields. ess of winding down debate on the simply not going to do it. Mr. DOMENICI. Thank you. Feingold amendment. After Senator The second point relates to the com- Mr. BYRD. Madam President, on BYRD and the Senator from New Mex- ments of the Senator from Idaho. The pleasant summer days, such as these, I ico, the manager of the bill, we would premise of the remarks of the Senator doubt that the average person worries be ready to vote on not only the Fein- is that somehow my amendment too much about the intricacies of en- gold amendment but the two amend- undoes the repeal of PUHCA. It does ergy policy. However, energy is the ments that have been offered by the not do that. Our amendment is nec- life’s blood of our economy. Obviously, Democratic manager of this bill. essary and helpful and good for inves- a comprehensive energy policy is a I suggest, because these were debated tors and consumers and ratepayers and critical underpinning for a viable, yesterday, we should have 10 minutes small business, whether PUHCA is re- strong nation. equally divided prior to a vote on each pealed or not. The argument is a red And, there are real and growing con- of the Bingaman amendments. While herring. The argument has no relation- cerns about the Nation’s energy secu- Senator BYRD is speaking, maybe the ship to the issue of whether these pro- rity—about our teetering economy and staff could prepare a unanimous con- visions are needed. about our growing dependence on for- sent agreement to meet these steps Maybe we could put it this way: The eign oil. Coupled with these is an in- that we need to take to complete votes Senator from Idaho believes that a 1933 creasing need to protect the environ- on these three amendments. We would law known as PUHCA is no longer the ment and address global climate at that time be ready to offer another right law for this time. We are pro- change. But instead of looking for bal- amendment. posing what we believe to be the appro- anced and comprehensive solutions to Also, if Senator BYRD speaks for half priate, measured, consumer confidence our critical energy problems, this ad- an hour or 45 minutes, then we will and investor confidence provision for ministration drags its feet and deals have these votes occur at the same 2003, not 1935. So we are accepting in with our energy challenges by meeting

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10210 CONGRESSIONAL RECORD — SENATE July 30, 2003 behind closed doors with select cor- task force, the White House claimed I have proposed my own common- porate contributors. executive privilege. Throughout the sense proposal to help mitigate the As is often the case, this White House court battle which ensued, the Bush growing global dependence on oil sup- offers shortsighted, silver bullet solu- Administration repeatedly claimed plies from volatile regions. The United tions. But, in fact, there are just no sil- that the separation of powers and exec- States encourage the transfer of our ver bullet solutions to a sound and utive privilege prevented them from re- own clean energy technologies to other comprehensive energy policy for the leasing pertinent documents. As a re- nations, especially developing coun- future. There is no Lone Ranger ap- sult, the credibility of the White House tries who will increasingly be buying proach to energy. There is no John energy strategy development is cer- into the same finite oil markets that Wayne approach to energy. We have to tainly strained, to say the least, espe- we are purchasing from. Such efforts consider the worldwide energy supply cially with regard to the oil industry. are critical in order to satisfy our en- and demand. We must be ready to in- I have been particularly concerned ergy security needs as well as to ad- vest in a range of policies, tech- about our continued reliance on foreign dress related economic, job creation, nologies, resources, and institutional oil and our lack of commitment to de- trade, and environmental objectives. structures that can prepare us for the veloping domestic fuel diversity. Tack- The demand for oil from other coun- future. ling that growing problem requires a tries will be increasingly fierce, and we During the 2000 election cycle, the serious and multi-faceted commitment, have only a narrow window of oppor- Bush campaign claimed that the cre- involving cooperation and coordination tunity ahead. Last year, the adminis- ation of a national energy strategy was among many players. But what the tration, at my urging, released a plan one of its most important priorities. President seems to be proposing can be for just such an initiative intended to But what they meant by that may not pretty much boiled down to drilling for help open international markets and be what many people thought they oil in the Arctic National Wildlife Ref- export U.S. clean energy technologies. meant. Even as candidate Bush trav- uge, and exploiting the oil reserves However, little, if anything, has been eled the Presidential campaign trail, under the hot sands near the Tigris and done to implement it. Where have we the issue of energy often shared the Euphrates Rivers, in the Fertile Cres- seen this strategy before? The answer stage with George W. Bush and DICK cent—modern day Iraq. is, we have seen it virtually every- CHENEY, in part because both can- U.S. domestic oil production peaked where with this administration—from didates were formerly business execu- in the early 1970’s, and, since that homeland security to No Child Left Be- tives with ties to the energy industry. time, our oil demands have far out- hind. My own home State of West Virginia, stripped our supplies. But instead of Furthermore, the administration’s where energy issues are very impor- figuring out how to disentangle our- Fiscal Year 2004 budget confirms some tant, played a critical role in pushing selves from foreign oil dependence, the of my worst fears. When it comes to do- the Bush-Cheney team over the top in Bush administration seems to be intent mestic issues, the plan of administra- tion officials these days is about out- the electoral college and handing the on sinking our energy fortunes deeper sourcing, downsizing, reorganizing, re- current administration the White and deeper into the hot sands of old ducing, cutting, slashing, slicing, dic- House. Mesopotania—the hot sands of the Mid- But, after his election, the President dle East. What is this administration’s ing, and carving up the Federal Gov- ernment. It is a tailor-made info- seemed more interested in seeking the total energy agenda? Is oil the only mercial for the benefit of all-too-recep- advice of his corporate friends than de- card in the energy deck which the ad- tive corporate donors. veloping a balanced, comprehensive, ministration will play? The administration’s energy budget It certainly appears so. And one has far-reaching energy policy. It may be is a sham, and its energy program re- to wonder just how that card is being illustrative here to review the back- quests are no different. The Depart- ground of some Bush administration played. As the world witnessed in the ment of Energy cut $20 million for the officials. Vice President CHENEY served war in Iraq, the administration was Clean Coal Power Initiative. The De- as the CEO of Halliburton. Secretary much more interested in protecting, partment of Energy’s oil and gas re- Norton has lobbied for the oil, gas, and defending, and developing Iraq’s oil re- search program was cut by more than auto industries. The President’s Chief sources than it was in protecting Iraq’s 50 percent. In order to squeeze enough of Staff has served as the president and cultural or social resources. Early on dollars out of the budget for the Presi- CEO of the American Automobile Man- in the war, coalition forces were or- dent’s new hydrogen initiative, other ufacturers Association. The U.S. Trade dered to make it a priority to protect critical energy programs were severely Representative, Robert Zoellick, has the oil fields. Upon their entry into cut. Yet the administration’s hydrogen served on Enron’s Advisory Council. Baghdad U.S. troops were ordered to program is years away and cannot Even National Security Adviser, surround and protect Iraq’s oil min- serve as a substitute for conservation, Condoleezza Rice, was honored by istry. Despite clear warnings, coalition energy diversification, or other key en- Chevron with a supertanker named forces left Iraq’s priceless museums ergy programs. Moreover, a prolifera- after her. With such close connections and other government institutions de- tion of ‘‘new’’ initiatives have been an- to big corporate donors, one has to fenseless. On top of that, U.S. forces nounced by this administration that wonder about who really influences the failed to protect nuclear test facilities. are purported to solve our energy energy agenda of this administration. This is especially puzzling in light of needs, especially for fossil fuels. We Upon taking office, the Vice Presi- the administration’s often stated con- have the hydrogen initiative, a carbon dent led a task force that hammered cerns about dirty bombs and the pil- sequester program, FutureGen, a na- out the new administration’s energy fering of nuclear material by terror- tional climate change technology ini- strategy for the Nation. After months ists. So where are our priorities? What tiative, and more. My question is: Can of work, the National Energy Policy is the United States really up to in anyone explain how these ‘‘new’’ initia- Development Group issued its report in Iraq? tives will work together? Where is the May 2001. It was praised in some If the United States were really in- money to provide for all of this with- camps, criticized in others. The criti- tent on developing a smart, common- out compromising other important ef- cism arose because executives from sense oil policy, we would be taking ad- forts? The fact remains that there is no Enron and other big corporate contrib- ditional measures to better balance our major increase in real funding or com- utors played a major role in the rec- supplies from other nations; we would mitment for energy programs, just a ommendations of that task force. To be carefully using our strategic re- proliferation of empty words from this many, the task force recommendations serves to hedge against future foreign administration. I do not believe we can for a national energy policy appeared manipulation; we would be promoting treat our energy illnesses with the ad- to be little more than an industry wish industrial energy efficiency, and we ministration’s current budget prescrip- list. would be nurturing all forms of alter- tion. When the General Accounting Office native sources for our energy and In the 107th Congress, both the House and outside groups requested basic in- transportation needs, including coal, and Senate actually passed comprehen- formation about the Vice President’s renewable, and biomass-based sources. sive energy policy bills. After lengthy

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10211 debate in conference, important coal, climate change, international American know-how, technology, and progress was made. A number of com- technology transfer, and other impor- ideas can help to lead to the implemen- promises were struck, but in the end tant provisions. Together, these initia- tation of a range of marketable clean the conferees could not reach a final tives represent a bold new enterprise— energy technologies, not just in the agreement. This should come as no sur- stepping stones along a 21st century United States, but also around the prise. energy pathway. world. In fact, this administration made no Yet the administration seems intent It is time for real action. A cherry- real effort to help get a comprehensive, on just blocking many of these bipar- picked energy plan based on soliciting national energy strategy passed. Presi- tisan ideas. For example, in a May 8, big industry campaign contributions is dent Bush suggested that energy was a 2003, statement on the Senate Energy a bankrupt policy. It takes this Nation cornerstone of his administration’s bill, the White House stated, in part: nowhere, and it puts our future at risk. agenda, but what did he do during the The Administration is not convinced of the We cannot continue energy programs energy conference in the 107th Con- need for additional legislation that would at- and budgets if we ever hope to meet gress? Nothing. Oh, his rhetoric may tempt to limit or direct U.S. global climate our long-term needs. We cannot con- have sounded good on the campaign change, and will oppose any climate change tinue forestalling the development of a trail. He tried to talk a good game, but amendments that are inconsistent with the long-term energy strategy with a phan- when it counted, the administration President’s climate change strategy . . . we tom plan. The Nation is at a turning took a decidedly hands off approach. urge the Senate to allow . . . the President’s point. Our energy policy needs must strategy to go forward unimpeded. This new Senate Energy bill, S. 14, stop being dominated by a crisis man- the House Energy bill, H.R. 6, and the Well, I continue to ask, just what is agement policy. We must work to White House’s interest overall are in- the President’s strategy—cotton enact appropriate energy legislation so tended to cater to the administration’s candy? that we avoid the consequences of our friends in industry. That is it. That is Last session I introduced legislation long failure to respond. We cannot wait all. In its present form, these energy with Senator TED STEVENS of Alaska for the next energy crisis or the next bills are no victory for our country. that would allow the United States to spike in natural gas prices—or the next They are a victory for special interests deal more easily with the complex California electricity debacle. We can- and a text-book example of our inabil- issues involved in climate change. The not just go out and seize another oil ity to set a long-term energy policy amendment to be offered by Senator rich country in order to solve our en- course. Now, we are on the brink of an- BINGAMAN is based on last year’s Sen- ergy problems. We must enact bipar- other important opportunity squan- ate-passed provisions. It would create a tisan energy legislation that will de- dered. While there are some solid trees comprehensive strategy based on cred- liver a thoughtful and reasoned energy planted in the bill, this legislation will ible science and economics to guide package. not produce the diverse energy orchard American efforts to address climate Madam President, I yield the floor. we must have to meet our needs down change issues in our own backyard and The PRESIDING OFFICER. The Sen- the road. The President and the Repub- around the world. This amendment ator from Wyoming. lican-controlled Congress are simply also would establish a major research Mr. THOMAS. Madam President, I not prepared to make the tough effort to invent the advanced tech- hope we are moving toward the oppor- choices that the Nation needs for a via- nologies that we will need to effec- tunity to vote shortly. But, in the ble, long-term energy policy. How long tively reduce greenhouse gas emissions meantime, I cannot resist making a will we wait? that contribute to global warming. We few comments. The President would love a one-day must develop a commonsense package I don’t see it at all the way the Sen- Rose Garden ceremony and a 2004 cam- of technology, science, policy and other ator from West Virginia has described paign press release. But, given this ad- market-based measures to address this it. Over the last couple of years, I have ministration’s track record, an energy growing global problem. And it is grow- worked very hard to bring an Energy bill would simply be another empty ing. The question is what are we wait- bill before the Senate. I believe we soapbox for this President to stand on, ing for? have an Energy bill before us that is as he has already demonstrated with Specifically, the Bingaman amend- very broad, that is very encompassing, the education soapbox, the farm legis- ment includes provisions that would and that is very balanced. That is what lation soapbox, Afghanistan soapbox, commit more than $4 billion during the we have needed to do. and the Homeland Security soapbox, next decade to vastly expand U.S. re- We have been working now for 21⁄2 and other soapboxes. The Congress has search into technology that could help years, and we generally have not been passed bills and supported the adminis- to address the problem of global cli- able to get over the obstacles to be able tration’s rhetoric, but then the nec- mate change. The amendment provides to get it completed, and I think I un- essary resources to carry them out for the creation of a more focused ad- derstand why. But it is time for us to never materialize. This is the same fate ministrative structure within the Fed- decide: How important is it for us to that awaits an energy bill this session. eral Government, including an office in have an energy policy? It takes leadership and it takes hard the White House to coordinate and im- The first thing this administration work to move forward in a responsible, plement a national climate change came up with when it came into office balanced, and intelligent way on en- strategy. We cannot continue to just was an energy policy with a direction, ergy policy. Yet this administration ignore this problem. and we have been fooling around with makes do with a cheap knockoff. It This amendment does not mandate a it ever since. looks like the real thing, but it is a reduction of emissions by American Last year, we couldn’t even get it fraud and a fake. It is much like cotton companies. Instead, this package through the committee. We had to go candy. At first glance, it may look places the Nation on a commonsense right to the floor. We went to the con- good, but there is just no nutrition. In glidepath that is both achievable and ference committee and worked very reality, it is just puffed air. sustainable. It provides the framework hard. We did not succeed. In the last 5 years, I have worked to address the long-term goal of stabi- But this is a balanced approach. We hard to help develop a balanced and bi- lizing atmospheric greenhouse gas con- are talking about an opportunity to partisan package of provisions to ad- centrations by working with other na- have conservation, which is one of the vance our national energy policy tions, while leaving the actual tech- things we need to do in energy. We are goals—provisions that could go a long nology and policy decisions to energy talking about the opportunity to have way toward addressing both the near- experts and the marketplace. alternative sources of energy, which we and long-term energy needs of our Na- China, Brazil, and India, among other will come to over a period of time. tion, while also providing numerous states, will soon surpass the industri- I remember very much a number of benefits both at home and abroad. alized world in emissions of greenhouse years ago somebody coming to Casper, These provisions garnered bipartisan gases. It is important that we work in WY, talking about energy, saying: We support in the Senate Energy bill in coordination with these nations to re- have never run out of energy because the 107th Congress, including clean duce their emissions at an early stage. we have always found a new source.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00041 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10212 CONGRESSIONAL RECORD — SENATE July 30, 2003 Well, we probably will, but we need to it is sort of frustrating to hear there is tricity rates in the Las Vegas area be doing that in research. no basis to this, that we don’t need to have increased by more than 60 per- The bill involves research in a vari- hurry doing this. Yet the fact is, it is cent. Over the same period, natural gas ety of different areas that relate to en- probably one of the most needed things prices across Nevada have doubled. It is ergy. What else could you do besides we have had for a number of years. And a sad state of affairs that some seniors, research? There is a very great empha- yet we continue to find excuses for not especially, and low-income families in sis on hydrogen in this administration going forward. Nevada are being forced to go without and doing something that will move us I hope we can move. We can complete prescription drugs or cut back on food to a different kind of energy oppor- this bill this week. We have already in order to pay their electricity rates. tunity. Coal might be the basis for that discussed almost all these items for a That is a fact. opportunity. It would be much more long time. It is time to move, and I The bills that come from these in- economical to move. hope we do. creased electricity rates are a real bur- Lots can happen in the future. What I yield the floor. den, as the Senator from Washington, we are faced with doing in this bill re- The PRESIDING OFFICER. The Ms. CANTWELL, mentioned today. She lates to the fact that the energy indus- Democratic whip. read specific letters from people in the try has moved faster than we have Mr. REID. Madam President, I com- State of Washington where these prices moved. This is not a matter entirely of mend Senators CANTWELL and BINGA- were preventing them from getting setting a future; it is a matter of MAN for their amendments to the elec- proper medical care and having the catching up with what has already tricity title that will, in effect, ban all ability to pay their rent. The same ap- been done. And much of that is evi- forms of market manipulation and add plies, of course, in Nevada. denced in the electrical industry. important merger provisions. I am ter- These wild price increases in elec- Years ago everything we did was de- ribly disappointed that the Cantwell tricity were painful to homeowners. signed to have an energy company and amendment failed by a vote of 48 to 50. They also made it hard for businesses an electric company that had their own She did an extremely fine job of laying to expand or make long-term plans. Ne- distribution. They did their own gener- out this program. I am sorry it didn’t vada consumers were being asked to ating. It was all in one area. That is pass. It should have. I think there will pay for the same very expensive long- not the case anymore. Thirty percent be some Senators who voted against term contracts negotiated by utilities of electrical energy is generated by her amendment who will regret having in 2001 at the time of the California en- merchant generators. That energy has done so. ergy crisis. It cost Nevada ratepayers We know that the energy crisis in to be moved from the generator to the hundreds of millions of dollars. market. It is quite a different situa- California in 2001 resulted from market Nevada Power, the power company tion. It is already there, yet we seem to manipulation and price fixing. People that serves the Las Vegas area and resist talking about it. We seem to re- of the State of Nevada were severely southern Nevada, has flirted with sist accepting it. We seem to resist hurt by this manipulated electricity bankruptcy. It is rated at junk bond making that an advantage for us rath- market, as were consumers all over status where in the past it was one of er than a problem, and we have an op- Western States. the strongest utilities in America. portunity to do that. The State of Nevada has just com- One of the other issues that is em- pleted the most contentious legislative What does this junk bond status mean? phasized is domestic production, of session in the history of the State. The It means the cost of money for the util- course. It has already been pointed out Governor of the State, after the reg- ity to purchase power for Nevada is that some 60 percent of oil comes from ular session ended, had to continually very high. overseas. We are talking about the pos- call special sessions. I don’t really The weakened financial condition of sibility of shortages of natural gas. I know how many he called—two, three, our utility is a burden to our rate- can tell you something: We have a lot four, five—but they were there for a payers. I can remember during some of of natural gas right here in this coun- long time. Finally, because nothing this time that I had to call the Gov- try, much of it in the west where I am could be completed, the Governor filed ernor of California to see if there could from. We could be producing a great a legal action with the Nevada Su- be some arrangement made so the deal more if we had the policy to go preme Court. After the Supreme Court power that the people of the State ahead and do that, if we had the oppor- acted, action was taken. The provision needed coming from California could be tunity to have multiple use of lands to in question that went before the su- provided. I had to have a signoff from protect the environment and produce preme court is whether the Nevada the Governor of California. This was at the same time, to be able to have Legislature had to pass tax increases difficult. They were in deep distress the transportation to move it to the by a two-thirds vote. The Nevada Su- but their distress was passed on to Ne- market. These are the things that are preme Court said no and they said yes, vada. there and available. That is what this but regardless of that, I spoke to the The weakened financial condition of bill is about. majority leader from Nevada, Bill our utility is a burden to our rate- To suggest that this bill does not Raggio, today. He said he made the de- payers and the taxpayers of the State have any substance to it is simply not termination that it was going to pass of Nevada. After Enron was exposed for right. It is a good excuse if you don’t by two-thirds, and both the assembly its unfair and unethical practices, want to vote for it. But the fact is, and the house ultimately did that. whether it was Fat Boy or Get Shorty, there is substance. The fact is, it does The reason I mention the difficulty all these practices had an impact in move us forward. The fact is, we need they had is because of the tremendous Nevada. After these unfair practices to move it on. burden the State of Nevada had in not were exposed, a subsidiary of Enron We are talking now about an electric having enough revenues to meet the stopped delivering electricity to Ne- title, which I think is crucial. We were projected deficit, $1 billion in the State vada Power because of its weakened fi- just upstairs talking about what en- of Nevada, much of which was caused nancial condition. Then adding insult ergy does for jobs. Remember the econ- by the problems that developed in Cali- to injury, this Enron subsidy sued Ne- omy started to turn down in the year fornia with manipulating the energy vada Power for the losses it might 2000. We have been working at all kinds prices there. incur if it couldn’t sell the power at of things ever since. Here is one that The State of Nevada had other prob- the contract price. has probably more of an immediate im- lems: unfunded mandates that we have In a recent ruling, FERC upheld the pact to jobs than anything else we passed on to them with homeland secu- contract the utility signed at these ex- could do, not only in production but, of rity and Leave No Child Behind, which orbitantly high prices. Again, our rate- course, it has an impact on all business has left a lot of kids behind. The fact payers were not protected from abuses activities. is, the electricity rates had a lot to do during the California energy crisis. It How important is electricity to us? with that very difficult legislative ses- is not consistent with rational thought Everything we do—travel, gasoline, sion. That session took a long, long that FERC could do this but they did natural gas, all these things. So I guess time to complete. Since 1999, elec- it.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00042 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10213 As the western energy crisis and hydroelectric dam relicensing; nuclear that he has the opportunity to speak. Enron’s collapse made clear, elec- energy; natural gas; energy efficiency He knows the rules of the Senate and tricity markets are ripe for manipula- incentives; wind energy; carbon seques- he has a right to speak if he wishes. tion unless clear safeguards are put in tration; exploration of the Outer Conti- Having said that, I am willing now to place and companies are held account- nental Shelf, and the energy tax pack- have this unanimous consent agree- able. The electricity title should ban age, just to name a few. ment proffered. all forms of market manipulation and These amendments offered on this Mr. THOMAS. Madam President, I contain concrete penalties for those Energy bill dealing with electricity are ask unanimous consent that there now that break the rules. The electricity not specious amendments, they are be the following debate in relation to title should strengthen FERC’s author- substantive amendments. The Cantwell the listed amendments: Bingaman No. ity to review public utility mergers for amendment vote was 48 to 50. Without 1413, 10 minutes equally divided in the electric and gas—there will be an arm-twisting on the other side, Sen- usual form; Bingaman No. 1418, 10 min- amendment that will focus just on gas ator CANTWELL would have won. These utes equally divided in the usual form. in this regard—holding company merg- are serious amendments people wish to I further ask consent that following ers and generation assets, and ensure offer. They are not single amendment the debate, the Senate proceed to a any consolidations are in the public in- issues. I expect there will be several vote in relation to amendment No. terest. amendments on each subject. We ended 1413, to be followed by a vote on I extend the appreciation of the en- with a good product last year when we amendment No. 1418, to be followed by tire Democratic caucus for the work let the Senate work its will on the leg- a vote in relation to the Feingold- done by the manager on our side, Sen- islation. We need to spend adequate Brownback amendment No. 1416, pro- ator BINGAMAN. Senator BINGAMAN is time this year to get a similar result. vided there be 2 minutes of debate an intelligent Senator. He is experi- I see the Senator from Florida on the equally divided prior to each vote. enced. He has done everything he can floor. My understanding is that he Mr. REID. Madam President, reserv- to help this bill be a bill that is a good wishes to speak. ing the right to object, I ask if my bill which is indicated by the tremen- Mr. THOMAS. I wonder if it would be friend, the distinguished Senator from dous amendments he has filed that we possible to propound this unanimous Wyoming, would modify his unanimous will vote on in the next few hours. consent request. consent request to allow the Senator Last year Democrats worked with Mr. REID. Madam President, the from Florida, prior to this kicking in, Republicans to pass energy legislation Senator has been here all day. It is my to speak for up to 5 minutes. by a vote of 88 to 11. This vote was to understanding that the Senator wishes Mr. THOMAS. I have no objection to strengthen our national energy secu- to speak; is that right? that. rity, safeguard consumers and tax- Mr. NELSON of Florida. Yes, for per- The PRESIDING OFFICER. Is there payers, and protect the environment. haps only 3 or 4 minutes. objection? The heavy vote is an indication that Mr. REID. I thought the Senator had Mr. BINGAMAN. Madam President, we were able to accomplish that. longer to speak. not wishing to object, I just indicate That vote came after 24 hours of de- Mr. NELSON of Florida. I will ac- that I did not intend to ask for 10 min- bate over the course of 8 weeks, and commodate the leadership. Whatever is utes of debate on each of my two only after the Senate dispensed with the pleasure of the leadership. amendments, and then in addition ask 144 amendments. Mr. DOMENICI. Madam President, for 2 minutes equally divided. I just in- Madam President, the distinguished the Senator has no right to decide who tended to have some time to refresh Senator from Tennessee, the majority speaks. They have to seek recognition. people’s memories of what the two leader, has said we have been on this Mr. REID. Madam President, as I amendments were, since they were pro- for 16 days. He has to say that with have said several times during the day, posed and debated yesterday. tongue in cheek. Many of those days and yesterday and the day before, I As far as I am concerned, once I have have been Fridays and Mondays, when have the greatest respect for the Sen- had a chance to describe my amend- everyone knows when you turn to a bill ator from New Mexico. But the Senator ment, and there has been any discus- for a day or two and it is a Friday or from Florida, who is gracious and said sion in opposition, we can vote on the Monday, that is like turning to noth- he would take just a few minutes, has first of the Bingaman amendments. ing. It is filler. Nothing happens. Most a right to speak as long as he wants to Mr. REID. Madam President, I ask of those days the managers weren’t before we have votes on this. the Senator to further modify the re- even here. They said we are going to Mr. THOMAS. The Senator from Wy- quest to eliminate the 2 minutes of de- energy on short notice. The 16 days the oming was on the floor before he was, bate prior to the vote. distinguished Senator from Tennessee however. Mr. THOMAS. That will be fine. talked about really is more like 7 or 8 Mr. REID. I have the floor. The PRESIDING OFFICER. Is there days. Mr. DOMENICI. The Senator cannot objection to the request as modified? As we know from past experience, the dole out the time. He has no right to Without objection, it is so ordered. effort to craft comprehensive energy dole the time out to other Senators, The Senator from Florida is recog- policy involves working through a se- Madam President. nized. ries of complex issues. We are cur- Mr. REID. Madam President, I have (The statement of the Senator from rently working through one of the the floor, and I have the right to speak Florida, Mr. NELSON, is printed in the most complex issues right now, elec- about anything I want to speak about. RECORD under ‘‘Morning Business.’’) tricity policy. These issues take time The fact is, the Senator from Florida AMENDMENT NO. 1413 to debate, and we have a duty to the has been here several times today. The PRESIDING OFFICER. The Sen- American consumer to ensure that we Mr. DOMENICI. Madam President—— ator from New Mexico. carefully consider what our energy pol- Mr. REID. I have the floor, Madam Mr. BINGAMAN. Madam President, icy will look like in the future. We President. I have the floor. as I understand it, I now have 5 min- have spent significantly less time de- The PRESIDING OFFICER. The Sen- utes to describe the first of the two bating the Energy bill this year. We ator is correct. amendments I have offered to the elec- have considered 42 amendments and Mr. REID. The Senator from Florida tricity title of the bill. held 15 rollcall votes. We have spent has been here several times during the Let me make the obvious point at less than 7 days on this bill, considered day. He has a right, prior to our enter- the beginning of my description, and 102 less amendments, and conducted 20 ing into this unanimous consent agree- that is that the amendment tries to do less rollcall votes than last year. There ment, to speak for as long as he wants. two basic things. It proposes language are a number of issues outstanding: He said he chooses not to do that, and which would ensure that someone at Electricity; global warming; renewable that is in keeping with the courtesy the Federal level—in this case, the portfolio standard; CAFE standards, on that this junior Senator from Florida Federal Energy Regulatory Commis- which we have debated two amend- extends to everybody. I want to make sion—has jurisdiction to review pur- ments but others need to be considered; sure he doesn’t have hurt feelings and chase and sale of generation companies

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00043 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10214 CONGRESSIONAL RECORD — SENATE July 30, 2003 and generation assets, the companies Utilities are a different kind of busi- FERC, the Department of Justice, and that actually produce the electricity ness. It is important that the lights the Federal Trade Commission must about which we are talking and which turn on when we flick a switch. It is review proposed mergers for their im- we have all come to expect to get when important that other utilities function. pact on competition. States also review we turn on the switch and see the room In this case, in this electricity title, we proposed mergers. Expanding FERC’s light up. need to be sure that ratepayers are authority to cover the acquisition of We ought to have someone with au- adequately protected. generation facilities is unnecessary. thority over that because under the I am persuaded that this amendment We have plenty of merger authority if Domenici substitute as it now is, no- will strengthen the bill. I hope very that is what we are worried about. We body has authority at the Federal much my colleagues will support it. It are getting rid of undue regulation. level. It is not realistic to suggest the is exactly the same language we had in There is no need to impose more. States can handle that problem. They the bill last year, and last year there cannot. There is no prohibition in law, was an effort to delete the language Further, changing FERC’s review and there will be none under this pro- which I am offering as a second-degree standards will impede efficient trans- posal, to one company acquiring all the amendment, and that effort lost in a actions, and we do not need that today, generation in one particular region or vote of 67 to 29. So a majority of the either. one company acquiring all the genera- Senate is on record supporting the lan- So while I have great respect and ad- tion in one part of the country. We guage I have proposed as an amend- miration for my friend, I believe the should have someone reviewing the ac- ment to the underlying Domenici sub- electricity bill that is pending before quisitions of that generation capacity stitute. I hope Members will support us, which has been carefully put to- to be sure that ratepayers are looked the amendment. It will strengthen the out after. That is the first thing the electricity title. I very much believe it gether, has broad support all based on amendment does. is good public policy and will serve us the fact that it fits all the pieces to- The second thing the amendment well in the years ahead when some of gether properly. It should be left alone. does is to prohibit cross-subsidy be- these problems recur, as I fear they We do not have to add more merger re- tween utility companies and affiliated will. view layers. companies that may be in the same Madam President, I yield the floor. I yield back the remainder of my general holding company. We are The PRESIDING OFFICER. The Sen- time. eliminating the Public Utility Holding ator from New Mexico. Company Act, so there is going to be Mr. DOMENICI. Madam President, The PRESIDING OFFICER. The Sen- no restriction as provided under that how much time do I have? ator from New Mexico. act. We need to be sure that cross-sub- The PRESIDING OFFICER. Five Mr. BINGAMAN. Madam President, sidy does not occur. minutes. my understanding is that at this point, Mr. DOMENICI. Madam President, I I have an article dated December 26 under the unanimous consent agree- wish to make a point in case there are of last year in the Wall Street Journal ment, I am allotted 5 minutes to talk people observing the Senate. Senator which does a very good job of pointing about my second amendment. Is that NELSON from Florida indicated he had out the problem that needs to be fixed. accurate? It says: been waiting a long time—maybe all day—to be heard. There are a lot of The PRESIDING OFFICER. The Sen- Energy companies burned by disastrous forays into commodities trading and other Senators all day long who would like ator is correct. to come to the floor and be heard. The unregulated businesses are increasingly AMENDMENT NO. 1418 seeking to pass some of the financial burden Senate is not the place where we just on to their utility units. This could lead to come down to the floor and automati- Mr. BINGAMAN. Madam President, I higher electricity rates for consumers in cally, if we come here, we ought to be will describe this second Bingaman coming years. heard. We have business, and we have amendment which was offered last Then it goes on to say: rules. I am glad the Senator found time evening. It was offered at a time when Utilities are being nudged to buy assets and we allowed 5 minutes and we al- very few Senators or their staffs were from affiliates to make loans to down-at-the- lowed Senator BYRD 30 minutes, but we in their offices and were not following heels siblings or pass more money to their are engaged in a bill we are trying to this issue, I am afraid. The amendment parent companies. pass. tries to clarify a point in the bill that The article goes through a series of I had a lengthy discussion with my I think is very important. examples of how this is happening. friend from Nevada, and I have no One example I thought was particu- doubt he wants to get this bill finished. Senator DOMENICI’s substitute con- larly constructive was Duke Energy. In I thank him for his willingness to move tains a delay in the issuance of FERC’s July of 2001, a Duke accountant con- along. We will have another amend- standard market design rulemaking tacted regulators complaining that ex- ment ready pretty soon. and it delays it until July of 2005, and penses generated by unregulated parts My objection to the Bingaman that is not of concern. I accept that. of the company were being transferred amendment is very simple. He alludes Many believe the rule goes too far, to the books of Duke’s utilities. to last year and what happened with should be dramatically modified, We need a capability at the Federal amendments such as his last year. changed or completely abrogated, but level to protect the ratepayers and to There was no alternative last year. others think we should go ahead right ensure that does not happen. We do not There is an alternative this year. It is away. He has decided to put it off until have that in the underlying Domenici the underlying electricity bill, which July of 2005. So I am not involved in substitute. The underlying substitute clearly protects the citizens, the users, that in my amendment. does say that the Commission shall and all of those concerns about merg- My amendment leaves the delay of look out to be sure the public interest ers. is served, and that is useful. That, un- The merger review in our section is the standard market design rule in fortunately, is very general. supported by groups such as the Na- place so it will still be delayed until What we need in the law, I firmly be- tional Rural Co-ops, the rural power July of 2005. However, in an effort to lieve, is a bright line requirement that people, and many others. If, in fact, we prevent FERC from renaming its rule, in order for these kinds of acquisitions did not have protection in this area I believe that was the purpose that and sales to occur and to be approved, with reference to gobbling by merger, Senator DOMENICI and his staff had in the Federal Energy Regulatory Com- obviously they would not be for this an effort to keep FERC from renaming mission ought to determine that there underlying bill. So I oppose this its rule and issuing that same rule, or is not going to be a cross-subsidy as a amendment because we do not have to something very close to it, under a dif- result, that utilities will not be loaded expand FERC’s merger authority. They ferent title, the bill would prohibit any down with debt from nonutility compa- have merger authority. rule or order of general applicability nies held by the same company. We Under current law, electric merger on matters within the scope of the need to keep the protection in the bill. departments are heavily regulated. rule. I think the clear meaning of that

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10215 language is that FERC could not issue talking about. Other Senators wanted Campbell Grassley Nelson (NE) a rule or order a general applicability a longer time. Some wanted a shorter Chambliss Gregg Nickles Cochran Hagel Roberts on any issue that is dealt with in the time. Well, Senator BINGAMAN changes Coleman Hatch Santorum proposed standard market design for 2 the language surrounding that July Cornyn Hutchison Sessions years from now. 2005 agreement. Frankly, I would be Craig Inhofe Shelby Crapo Kyl Standard market design covers a letting down all of those different Smith DeWine Landrieu Specter world of issues. One example, FERC Dole Lincoln groups that worked together to nego- Stevens Domenici Lott currently has a rule in process related tiate the language that said the final- Sununu Ensign Lugar to interconnections to the trans- Talent ization of SMDs will be delayed until Enzi McCain mission grid. No matter what that rule July 1, 2005; by changing the words Fitzgerald McConnell Thomas said, FERC would be prohibited from around it, all kinds of groups will be Frist Miller Voinovich Warner issuing that rule, as I read this lan- saying we have let them down; we Graham (SC) Murkowski guage. I do not think that was the in- changed what we agreed to. NAYS—44 tent of my colleague from New Mexico In other words, I regret to say that Akaka Dodd Levin or others who worked on this bill. the exact words surrounding this 2005 Baucus Dorgan Lieberman There are even rules that the Com- Bayh Durbin Mikulski letter expansion are binding. Senator Bingaman Edwards mission is required to issue by provi- Murray BINGAMAN wants to clarify it one way. Boxer Feingold Nelson (FL) sions in the bill. We have various provi- There will be a whole group of people Byrd Feinstein Pryor sions in other parts of this bill that say who worked on it saying, well, I did not Cantwell Graham (FL) Reed the Federal Energy Regulatory Com- Carper Harkin Reid want it clarified that way. I wanted it Chafee Hollings Rockefeller mission shall issue an order on this clarified another way. Clinton Inouye Sarbanes Collins Jeffords issue, the Federal Energy Regulatory The point is, it will work like it is. It Schumer Commission shall issue an order on Conrad Johnson might work like he wants it to work Corzine Kohl Snowe this subject. The bill requires rules on but the problem is we agreed to these Daschle Lautenberg Stabenow mergers, on transmission access by words. Believe me, I am not agreeing to Dayton Leahy Wyden public power entities, on participant words just for words. They will work. It NOT VOTING—3 funding, and on other matters. is just that the distinguished Senator Biden Kennedy Kerry We are in the ironic position of hav- would like to be more precise, more ing this one provision which says an The motion was agreed to. specific, his way. In doing that, he puts Mr. THOMAS. Mr. President, I move order cannot be issued, a general appli- this Senator, who has worked this out cability, on any subject that is covered to reconsider the vote. with all of these other people, in a bind Mr. CRAIG. I move to lay that mo- by standard marketing design and at that if I say, yes, let’s change it, then tion on the table. the same time we are saying you have we are going to have telephone calls The motion to lay on the table was to go ahead and issue orders of general besieging Senators all over saying vote agreed to. applicability in these other areas. no; the senior Senator from New Mex- Mr. FRIST. Mr. President, I ask So I am trying to get that clarified. ico is not doing what he told us he unanimous consent that the next two I do not believe we are in disagreement would do. votes in this series be limited to 10 on the substance but I do think it is Now, I regret that but that is just the minutes each. important that we provide clear lan- result of the way we do things. I am The PRESIDING OFFICER. Without guage or else we will be shooting our- very proud of the words, the date, and objection, it is so ordered. selves in the foot. the negotiation. I do not lose a lot of Mr. FRIST. Mr. President, there will The amendment I am offering says Senators on that language and that be additional votes this evening. We we would not want FERC issuing any date. Maybe six or eight wanted more are going to stack these two rollcall final rule or order of general applica- time but we got a pretty good deal for votes at 10 minutes. The chairman and bility establishing a standard market almost everybody. So I just cannot ranking member have been here since 9 design. I think that is what we are try- take the risk. I am sorry. o’clock this morning. They have been ing to do. That is all my amendment With that, I do not need any more working hard. We will continue to- does is to clarify that is what we are time. I yield back any time I have re- night. We will finish the electricity trying to do. I hope everybody will sup- maining. amendment today. Therefore, Members port it. I think it will make very clear can expect votes into the evening. that FERC will be able to go ahead and VOTE ON AMENDMENT NO. 1413 Mr. DOMENICI. I move to table the VOTE ON AMENDMENT NO. 1418 do the work that it is required to do in The PRESIDING OFFICER. The the next couple of years, between now first Bingaman amendment, which is the pending subject matter, and ask for question occurs to the amendment of and July of 2005. If we have another cri- the Senator from New Mexico. sis such as we have had out in Cali- the yeas and nays. The PRESIDING OFFICER. Is there a Mr. THOMAS. Mr. President, I move fornia or out in the west coast, we are to table the amendment and I ask for going to be expecting FERC to issue or- sufficient second? There appears to be a sufficient sec- the yeas and nays. ders of general applicability. They The PRESIDING OFFICER. Is there a ond. The question is on agreeing to the should be doing that. They should not sufficient second? motion. be issuing a standard market design, There is a sufficient second. and I am not suggesting they should, The clerk will call the roll. The question is on agreeing to the but they should have the authority to The legislative clerk called the roll. motion. The clerk will call the roll. issue orders of general applicability Mr. REID. I announce that the Sen- The assistant legislative clerk called and that is exactly what my amend- ator from Delaware (Mr. BIDEN), the the roll. ment would give them. Senator from Massachusetts (Mr. KEN- Mr. REID. I announce that the Sen- I hope very much my colleagues will NEDY), and the Senator from Massachu- ator from Massachusetts (Mr. KEN- support the amendment and we can im- setts (Mr. KERRY) are necessarily ab- NEDY) and the Senator from Massachu- prove the bill by doing so. sent. setts (Mr. KERRY) are necessarily ab- I yield the floor. The PRESIDING OFFICER. Are there sent. The PRESIDING OFFICER (Mr. any other Senators in the Chamber de- I further announce that, if present CHAMBLISS). The Senator from New siring to vote? and voting, the Senator from Massa- Mexico. The result was announced—yeas 53, chusetts (Mr. KERRY) would vote Mr. DOMENICI. Mr. President, one of nays 44, as follows: ‘‘nay.’’ the most difficult negotiations in this [Rollcall Vote No. 313 Leg.] The PRESIDING OFFICER. Are there bill was getting the language that pro- YEAS—53 any other Senators in the Chamber de- hibited the finalization of SMDs until siring to vote? Alexander Bennett Brownback July 1, 2005. The occupant of the chair Allard Bond Bunning The result was announced—yeas 54, knows that. That is what we have been Allen Breaux Burns nays 44, as follows:

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10216 CONGRESSIONAL RECORD — SENATE July 30, 2003 [Rollcall Vote No. 314 Leg.] [Rollcall Vote No. 315 Leg.] under very strict time limitations on YEAS—54 YEAS—50 the morrow. Alexander Dole McConnell Alexander DeWine Lugar We had that series of votes. I want to Allard Domenici Miller Allard Dole McConnell accommodate the managers of the bill. Allen Ensign Murkowski Allen Domenici Miller If there is an amendment that needs to Bayh Ensign Bennett Enzi Murray Murkowski be disposed of, I will be glad to wait; Bond Fitzgerald Nelson (NE) Bennett Enzi Nelson (NE) Breaux Frist Nickles Bond Fitzgerald Nickles otherwise, at some point, I wish to ad- Brownback Graham (SC) Roberts Breaux Frist Pryor dress the Senate because this is an ex- Bunning Grassley Santorum Bunning Graham (SC) Santorum Burns Grassley tremely important nominee. The nomi- Burns Hagel Sessions Sessions Campbell Gregg nation was just reported out of com- Campbell Hatch Shelby Shelby Carper Hagel Cantwell Hollings Smith Smith mittee, and we will be voting in a very Chambliss Hatch Chambliss Hutchison Specter Stevens short period of time on the nominee. It Cochran Inhofe Stevens Cochran Hutchison Coleman Inhofe Sununu is an extremely important nomination. Coleman Kyl Sununu Thomas Cornyn Landrieu Talent Cornyn Kyl If the decision was to not have that Voinovich Craig Lott Thomas Craig Landrieu vote on the morrow, I am glad to with- Warner Crapo Lugar Voinovich Crapo Lincoln hold my statement and make my state- DeWine McCain Warner NAYS—48 ment at the time the Senate addresses NAYS—44 Akaka Dorgan Lieberman the nomination. I will certainly work Baucus Durbin McCain with the floor managers to work out a Akaka Dodd Levin Biden Edwards Mikulski Baucus Dorgan Lieberman Bingaman Feingold Murray time that is suitable, but I am ready to Bayh Durbin Lincoln Boxer Feinstein Nelson (FL) speak. If there is a pending amend- Biden Edwards Mikulski Brownback Graham (FL) Reed ment, and it is the desire of the floor Bingaman Feingold Nelson (FL) Byrd Harkin Reid Boxer Feinstein Pryor Cantwell Hollings Roberts manager to move ahead, I will accom- Byrd Graham (FL) Reed Chafee Inouye Rockefeller modate him. Carper Gregg Reid Clinton Jeffords Sarbanes The PRESIDING OFFICER. The Sen- Chafee Harkin Rockefeller Collins Johnson Schumer Clinton Inouye ator from New Mexico. Sarbanes Conrad Kennedy Snowe Collins Jeffords Mr. DOMENICI. Madam President, I Schumer Corzine Kohl Specter Conrad Johnson Daschle Lautenberg Stabenow say to the distinguished Senator from Corzine Kohl Snowe Stabenow Dayton Leahy Talent Massachusetts, I will speak to the ma- Daschle Lautenberg Dodd Levin Wyden Dayton Leahy Wyden jority leader, as soon as an amendment NOT VOTING—2 is laid down, with reference to the NOT VOTING—2 Kerry Lott issue Senator KENNEDY just raised. I Kennedy Kerry The motion was agreed to. understand if we proceed on an amend- The motion was agreed to. Mr. DOMENICI. I move to reconsider ment, we will have an hour or so, at which time I will talk with the major- Mr. CRAIG. Mr. President, I move to the vote. ity leader and tell him of your desire reconsider the vote. Mr. CRAIG. I move to lay that mo- tion on the table. and others to speak, and see what his Mr. BOND. I move to lay that motion The motion to lay on the table was wishes are in that regard. on the table. agreed to. Mr. SCHUMER. Will my colleague The motion to lay on the table was The PRESIDING OFFICER. The Sen- yield? agreed to. ator from New Mexico. Mr. DOMENICI. Without losing my AMENDMENT NO. 1416 Mr. DOMENICI. Madam President, I right to the floor. wonder if the minority whip will advise Mr. SCHUMER. There are others who The PRESIDING OFFICER. The me—we are on the electricity title—are wish to speak in addition to the Sen- question now occurs on the Feingold we ready to vote on passage of the elec- ator from Massachusetts. amendment No. 1416. tricity title or do you have additional Mr. DOMENICI. I will mention the Mr. DOMENICI. Mr. President, par- amendments? Senator’s name. liamentary inquiry. Is there any time The PRESIDING OFFICER. The Mr. REID. I know the Senator from to speak on this amendment? Democratic whip. New Mexico has the floor. The PRESIDING OFFICER. There is Mr. REID. Madam President, as I in- Mr. DOMENICI. Yes. no time to speak on the amendment. dicated last night, we have Senator Mr. REID. Madam President, earlier Mr. DOMENICI. I move to table the DAYTON who still wishes to offer today I alerted the Senate that we Feingold amendment and ask for the amendments. Senator CANTWELL has at would have members of the Judiciary yeas and nays. least two more amendments. Senator Committee come to the floor, and we have members of the Judiciary Com- The PRESIDING OFFICER. Is there a FEINSTEIN has an amendment. Those mittee here today. We have the Sen- sufficient second? are the ones I know of at this time. And Senator BOXER has an amendment. ator from Massachusetts, who is a There appears to be a sufficient sec- Senator CANTWELL is here. She has a three-decade member of that com- ond. very important amendment to offer. mittee. We have Senator SCHUMER, who The question is on agreeing to the I relate to my distinguished friend, is a relatively new member of that motion. The clerk will call the roll. the manager of this bill, that Senator committee. Sometime tonight they are The legislative clerk called the roll. KENNEDY is here and wishes to speak going to speak on the Pryor nomina- Mr. MCCONNELL. I announce that also. We are in a position where we are tion. I indicated that would happen, the Senator from Mississippi (Mr. ready to move forward on the elec- and that is going to happen. They have LOTT) is necessarily absent. tricity title with a number of amend- an absolute right to speak. I know the Mr. REID. I announce that the Sen- ments. Senator from Massachusetts is being kind and generous, but he has a right ator from Massachusetts (Mr. KERRY) Mr. DOMENICI. Does Senator KEN- is necessarily absent. NEDY have an amendment? to speak. It can either be done now or Mr. REID. The Senator from New 5 minutes from now or 10 minutes from I further announce that, if present Mexico will have to ask Senator KEN- now, but the Senator from Massachu- and voting, the Senator from Massa- NEDY. setts is going to get the floor, and he is chusetts (Mr. KERRY) would vote Mr. KENNEDY. No. It has been the going to speak on the Pryor nomina- ‘‘yea.’’ decision of the leadership to have a tion, as I alerted the Senate today that The PRESIDING OFFICER (Ms. COL- vote on Judge Pryor tomorrow. Under would happen. LINS). Are there any other Senators in the agreement, we will have 1 hour for We did not make the choice that we the Chamber desiring to vote? debate. This is an important nomina- would vote for the seventh time on The result was announced—yeas 50, tion. I wish to address the Senate on Estrada today. The votes have not nays 48, as follows: that matter since we are going to be changed. We did not make the decision

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10217 we would vote on Priscilla Owen. We and I want to attempt to correct that amendments. I wish I could see them have voted three times, and the votes record. sooner or later so I will know what have not changed. We did not make the We are on the eve of a vote on the they are about but nobody owes me decision that the Pryor nomination nominee, and that has been established that, either. We will take it as it would be voted on without a single bit by not the Senator from New Mexico comes. of debate on the Senate floor, but just but by the majority leader. We are just I will ask the distinguished majority move it forward for cloture. This is not trying to meet our responsibilities as leader to be accommodating so we can as if it is a surprise. members of that committee who have get this bill finished, but I am doing We telegraphed our intentions today strong views and want to share those that with great trepidation, not as to that there would be members of the Ju- views with the membership and we also Senator KENNEDY but as to whether diciary Committee who would come to feel a responsibility to tell, to the ex- there is a willingness to pursue this the Chamber and speak, and that is tent the American people are inter- bill with vigor if that accommodation going to happen tonight. ested, what our reservations are in is made. I am not sure about that based The PRESIDING OFFICER. The Sen- terms of the merits and the process. on some things that have been hap- ator from New Mexico. I say to the Senator from New Mex- pening but I hope it is. It is with that Mr. DOMENICI. Madam President, I ico, I plan to be here this evening, and in mind that I will talk to the leader, cannot do anything more than that, if it is the desire of the floor managers hoping it does mean that if accommo- and I think the distinguished Senator to consider another amendment, I am dation is made, we will proceed with from Massachusetts accepts my state- glad to take my turn, although I do dispatch on the Energy bill. ment as an honest statement. think we ought to have at least an op- I thank the Senator for yielding to Mr. KENNEDY. Yes. portunity to speak in the next few me. Mr. DOMENICI. I will leave the floor. hours. The PRESIDING OFFICER. The Sen- I will find the leader, and I will tell I will begin my statement on this ator from Massachusetts. him what is going to happen. I will nominee. If it so works out and the Mr. SARBANES. Will the Senator seek his advice and give him my ad- Senator from New Mexico wants to in- yield for a question? vice. I very much appreciate the Sen- tercede, I will be glad to try to accom- Mr. KENNEDY. I will be glad to yield ator from Massachusetts letting me modate him. for a question. know. We have a number of amend- Mr. DOMENICI. Will the Senator Mr. SARBANES. I have been listen- ments left. We have important legisla- yield? ing to this discussion. Am I correct in tion before us. It is absolutely impos- Mr. KENNEDY. Yes. saying that the Senator would not be sible to do the people’s business if, in Mr. DOMENICI. How long does the seeking to speak now if the other side fact, during the next 12 hours we have Senator intend to speak? had not indicated that they were in- 6 or 8 hours taken up by speeches with Mr. KENNEDY. I expect to talk prob- tending to try to bring the nomination reference to a judge. We will get it ably 30 minutes. of Mr. Pryor to the Senate on tomor- done, but we will be here Sunday, Mr. DOMENICI. Does the Senator row? Is that right? which is all right with this Senator. I from New Mexico have the floor or the Mr. KENNEDY. The Senator is ex- do not think I want to let that happen Senator from Massachusetts? actly correct. under my watch as manager, but I The PRESIDING OFFICER. The Sen- Mr. SARBANES. The Senator is not guarantee my colleagues, for those who ator from Massachusetts has the floor. inserting himself into the debate on insist they are going to speak, I can as- Mr. KENNEDY. I would rather not the Energy bill seeking to slow the En- sure them we are going to be here. get caught into a precise time limit at ergy bill down; he is prompted to do Sooner or later the speeches will run this time but my general sense is about this by the fact that the other side is out, and we will be here, and we will 30 minutes. scheduling this nominee for a vote, I take up the pending amendments on Mr. DOMENICI. Will the Senator understand, with no debate whatso- this bill. I have been told that by the yield? I will get right back to him. ever. Is that correct? leader unequivocally. I assume that is Mr. KENNEDY. That is fine. Mr. KENNEDY. Well, that is correct. true if only 60 Senators stick around. Mr. DOMENICI. Madam President, It is not the members of the Judiciary So long as we do not lose a quorum, I let me repeat—— Committee who are holding up the con- presume we are going to be here on Fri- Mr. KENNEDY. Madam President, I sideration of the Energy bill. It is the day, on Saturday, and on Monday to think I have the floor but I will yield decision to put before the Senate, finish this bill. Senators have their to the Senator from New Mexico for under the legitimate procedures of the rights, but we have an obligation to do whatever comment he wants to make. Senate, a cloture petition to have a this work. Mr. DOMENICI. I ask for a couple of vote on this nominee, effectively shut- I say to the distinguished whip, if he minutes, and it will not take any ting off all the debate. will call up the next amendment, I will longer. Quite clearly, my own belief is if we leave the floor and find out what the The PRESIDING OFFICER. Without had the time, and also had the time leader will do about this, and perhaps objection, it is so ordered. The Senator during the August recess, to complete we can come up with some accommoda- from New Mexico. the investigation which needs to be tion with reference to this issue. I Mr. DOMENICI. I thank the Senator. done on this nominee, the Senate thank Senator KENNEDY for his willing- First, I say judges are important, and would be much better informed, the ness to let me do that. speaking on behalf of or against judges American people would be much better The PRESIDING OFFICER. The Sen- is very important. I say that not only informed, and the judiciary would be ator from Massachusetts. to the Senators but to our majority much better served. That is not the de- Mr. KENNEDY. Madam President, I leader. It is also very important that cision of the leadership and, therefore, will proceed then. I just wish to indi- we pass an Energy bill. We have been we believed that as the day wore on, cate, as someone who also has been a waiting for weeks and weeks. This after 5, we would at least have an op- bill manager, I understand completely committee was asked to put a bill to- portunity, since this is an enormously the frustration the Senator from New gether. The Senator from New Mexico serious nominee for a very serious posi- Mexico has and his desire to move wants to get the Energy bill finished. tion and there are very serious charges, along. As Senator REID mentioned, we Clearly, I find nothing in the rules that to address the Senate. did not anticipate at the time this says the Senator from Massachusetts is Mr. SARBANES. Will the Senator nominee was reported out that we not entitled to make his speech of 30 yield for a further question? would have a vote so early in the con- minutes or up to an hour. I do believe Mr. KENNEDY. Yes. sideration. it is important, nonetheless, that Mr. SARBANES. It is my under- Then last week, the chairman of the somewhere along the line there be standing that twice this week, if I am committee made a very extensive some accommodation and that we pro- not mistaken, we have had to go off of statement about the nominee and also ceed to get the Energy bill finished. I the Energy bill, which we are being the procedures of the committee itself, understand there are four or five told we must move forward, in order to

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10218 CONGRESSIONAL RECORD — SENATE July 30, 2003 address other judgeship nominees who majority of the committee, including Texas especially since several Repub- had previously been voted on a number at least one member of the minority, is lican attorneys general have denounced of times. So we have been diverted off ready to vote on the nominee. the association as fraught with ethical the track of the Energy bill by these This rule, Rule 4, was adopted at the problems. judicial nominees, not of our doing but insistence of Senator HATCH, Senator Since Mr. Pryor had been identified because of the scheduling which the Thurmond, and other Republicans in publicly as a leader of the association’s other side has undertaken. 1979, when I was chairman of the Judi- efforts and the ethical issues raised by I know our assistant leader has been ciary Committee, as a reasonable pro- it, these issues are obviously relevant concerned about that as well, if I am tection for the minority. After the rule to his qualifications. Senator FEINGOLD not mistaken, in that regard. Is that was ignored in the Cook and Roberts asked the nominee about it at the June not correct? case, we thought we had resolved this 11 hearing. Until this point in the hear- Mr. KENNEDY. The Senator is cor- matter amicably and equitably. Both ing, Mr. Pryor was, in Senator HATCH’s rect. As the Senator remembers, I nominees were later confirmed based own words, ‘‘no shrinking violet.’’ He think those votes were in the late on a clear understanding that Demo- had been open and honest about his morning and even interrupted com- crats would not in the future be de- personal beliefs and ideological views. mittee work at that time, which many prived of their rule 4 rights. He did not retreat a single step or of us were involved in, let alone the After all, these rules were put in hedge his opinions. Nor were there any consideration of the Energy bill. place at the start of this Congress, ‘‘confirmation conversions’’ taking Mr. SARBANES. I thank the Sen- with the support of the Republican new views, contradicting old ones. Mr. ator. chairman of the committee, and now PRYOR was a model of outspokenness, Mr. KENNEDY. I thank the Senator we have seen a blatant and flagrant with clear recollections of the details from Maryland. disregard, which is not just an issue of of briefs, legal opinions, speeches, and The PRESIDING OFFICER. The Sen- procedure but affects the substance of other complex legal issues. ator from Massachusetts. this issue in a very important way. Only on the issue of the Republicans f Just as important is the reason why Attorney General Association were his Democrats were unwilling to vote on statements cramped and fudged, his NOMINATIONS this nomination in the committee. The recollections virtually nil. His answers Mr. KENNEDY. Mr. President, con- reporting of this nomination was to- were unresponsive and incomplete. trary to the widespread impression of a tally premature because the committee They raise serious questions about his partisan breakdown in the judicial was forced to move to a vote in the candor and truthfulness. He was asked nomination process, Democrats in this midst of a serious investigation of sub- a broad question reciting the allega- closely divided Senate have, in fact, stantive questions of candor and ethics tions against the association. He was tried our best to cooperate with the raised at the hearing by the nominee’s asked whether, if the allegations of so- President on judicial nominations. We own testimony, by his answers and liciting contributions from potential have largely succeeded, even though non-answers to the committee’s fol- target corporations are true, his own there are a handful of nominees who we lowup questions. role in the association would present at believe are too extreme. On Friday, Chairman HATCH pre- least an appearance of conflict of inter- Since President Bush’s inauguration, sented a version of the history of this est. His answer was what would have the Senate has confirmed 140 of his nomination and this investigation been called a ‘‘nondenial denial’’ in the nominees and so far blocked only 2. We which does not comport with the facts. Watergate days. He said the contribu- have said ‘‘no’’ in those cases partly I want to go through that history so tions were made to the Republican Na- because these few nominees were too the Senate can fully understand that tional Committee, not to the associa- extreme for lifetime judicial appoint- Democrats have proceeded expedi- tion. He said that ‘‘every one of these ments and partly because the White tiously and responsibly and that the contributions, every penny, was dis- House and the Senate majority have rush to judgment in the committee last closed [by the Republican National tried to jam the nominations through week was an effort to cut off an impor- Committee] every month.’’ the Senate without respect for the Sen- tant investigation. The full Senate de- The association’s own materials show ate’s advice and consent role under the serves to know its result before it con- that its contributions were being given Constitution and without respect for siders this nomination. to the association and that the writing the Senate rules and traditions. The basic facts on this issue are of checks to an aggregated account of The nomination of Mr. Pryor illus- straightforward. Democrats did not in- the Republican National Committee trates all of these issues. Even his ad- vent the issue. Years before this nomi- was merely a way to use a reporting vocates concede that his attitudes and nation, lengthy articles in Texas and loophole to mask the association’s con- beliefs are the very extreme of legal DC newspapers raised the question of tributions and the amounts of their thinking. I am confident that when the the propriety of the activities of the gifts. Members of the Senate and the public Republican Attorneys General Associa- Even more startling, Mr. Pryor’s as- fully understand and consider his prej- tion. sertion that every penny of the con- udices and attitudes, a majority of the It was reported that the organization tributions was disclosed by the Repub- Senate, with the strong support of the sought campaign contributions to sup- lican National Committee was a clear public, will agree that he does not port the election of Republican attor- misrepresentation. The fact is, the as- merit confirmation to a lifetime seat neys general because they would be sociation and its members have explic- on an appellate court that often has less aggressive than Democratic attor- itly refused to disclose the contribu- the last word on vital issues, not only neys general in challenging business tions. Republican National Committee for the 41⁄2 million people of Alabama interests for violations of the law. reports did not mention any associa- but also for the 8 million people of Some descriptions of this effort charac- tion funds, let alone every penny. Mr. Georgia and the 15 million people of terize it as a shakedown scheme. The Pryor’s statement raised a giant red Florida. In fact, this nomination does leaders of the association denied the flag. not belong on the Senate floor at this allegation but refused to disclose its Senator FEINGOLD immediately told time. contributors. They were able to main- the nominee there would be followup The Pryor nomination was reported tain secrecy by funneling the contribu- on this issue in written questions. On out of the committee as a result of a tions through an account at the Repub- June 17, Senator FEINGOLD and I both gross violation of the same committee lican National Committee that aggre- asked the followup questions. We gave rule of procedure which caused the gated various kinds of State campaign him an opportunity to review the pre- Cook and Roberts nominations to be contributions, thus avoiding separate vious answers and make them more re- held up in the Senate floor earlier this public reporting of the contributions or sponsive. He refused. He said: ‘‘I stand year. The Judiciary Committee has a the amount of these gifts. The issue re- by them.’’ We asked about other de- rule which clearly prevents the termi- ceived significant press coverage dur- tails of the association’s operation and nation of debate on a nominee unless a ing the 2002 U.S. Senate campaign in his specific role in it. Once again, his

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00048 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10219 answers were unresponsive and silent mittee. After a brief initial review to with the investigation plan. The day on key facts. assess the authenticity and relevance, before the meeting, all nine Demo- This careful lawyer could remember the material was turned over to the crats, having considered the informa- the most esoteric details of complex majority staff when the Senate re- tion available up to that point, wrote legal cases going back many years but turned from the recess. At the same to the chairman and informed him that could not remember a single company time, the chairman’s staff was fully the investigation was producing seri- or person he himself had solicited for briefed about the process by which the ous and disturbing information, that it the association. He could not recall materials had reached the committee. would require substantial addition whether any of the leading tobacco or Then, contrary to the chairman’s time, that his investigators were inter- other companies identified by the floor assertion, a bipartisan group of fering with it, and that after it was President were contributors. He could investigators questioned the source of complete, we would want to question not remember the name of a single as- material in detail. No question was the nominee under oath. sociation member or contributor or raised about the authenticity of the The Republican staff had offered whether he had ever personally re- materials. On the contrary, when the interviews with the nominee before ceived any of the campaign funds. joint staff shortly thereafter inter- that time, but the Democratic inves- Typical was this question and an- viewed the author of the document, she tigators had declined to participate swer: I asked, ‘‘To the extent that the confirmed the source had full access to until the basic investigative work had RAGA designated system funds were them. been done, and in any event, the Demo- transmitted to or through another en- The material was then distributed by cratic members wanted to question the tity, did that entity disclose publicly each side to each member. After re- nominee in person under oath at the the funds raised by or for RAGA?’’ viewing the documents, the minority appropriate time. His answer was a non-answer: ‘‘To requested that a bipartisan investiga- At the meeting on July 23, the chair- my knowledge, RAGA complied with tion be conducted. That investigation man rejected the minority’s request all the applicable campaign laws and was to begin July 15, with calls to the out of hand. He insisted on a vote on its operations. association’s former finance director the nomination without completion of He later said, ‘‘I never solicited for and executive director. Until then, not the investigation and without further RAGA a contribution from any person a single document had been dissemi- questioning of the nominee under oath. who has been the subject of an inves- nated outside the committee. That was the situation when Senator tigation or legal action of my office.’’ However, on that day, the majority LEAHY invoked the committee’s Rule He refused to say whether someone else gave the documents to the nominee IV to prevent a premature vote on the on behalf of the association had made and to the Justice Department. Some- nomination. The chairman refused to such solicitations. He refused to say one on the Republican side gave them follow Rule 4 and insisted on an imme- whether contributions came from com- to a strongly pro Pryor columnist on diate vote. panies his office might have inves- the Mobile Register newspaper. The The nine Democrats on the com- tigated, but did not. columnist called the former finance di- mittee voted against reporting the These issues that were raised about rector, a close Pryor ally and former nomination, and the 10 Republicans the telephone companies, about the campaign director. That call was made voted to report it, with one member of calls, about the meetings, about the before the investigators could reach the majority noting that his vote to re- breakfast meetings, who was there, her, warning her that she could expect port did not mean he would necessarily have all been left open. There is strong a call from the committee staff. Al- vote for the nominee on the floor. He evidence that is in conflict with what though the call to her did produce also noted that he would want to re- the nominee has presented. This is part some useful information, it also view the results of the investigation of the committee’s work in terms of marked the beginning of a consistent with the nominee before any floor vote. the future, to get to the bottom of this, effort by the majority investigators to Despite the lack of co-operation from in fairness to the nominee and so that interfere with the investigation. the majority staff, the investigation the Senate will be able to make its After the interviewee stated that she has continued. It has developed new in- judgment. might well have the files of the asso- formation which expands both the Senator HATCH’s floor statement ciation, the Democratic investigator scope and the gravity of the original made much of the number of times the requested she provide them to the com- concerns. It tends to show not only Pryor nomination appeared on the mittee. The Republican investigator that the nominee was not candid with committee’s agenda. In fact, the Pryor told her not to comply with the request the committee, but that his statements nomination was on the agenda for June and not even to comply with the re- may have been intended to obscure 19 but the listing was obviously pre- quest to at least begin searching for as- facts that would raise extremely seri- mature since the answers to our ques- sociation materials in her possession. ous ethical or legal questions about the tions had not even arrived. The an- The Mobile Register columnist dis- nominee’s activities. swers were received on June 25. Again, closed and discussed the documents on I raise these points because the Pryor was placed on the agenda for the July 16, and others in the press wrote chairman has suggested that these next day, but before any of us had a about them on the 17th. The committee issues are not serious. They are very, chance to examine his intricate web of had a brief discussion of the documents very serious. I do not know how it will answers, partial answers and non-an- on the 17th with the expectation that ultimately come out after the inves- swers. The nomination was obviously the just started investigation would tigation is complete, but as I said in not even close to ready for consider- continue on a bipartisan basis in ac- committee, the nomination comes to ation. Even our first look at the an- cordance with an investigative plan the floor with a ticking ethical time swers made clear there would have to provided to the majority. bomb which might explode at any mo- be further investigation, more followup However, at that point, the Repub- ment. questions. Even Senator HATCH real- lican investigative staff began inform- There is no doubt that this nomina- ized proceeding the next day would be ing the interviewees that the calls to tion is not ripe for a vote of the full inappropriate. them were not part of an official com- Senate. The committee majority was By this time, Pryor’s statements had mittee investigation, implying that not willing to finish its job before re- been widely reported and had come to they did not have to cooperate. porting the nomination to the Senate. the attention of many people who knew Between July 17 and July 23, many But that is no reason for the Senate to the facts and some who might cast calls were made in accordance with the allow the nomination to be voted on, light on the facts that Mr. Pryor could plan. Many of these calls did not reach before these matters are thoroughly re- not recall. On July 2, during the the parties called. viewed, and the nominee has re- Fourth of July recess, just before the By the time of the committee’s meet- sponded. long holiday weekend, extensive new ing scheduled for July 23rd, the inves- On the issue of the merits, Mr. Pryor material from one such source arrived tigators had just begun accumulating is simply too ideological to serve as a at the minority office in the com- significant information in accordance Federal court judge. The concern is not

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The Supreme Court has to argue to the Supreme Court that and his writings leave little doubt that held that Congress has broad power Congress has no power to make provi- he is committed to using the law not under the spending clause, but Mr. sions of the Clean Water Act enforce- simply to advance a ‘‘conservative’’ Pryor’s agenda would restrict able against the States. agenda, but a narrow and extreme, ide- Congress’s power under that clause. He Do we understand now? He was the ological agenda. has praised a district court’s decision only State attorney general, with 37 on Mr. Pryor’s record is clear. He is an to limit the ability of individuals to the other side, to submit an amicus aggressive supporter of rolling back enforce spending clause statutes. That brief opposing the remedy in the Vio- the power of Congress to remedy viola- decision would have reversed more lence Against Women Act; the only at- tions of civil rights; he is a vigorous than 60 years of Supreme Court prece- torney general to argue to the Supreme opponent of the constitutional right to dents, and it was rejected unanimously Court that Congress has no power to privacy and a woman’s right to choose; by the Sixth Circuit. Seventy-five con- make provisions of the Clean Water he is an aggressive advocate of the stitutional law scholars had joined a Act enforceable against the State. He death penalty, even for individuals who brief opposing the decision. Yet, Mr. had ridiculed the Supreme Court of the are mentally retarded. He is contemp- Pryor said that the District Court deci- United States for granting a temporary tuously dismissive of claims of racial sion was ‘‘sublime’’ and ‘‘brilliant.’’ stay of execution of a prisoner in a cap- bias in the application of the death He has even argued in a race dis- ital case who even the prosecution had penalty. He is an ardent opponent of crimination case that Alabama should noted was mentally retarded. The Elev- gay rights. not be subject to a lawsuit under title enth Circuit unanimously rejected his More than just disagreeing with VII of the Civil Rights Act of 1964. That arguments and stayed the execution of much of the Supreme Court’s jurispru- argument was unanimously rejected by the Alabama prisoner, and the pro- dence over the last 50 years on issues the Eleventh Circuit, because it would ponents of this nominee say he is in such as privacy, the death penalty, have reversed decades of settled Su- the mainstream? The mainstream of criminal justice, and the separation of preme Court law. It shows how far he thinking? church and state, Mr. Pryor has dedi- would go—trying even to limit Federal Mr. Pryor has vigorously opposed cated his advocacy and litigation to power to address race discrimination gun control laws. He says the victims rolling back widely accepted legal prin- under the 14th amendment, even of violence who sue gun dealers or ciples and laws. What we know about though combating race discrimination manufacturers failing to follow the Mr. Pryor leaves little doubt that he is the amendment’s very purpose. Federal law are ‘‘leftist bounty hunt- will try to advance that agenda if he’s These examples rebut the notion, re- ers.’’ confirmed as a Federal judge. peatedly urged by Mr. Pryor’s sup- He filed an amicus brief for the State At his hearing and in answers to porters, that Mr. Pryor is simply ‘‘fol- of Alabama opposing a law limiting written questions, Mr. Pryor, for the lowing the law’’ or that his views are possession of firearms. most part, adhered to his past, ex- within the mainstream. Again and In this case, a Federal district court treme, views. He did not renounce his again his statements and litigation po- judge dismissed an indictment against view that the Supreme Court’s deci- sitions make clear that his agenda to a man in Texas who had possessed a sions in Miranda v. Arizona and Roe v. ‘‘make the law’’, and again and again firearm while under a restraining order Wade were the worst examples of judi- his radical views to change decades of for domestic violence, in violation of cial activism or that the Roe decision Supreme Court jurisprudence are re- Federal law. The judge ruled that the was an abomination. What are we ex- jected by the Federal courts. law violated the second amendment. pected to believe? That despite the in- Mr. Pryor even seems to resist the Alabama was the only State to file an tensity with which he holds these application of Supreme Court decisions amicus brief in the Fifth Circuit. The views and the years he has devoted to with which he disagrees. In 2002, Mr. brief broadly argued that the Federal dismantling these legal rights, he will Pryor authored a friend-of-the-court Government’s interpretation of the still ‘‘follow the law’’ if he is confirmed brief to the Supreme Court arguing statute was so broad that it con- to the Eleventh Circuit? Repeating that it did not violate the eighth stituted a ‘‘sweeping and arbitrary in- that mantra again and again in the amendment to execute people who are fringement on the second amendment face of his extreme record does not mentally retarded. The Court rejected right to keep and bear arms.’’ make it credible that he will do so. his argument by a 6 to 3 vote in Atkins Mr. Pryor’s argument went far be- We know the cases that Mr. Pryor v. Virginia. Yet this past May, Mr. yond what the Fifth Circuit or any has won at the Supreme Court to nar- Pryor attempted to prevent a prisoner other court has held. The concern is row Federal rights, and the effect of with an IQ of 65—and whom even the that here again Mr. Pryor was using these cases on the lives of disabled prosecution had noted was mentally re- the attorney general’s office in Ala- workers—of breast cancer victims like tarded—from raising a claim under At- bama to advance his own personal ideo- Patricia Garrett—and of the many kins. The Eleventh Circuit unani- logical agenda in a Texas case, and older workers who face discrimination mously rejected Mr. Pryor’s argu- that he will continue this mission if his by State agencies. ments, and stayed the execution of the nomination is confirmed. Mr. Pryor’s agenda is more far-reach- Alabama prisoner. What he was trying to intervene on ing. He has consistently advocated Do you call that mainstream? Judi- was the fact that you have a law that views to narrow individual rights far cial mainstream? restricts the ability for someone to beyond what any court in this land has Mr. Pryor does not simply advocate bear an arm who is under a restraining been willing to hold. these views in public life. He has used order for domestic violence. Do we un- Just this term, his radical views were his position as Attorney General to ad- derstand this? State law has said peo- rejected by the Supreme Court. In its vance his own ideolgical agenda. His ple who are under restraining orders recent term, the Supreme Court re- State was one of only three States to for domestic violence should not bear jected his argument that States could submit an amicus brief in support of arms. Attorney General Pryor is say- not be sued for money damages for vio- Texas in the Lawrence case on gay ing, ‘‘Wait a minute. That violates the lating the Family and Medical Leave rights. His restrictive view of the con- second amendment.’’ And we are say- Act. The Court rejected his argument stitutional right of privacy and his ar- ing that this is in the mainstream of that States should be able to crim- gument that States should be allowed judicial thinking? A State law says inalize private sexual conduct between to criminalize homosexual activity that when you have domestic violence consenting adults. The Court also re- were rejected by the Supreme Court in and an individual is under a restraining jected his far-reaching argument that its decision last month. order, that individual can’t bear arms. counties should have the same immu- He was the only State attorney gen- He is trying to override it and you say nity from lawsuits that States have. eral—with 37 on the other side—to sub- that is in the mainstream?

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00050 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10221 Mr. Pryor has ridiculed the Supreme The PRESIDING OFFICER. The Sen- judge and the Senate having voted on Court of the United States for granting ator from New Mexico. the judge—whatever happens, a cloture a temporary stay of execution in a cap- Mr. DOMENICI. Madam President, is vote, approval, nonapproval, but the ital punishment case. Alabama is one the Senator from New Mexico recog- vote will be over, and we will be back of only two States in the Nation that nized? on the Energy bill. Then we will have uses the electric chair as its sole meth- The PRESIDING OFFICER. Yes, the nothing else before us. od of execution. The Court granted re- Senator is recognized. Straightforward, looking out to the view to determine whether the use of Mr. DOMENICI. Madam President, I public of America, looking across the the electric chair was cruel and un- conferred with the majority leader, and aisle to our friends and saying: You usual punishment. For Mr. Pryor, how- he is thinking about the situation we had it your way. Now, are we ready? ever, the Court should not have even are in. I would like to chat for a little Are we ready to go and finish the En- paused to consider this eighth amend- bit as one who greatly appreciates the ergy bill the American way? You can’t ment question. Senate, the committees, and the jobs have both of them. You can have one or Listen to this. He stated that the we all have and the job I have. the other. You can have one at a time issue ‘‘should not be decided by nine While the majority leader is thinking but you can’t have both at the same octogenarian lawyers who happen to about matters and deciding what to do, time. sit on the Supreme Court.’’ I want to talk a little bit about the sit- So I think it is pretty easy. I don’t He stated that the issue ‘‘should not uation. think it is the only way, though. I be decided by nine octogenarian law- First of all, let me say there is no think the majority and minority lead- yers who happen to sit on the Supreme question that the United States of ers can, in fact, reach an agreement. Court’’ of the United States. America needs an Energy bill and That is not the business of the Senator Talk about respect for the law and needs an Energy bill sooner rather from New Mexico but I believe they respect for the Supreme Court. All of than later. We have already passed the could reach an agreement. us know that the courts may support time to have an Energy bill. As far as Let me repeat, if nobody wants to our views at times. We may differ with I am concerned, whatever this inter- agree, and the Democrats want to the other courts. We just saw this in ference of a judge and a judge’s vote talk—and they have told us absolutely recent times when they made a deci- and Senators on the other side of the they have the right to talk, not about sion on the outcome of an election. aisle wanting to speak, the way I look the Energy bill, about a judge. And I Many had concerns about it. It was at it, I would let them all do it. In fact, am not being critical. There is a judge supported by the American people be- I would say to the Democratic Mem- nominee who they claim they want to cause of the great respect that we have bers of that committee, why don’t you talk about. I think they ought to talk for the Supreme Court. And he is talk- all speak? I would set up the vote on about it. I think they ought to talk ing about ‘‘nine octogenarian lawyers the judge at the earliest possible time right up until the time we vote. But who happen to sit on the Supreme under the rules, and let them speak if sooner or later we will vote on that Court.’’ we have to stay here all night. Let judge and then we ought to come back Mr. Pryor’s many inflammatory them all speak. Then we will have the to the Energy bill. Then we can tell the statements suggest that he lacks the judge out of the way sooner than later. public, clear and simple, there is no temperament to serve as a judge. He is Then we would just say to everybody, judge in the way, there is nothing in dismissive of concerns about fairness fine. One day we were supposed to be the way. Here we are, full speed ahead. and racial bias in capital punishment. debating the Energy bill and we de- We have as many days as we need. We He has stated: ‘‘make no mistake about bated the judge, so we will stay here an have Friday—well, that would still it, the death penalty moratorium extra day. I would just say, let’s start only be Thursday. We have the rest of movement is headed by an activist mi- tomorrow, and after you talk for the Thursday. We have Friday. We have nority with little concern for what is next 9 hours, instead of working on the Saturday. Then certainly some people really going on in our criminal justice Energy bill, let us go to work and let would not want to work on Sunday but system.’’ us do the Energy bill. That might mean then we could come back Monday. If Many of his statements reflect an instead of Friday we would be here Sat- the Democrats think we need 4 more alarmingly politicized view of the judi- urday. We would just substitute one days, we could have 4 more days. ciary—hardly appropriate for someone day called Saturday for a day called I, frankly, believe, without any who wants to serve as a Federal judge. Wednesday. Wednesday was the day we doubt, you can finish this Energy bill In a speech to the Federalist Society, ought to be working on the Energy bill, in a day and a half, and people can he praised the election of George Bush but there has been a decision to speak have all the time they want on impor- as the ‘‘last best hope for federalism’’ to a very important subject which the tant matters—maximum, 2 but you can and ended his speech with these words other side of the aisle has thought to finish it in 11⁄2 to 2 days. a ‘‘prayer for the next administration: be very important, and that is their So from this Senator’s standpoint—I Please God, no more Souters.’’ privilege. They think it is important to repeat, I do not speak for anyone but That is obviously a derogatory re- talk about a judge. I think it is impor- myself as the chairman of the Energy mark about a very distinguished jurist, tant that we in fact get an Energy bill. Committee and someone who has Justice Souter. I think there is only one way to do worked pretty hard to get a bill I think He was thankful for the Bush v. Gore both of them. That is to let the Demo- is pretty good but that I would like to decision because, as he said, ‘‘I wanted crats talk as long as they would like. If take to conference someday with the Governor Bush to have a full apprecia- they want to talk now, or want to talk House and get an Energy bill for the tion of the judiciary and judicial selec- for the rest of the night, or want to country. This bill does not please ev- tion so we can have no more appoint- talk right up until the time we are sup- erybody but it is pretty good. ments like Justice Souter.’’ posed to vote, then sooner or later that I have been pondering it, but I think I hope that his nomination will be re- vote will be over. That will be one of probably the best thing to do is to jected. the jobs we have in front of us. make arrangements to do them both, Madam President, I suggest the ab- Then I would turn to the next job we to do the judge and to do the bill. If sence of a quorum. have, and that is the Energy bill. If we that is what the other side wants, to The PRESIDING OFFICER. The don’t get to that until tomorrow morn- take the time that I think belongs to clerk will call the roll. ing, we will then be on the Energy bill. the Energy bill so they can speak, I The bill clerk proceeded to call the Then we will decide how much time we would say, let them do it. But that roll. want to take on the Energy bill. Then time will end. When that time ends, we Mr. KENNEDY. Madam President, I the public will know where we are. go to the Energy bill and then there ask unanimous consent that the order Everything will have been done: will not be any excuses—that will be it. for the quorum call be rescinded. Democrats will have gotten to talk all Whatever are the amendments—my The PRESIDING OFFICER. Without they wanted on a judge and the Repub- friend, the whip, has told me there are objection, it is so ordered. lican leader will have brought up the three or four more on the electricity

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00051 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10222 CONGRESSIONAL RECORD — SENATE July 30, 2003 section—let’s have them. We can do a woman from California by the name We are going to hear the ranking them whenever that time comes that I of Kuhl. So using the logic of the Sen- member of the committee, who, by the have just described, one after another, ator from New Mexico, then we would way, has been responsible for our ap- just like we have done. None have take and debate all day Thursday, and proving, during this administration, passed yet. That is not to say some will some of Friday, prior to the vote on 140 Federal judges. not in the future. that. We have turned down two. The Amer- Then we will go to the other ones, We have not caused the stops and ican public should know that. That is three of which are important to people starts on this bill. Not only have we the American way. One-hundred and but that do not even belong on this had stops and starts dealing with forty to two isn’t that bad. Anybody bill. And they are important. They are judges, which have slowed this up im- who has a basic knowledge of math un- going to take a lot of time. They lit- mensely, but we also have had thrown derstands those are pretty good odds. erally do not belong on this bill. in here two trade bills, the Singapore There is also a complaint that the So I have spent a lot of time so far. and Chile trade bills. We still have 6 distinguished ranking member has re- I am willing to spend a lot more. I hours to complete on that debate. quested votes on some of these judges. don’t think it needs 3 more days of the The public should know there is not Well, yes, and we have six judges now time of the Senator from New Mexico. a single Democrat who opposes an En- who could have been approved during I think it needs 2 days. But I can’t do ergy bill. We think this Energy bill is the 4 hours we are going to be wasting that so long as the other side wants to imperfect and there should be amend- on these cloture votes. In fact, we prob- talk about a judge. I can’t do both. The ments filed on it. We have not filed a ably could have done all of them in the public ought to know that. It just can’t single amendment that has been, in 4 hours set aside. Of course we could be done. any way, an effort to slow down this have. Having said that, let me repeat, let’s bill. There have been meaningful and The plaintive cries create no pity on do both. But let’s have an under- important debates, and every vote has our side. We are here ready to work on standing that when we are finished been extremely close. Had there been the Energy bill. If they don’t want Sen- with the judge—and the Democrats will not arm-twisting on the other side on ators from the Judiciary Committee have had all the time they needed to the Cantwell amendment and the Fein- and others speaking about Pryor, then talk about the judge; and that is fine; gold amendment—people in the well let’s not have a cloture vote tomorrow. we have the ranking member here; he wanted to vote with us but did not. As Let’s not have a cloture vote on Kuhl might want to talk about him—then we know what happens down here in on Friday. We can spend more time on we will go to the Energy bill, and we close votes, they were unable to vote the Energy bill. will stay here Friday and Saturday and with us. Until the majority leader under- Sunday and Monday and finish the En- These are not meaningless amend- stands that he is his own worst enemy, ergy bill. ments. They have been very important we are going to continue what we are I yield the floor. amendments. As I have explained on doing to protect the rights of the The PRESIDING OFFICER (Mr. several occasions, we have other American people because the public CHAMBLISS). The Senator from Nevada. amendments that are just as meaning- should know. Mr. REID. Mr. President, as the dis- ful as these that have been filed. The PRESIDING OFFICER. The Sen- tinguished Senator from New Mexico We have also heard my friend from ator from Vermont. said, the public should know. The pub- New Mexico say: We want to do this Mr. LEAHY. Mr. President, I must lic should know the following: The last the American way. I don’t know what say I completely agree with the senior 4 weeks the distinguished majority that means. But that is what this is. Senator from Nevada on this. The sen- leader has been saying we are going to We are in the Senate and we are doing ior Senator from New Mexico, who was complete the Energy bill in 1 week. For things the American way, as estab- in the Chamber, expressed concern 4 weeks, the minority has said: We can- lished by the U.S. Constitution. That is about time being taken talking about not do that. There is not enough time how we are going to do things. William Pryor’s nomination. We are to do that. We did not make the decision to have not the ones who scheduled William Last year, when we worked our way the parliamentary posture as it is. Pryor’s nomination in the middle of through this bill, there were 140-some That has been made by the majority the Energy bill. odd amendments. This year, we have leader. He has a right to do that, but he The distinguished senior Senator had stops and starts on this bill. The also has the obligation to know that from Utah, chairman of the Senate Ju- majority leader said we have been on it the stops and starts on this Energy bill diciary Committee, is in the Chamber. 16 days. Everyone knows that is simply has made it virtually impossible to He knows the concerns expressed by not factual. We have been on it days pass this bill. members of the committee that this but these were Fridays and Mondays Now, to have threats made—and that nomination was voted out of com- when nothing was going on here. is what they are: You are going to be mittee before investigations underway Now, the public should know that in here Friday afternoon; you are going to involving Mr. Pryor were completed. addition to having a difficult time fin- be here Saturday, Sunday, Monday, It is passingly strange that when we ishing this bill in 1 week, the majority Tuesday—well, that is the way it is. say that after the nomination has been leader has made the decision to sched- But always remember, any inconven- moved prematurely out of the Senate ule votes on judges. ience that is caused to the Democrats Judiciary Committee with pending The public should know that the vote will be caused to the Republicans also. questions, very serious questions in- we took today on Miguel Estrada was Remember, there are two more of them volving the conduct of that nominee the seventh time we have voted on this than there are of us, so they will have unresolved, but it gets sort of rocketed judge. There has not been a single vote a little extra inconvenience. onto the floor. Then we are asked to lie change all seven votes but yet the val- But this Senator and all 48 other down and just let it go through without uable time of the Senate was taken on Senators who are here in the minority even saying why we object. this wasteful exercise. are willing to work to complete what- First, the rules of the Senate Judici- We also voted, for the third time, on ever work needs to be done. But we are ary Committee itself were violated. Justice Owen from Texas. Votes have not going to be rushed into voting for Rule 4 was violated. The matter is still not changed on that. Also, another a judge such as the man from Alabama coming up. The distinguished majority waste of time. who has been hustled out of the Com- leader and the distinguished Demo- My friend from New Mexico says: mittee of the Judiciary without proper cratic leader had a conversation in Well, let’s finish the debate on Pryor debate in the committee itself. We are which the distinguished majority lead- and then go to energy. The problem going to have proper debate in the Sen- er assured us that this would never with that is, we have been told there is ate. We are going to have the American happen again. Within a few weeks of going to be another cloture motion people know because the public should that assurance, it happens again, an as- filed on a judge. There has been no know. We are going to do it the Amer- surance that no nomination of this na- time spent on the floor on her, either, ican way. ture would come up if it was sent out

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Today, Republican Senators have an- scheduling rollcall votes on these Well, it is true; 2 out of 140 have been. other chance to do what they have not nominees and making further bipar- But at the same time, they want to yet done and what this administration tisan progress. Instead, we waste time quietly voice vote all these other has not yet done—disavow this cam- on cloture motion after cloture motion judges through so that nobody will no- paign of division and those who have after another cloture motion in con- tice that we are passing judges. One of played wedge politics with religion. I nection with the most controversial of the reasons we have asked for rollcall hope the Republican leadership of the this President’s nominees. Now I find votes on a number of them is to show Senate and of the Judiciary Committee out why. I am told by members of the how easy it is to pass a judge where will finally disavow the contention press that the Republicans said this there is a consensus. that any Senator is being motivated in was supposed to be our issue this week. In those rare instances where people any way by religious bigotry, just as I We are not getting appropriations bills have actually been consulted about a and others on this side of the aisle have done, we are not going to finish the En- judge and where a judge has been nomi- defended members of the Republican ergy bill, or do anything else, so we are nated who is not going to be an ideo- side of the aisle when they have been going to tie up the Senate with a num- logical arm of either political party attacked on their religion. We find it ber of cloture votes. Then they all went but, rather, be an independent judge, so painful that not only do they remain out with their talking points with they go through easily. silent when people on this side of the members of the press to tell them how In this case, the Republican leader- aisle are attacked on their religion but terrible it was that we were having ship—not the Democratic leadership, in some instances have even continued these votes, which they scheduled. the Republican leadership—filed a clo- the attack in statements they have Mr. DORGAN. Will the Senator from ture motion on the nomination of Wil- made outside this Chamber. Vermont yield for a question? liam Pryor to the Eleventh Circuit. So When we began debate on the nomi- Mr. LEAHY. Yes. we are going to have this premature nation of Miguel Estrada in February, Mr. DORGAN. I listened to some of debate. I made a similar request with respect the complaints on the floor recently I hope there is one aspect on which to the charges that Senators were while I was in my office. They were we can get closure in the Senate. In being anti-Hispanic. The other side concerned about not moving ahead on connection with this nomination, sup- never withdrew that ridiculous charge. energy. I guess the obvious question porters of the administration have lev- Instead, the special interest groups and is—we didn’t bring up the judge; we are eled the unfounded charges that Demo- others trying to intimidate the Senate not requiring a vote on the judge; we cratic Senators are anti-Catholic. This into voting on that nomination broad- are not requiring a vote on the trade charge is despicable. I have waited pa- ened the attack to include Hispanic agreements; and there is no require- tiently for more than 2 years for Re- members of the Congressional Hispanic ment to vote on the trade agreements publican Senators to disavow such Caucus, MALDEF, the Puerto Rican this week. There is no requirement to charges. So far, only one has, the dis- Legal Defense and Education Fund, vote on this judge this week. So isn’t tinguished Presiding Officer. This is a past presidents of the Hispanic Na- the proposition that those who are despicable, slanderous charge. It is one tional Bar Association, and many other scheduling this place, who insist on a calculated to throw us back into a time Hispanic and civil rights organizations vote on a judge, insist on bringing up that maybe some in this Chamber may that opposed the Estrada nomination. trade agreements in the middle of the not remember. Some of us have parents It was so bad that one Hispanic organi- discussion on energy, isn’t that what is who do remember when anti-Catholic zation that supported Miguel Estrada causing the delay? bias ran rampant in this country. issued a statement that the charge was Mr. LEAHY. Mr. President, the Sen- It is outrageous, of course, that Re- wrong, that they certainly didn’t be- ator is absolutely right. The distin- publicans will not knock down these lieve it applied to any Member of the guished assistant Democratic leader slanderous charges of anti-Catholicism Senate, and urged the Republicans to pointed out just a short while ago that and allow them to go forward. This stop it. we have had a number of votes on the slander and the ads recently run by a They didn’t, but they were urged by Energy bill, which were very close group headed by the President’s fa- other Hispanic groups to stop it. The votes, which could have gone either ther’s former White House counsel and demagoguery, divisive and partisan way. We had a good debate going and a group whose funding includes money politics being so cynically used by sup- we were actually voting. Now, instead raised by Republican Senators and the porters of the President’s most ex- we spend more time in quorum calls President’s family are personally offen- treme judicial nominees needs to stop. and bringing up judicial votes that are sive. They have no place in this debate There are at least five judicial nomina- not going anywhere. or anywhere else. tions on the Executive Calendar on I must say to my friend from North For a charge of anti-Catholicism to which we can join as Democrats and Dakota, as ranking member of the Ju- be leveled against any Member of this Republicans. I would be willing to bet diciary Committee, if we would have Chamber, Republican or Democratic, is that they would be confirmed by an taken the time that has been wasted on wrong. But for those who stay silent overwhelming vote. things not going anywhere, if we had and allow it to go forward, who take I remember when we had a circuit taken time to vote through some of the part in it, the only way for a lie to get court of appeals judge nominated by judges, where I believe we could get traction is for people to remain silent. President Bush. For a month, the consensus of both Democrats and Re- And those who could stop this lie in a Democrats tried to get a vote on that publicans, and vote and confirm them hurry remain silent. nominee. For a month, one Republican and let them go to the bench, that I challenged the Republican Senators had an anonymous hold and refused a would be a better way. We spent a on the Judiciary Committee who are so vote to go forward. There are people we whole month, as I mentioned, trying to fond of castigating special interest could vote on. Why don’t they? We get the Republicans to allow a vote on groups and condemning every critical took a month to get the Republicans to Judge Edward Prado for a circuit court statement of a Republican nominee as release the anonymous hold on Judge of appeals position. He had been nomi- being somehow a partisan sneer, to Edward Prado, who was nominated by nated by President Bush and was condemn this ad campaign and the in- President Bush. Interestingly enough, I strongly supported by President Bush. junction of religion into these matters. finally found out why. They didn’t For a month, they blocked it from Only the junior Senator from Georgia want a vote. They wanted to attack us going to a vote. We found out after- now presiding responded to that chal- for not voting on him, even though we ward it was because they went to the lenge. Other Republican members of were the ones asking to vote on him. It same members of the press they have

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Most of the power Texas, could have been voted on. The inquiring of the Senator from company lobbyists were saying to the Republicans have made no effort to Vermont, is it the case, then, that leadership on the other side that you bring them up, even though we told there are judge candidates that could cannot allow that to go through, and them they could. H. Brent McKnight, be brought to the Senate floor without votes were being changed. It came of North Carolina—these are people we any controversy at all, which would re- within two votes. would allow to being brought up. We quire very little time? Those are not I agree with the Senator from North would allow the home State Senators the ones brought to the floor. Very Dakota that people are going to look in to take a few minutes to speak about controversial nominations are brought the rear view mirror and say Senator them. In fact, they could bring them to the Senate floor, and complaints CANTWELL was right, and that should all up and do them in a stack of 10- arise because someone wants to debate have been allowed to go through. minute rollcall votes. They would have it. Isn’t it the point that we didn’t Mr. DORGAN. If the Senator will gone through in the amount of time of bring this judgeship to the floor for a yield further, and I am sorry to con- some our quorum calls today. cloture vote? tinue to inquire, at this point, is there Mr. DORGAN. Mr. President, if I may Mr. LEAHY. No. In fact, I say to my a cloture vote that is now scheduled on address the Senator from Vermont friend that the one time we did try to Mr. Pryor? Is there a vote scheduled with one final inquiry, it seems to me bring one of President Bush’s circuit and, if so, when is it scheduled? if the issue in the Senate is we have court nominees to the floor and ask to Mr. LEAHY. Mr. President, it is limited time and we have a substantial have him considered, for a month we scheduled for tomorrow under the nor- amount of work to do on energy—I was were not allowed to because the Repub- mal circumstances, unless there has at the White House yesterday. Presi- licans objected. I have not done a whip been an agreement entered into other- dent Bush called a number of us down check, but I am willing to bet that if wise. That would be an hour after we to the White House to talk about the we brought them to a vote, and they come into session. Unless the estab- urgent need to pass this Energy bill. If are on the calendar now, they would lished quorum is waived, we could go to that is, in fact, the case—and I believe get confirmed. Even in the time we a vote. it is and the majority leader has said it have had quorum calls and discussions Mr. DORGAN. Mr. President, I in- is—in order to get back on this Energy on this today, we could have brought quire further, if a cloture motion has bill, it seems to me what we should them up and had a series of 10-minute been filed and it ripens tomorrow and do—and I encourage the majority lead- rollcall votes. And I am willing to bet we presumably would have a cloture er to do this—is vitiate the cloture we would have passed them all. vote on this nomination tomorrow, for vote on the judgeship. We do not need Mr. DORGAN. The Senator indicated those tonight who are concerned about to do it this week. We all know we do we were dealing with very important not moving ahead on energy, we could not. He can decide we do not have to issues today. Indeed we were. I mention resolve that by vitiating the cloture bring up the two free-trade agreements the Cantwell amendment, which lost motion vote tomorrow. this week. There is nothing urgent by two votes. It was a very significant I was sitting in my office listening to about those agreements. That need not amendment which I think, in the rear those complaining that we are not be done this week. view mirror of public policy, will turn moving ahead on energy, under- If the President is correct—and I be- out to be one of the most important standing it was not us who brought lieve he is—and if the majority leader amendments turned down by the Sen- this judgeship forward. We did not put is correct—and I believe he is—that ate dealing with energy. forward the proposal that we have to this Energy bill ought to move, it is ur- We know what is happening on the do two free-trade agreements this gent public business, then let’s move west coast. Firms bilked people out of week. back to the Energy bill and do it now. billions of dollars. There is substantial It seems to me, at least with respect I encourage the majority leader to criminal investigation still ongoing to the judgeships, perhaps what ought make that decision. and the proposition today on the En- to be done is unanimous consent ought Mr. SANTORUM. Will the Senator ergy bill was important: Will there be to be entertained to vitiate the cloture from Vermont yield? adequate protections for consumers, vote tomorrow on this judge and move Mr. DORGAN. The Senator from and will we do something about the on. After all, there is no reason that we Vermont has the time. I thank the scandals that occurred on the west have to vote on this judge tomorrow. Senator from Vermont for yielding to coast and stand up and support the in- This nomination has not been waiting me. I, again, say to the majority lead- terests of consumers and prevent ma- a great length of time. It can be done er, I do not want to hear people com- nipulation of energy markets? That in September. For those who are wor- plaining about the fact that we are not amendment failed by two votes. There ried about moving ahead on energy— on the Energy bill. We are not making was a significant debate, a big amend- and we should—it seems to me what we progress on the bill because the major- ment. These are big, important issues. probably ought to do is join together ity leader and others said we have to The question is, Why are we not con- and vitiate this cloture vote, move on, move to the judgeships and then move tinuing to work on the Energy bill? and continue with the Energy bill to- to the trade agreements. What interrupted it? Have we done night. Does the Senator think that is The fact is, they are the ones taking that or has someone else brought some- an appropriate course? us off the Energy bill, not us. We ought thing else to the floor of the Senate? Mr. LEAHY. Mr. President, I tell my to offer the next amendment right now Mr. LEAHY. Mr. President, I answer friend from North Dakota, not only on the Energy bill and vitiate the clo- my friend from North Dakota that we would it be an appropriate course be- ture vote tomorrow morning on the have been willing to move forward on cause cloture is not going to be in- judgeship. That will solve the problem. amendments on the Energy bill. We are voked primarily because, for one major The PRESIDING OFFICER. The Sen- not the ones who brought up the extra- reason because of his qualifications, ator may yield for questions but not neous cloture votes which are not but also because the rules of the Judi- for comments. The Senator from going anywhere. Maybe some want to ciary Committee were not followed in Vermont has the floor. get off the Energy bill. I note that the having this nomination go out. Mr. LEAHY. Mr. President, the dis- distinguished Senator mentioned Sen- We could very well at that time, if we tinguished Senator from Pennsylvania ator CANTWELL’s amendment. I was want to get judges through, not have has asked if I will yield for a question. very proud to support that amendment. this cloture vote, which is not going to I will yield without losing my right to

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00054 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10225 the floor or my right to reclaim the the Senate—almost three decades—I The PRESIDING OFFICER. The ob- floor within 1 minute. find usually if we stay on a bill that is jection is heard. Mr. SANTORUM. Mr. President, I your important bill, if you do not keep Mr. LEAHY. Mr. President, then I ask if the Senator from North Dakota going off it for the trade agreements will continue my speech. and the Senator from Vermont will about which the Senator from North Mr. HATCH. Mr. President, reserving agree to a unanimous consent request Dakota spoke, or these various cloture the right to object. that we have a final vote on the Energy motions, if we keep going off these The PRESIDING OFFICER. Objec- bill by noon on Friday and in exchange bills, then nobody feels the pressure to tion has been heard. for that, we will vitiate the cloture work things out. Does the Senator from Pennsylvania votes on the two judges that are in the On the other hand, if we just stay on withdraw his objection? queue right now. I think we can prob- the bill and people bring up amend- Mr. SANTORUM. No, I do not. ably get unanimous consent on that on ments, we will find which ones are Mr. LEAHY. Mr. President, then I our side fairly quickly. close amendments and actually have a would—— If the Senator from North Dakota chance of being adopted and which ones Mr. HATCH. Parliamentary inquiry. agrees with that, we will be happy to are not going to be adopted. Usually The PRESIDING OFFICER. The Sen- move forward. the Republican and Democratic leader- ator will state his parliamentary in- Mr. LEAHY. Mr. President, I have ship get together and whittle down the quiry. the floor. I am not on the Energy Com- finite number. Then, as the Senator Mr. HATCH. Could I ask how much mittee. from Pennsylvania suggested, we are time the distinguished Senator from Mr. SANTORUM. I think that is what usually in the position to find a time California desires? the Senator from North Dakota sug- for a final vote. Mrs. FEINSTEIN. I do not think gested. My suggestion is that we use what he more than 10 or 12 minutes. Mr. DORGAN. Mr. President, if has suggested but stay on the Energy Mr. HATCH. My personal belief is we the—— bill, work toward a finite list of amend- ought to let her go ahead, and I would The PRESIDING OFFICER. The Sen- ments. We will then know when they encourage my colleague to do that. ator from Vermont has the floor. are going to take place and how much Mr. LEAHY. Mr. President, I would Mr. LEAHY. Mr. President, let me re- time they are going to take. And then renew my—— Mr. HATCH. I ask unanimous consent spond this way. I have been in the Sen- we will know when we are going to that we—— ate for 29 years. I love the Senate. I have final passage. We can do that and Mr. LEAHY. I have the floor. I would love following our normal course of then go back to anything else they renew my request. doing business. The Senator from want. Mr. HATCH. Would the Senator add Pennsylvania has raised an appropriate If we are going to keep going back to that I be given time? question. I suggest that is a question these judges—as I said, we so far Mr. LEAHY. Along with the distin- that should be directed to the Repub- stopped two of President Bush’s judges guished senior Senator from Utah, I lican leader and the Democratic leader and confirmed 140, unlike the 60 of renew my request that I be allowed to and the chairman and the ranking President Clinton’s judges who were yield now to the distinguished senior member of the committee, which is the stopped by the Republicans, usually be- normal course of doing business, the Senator from California. cause someone objected anonymously. Mr. HATCH. I add to that, when the way we have always done it. Naturally, We have done it out here on the floor distinguished Senator from California I would be guided by the direction of where we stood up on the nomination. is finished I would be granted the floor the Republican and Democratic lead- I am one Senator who actually takes for my remarks. ers, not only in the Senate but in the seriously the role of the Senate. There Mr. LEAHY. For how long? committee. are only 100 of us, and we are given the The PRESIDING OFFICER. Is there Obviously, I am not in a position to privilege to represent 270 million objection? speak for the Republican or Demo- Americans. But we also have a very Mr. REID. Reserving the right to ob- cratic leaders or the Republican chair- unique place. There is no other par- ject. man or Democratic ranking member on liamentary body in the world quite like Mr. HATCH. I have no idea. this issue. The Senator from Pennsyl- the Senate. We have this unique spot The PRESIDING OFFICER. Is there vania is perfectly within his rights in where we have checks and balances, es- objection? raising the issue, and I hope that might pecially on confirmations. The Con- Mr. DURBIN. I object. prompt a discussion with them. stitution does not say advise and The PRESIDING OFFICER. The Sen- Mr. DORGAN. Mr. President, I ask rubberstamp; it says advise and con- ator from Illinois objects. the Senator to yield for one more ques- sent. Mr. DURBIN. I reserve the right to tion. Nobody should underestimate our object, Mr. President. I inquire of the Mr. LEAHY. I yield. commitment to the independence of Senator from Utah how much time he Mr. DORGAN. Mr. President, I ask the Federal judiciary and to our con- would want to be recognized. the Senator, would it make the most stitutional duty to advise and consent Mr. HATCH. I do not have an exact sense to have a final vote on the En- on these lifetime appointments. No- time, but I would hope not too long. ergy bill when we have finished our body should underestimate our com- Mr. DURBIN. Well, if the Senator work on the Energy bill? And wouldn’t mitment to the protection of the rights from Utah would give me a fair ap- that best be accommodated by not of all Americans—Republicans and proximation so I can request to follow going off and on to come up with judge- Democrats, Independents—in every him in speaking order, that is all I am ships and trade agreements? Wouldn’t part of this Nation. asking for. the best approach to reaching a final The Senate was intended to serve as Mr. HATCH. I would estimate up to vote on the Energy bill be to stop a check and balance in our unique sys- an hour. bringing to the floor of the Senate tem of Government. We fail our oaths Mr. REID. Objection. other business, business that need not of office as Senators if we allow the The PRESIDING OFFICER. The ob- be done now? Federal judiciary to be politicized, if jection is heard. Mr. LEAHY. Mr. President, I will an- we cast votes that would remove their Mr. HATCH. Then I will ask for the swer this way: We have diverted some 6 independence. floor when the distinguished Senator to 10 hours off the Energy bill now. I Mr. President, I ask unanimous con- from Vermont ends his remarks. see my friend, the senior Senator from sent that it be in order to yield to the The PRESIDING OFFICER. The Sen- Nevada. I know over the years he has distinguished senior Senator from Cali- ator from Vermont has the floor. worked very closely with his counter- fornia. Mr. REID. Will the Senator from part on the Republican side and usu- The PRESIDING OFFICER. Is there Vermont yield for a question? ally tried to work out a finite list of objection? Mr. LEAHY. I yield to the distin- amendments to the Energy bill. Again, Mr. SANTORUM. Mr. President, I ob- guished senior Senator from Nevada for based on my experience, my years in ject. a question.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00055 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10226 CONGRESSIONAL RECORD — SENATE July 30, 2003 Mr. REID. I say to the Senator from am wondering who wants to speak Mr. DORGAN. No, that is not the Vermont, it is my understanding that after the Senator from Utah. I am try- case. the Senator has approximately 15 or 20 ing to figure out how to balance this Mr. SANTORUM. As a result, that minutes on his speech. What the Sen- out fairly. was not accomplished. The Senator ator wanted to do is yield to the Sen- We recognize that Senator KENNEDY from South Dakota said that was not ator from California for 10 or 12 min- spoke for 20 minutes or so. acceptable, so as a result we are now utes, I think she said. Then it is my un- Mr. HATCH. He spoke for half an stuck on what seemingly some Mem- derstanding that the request was the hour. bers of this Chamber would like to talk Senator from Utah be recognized for up Mr. LEAHY. Mr. President, I suggest about. to an hour, and then following that I to my colleagues that we do this, as we Mr. DORGAN. Mr. President, con- would like to modify the request that have offered before: We allow the Sen- tinuing to reserve the right to object. the Senator from Illinois be recognized ator from California to speak, and then The PRESIDING OFFICER. The Sen- for up to 45 minutes the Senator from Utah, and then, as we ator from Vermont has the floor. Mr. SANTORUM. Mr. President, I ob- have done before, we go back and forth. Mr. LEAHY. I renew my request. ject. Mr. REID. I do not think we should The PRESIDING OFFICER. Is there The PRESIDING OFFICER. The Sen- go back and forth. Whoever gets recog- objection? ator from Nevada cannot propound a nized should speak after the Senator Mr. DORGAN. I continue my reserva- unanimous consent request. He does from Utah. tion to object. Let me just say that I not have the floor. The Senator from Mr. SANTORUM. That is fine. speak fairly well for myself on this Vermont does. Mr. LEAHY. I ask unanimous con- floor, and I have never suggested that Mr. LEAHY. Mr. President, on behalf sent that it be in order to recognize the in exchange for anything we have a of both myself and the Senator from Senator from California, and then be in time certain. What I suggested is that Utah, Mr. HATCH, I ask unanimous con- order to recognize the Senator from if we want to finish this Energy bill, we sent that the distinguished Senator Utah, Mr. HATCH. be able to offer the amendments on the from California be recognized for no The PRESIDING OFFICER. Is there title and debate the amendments. We more than 15 minutes; the distin- objection? are not going to get to that point if we guished Senator from Utah be recog- Mr. DORGAN. Reserving the right to keep interrupting the Energy bill with nized for up to an hour; and then the object. judges and trade agreements. The PRESIDING OFFICER. The Sen- distinguished senior Senator from Illi- If we believe this is urgent—and the ator from North Dakota. nois be recognized for up to 40 minutes. President says it is, I believe it is, oth- Mr. DORGAN. Mr. President, as I un- The PRESIDING OFFICER. Is there ers believe it is—let’s get back to it derstand the unanimous consent re- objection? this moment. Let’s vitiate the cloture Mr. SANTORUM. I object. quest, we are now moving forward to vote tomorrow on the judgeship. Let’s The PRESIDING OFFICER. The ob- debate this judgeship so that we can hold over the free-trade agreements jection is heard. have a cloture vote in the morning, until September and decide this is im- Several Senators addressed the much to the angst of many who believe portant, as we have always said it was, Chair. we should be on the electricity title of and move to finish this Energy bill. I The PRESIDING OFFICER. The Sen- the Energy bill. So I ask when is it in am not talking about a time certain. ator from Vermont has the floor. order for us to ask unanimous consent The time for finishing it is when we Mr. LEAHY. Mr. President, I tried to to vitiate the cloture vote in the morn- finish the amendments, have debate on accommodate the Senator from Utah. ing so we might do what every one of the amendments, and have votes on the Mr. HATCH. Who is trying to accom- us in this Chamber knows we should be amendments. modate the Senator from Vermont. doing, and that is be back on the en- Mr. LEAHY. Who is trying to accom- ergy title to try to finish the Energy We can do that if I ask unanimous modate the Senator from Vermont. I bill? consent to vitiate the cloture vote to- will try to do that even though the I ask the Presiding Officer when morrow, but I guess I cannot do that Senator from Utah wants to speak might it be in order for me to seek under a reservation of objection. longer than I thought. But he is, after unanimous consent to vitiate the clo- The PRESIDING OFFICER. Is there all, the chairman of the committee. I ture vote tomorrow morning so we can objection to the unanimous consent re- was willing to stop my speech at this get back to the Energy bill now? quest of the Senator from Vermont? point to accommodate him. We have The PRESIDING OFFICER. The Sen- Mr. LEAHY. Mr. President, I will probably taken longer in making these ator can make a unanimous consent at withhold my request for the moment unanimous consent requests. any time he gains the floor in his own without losing my right to the floor so Mr. HATCH. I have a suggestion. Why right. that the Senator from Utah might does not the distinguished Senator end Mr. DORGAN. Would that include the make a point. his speech and we will go to the distin- time during a reservation of another The PRESIDING OFFICER. Without guished Senator from California before unanimous consent request? objection. me, and then I will try to be less than The PRESIDING OFFICER. No, it Mr. HATCH. Reserving my right to an hour? would not. object, Mr. President, it is not unusual Mr. LEAHY. Mr. President, I ask The Senator from Vermont. to have multiple matters heard by the that that be the order; that I complete Mr. LEAHY. Mr. President, I would Senate. It is certainly not unusual to my speech, yield to the Senator from renew any request. have cloture votes on judges, especially California, and then the Senator from The PRESIDING OFFICER. Is there under the current situation. I would be Utah be recognized. objection? happy to quit debating General Pryor The PRESIDING OFFICER. Is there Mr. SANTORUM. Reserving the right tonight, even though there has been objection? to object. probably close to an hour of the Sen- Mr. REID. Reserving the right to ob- The PRESIDING OFFICER. The Sen- ate’s time utilized on this debate, and ject. ator from Pennsylvania. just go to the cloture vote tomorrow, The PRESIDING OFFICER. The Sen- Mr. SANTORUM. I say for the pur- quit playing around with the Energy ator from Nevada. pose of edification of the Senator from bill that we know is being slow-walked, Mr. REID. I have spoken to the dis- North Dakota, the two leaders have and try to finish the Energy bill before tinguished junior Senator from Penn- met and talked and our leader went to the end of this week. sylvania. He said the reason he ob- the Democratic leader and actually There is no excuse for not having a jected is because he felt it was an un- suggested to do just that, vitiate in ex- cloture vote on Judge Pryor or Judge equal distribution of time. If that is change for a time certain this week to Kuhl on Friday. the case, we want to make sure there is finish this bill, which is what I know Mr. LEAHY. Mr. President, regaining an equal distribution of time. Through the Senator from North Dakota was my right to the floor, I probably could the chair, to the Senator from Utah, I looking to do. have completed my speech during this

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00056 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10227 time, but I was trying to save every- erous to the Administration’s efforts to [From the Tuscaloosanews.com, May 4, 2003] body some time. I was trying to accom- pack the courts, termed Mr. PRYOR PRYOR’S OPINION GOES BEYOND MAINSTREAM modate the distinguished senior Sen- ‘‘unfit’’. Both the Tuscaloosa News and Attorney General Bill Pryor’s opinion that ator from Utah, who is the chairman. I the Hunstville Times wrote in early lumps homosexuality in with abusive crimes think everybody has agreed now to the May against the nomination. Other such as child pornography, bestiality, incest editorial boards across the country and pedophilia puts him well within the request I have made. camp of recent nominees to the federal I would renew my request that the spoke out, including the San Jose Mer- bench but well outside the mainstream of distinguished Senator from California cury News and the Pittsburgh Post-Ga- American life. be recognized, the ball then goes back zette. Since the hearing, that chorus of Pryor was nominated by President Bush to to the distinguished Senator from opposition has only grown and now in- a seat on the U.S. Court of Appeals for the Utah. cludes the New York Times, the 11th Circuit, which has jurisdiction over Ala- The PRESIDING OFFICER. Is there Charleston Gazette, the Arizona Daily bama, Georgia and Florida. A legal argument Pryor wrote earlier this year, which just objection? Star and the Los Angeles Times. I ask unanimous consent to print the full came to light last week, parallels comments Mr. SARBANES. Reserving the right by Sen. Rick Santorum, that landed the to object. package of these editorials and op-eds Pennsylvania Republican in hot water re- The PRESIDING OFFICER. The Sen- in the RECORD. cently. ator from Maryland. There being no objection, the mate- The amicus brief, penned by Pryor and Mr. SARBANES. I am prompted to do rial was ordered to be printed in the signed by attorneys for South Carolina and this by the statement of the chairman RECORD, as follows: Utah, declared that states’ support for the [From the Washington Post, April 11, 2003] Texas sodomy law in the Supreme Court case of the Judiciary Committee. of Lawrence vs. Texas, which the court is ex- UNFIT TO JUDGE It is outrageous you should suggest pected to decide in June or July. Pryor ar- you would schedule the judge for to- President Bush must have worked hard to gues the Texas law should be upheld, other- morrow on a cloture vote and not pro- dream up an escalation of the judicial nomi- wise constitutional protections ‘‘must logi- vide time for debate, which is the issue nation wars as dramatic as his decision this cally extend to activities like prostitution, week to nominate Alabama Attorney Gen- adultery, necrophilia, bestiality, possession that is at stake here. We need the de- eral Bill Pryor to the U.S. Court of Appeals bate on the judge, and then you say, of child pornography, and even incest and for the 11th Circuit. A protege of Alabama pedophilia (if the child should credibly claim well, you are interfering with the Republican Sen. Jeff Sessions, Mr. Pryor is a to be ‘willing’).’’ progress of the Energy bill. parody of what Democrats imagine Mr. Bush Hardly so. Who was it who scheduled the judge to be plotting for the federal courts. We have It is a long step from sanctioning, or even for tomorrow? That is where the intru- argued strongly in favor of several Mr. tolerating, consensual private activity be- sion came in terms of the process of Bush’s nominees—and urged fair and swift tween two adults to permitting abusive consideration of all. And we have criticized dealing with the Energy bill. crimes such as pedophilia. The law is per- Democratic attacks on nominees of sub- fectly capable of drawing such distinctions Mr. HATCH. People have a right to stance and quality. But we have also urged in theory and in practice. schedule the judge. Mr. Bush to look for common ground on judi- We have cautiously supported Pryor’s Mr. SARBANES. And at the same cial nominations, to address legitimate nomination, while taking issue with a num- time assert that you have to pass the Democratic grievances and to seek nominees ber of his controversial positions. These in- Energy bill. of such stature as defies political objection. clude his defense of state Supreme Court Mr. HATCH. This is the first time we The Pryor nomination shows that Mr. Bush Chief Justice Roy Moore’s decision to dis- have ever—— has other ideas. play the Ten Commandments in the state Mr. Pryor is probably best known as a zeal- Judicial Building, his opposition to multi- The PRESIDING OFFICER. The Sen- ous advocate of relaxing the wall between state lawsuits against tobacco companies ator from Vermont has the floor. Is church and state. He teamed up with one of and his defense of utility companies in up- there an objection to the unanimous Pat Robertson’s organizations in a court ef- grading their coal-fired power plants without consent? fort to defend student-led prayer in public adding new pollution control devices. Mr. DORGAN. I object. schools, and he has vocally defended Ala- Several of Bush’s nominees for federal The PRESIDING OFFICER (Mr. bama’s chief justice, who has insisted on dis- bench hold extreme anti-gay views. Timony playing the Ten Commandments in state Tymkovich, confirmed to an appeals court COLEMAN). The objection is heard. court facilities. But his career is broader. He last month, has compared homosexuality to Mr. LEAHY. Well, Mr. President, I has urged the repeal of a key section of the cockfighting, bestiality, prostitution and know everyone stands riveted to hear Voting Rights Act, which he regards as ‘‘an suicide. the rest of my speech. I was trying to affront to federalism and an expensive bur- Pryor’s confirmation hearings have not yet complete the speech so the Senator den.’’ He has also called Roe v. Wade ‘‘the been set. The Judicial Committee will cer- from California could be recognized. worst abomination of constitutional law in tainly want an explanation of his incendiary Mr. President, sometimes after all our history.’’ Whatever one thinks of Roe, it comments, which unfortunately are typical this work, the Senate actually does is offensive to rank it among the court’s of the nominees they will be asked to con- most notorious cases, which include Dred sider. work. Those who are watching some- Scott and Plessy v. Ferguson, after all. day will explain what exactly has hap- Mr. Pryor’s speeches display a disturbingly [From the Huntsville Times, May 4, 2003] pened. politicized view of the role of courts. He has PRYOR’S PREACHING To continue, the Senate has already suggested that impeachment is an appro- Churches promote faith; courtrooms pro- confirmed 140 of this President’s judi- priate remedy for judges who ‘‘repeatedly mote justice. cial nominees, including 27 circuit and recklessly . . . overturn popular will and Attorney General Bill Pryor usually has court nominees. We could have con- . . . rewrite constitutional law.’’ And he been what few Alabama politicians seem to talks publicly about judging in the vulgarly firmed at least five more this week if know how to be: principled. Though unabash- political terms of the current judicial cul- edly a conservative Republican, Pryor has the Republican leadership would have ture war. He concluded one speech, for exam- usually been more nonpartisan than par- worked with us to schedule votes on ple, with the following prayer: ‘‘Please, God, tisan. them. That stands in sharp contrast to no more Souters’’—a reference to the be- More than once, he has ignored the pre- the treatment of President Clinton’s trayal many conservatives feel at the honor- vailing political winds to do what he thought nominees by a Republican-controlled able career of Supreme Court Justice David was right. Trying to reform the state’s sen- Senate from 1995 through 2001, when ju- H. Souter. tencing system is a prime example. One that Mr. Pryor has bipartisan support in Ala- dicial vacancies on the Federal courts he thought was right again. But this time bama, and he worked to repeal the provisions Pryor has gotten it wrong. were more than doubling from 16 to 33. in that state’s constitution that forbade In a ‘‘friend of the court’’ brief filed almost Opposition to Mr. PRYOR’s nomina- interracial marriage. Bush this is not a nom- three months ago regarding the Texas sod- tion is shared by a wide spectrum of ination the White House can sell as above omy case before the U.S. Supreme Court, objective observers. Mr. PRYOR’s record politics. Mr. Bush cannot at once ask for Pryor compared homosexual acts to ‘‘pros- is so out of the mainstream that, even apolitical consideration of his nominees and titution, adultery, necrophilia, bestiality, before last month’s hearing, a number put forth nominees who, in word and deed, possession of child pornography, and even in- turn federal courts into political battle- cest and pedophilia.’’ of editorial boards and others weighed grounds. If he sends the Senate nominees This is the same case, of course, the Penn- in with significant opposition. such as Mr. Pryor, he cannot complain too sylvania Sen. Rick Santorum, another con- Last April, even the Washington loudly when his nominees receive the most servative Republican, made similarly trou- Post, which has been exceedingly gen- researching scrutiny. bling remarks about.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10228 CONGRESSIONAL RECORD — SENATE July 30, 2003 The problem here is neither that Pryor has tain a tax-exempt status for Bob Jones Uni- This is no small matter, but it was dis- a certain point of view that others may not versity despite its record of religious and ra- missed as ‘‘pure politics, pure and simple’’ by share, nor that he expressed it. In the United cial discrimination. The Supreme Court Committee Chairman Sen. Orrin Hatch, R- States, we all have a right to think and later overturned that decision 8–1. As a dep- Utah. In a sense, he was right, except that speak freely. uty attorney general, she co-wrote a brief the process began in the White House. This The problem is that as the attorney gen- calling on the Supreme Court to overturn nomination is entirely political, meant to eral of Alabama—and President Bush’s nomi- Roe. v. Wade. Three years ago, she dismissed curry favor with President Bush’s right-wing nee to the 11th Circuit Court of Appeals— the suit of a breast-cancer patient who constituency. Pryor did not separate his personal moral claimed a violation of privacy after a drug- The delay represents an opportunity for views from his public role as a promoter of company salesman watched her examination Pennsylvania’s Sen. Arlen Specter, who has justice. without her permission. That appallingly in- a reputation for reason and moderation but Bill Pryor has championed causes that sensitive ruling was also overturned. has been fretting for days about exposing his many Republicans and not a few Democrats Kuhl has plenty of supporters among law- flank to a right-wing challenger in the pri- would probably have walked away from: such yers, including Democrats, who say she’s a mary. Whatever happens with the fund-rais- as the removal of the interracial marriage good trial judge. If so, that’s where she ing questions. Sen. Specter and the others ban from the state constitution and the re- should stay—not placed on an appeals court have before them a self-confirming stereo- cruitment of mentors for underprivileged where decisions are binding an all lower type who should be opposed. children, to mention a few. courts. Alabama has benefited from having him as Both home state senators, Barbara Boxer [From the New York Times, July 23, 2003] attorney general, and would probably benefit and Dianne Feinstein, oppose Kuhl’s appoint- AN EXTREMIST JUDICIAL NOMINEE if he decided to seek an even higher elected ment; traditionally, that’s been enough to The Senate Judiciary Committee could office one day. sink a nomination. But Senate Republicans vote as early as today on the nomination of Perhaps the nation would too, but not if are pushing ahead, after slipping by the Ju- the Alabama attorney general, William Pryor plans to use a judicial appointment as diciary Committee on a party-line vote. Pryor, to a federal appeals court judgeship. an opportunity to give his moral points of Democrats have used the filibuster to Mr. Pryor is among the most extreme of the view the heft of the law’s brief seems to be delay two nominations to federal appeals Bush administration’s far-right judicial a part of a trend to infuse public policy and courts, that of Washington attorney Miguel nominees. If he is confirmed, his rulings on the law with morality of an abashedly reli- Estrada and Texas Supreme Court Justice civil rights, abortion, gay rights and the sep- gious strain. Priscilla Owen. aration of church and state would probably Until God—or whoever or whatever it is Bush deserves the right to appoint capable, you do or do not worship—decides to clarify do substantial harm to rights of all Ameri- smart, conservative judges. But senators cans. Senators from both parties should op- the myriad matters of faith that have caused must exercise their constitutional veto over us to separate into different churches, tem- pose his confirmation. nominees whose values and judicial philos- Mr. Pryor, who has been nominated for a ples, mosques, sects, and beliefs, it would be ophy are way out of the mainstream. seat on the Federal Court of Appeals for the best for those who believe to enjoy their be- 11th Circuit, based in Atlanta, has views that liefs in a way that allows others to enjoy [From the Pittsburgh Post-Gazette, July 20, fall far outside the political and legal main- theirs—or to enjoy not having any beliefs at 2003] stream. He has called Roe v. Wade, the land- all. NOT FIT FOR THE BENCH Churches are supposed to promote faith, mark abortion-rights ruling, ‘‘the worst and courtrooms, justice. If Pryor is con- ALABAMA’S PRYOR IS A WALKING STEREOTYPE abomination’’ of constitutional law in our firmed to the 11th Circuit, he would do well The problem with Senate Republicans dur- history. He recently urged the Supreme to honor this distinction. ing the Clinton administration was that they Court to uphold laws criminalizing gay sex, too often assumed the president’s nomina- a position the court soundly rejected last [From the San Jose Mercury News, May 21, tions to the federal bench were wild-eyed lib- month. He has defended the installation of a 2003] erals. Now that a Republican president is in massive Ten Commandments monument in Alabama’s main judicial building, which a COUP IN THE COURTS the White House, the Democrats and their friends are playing tit-for-tat by viewing Mr. federal appeals court recently held violated President Bush has treated judicial nomi- the First Amendment. And he has urged Con- nations like tax cuts: Declare, with a Bush’s nominations as reactionary by defini- tion. gress to repeal an important part of the Vot- straight face, that the extreme is reasonable ing Rights Act. and that any opponent is obstructionist. The Post-Gazette has deplored these ten- dencies, which have made it difficult to sort Moderates in the Senate and in the legal In the case of judgeships, that means nomi- community have repeatedly called on the nating one conservative ideologue after an- out the slanderous caricatures from the solid characters. It is why we rose strongly to the Bush administration to stop trying to stack other, knowing that Democrats in a Repub- the federal judiciary with far-right partisans lican Senate have neither the will nor a way defense last year of Western Pennsylvania’s D. Brooks Smith, a Republican nominee who like Mr. Pryor. But the White House and its to challenge and defeat most of them. supporters have chosen instead to lash out at Instead, the Democrats have picked their was eventually confirmed for an appeals these reasonable critics. In a shameful bit of shots—and they should continue to do that. court seat after seeing his record distorted demagoguery, a group founded by Boyden Contrary to his protestations, Bush has by liberal special-interest groups. Gray, a White House counsel under the first had tremendous success. In his first 28 One trouble with crying wolf is that, just President George Bush, has run newspaper months of office, the Senate has approved 121 as in the old story, sometimes a real wolf ads accusing Mr. Pryor’s critics in the Sen- of his nominations—better than President turns up. Such a one is Alabama Attorney ate of opposing him because he is Catholic. Clinton averaged over his administration. General Bill Pryor, whom The Washington At today’s committee meeting, much of Bush has named one out of seven active fed- Post observed in an editorial ‘‘is a parody of the attention will be on Arlen Spector, the eral judgeships. what Democrats imagine Bush to be plotting Pennsylvania Republican who could cast the What’s at stake is whether Bush will be for the federal courts.’’ deciding vote. Mr. Specter owes it to his con- able to stuff the federal courts with judges If Mr. Pryor is confirmed for a seat on the stituents to break with the White House and narrow in their view of minority and wom- 11th U.S. Circuit Court of Appeals, he will be vote against Mr. Pryor, whose extremist en’s rights, staunch in opposition to abor- well placed to begin preying on a number of views are out of step with most Pennsylva- tion, and intent on overturning decisions settled legal precedents and doctrines. Roe v. nians’. Standing up for an independent, non- that have been long accepted by the courts Wade? ‘‘The worst abomination in the his- ideological judiciary is an urgent cause, and and the public. tory of constitutional law’’ in the United Individuals like James Leon Holmes, nomi- States, he said. Separation of church and one that should find support on both sides of nated to a federal court in Arkansas, who state? He’s cozy with the religious right, so the aisle. has written that the role of a woman ‘‘is to he looks favorably on such things as the dis- [From the Charleston Gazette, June 30, 2003] place herself under the authority of the play of the Ten Commandments on public man.’’ And Alabama Attorney General Bill property. Protect the environment? Mr. EXTREMIST FAR-RIGHT NOMINEE Pryor, who characterized Roe v. Wade, the Pryor thinks the feds should get out of that President Bush hopes to pack the federal decision establishing a right to an abortion, business and leave it to the states. judiciary with numerous ultraconservative as ‘‘the worst abomination of constitutional And so it goes with this reactionary’s reac- appointees who eventually will revoke wom- law in our history.’’ tionary, who would be in the mainstream en’s right to choose abortion—a goal of the The latest troubling nomination is that of only if it were far to the right. Republican national platform—and make Los Angeles Superior Court Judge Carolyn On Thursday, the Senate Judiciary Com- other legal changes desired by the party’s Kuhl to the 9th Circuit Court of Appeals. mittee put off voting on Mr. Pryor’s nomina- ‘‘religious right’’ wing. That court is the ultimate authority, save tion amid concerns raised about his fund- Many of the White House appointees are for the U.S. Supreme Court, for a huge swath raising activities for the Republican Attor- evasive about their personal views when of the West, including California. neys General Association, specifically focus- questioned at Senate confirmation hearings. As an eager young lawyer in the Reagan ing on how accurately he answered the com- But one of them, Alabaman William Pryor, administration, Kuhl fought the IRS to re- mittee’s questions. nominated to the Atlanta circuit court, has

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10229 such an inflammatory record that he can’t scourned by conservatives because he is a ernment review state and local changes to hide his extreme beliefs. moderate rather than a conservative Su- voting procedures that may affect minori- He told the senators that allowing women preme Court justice. ties. It’s ‘‘an affront to federalism and an ex- to choose abortion is ‘‘morally wrong’’ and Only once during questioning before the pensive burden,’’ Pryor believes. this freedom has caused ‘‘the slaughter of Senate Judiciary hearing on his nomination Before the Supreme Court last week struck millions of unborn children.’’ He said he once did Pryor backtrack on previous remarks. He down Texas’ anti-sodomy statute, he argued refused to take his family to Disney World admitted he made an inappropriate remark for upholding that law and another like it in on a day that gays attended, because his per- when he referred to the Supreme Court as Alabama. If the Constitution protects the sonal ‘‘value judgment’’ dictated it. ‘‘nine octogenarian lawyers who happen to choice of a sexual partner, he contends, it In the past, he has sneered at the U.S. Su- sit on the Supreme Court.’’ He made the also permits ‘‘prostitution, adultery, preme Court as ‘‘nine octogenarian lawyers’’ comment after the Court issued a stay of necrophilia, bestiality . . . and even incest because the justices delayed an execution execution in his state. They stay was issued and pedophilia.’’ He also believes that the 1st that Pryor desired. in order to determine whether the use of the Amendment’s establishment clause should The New York Times commented: electric chair was unconstitutional. permit a two-ton granite representation of ‘‘As Alabama attorney general, Mr. Pryor His background also includes efforts to the Ten Commandments to sit in an Ala- has turned his office into a taxpayer-fi- allow students-led prayers in schools; de- bama courthouse. nanced right-wing law firm. He has testified fense of an Alabama judge who displays the These views and Pryor’s lack of judicial ex- to Congress in favor of dropping a key part 10 Commandments in his courtroom; and perience caused the American Bar Assn. to of the Voting Rights Act. In a Supreme support of Alabama prison guards who hand- splinter over his fitness for the appeals seat. Court case challenging the Violence Against cuff prisoners to hitching posts during the With the Senate already having confirmed Women Act, 36 state attorneys general urged summer. so many of Bush’s picks for the federal the court to uphold the law. Mr. Pryor was Civil rights activists signed a letter argu- bench, there’s no argument for this unquali- the only one to argue that the law was un- ing against Pryor’s confirmation. The letter fied nominee. constitutional. This term, he submitted a said the group was alarmed that Pryor ‘‘. . . Mr. LEAHY. We have also heard from brief in favor of a Texas law that makes gay is not only an avowed proponent of the mod- a number of organizations and individ- sex illegal, comparing it to necrophilia, bes- ern states rights movement, now called fed- uals concerned about justice before the tiality, incest and pedophilia. . . . eralism, but he has also asked Congress to Federal courts. The Log Cabin Repub- ‘‘If a far-right legal group needs a lawyer ‘repeal or amend’ Section 5 of the Voting licans, the Leadership Conference on to argue extreme positions against abortion, Rights Act, which he said is an ‘affront to Civil Rights, the Alliance for Justice, women’s rights, gay rights and civil rights, federalism.’ ’’ The section requires Justice NARAL and many others have provided Mr. Pryor may be a suitable candidate. But Department approval to changes in voting procedures made by states. the committee with their concerns and he does not belong on the federal bench.’’ the basis for their opposition. We have Where on Earth does Bush find such nar- This ideologue is also delusional. Pryor be- row-minded nominees—from TV evangelist lieves that only guilty people are executed in received letters of opposition from or- shows? It will be tragic if America’s federal this country. The judicial system, he said, ganizations that rarely take positions courts become dominated by one-sided, puri- has ‘‘extraordinary safeguards, many safe- on nominations but feel so strongly tanical judges far out of step with the major- guards.’’ Further, he said, ‘‘the system about this one that they are compelled ity of people. catches errors.’’ to write, including the National Senior One of the benefits of nominating a right- Senate Democrats are threatening filibus- Citizens’ Law Center, the Anti-Defama- ters to block the worst of Bush’s judicial ap- winger like Pryor is that the president gets valuable political points for it. Even if Pryor tion League and the Sierra Club. I ask pointees. Republicans want to change Senate unanimous consent to print a list of rules, banning filibusters when judges are up is not confirmed by the Senate, and he for confirmation. We hope that West Vir- should not be, the president still wins. In the letters of opposition we have re- ginia’s senators, Robert C. Byrd and Jay this age of cynical politics, Bush will get ceived in the RECORD. Rockefeller, do their utmost to hold the line credit among the most distasteful elements There being no objection, the mate- against extremist judges. of his party for nominating one of their own rial was ordered to be printed in the for a seat on the bench. It will serve him well RECORD, as follows: when he runs for re-election. [From the Arizona Daily Star, June 14, 2003] LETTERS OF OPPOSITION TO THE NOMINATION DENY THE IDEOLOGUE [From the Los Angeles Times, June 30, 2003] OF BILL PRYOR, TO THE 11TH CIRCUIT COURTS OF APPEAL President Bush continues his quest to pack SKEWED PICTURE OF AMERICA ELECTED OFFICIALS the American judicial system with ideologi- By nominating William H. Pryor Jr. to the Congressional Black Caucus. cally driven, conservative activists who sim- federal appeals court, George Bush has de- ply are unfit to take a seat on the nation’s clared that the Alabama attorney general is PUBLIC INTEREST ORGANIZATIONS appellate courts. The latest is William H. not only qualified to sit on the nation’s sec- Ability Center of Greater Toledo, Access Pryor, the Alabama Attorney General. ond-highest court but is the kind of judge Now, Inc., ADA Watch, AFL-CIO, AFSCME, Pryor’s nomination to the 11th Circuit most Americans want. Senators should re- Alliance for Justice, Americans for Demo- Court of Appeals is outrageous. It is de- ject this implausible assessment. cratic Action, American Association of Uni- signed, as are the president’s other ideolog- Even though the Senate has already con- versity Women, Americans United for Sepa- ical nominations, to appeal to the base in- firmed 132 judges, pushing court vacancies to ration of Church and State, Anti-Defamation stincts of the right-wing, conservative Chris- a 13-year low, the White House still com- League, B’nai B’rith International, Cali- tian element of the Republican Party. plains about delays. Go-along-to-get-along fornia Council of the Blind, California Foun- Pryor makes no attempt to distance him- Republicans may want to approve Pryor dation for Independent Living Centers. self from his outlandish comments. He has rather than buck their president. Citizens for Consumer Justice of Pennsyl- said that if a Texas law outlawing homo- But the appointment of Pryor, 41, to a life- vania letter also signed by: PennFuture, Si- sexual sex were overturned, it would open time seat on the U.S. Court of Appeals would erra Club, NARAL-Pennsylvania, National the door to legalized ‘‘prostitution, adultery, be an endorsement of an ominous view of Women’s Political Caucus, PA, United Penn- necrophilia, bestiality, possession of child American law. At this month’s Senate Judi- sylvanians. pornography and even invest and ciary Committee hearing, he defended—even Coalition For Independent Living Options, pedophilia.’’ amplified on—his disturbing views. His can- Inc., Coalition To Stop Gun Violence, Dis- That statement is breathtakingly bigoted. dor is refreshing but it leaves squirming sen- abled Action Committee, Disability Re- But Pryor is a multi-dimensional ideo- ators no cover. source Agency for Independent Living, logue. Here’s his stance on Roe v. Wade, the ‘‘Congress . . . should not be in the busi- Stockton, CA, Disability Resource Center, Supreme Court decision allowing abortion: ness of public education nor the control of North Charleston, SC, Eastern Paralyzed The law is ‘‘an abominable decision’’ and street crime,’’ he has argued, a position at Veterans Association, Jackson Heights, NY, ‘‘the worse abomination in the history of odds with Bush’s education initiative and Eastern Shore Center for Independent Liv- constitutional law.’’ He opposes abortion support for beefed-up law enforcement and ing, Cambridge, MD. even in the case of rape. tougher criminal penalties. Environmental Coalition Letter signed by: Though these are his personal opinions Pryor contends that the Constitution does American Planning Association, Clean Water about legal decisions, he says, he would up- not grant the federal government power to Action, Coast Alliance, Community Rights hold the law as an appellate court judge. protect the environment. He regards Roe vs. Counsel, Defenders of Wildlife, EarthJustice, That is disingenuous, at best. He admitted Wade, the 1973 Supreme Court decision up- Endangered Species Coalition, Friends of the during a Senate hearing that in a meeting holding the legal right to an abortion, as Earth, National Resources Defense Council, with a conservative group, he ended by say- ‘‘the worst abomination of constitutional The Ocean Conservancy, Oceana, Physicians ing a ‘‘prayer for the next administration: law in our history’’ and hopes that the land- for Social Responsibility, Sierra Club, U.S. Please, God, no more Souters.’’ mark ruling will be overturned. Public Interest Research Group, The Wilder- David Souter, a Supreme Court justice ap- He would urge repeal of the 1965 Voting ness Society, Alabama Environmental Coun- pointed by the first President Bush, is widely Rights Act requirement that the federal gov- cil, Alliance for Affordable Energy, Buckeye

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10230 CONGRESSIONAL RECORD — SENATE July 30, 2003 Forest Council, Capitol Area Greens, Citi- LETTER SUBMITTED BY CIVIL RIGHTS MOVEMENT of the disabled, the aged, women, mi- zens Coal Council, Committee for the Preser- VETERANS norities, and the environment all be vation of the Lake Purdy Area, Dogwood Al- Rev. Fred Shuttlesworth, Leader, Bir- limited. liance, Foundation for Global Sustainability, mingham Movement; Rev. C.T. Vivian, Exec- He has argued that the Federal Friends of Hurricane Creek, Friends of Rural utive Staff for Dr. Martin Luther King, Jr.; courts should cut back on the protec- Alabama, Kentucky Resources Council, Inc., Dr. Bernard LaFayette, Executive Staff for Landwatch Monterey County, Sand Moun- tions of important and well-supported Dr. Martin Luther King, Jr.; Rev. Kim federal laws including the Age Dis- tain Concerned Citizens, Southern Appa- Lawson, Jr., Advisor to Dr. Martin Luther lachian Biodiversity Project, Tennessee En- King, Jr.; President of Southern Christian crimination in Employment Act, the vironmental Enforcement Fund, Leadership Conference (Los Angeles); Rev. Americans with Disabilities Act, the Waterkeepers Northern California, Wis- James Bevel, Executive Staff or Dr. Martin Civil Rights Act of 1964, the Clean consin Forest Conservation Task Force. Luther King, Jr.; Rev. James Orange, Orga- Water Act, the Violence Against Feminist Majority, Heightened Inde- nizer for National Southern Christian Lead- Women Act, and the Family and Med- pendent & Progress, Houston Area Rehabili- ership Conference; Claud Young, M.D., Na- ical Leave Act. He has repudiated dec- tation Association, Human Rights Cam- tional Chair, Southern Christian Leadership ades of legal precedents that permitted paign, Independent Living Center of South- Conference; Rev. E. Randel T. Osbourne, Ex- individuals to sue States to prevent ern California, Inc., Independent Living Re- ecutive Director, Southern Christian Leader- ship Foundation. violations of Federal civil rights regu- source Center, Ventura, CA, Interfaith Alli- lations. Mr. Pryor’s aggressive involve- ance. Rev. Joseph Ellwanger, Alabama Move- ment Activist and Organizer; Dorothy Cot- ment in this ‘‘federalist revolution’’ Justice for All letter signed by the fol- ton, Executive Staff for Dr. Martin Luther shows that he is a goal-oriented, activ- lowing California organizations: Southern King, Jr.; Rev. Abraham Woods, Southern ist conservative who has used his offi- California Americans for Democratic Action, Christian Leadership Conference; Thomas cial position to advance his ‘‘cause.’’ California Abortion and Reproductive Rights Wrenn, Chair, Civil Rights Activist Com- Action League, California Women’s Law Cen- Alabama was the only State to file an mittee, 40th Year Reunion; Sherrill Marcus, amicus brief arguing that Congress ter, Committee for Judicial Independence, Chair, Student Committee for Human Rights Democrats.Com of Orange County, San Diego (Birmingham Movement, 1963); Dick Greg- lacked authority to enforce the Clean Democratic Club, National Center for Les- ory, Humorist and Civil Rights Activist; Water Act. He argued that the Con- bian Rights, National Council of Jewish Martin Luther King, III, National President, stitution’s commerce clause does not Women/Los Angeles, California National Or- Southern Christian Leadership Conference; grant the Federal Government author- ganization for Women, Planned Parenthood Mrs. Johnnie Carr, President, Montgomery ity to prevent destruction of waters Los Angeles County Advocacy Project, Pro- Improvement Association (1967–Present) and wetlands that serve as a critical gressive Jewish Alliance, Public Advocates, (Martin Luther King, Jr. was the Associa- Inc., Rock the Vote Educational Fund, habitat for migratory birds. While this tion’s first President. The Association was is a sign to most people of the extre- Stonewall Democratic Club, Unitarian Uni- established in December, 1955 in response to versalist Project Freedom of Religion, Work- Rosa Park’s arrest.) mism, Mr. Pryor trumpets his involve- men’s Circle/Arbeter Ring, Lake County Cen- ment in these cases and is proud of his OTHER ter for Independent Living, IL, Leadership work to limit Congress’s authority. Conference on Civil Rights, Log Cabin Re- H.J. Bobb, Defiance, OH; Davis Budd, Sr, Bill Pryor’s passion is not some ob- publicans, MALDEF, NAACP, NARAL Pro- Defiance, OH; Don Beryl Fago, Evansville, scure legal theory but something in Choice America, National Abortion Federa- WI; Daily Dupre, Jr., Lafayette, LA; Greg Jones, Parsons, KS; Catherine Koliha, Boul- which he has believed deeply since he tion, National Association of Criminal De- was a student and something that fense Lawyers, National Council of Jewish der, CO; Ashley Lemmons, Defiance, OH; Re- Women, National Council of Jewish Women becca Lindemann, Defiance, OH; Patricia guides his actions as a lawyer. Mr. Pry- Chapter in Florida, Alabama and Georgia, Murphy, Juneau, AK; Randy Wagoner, loca- or’s speeches and testimony before National Disabled Students Union, National tion unknown; Rabbi Zev-Hayyim Feyer, Congress demonstrate just how deeply- Employment Lawyers Association, National Murrieta, CA. rooted his views are, how much he Family Planning & Reproductive Health As- Mr. LEAHY. The ABA’s evaluation seeks to effect a fundamental change sociation, National Partnership for Women & also indicates concern about this nomi- in the country, and how far outside the Families, National Resource Defense Coun- nation. Their Standing Committee on mainstream his views are. Mr. Pryor’s cil, National Senior Citizens Law Center, Na- the Federal Judiciary gave Mr. Pryor a judicial ideology is something in which tional Women’s Law Center, New Mexico partial rating of ‘‘not qualified’’ to sit Center on Law and Poverty, Albuquerque, he deeply believes, not just an argu- NM, Options Center for Independent Living, on the Federal bench. Of course this is ment that he makes as a lawyer. People for the American Way, Pennsylvania not the first ‘‘not qualified’’ rating or Mr. Pryor is candid about the fact Council of the Blind, Placer Independent Re- partial ‘‘not qualified’’ rating that this that his view of federalism is different source Services, Planned Parenthood Federa- administration’s judicial nominees from the current operation of the Fed- tion of America, Protect All Children’s Envi- have received. As of today, 20 of Presi- eral Government—and that he is on a ronment, Marion, NC, Religious Action Cen- dent Bush’s nominees have received mission to change the Government to ter of Reform Judaism, SEIU, Sierra Club, some form of ‘‘not qualified’’ rating. fit his vision. His goal is to continue to Society of American Law Teachers, Summit Perhaps that is a reflection of the ideo- limit Congress’s authority to enact Independent Living Center, Inc., Missoula, MT, Tennessee Disability Coalition, Nash- logical basis for so many of these nomi- laws under the 14th amendment and ville, TN, Vermont Coalition for Disability nations, and the concern on the part of the commerce clause—laws that pro- Rights. some on what has been a rather com- tect women, ethnic and racial minori- pliant ABA committee that these ties, senior citizens, the disabled, and LETTERS FROM THE 11TH CIRCUIT nominees cannot be fair to every liti- the environment—in the name of sov- Joseph Lowery, Georgia Coalition for the gant who may come before them. ereign immunity. Is there any question Peoples’ Agenda, NAACP, Alabama State Like Jeff Sutton, Bill Pryor has been that he would pursue his agenda as a Conference, Alabama Chapter of the Na- a crusader for the federalist revolution, judge on the Eleventh Circuit Court of tional Conference of Black Lawyers, Ala- but Mr. Pryor has taken an even more Appeals—reversing equal rights bama Hispanic Democratic Caucus, Hispanic prominent role. Having hired Mr. Sut- progress and affecting the lives of mil- Interest Coalition of Alabama, Latinos ton to argue several key federalism Unidos De Alabama, Jefferson County Pro- lions of Americans for decades to gressive Democratic Council, Inc., Morris cases in the Supreme Court, Mr. Pryor come? Dees, Co-Founder and Chief Trial Counsel, is the principal leader of the federalist His strong views against providing Southern Poverty Law Center, Bryan Fair, movement, promoting state power over counsel and fair procedures for death Professor of Constitutional Law at Univer- the Federal Government. row inmates have led Mr. Pryor to sity of Alabama, Tricia Benefield, Cordova, A leading proponent of what he refers doomsday predictions about the rel- AL, Judy Collins Cumbee, Lanett, AL, Mi- to as the ‘‘federalism revolution,’’ Mr. atively modest reforms in the Inno- chael and Becky Pardoe, Mobile, AL, Harold Pryor seeks to revitalize State power cence Protection Act to create a sys- Sorenson, Rutledge, AL, Patricia Cleveland, at the expense of Federal protections, tem of competent counsel. When the Munford, AL, Larry Darby, Montgomery, AL, Sisters of Mercy letter signed by Sister seeking opportunities to attack Fed- U.S. Supreme Court questioned the Dominica Hyde, Sister Alice Lovette, Sister eral laws and programs designed to constitutionality of Alabama’s method Suzanne Gwynn, Ms. Cecilia Street and Sis- guarantee civil rights protections. He of execution in 2000, Mr. Pryor lashed ter Magdala Thompson, Mobile, AL. has urged that Federal laws on behalf out at the Supreme Court, saying

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10231 ‘‘[T]his issue should not be decided by Mr. Pryor does not believe Roe is Mr. HATCH. I yield to the distin- nine octogenarian lawyers who happen sound law, neither does he give cre- guished Senator from California, and I to sit on the U.S. Supreme Court.’’ dence to Planned Parenthood v. Casey. intend to take the floor as soon as she Aside from the obvious disrespect this He has said that, ‘‘Roe is not constitu- is through. comment shows for this Nation’s high- tional law,’’ and that in Casey, ‘‘the The PRESIDING OFFICER. Is there est Court, it shows again how results- court preserved the worst abomination objection? oriented Mr. Pryor is. Of course an of constitutional law in our history.’’ Mr. DORGAN. Mr. President, reserv- issue about cruel and unusual punish- When Mr. Pryor appeared before the ing the right to object. ment ought to be decided by the Su- committee, he repeated the mantra of Mr. DOMENICI. Object to what? preme Court. It is addressed in the those who desire confirmation, saying Mr. HATCH. You cannot object. eighth amendment, and whether or not that he would ‘‘follow the law.’’ But his Mr. DORGAN. Does the Senator from we agree on the ruling, it is an elemen- deeply held and intense commitment Utah, does the chairman of the com- tary principle of constitutional law to overturning established Supreme mittee, have the opportunity to yield that it be decided by the Supreme Court precedent that protects funda- the floor to another Member of the Court, no matter how old its members. mental privacy rights makes it impos- Senate? Mr. Pryor has also vigorously op- sible to give his promises any credence. The PRESIDING OFFICER. He does posed an exemption for persons with Bill Pryor has expressed his opposi- not. mental retardation from receiving the tion to fair treatment of all people re- Mr. DORGAN. What did the Senator death penalty, exhibiting more cer- gardless of their sexual orientation. from Utah just try to do? tainty than compassion. He authored The positions he took in a brief he filed Mrs. FEINSTEIN. It was a nice thing. an amicus curiae brief to the Supreme in the recent Supreme Court case of Mr. HATCH. I ask unanimous consent Court arguing that the Court should Lawrence v. Texas were entirely repu- that the distinguished Senator from not declare that executing mentally re- diated by the Supreme Court majority California be recognized for 15 minutes. tarded persons violated the eighth just a few weeks ago when it declared The PRESIDING OFFICER. Is there amendment. After losing on that issue, that the ‘‘The petitioners are entitled objection? Mr. Pryor made an unsuccessful argu- to respect for their private lives. The Mr. DORGAN. I object. State cannot demean their existence or ment to the eleventh circuit that an Mr. DOMENICI. Reserving the right control their destiny by making their Alabama death-row defendant is not to object, I want to say to everyone private conduct a crime.’’ Mr. Pryor’s mentally retarded. who is listening, in case you are con- Mr. Pryor has spoken harshly about belief is the opposite. He would deny fused, we are not on the Energy bill. the moratorium imposed by former Il- certain Americans the equal protection The PRESIDING OFFICER. The Sen- linois Governor George Ryan, calling it of the laws, and would subject the most ator from Utah has the floor. a ‘‘spectacle,’’ and saying that it will private of their behaviors to public reg- Mrs. FEINSTEIN. Mr. President. ‘‘cost innocent lives.’’ How can some- ulation. The PRESIDING OFFICER. The Sen- Mr. Pryor’s comments have revealed one so sure of his position be relied ator from Utah has the floor. an insensitivity to the barriers that Is there an objection to the unani- upon to hear these cases fairly? Over disadvantaged persons and members of mous consent request of the Senator the last few years, many prominent minority groups and women continue from Utah? Americans have begun raising concerns to face in the criminal justice system. about the death penalty, including cur- In testimony before Congress, Bill Mr. DORGAN. I object. rent and former supporters of capital Pryor has urged repeal of Section 5 of The PRESIDING OFFICER. There is punishment. For example, Justice the Voting Rights Act the centerpiece an objection. O’Connor recently said there were ‘‘se- of that landmark statute because, he Mr. HATCH. Mr. President, let me rious questions’’ about whether the says, it ‘‘is an affront to federalism and take the floor. I am going to yield the death penalty is fairly administered in an expensive burden that has far out- floor in just a second. the United States, and added: ‘‘[T]he lived its usefulness.’’ That testimony I expect the distinguished Senator system may well be allowing some in- demonstrates that Mr. Pryor is more from California to be recognized so she nocent defendants to be executed.’’ In concerned with preventing an ‘‘af- can take 15 minutes. Then I am going response to this uncertainty, Mr. Pryor front’’ to the States’ dignity than with to warn the Senate, right now, the offers us nothing but his steadfast be- guaranteeing all citizens the right to minute she is through, I want the floor lief that there is no problem with the cast an equal vote. It also reflects a back, and I have a right to have it as application of the death penalty. This long-discredited view of the Voting the leader on the majority side. Am I is a position that cannot possibly offer Rights Act. Since the enactment of the right, parliamentarily? a fair hearing to a defendant on death statute in 1965, every Supreme Court The PRESIDING OFFICER. The Sen- row. case to address the question has re- ator from Utah is seeking recognition. Mr. Pryor’s troubling views on the jected the claim that Section 5 is an He has priority of recognition as the criminal justice system are not limited ‘‘affront’’ to our system of federalism. majority manager. to capital punishment. He has advo- Whether under Earl Warren, Warren Mr. DORGAN. Mr. President, par- cated that counsel need not be provided Burger, or William Rehnquist, the liamentary inquiry. to indigent defendants charged with an United States Supreme Court has rec- The PRESIDING OFFICER. The Sen- offense that carries a sentence of im- ognized that guaranteeing all citizens ator from North Dakota will state his prisonment if the offense is classified the right to cast an equal vote is essen- parliamentary inquiry. as a misdemeanor. The Supreme Court tial to our democracy not a ‘‘burden’’ Mr. DORGAN. Mr. President, the nonetheless ruled that it was a viola- that has ‘‘outlived its usefulness.’’ Senator from Utah stated that when he tion of the sixth amendment to impose On all of these issues, the environ- finishes his presentation, he expects a sentence that included a possibility ment, voting rights, women’s rights, the Senator from California to be rec- of imprisonment if indigent persons gay rights, federalism, and more, Wil- ognized, after which he expects to be were not afforded counsel. liam Pryor’s record of activism and ad- recognized. Like Carolyn Kuhl, Priscilla Owen, vocacy is clear. That is his right as an Does the Senator from Utah have a and Charles Pickering, Bill Pryor is American citizen, but it does not make right to yield the floor to the Senator hostile to a woman’s right to choose. him fit to be a judge or likely to be fair from California? There is every indication from his on such issues. I think the length and Mr. HATCH. I didn’t do that. record and statements that he is com- level of his devotion to these issues The PRESIDING OFFICER. He does mitted to reversing Roe v. Wade. Mr. creates a situation in which his impar- not have the right to yield the floor, Pryor describes the Supreme Court’s tiality on such issues would reasonably but he did not propose that as a unani- decision in Roe v. Wade as the creation be questioned by litigants in his court. mous consent request. ‘‘out of thin air [of] a constitutional He should not be confirmed to the Mr. DORGAN. Mr. President, the right,’’ and opposes abortion even in United States Court of Appeals for the Senator from Utah has priority rec- cases of rape or incest. Eleventh Circuit. ognition as manager of the bill. He

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10232 CONGRESSIONAL RECORD — SENATE July 30, 2003 may seek the floor on that basis fol- We have not opposed a lot of nomi- what they want, regardless of what lowing the presentation by the Senator nees. The ranking member has made they said. So it is of some concern to from California, not by prearrange- that clear: 140 nominations have gone us. ment, however; is that correct? through. Just today we had a hearing I hope these accusations will stop. I The PRESIDING OFFICER. That is in the morning. I introduced two Cali- hope we can focus on the merits of each correct. fornia judges who were going through nominee, not on baseless allegations Mr. DORGAN. Thank you. in a 4-month period of time, new judges against Members of the Senate who are The PRESIDING OFFICER. The Sen- produced because the chairman and the trying to do their constitutional du- ator from California is recognized. ranking member agreed there was a ties. Mrs. FEINSTEIN. Mr. President, very heavy caseload in San Diego and I am very concerned because, to date, thank you very much. I thank the there should be a number of new not a single Member on the other side chairman of the committee and I thank judges. They were nominated in May. has said they believe these ads are the ranking member. Already these judges have had their baseless, have said they know we do I have served on this committee for hearing. So good things do happen. not practice this kind of decision- 10 years. I love this committee. The However, each time we have opposed making. No one has disavowed these Presiding Officer serves on this com- a nominee, there has been bias used as ads. mittee. It is a challenging committee. a rationale for those who do not agree So I call on the committee to dis- It is particularly challenging for me with us, to purport that bias is part of avow these ads. I call on the adminis- because I am a nonlawyer. I have had a our rationale. It happened with an tration to disavow these ads. And I call great opportunity to work across the anti-Hispanic charge with Miguel on them to set the record straight. aisle on any number of different pro- Estrada, an anti-woman charge with There was a time in our history when posals with the chairman of the com- Priscilla Owen, an anti-Baptist charge the phrase ‘‘Catholics need not apply’’ mittee, with the Senator from Arizona, with Charles Pickering, and now with was used to keep countless qualified Mr. KYL, with Senator LINDSEY GRA- William Pryor an anti-Catholic charge. Americans from pursuing the American HAM, with others. I have enjoyed it. You have no idea what happens when dream. The same can be said for ‘‘no There has always been a spirit of this begins to circulate throughout the Jews need apply’’ and ‘‘no Irish need collegiality. electorate. People do not know exactly apply.’’ And, much like Justice Sandra However, that spirit of collegiality is what goes on. It is a dastardly thing to Day O’Connor, when she first looked at a crossroads. Something very ugly do. In a sense it is scurrilous, because for her first job and I first looked for has been injected. It has to do with this it caters to the basic insecurity of all my first job, really ‘‘women need not nominee, and it has to do with cir- of us who share a religion that may be apply.’’ cumstances around this nominee. I will different from someone else’s. So it has In fact, I lost my first job to a man spend a few moments discussing them. a truly insidious quality to it. who was less qualified than I, but I was This kind of thing that has been going To call us antiwoman—I don’t have a woman and I had a small child and at on has to stop. to tell you how bizarre it is for me to that time that was not much coin of Last week, the Democratic members be called antiwoman. And to say we the realm to get a job. So I was beaten of the committee were accused by out- have set a religious litmus test is real- out many times by men who were less side groups, and even some of our col- ly equally false. qualified—had less academic experi- leagues on the committee, of applying Many of us have concerns about ence, less graduate experience, et an anti-Catholic religious litmus test nominees sent to the Senate who feel cetera. on the nomination of William Pryor. so very strongly, and sometimes stri- These were dark times in American These charges are false. They are base- dently, and often intemperately about history and many of us in this body re- less. They are offensive. And they are certain political beliefs and who make member those times. But every one of beneath the dignity of a Senate com- intemperate statements about those us should be absolutely committed to mittee tasked with making very im- beliefs. So we raise questions about preventing those days from ever recur- portant decisions on the future of the whether those nominees can be truly ring. What this is a sign of is that Federal judiciary. impartial, particularly when the law those days are beginning to occur We have heard a lot about the ad. I conflicts with those beliefs. again. never thought I would see an ad like It is true that abortion rights can I hope we do not see political cheap- this. It is a rather insidious ad. I will often be at the center of these ques- shot artists bringing painful phrases not show it, but I will describe it. It is tions. As a result, accusations have back for the purposes of intimidating two courtroom doors. Atop it says ‘‘Ju- been leveled that any time reproduc- Senators and stacking Federal courts. dicial Chambers.’’ On the doorknob tive choice becomes an issue, it acts as We should be above that in this debate. hangs a sign that says ‘‘Catholics Need a litmus test against those whose reli- This is the Senate, as the distinguished Not Apply.’’ When I saw this ad, I gion causes them to be anti-choice. But Senator from Nevada has said, and our thought we were going back decades. pro-choice Democrats on this com- constitutional duty should not be When I saw this ad, I thought: Uh-oh, if mittee have voted for many nominees marred by false allegations or intimi- there is one thing I know—and I have who are anti-choice and who believe dating political tactics. Our Nation’s watched cities polarized, I have seen that abortion should be illegal, some of history in fighting bigotry of all kinds assassinations result from the polariza- whom may even have been Catholic. I must continue. I urge my colleagues tion—I know what happens when peo- do not know because I have never in- very sincerely to condemn these tac- ple seek to divide. One of the easiest quired. tics and move on to debating the mer- ways to divide is to use race or religion So this truly is not about religion. its of controversial nominees. in an adverse manner. That is what This is about confirming judges who Now a second event at the Pryor this ad sought to do. It sought to di- can be impartial and fair in the admin- markup also disturbed me greatly and vide. istration of justice. I think when a was especially troubling because we Then I watched C–SPAN the other nominee such as William Pryor makes faced a repeated refusal to acknowl- night. I saw clergy discussing the ad. I inflammatory statements and evi- edge the clear application of a long- saw them beginning to believe that re- dences such strongly held beliefs on a standing committee rule on ending de- ligious litmus tests were being used by whole variety of core issues, it is hard bate. Without the violation of the rule, the Judiciary Committee. Now, in fact, for many of us to accept that he can Mr. Pryor would still be before the Ju- that has never been the case. set aside those beliefs and act as an im- diciary Committee, as I deeply believe Senator SCHUMER pointed out during partial judge—particularly because he he should be. Mr. Pryor’s markup in the committee is very young, 41; particularly because The Judiciary Committee rules con- that this kind of thing is becoming this is a lifetime appointment; and par- tain a clause known as Rule 4 that pre- somewhat of a pattern. Once it be- ticularly because we have seen so many vents closing off debate on a nominee comes a pattern, no one really knows people who have received lifetime ap- unless at least one member of the mi- where it goes. pointments then go on and do just nority agrees to do so.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10233 It isn’t used a lot but it has been used sition, and maybe even try to change He used his position as Attorney before when I have been on the com- some minds on the other side. General to limit the scope of crucial mittee. During that markup, then, there was civil rights laws like the Violence During debate on the Pryor nomina- significant discussion about what rule Against Women’s Act, the Age Dis- tion, the Ranking Member attempted 4, the rule about cutting off debate, crimination In Employment Act, the to invoke this rule because members of really means. At one point, it is inter- American with Disabilities Act, the the minority did not believe that an esting to note, Chairman HATCH him- Fair Labor Standards Act, and the ongoing investigation into Mr. PRYOR’s self commented that: Family Medical Leave Act. nomination had been given sufficient At the appropriate time, I will move to He said that he doesn’t believe that time. proceed to a vote on the Lee nomination. I the Federal Government should be in- Serious allegations were made about assume there will be no objection. It seems volved in ‘‘education or street crime.’’ Mr. Pryor’s truthfulness to the com- to me he deserves a vote. People deserve to Mr. SESSIONS. Will the Senator mittee during the hearing, and staff know where we stand on this issue. Then we yield for a question? had been looking into those allega- will, pursuant to Rule IV, vote on whether to bring the Lee nomination to a vote. In order Mrs. FEINSTEIN. I beg your pardon? tions. Put simply, the job has not been to vote on the nomination, we need at least The PRESIDING OFFICER. The Sen- completed. one Democrat to vote to do so. ator from California has the floor. But, as Chairman HATCH did earlier That is precisely what we are dis- Mr. SESSIONS. Will the Senator this Congress with regard to the nomi- cussing. The situation then was the yield for a question? nation of Deborah Cook and John Rob- same as the situation regarding Mr. Mrs. FEINSTEIN. No. I would rather erts, he chose to ignore this rule and Pryor. In order to vote on the nomina- finish my remarks. If I have time left, force through a vote over the objec- tion, we need at least one Democrat to I will yield. tions of every member of the minority vote to do so. But we never even had Mr. SESSIONS. I wanted to clear up on the committee. the chance to vote on cutting off de- a misstatement. We thought the issue had been re- bate. The PRESIDING OFFICER. The Sen- solved during discussions over what I don’t need to lecture this body that ator from California has the floor. happened last time, but apparently we we are a nation of laws. We know that. Mrs. FEINSTEIN. Mr. Pryor calls were wrong. We expect these laws to be obeyed. Roe v. Wade ‘‘the worst abomination of The rule contains the following lan- This is a Senate of rules. Our rule book constitutional law in our history.’’ He guage: is 1,600 pages long. There is no greater has written that he could ‘‘never forget The Chairman shall entertain a non-debat- expert on rules than the senior Senator January 22, 1973, the day seven mem- able motion to bring a matter before the bers of our highest court ripped out the Committee to a vote. If there is objection to from the great State of West Virginia. Rules have always been observed. Some life of millions of unborn children.’’ bringing the matter to a vote without fur- That is a quote. It is a very strong ther debate, a rollcall vote of the Committee of them are complicated. This happens shall be taken, and debate shall be termi- to be pretty simple, and we all under- statement. nated if the motion to bring the matter to a stand it. He has lobbied for the repeal of sec- vote without further debate passes with ten I want to spend a moment on the ma- tion V of the Voting Rights Act. votes in the affirmative, one of which must terials that have been before us that After the Bush v. Gore decision, be cast by the Minority. are being investigated. The materials Pryor made the astounding statement, That is a reading on its face. It in question came to the Judiciary Com- ‘‘I’m probably the only one who wanted stands on its face. It is what it is. mittee just 2 or 3 weeks ago. [the decision] 5–4 . . . I wanted Gov- Over the last few decades, it has Those materials raise real questions ernor Bush to have a full appreciation clearly meant that unless one member about whether Mr. Pryor misled the of the judiciary and judicial selection of the minority agrees to cut off debate committee about his activities on be- so we can have no more appointments and move straight to a vote, no vote half of the Republican Attorneys Gen- like Justice Souter.’’ can occur. This is one of the only pro- eral Association, a fundraising organi- This is a sitting attorney general tections the minority party has in the zation that I believe raises serious con- taking on a Justice of the U.S. Su- Judiciary Committee. Without it, there cerns about conflicts of interest. preme Court by name. I have never might never be debate at all. A chair- For instance, questions have been heard of that before. Of course, there is man could convene a markup, demand raised about whether Mr. Pryor raised always a first time. It was also an at- a vote, and the entire process would money from tobacco companies, while tack on a Justice who was well known take 2 minutes. This is not how a delib- at the same time arguing against pur- as being more moderate than he was erative body should function, and more suing those companies through litiga- expected to be and who does not simply importantly, it is contrary to the tion. I don’t know whether this allega- toe a party line. rules. Either the rules are observed or tion is true or not true. None of us do. So is Mr. Pryor saying he would want we have chaos on the committee. If we I wasn’t really prepared to vote. But only those judges who remain com- do not like the rules, we should change we should look into it and we should be pletely faithful to the ideology of those the rules. But we should follow the able to match his statements to the who choose them? Is he saying that rules. committee with the facts. Justice Souter is simply not conserv- As I understand it, this rule was first There are other areas where the doc- ative enough? I think he is. instituted in 1979. Senator KENNEDY uments given to the committee suggest Mr. Pryor has taken positions so ex- was chairman of the committee at the that Mr. Pryor may not have been treme that they are at odds with the time. It has been followed ever since. completely forthcoming at his hearing. rest of the Nation’s attorneys general. Senator HATCH, our current chair- We will never get past the partisan For example, he was the only attorney man, has also followed the rule. I make bad-feelings that are increasingly ap- general to argue against a key provi- no bones about the fact that I am very parent in the Judiciary Committee if sion in the Violence Against Women fond of the chairman, but he has been we cannot even rely on having our Act on federalism grounds. going through some kind of a change rules followed to the extent of carrying So there is a reason we feel strongly lately, and I don’t quite know what it out an investigation with materials about it. is. about which none of us knew existed My experience is that in appointing During the markup of Bill Lann Lee when we had the hearing on the nomi- someone to the trial bench when that to be the Assistant Attorney General nee. individual has never been a judge is for the civil rights division, there was On the merits, this is a nominee who probably a good idea, even if they are some fear that Republicans, who had has been before us for just a few an attorney general. One can make the votes to defeat the nomination months. some judgments about people who hold would move directly to a vote and pre- I mentioned the investigation. I men- political office and who are strong ad- vent any debate on the issue at the tioned rule 4. But let me go into a cou- vocates as to whether in fact they can markup. Democrats, on the other hand, ple of the merits from our side and separate themselves from their ide- wanted the chance to explain their po- from our point of view. ology, whatever that ideology may be.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10234 CONGRESSIONAL RECORD — SENATE July 30, 2003 I believe people can do this. I voted for Supreme Court an issue on the Vio- make this Congress look as if it isn’t a Jeffrey Sutton because I had that be- lence Against Women Act. She takes good one, even though, in spite of these lief. In this case, I am not so sure be- great umbrage at that. Unfortunately, slow-walks, we have done bill after bill cause the rhetoric is so strident and so he won. So to indicate that he may be after bill, some of them extremely im- very intemperate. outside the mainstream or somebody portant pieces of legislation. The Senator from Alabama, who is who should not be supported because Let me provide you with a succinct present on the floor, believes he can, he wins in front of the Supreme but very different, and much more real- and there are people who believe he Court—and almost everything they istic picture of General Pryor. can. But I think the jury is out because criticize, as far as Supreme Court mat- General Pryor has been criticized as there is a venture into an attack on a ters are concerned, he has won on, insensitive to the rights of the disabled sitting U.S. Supreme Court Justice, until this last term when he lost on a because he argued in the Garrett case there is a characterization of a land- couple of issues. And in every case he that the Americans with Disabilities mark Supreme Court case as ‘‘an followed what he believed the law was Act could not, under section 5 of the abomination,’’ and other things as regardless of his own personal beliefs. 14th amendment, validly abrogate well. There is an attack on many sig- By the way, I am one of the coauthors States’ 11th amendment immunity and nificant—significant to those of us on in the Congress of the Violence Against authorize money damage suits against this side of the aisle—pieces of Federal Women Act. States in Federal court. legislation. So to criticize him for something But the Supreme Court agreed with Truly, this is a nomination that de- that the Supreme Court agrees with General Pryor. He is being criticized by serves and merits debate—an open de- him on gives an indication who is out- others on the Senate floor for cases bate. But I would like the debate to side the mainstream. It isn’t General that he has won in the Supreme Court. He has also been criticized as insensi- take place with the observation of the Pryor. And there is case after case tive to age-based discrimination be- rules of the committee and after the after case where he wins that has been cause he and a bipartisan group of 23 investigation that is ongoing is fin- criticized by our colleagues over there other State attorneys general—23 other ished. as though somehow or other he has bipartisan State attorneys general—ar- I hope the Senator from North Dako- been off the charts when it comes to gued in the Kimel v. Florida Board of ta’s importuning to leadership is the law. He has been on the charts. I Regents case that the provision of the taken. We don’t need to have a cloture admit, he has lost some, too. But I Age Discrimination in Employment vote at this time on this nominee. That don’t know of anybody who has taken Act that allowed money damage suits cloture vote can come after the results multiple cases to the Supreme Court against States in Federal courts was of the investigation are finished—cer- who has won everything. I know a few invalid under the 11th amendment, tainly after the Energy bill—because I who have had pretty good records—and something that they should have ar- think if a cloture vote is taken, these he has one of the better records as an gued because it is an important issue. arguments I have made on the merits attorney general in this country. But, again, the Supreme Court of the case are really going to be dis- My Democratic colleagues assert, in agreed with General Pryor. He is being positive as far as votes on our side are laundry list format, that General criticized for winning cases in the Su- concerned. Pryor is basically against everything preme Court as though he is the one I thank the Chair. I yield the floor. I they are for. He is ‘‘out of the main- who is out of the mainstream. I don’t thank very much the chairman of the stream.’’ We hear that over and over think it takes any brains to realize committee. again. Pryor is against civil rights, dis- who is out of the mainstream. It is not The PRESIDING OFFICER. The Sen- ability rights, minorities and women General Pryor. ator from Utah. themselves, the environment—the And we have heard criticism that he Mr. HATCH. Mr. President, I com- whole thing, presumably, and of is insensitive to women’s rights be- pliment the distinguished Senator from course—abortion rights. cause he argued in the case of U.S. v. California as well. I feel very deeply to- I am paraphrasing just one Demo- Morrison that neither the commerce ward her. I think she is a wonderful cratic Senator’s statement during the clause nor the 14th amendment pro- person, and I think she is a fine Sen- markup on July 23, 2003, but it is a fair vided Congress with the authority to ator who works very hard on the Judi- representation of the types of asser- enact one civil remedies provision of ciary Committee. And I appreciate her tions against General Pryor that are the Violence Against Women Act. But kind remarks about me. designed not to debate his fitness for the Supreme Court agreed with him Mr. President, let me make some- the Federal bench but, rather, to stran- again. thing clear. I keep hearing that we are gle debate before it begins. To paint Further, General Pryor has been going to vote on judges. Well, I cer- this excellent nominee as so ‘‘extreme’’ criticized as anti-environment because tainly wish that were the case. What as to be not worth discussing. of his argument in Solid Waste Agency we are talking about is a cloture vote By the way, we did not bring this de- of Northern Cook County that the tomorrow, and one on Friday. It is not bate up tonight. I did not want to stand Army Corps of Engineers did not have unusual at all, in fact it is a matter of here tonight and answer these so-called the authority, under the Federal Clean course, for the Senate to double track allegations. My friends on the other Water Act, to exercise Federal jurisdic- various items in the interests of the side did. They are the ones who inter- tion over entirely intrastate bodies of body to keep on top of matters. rupted the Energy bill, which is being water—in this case, an abandoned grav- The two trade bills are extremely im- slow-walked. And we all understand el pit. portant for this country, with two of that—as almost everything has been He was arguing for his State, which our greatest allies and supporters, this year. is what attorneys general are obligated Chile and Singapore. It needs to be These are what you call obstruc- to do. He even urged the Court not to done. There is no reason to have hours tionist tactics. And that is what is reach the issue of whether the Com- of debate on it. There are some hard going on here. For them to come out merce Clause allowed Congress to regu- feelings about it, and so forth, but it here on the Senate floor and act like, late entirely intrastate bodies of water. can be done. well, we are interrupting the energy The Court did not reach the Commerce We could have debated this in the debate—it is almost more than I can Clause issue and again agreed with hour before the cloture vote, which is take. General Pryor’s statutory interpreta- what the rule calls for. If we invoke This energy debate is very impor- tion argument. cloture, there will be ample oppor- tant. It should be over. And I would be So I guess those who oppose Pryor tunity to devote time to the total de- happy to end it right now, have the clo- are saying when the Supreme Court bate on General Pryor. ture vote tomorrow. I will even give up agrees with you that an environmental But now let me just make another the hour before cloture, if they want statute should be interpreted in ac- point or two. The distinguished Sen- to, to keep working on the Energy bill. cordance with its actual language, ator from California is very upset at But, no, that is not what they are rather than expanded through bureau- him because he actually took up to the doing. This is all a slow-walk to try to cratic fiat, that makes you extreme

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10235 and anti-environment, especially when fight against Fortas. He said: We ‘‘The chairman shall entertain a non- you win the case in front of the Su- weren’t filibustering, and they knew it. debatable motion to bring a matter be- preme Court. Talk about turning the They knew we had the votes to beat fore the committee to a vote if there is world upside down. them up and down and they are the objection to bringing the matter to a General Pryor has even been criti- ones who called for the cloture vote, vote without further debate’’—a roll- cized as insensitive to civil rights con- which they barely won. They only had call vote, in other words. If the chair- cerns because of his argument in Alex- 45 votes, and there were 12 who weren’t man refuses, they can then demand a ander v. Sandoval that there is no pri- there, many of whom were going to rollcall vote of the committee to be vate right of action under title VI of vote against Fortas for justifiable rea- taken. It is nondebatable. It has to the Federal Civil Rights Act to chal- sons. happen. And ‘‘debate shall be termi- lenge Alabama’s policy of issuing driv- So these filibusters going on now are nated if the motion to bring the matter ers’ licenses only to English speakers— the only ones we’ve ever had in the to a vote without further debate passes a policy that I understand is no longer Senate. My colleagues on the other with 10 votes in the affirmative, one of in effect. Once again, the Supreme side are fond of saying: There have which must be cast by the minority.’’ Court agreed with his argument, hold- been 140 Bush judges confirmed by us Anybody with brains can read that ing that Congress, not Federal courts, and only two have been filibustered. and say: That is a rule that forces a re- should create causes of action to en- That is two too many. Constitu- calcitrant chairman to have to call a force Federal laws. That proposition tionally, that is two too many. One is vote. But any competent person read- should not be controversial, nor should one too many. I have to admit there ing that can also conclude, as have I, supporting it be held against General were a few on our side during the Clin- having consulted with the two Parlia- Pryor, who again won in the Supreme ton years who wanted to filibuster mentarians beforehand, that a chair- Court. some of those judges. I personally man cannot be foreclosed from his Finally, let me just give one more ex- stopped them with the help of the lead- right to call a vote. Because if that ample. The Supreme Court, including ership and others who thought it were the rule, that means the minority through that we should not be filibus- Justice Souter, agreed with General would always control whether there tering judges. It is the wrong thing to Pryor’s argument in the Scheidler v. would ever be a vote on a judge. That do. It should not be done, but it is NOW case that Federal can’t possibly be the rule, though that antiracketeering laws could not prop- being done here. Mr. SANTORUM. Mr. President, will is what Democrats now are trying to erly be applied to pro-life protest the Senator yield? say it is, with regard to the Commit- groups who admittedly had not en- Mr. HATCH. If the Senator will just tee’s vote on General Pryor. gaged in any activities covered by wait for a few more minutes, I want to We are all well aware by now that those laws with respect to the targets make a point on Rule 4. For the life of Democrats invoked the Judiciary Com- of their protests. So while General me, I can’t understand how anybody mittee’s rule 4 to try to block a com- Pryor may have criticized Justice reading the Judiciary Committee’s mittee vote on General Pryor’s nomi- Souter, they do not always disagree Rule 4 would interpret it any dif- nation. Their interpretation of this when it comes down to interpreting the ferently than the way I did. I was sur- rule was and is simply incorrect, and law. prised to see my comments during the let me explain why. Let me say this. A nominee is not an Bill Lan Lee nomination used against Rule 4, entitled ‘‘Bringing a Matter extremist—or should I put the word me. What happened there was, I was to a Vote,’’ was clearly intended to ‘‘extremist’’ in quotes because it seems Chairman. We had the votes to stop the serve as a tool by which a determined to be a special word that is used so nomination. The Democrats didn’t majority of the committee could force often by our colleagues—a nominee is want us to stop the nomination be- a recalcitrant chairman to bring a not an extremist when the positions he cause it would have been embarrassing matter to vote. In fact, the rule pro- has taken have been consistently sup- and might have made it more difficult vides, ‘‘The Chairman shall entertain a ported by Supreme Court majorities. for them to recess-appoint Lee, who I non-debatable motion to bring a mat- We know who the extremists are, and would have supported for any other job ter before the Committee to a vote.’’ it isn’t General Pryor. in Government but not that one. Be- On July 23, there was no motion to We will hear more about these cases, cause I knew he would get there and he bring a matter before the committee to and I’m not saying Bill Pryor has won would use the power of the civil rights a vote. In fact, there was an objection all of these arguments at the Supreme office to bring litigation against com- to voting, which I overruled. Thus, on Court. Not even the best lawyers can munities, municipalities who would its face, rule 4 was inapplicable to the win them all, and he did lose a couple have to give in rather than spend mil- Pryor nomination. in this last session. But to say that Bill lions of dollars in defense fees and ac- If we followed the interpretation that Pryor is ‘‘out of the mainstream,’’ cept full scale racial quotas. My fears Democratic members of the committee when he has been such a successful ad- were confirmed. Because they recess- urged, it would mean that the com- vocate for his State in the Nation’s appointed him and he did bring that mittee minority would essentially con- highest Court, is plainly wrong. kind of litigation. trol the committee’s agenda. Essen- Anybody who makes that argument But with the Lee nomination, the tially, the committee’s chairman, on should think twice before they make Democrats started a filibuster of their behalf of the majority, could not bring that type of argument. own nominee. There was no reason for any nomination or piece of legislation We are in the middle of a slow walk them to make any arguments. I would to a vote without the affirmative vote here, trying to make the Senate look have given them a vote up or down of at least one member of the minority. bad—not by Republicans but by the right there. They started the filibuster. So the chairman would have no right other side. Frankly, to complain about I, in graciousness, agreed not to have a to call for a vote—the minority could double-tracking important things like vote. I have to admit I myself was in restrict that right at their discretion. a circuit court of appeals judgeship, error by making some of the state- No chairman would suffer such limi- the third branch of Government in our ments I did because I didn’t realize the tations on his power. The limitation society, I think is hitting a little bit importance of this, nor had I even that exists in rule 4 as properly inter- below the belt. looked at Rule 4. But let’s look at this preted is entirely reasonable: that all It is certainly not unusual for cloture Rule. members of the committee’s majority, votes on judgeship nominees when the It says: ‘‘The chairman shall enter- plus one minority member, can force other side is filibustering for the first tain. . . .’’ That means this is a rule the committee to have a vote over the time in history Federal judicial nomi- that forces the chairman to entertain a objection of the chairman—who, in nees. I made the mistake of saying the nondebatable motion to bring a matter that case, clearly would not be rep- Fortas nomination was the only fili- before the committee to a vote. It is a resenting his committee’s majority. buster up until now. I was wrong. I was way of forcing the chairman to give a Rule 4 does not, as Democrats, would corrected by none other than former vote that you could not otherwise give currently, expediently, have it allow Senator Robert Griffin who led the if the chairman decided not to do it. the minority to prevent a vote. Rule 4

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00065 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10236 CONGRESSIONAL RECORD — SENATE July 30, 2003 does not authorize filibusters in the the distinguished Senator from Massa- So if you have strongly held religious Judiciary Committee. chusetts tried to make that point. beliefs, because of your strongly held Despite claims to the contrary, there That is not true. religious beliefs—— has been no inconsistency in the inter- As a matter of fact, the Democrats’ Mr. DURBIN. Will the Senator yield pretation of this rule. During the Clin- staff refused to interview or ask ques- for a question? ton administration, in an effort to pre- tions of Mr. Pryor who could have eas- Mr. SANTORUM. I will not. Because vent the defeat in committee of a con- ily answered them all, and would have, of those beliefs that are referred to troversial Justice Department nominee and in fact already had answered all of continually, the ‘‘strongly held be- and spare both committee Democrats these questions at his hearing and in liefs’’—— and the administration considerable writing. It was a phony ‘‘gotcha’’ type Mr. DURBIN. Mr. President, I have embarrassment, I chose not to exercise of a situation which Democrats on the a—— the inherent power that I and all com- Judiciary Committee are putting The PRESIDING OFFICER. The Sen- mittee chairmen have to bring a mat- nominees through. ator from Utah has the floor and the ter to a vote. President Clinton ulti- Let me talk about the religious prob- Senator has yielded for a question to mately made a recess appointment of lem. I am getting a little tired of this. the Senator from Pennsylvania. the nominee. In retrospect, my gra- The outside groups have been out- Mr. DURBIN. Mr. President, par- ciousness to the other side, and my re- rageous with the smears they have liamentary inquiry. liance on rule 4 to accomplish this was brought upon Republican judicial Mr. SANTORUM. Are the beliefs that admittedly not the best course of ac- nominees. If you made one mistake in are referred to— tion. I nevertheless believe that I had your life or what they perceive to be a Mr. DURBIN. Mr. President, par- the power to bring that matter to a mistake, you are going to be smeared liamentary inquiry. vote, and that I used the discretion of because of it. That perceived mistake Mr. SANTORUM. Mr. President, the the chairman to decide not to do so. is going to be enough for these groups Senator yielded to me for a question, In short, there was no violation of to try to ruin your whole career. The which I am about to ask. Mr. DURBIN. Parliamentary inquiry, committee rules or process in bringing tactics used against Judge Kuhl are a Mr. President. the Pryor nomination to a vote on July perfect illustration. Her whole career The PRESIDING OFFICER. The Sen- 23, and any argument to the contrary she has had the support of Democratic ator will state it. was merely a last-ditch effort to pre- and Republican judges and everybody Mr. DURBIN. If a Member of the Sen- vent the full Senate from considering else in California who really counts, it ate characterizes the words of another it. seems to me, as far as judges are con- Member of the Senate incorrectly, can Unfortunately, that effort continues, cerned. They found one thing they can those words be taken down? in a manner equally offensive to the ul- beat into the ground, they think. I The PRESIDING OFFICER. There is timate rules that govern the Senate, don’t think even that is valid. I think no such right. the U.S. Constitution. we can rebut that case. And yet they The fact is, this was the fifth markup Mr. DURBIN. I thank the Chair. are going to stop this brilliant woman that General Pryor was on, having had Mr. SANTORUM. I ask the Senator who has a well-qualified rating, their his confirmation hearing on June 11. from Utah, when the other side uses gold standard, from the American Bar And there were continual Democratic the term ‘‘deeply held beliefs’’ over and Association. efforts to try and thwart these mark- over again, which we have heard on What is particularly offensive is what ups every time. I went along with a certain issues, would the Senator from the outside groups have done against number of those efforts just out of gra- Utah characterize what those ‘‘deeply some of our nominees because of reli- ciousness. But on July 23 everybody held beliefs’’ might pertain to, and on gious beliefs. By the way, throughout knew we were going to vote because at what issues, and what they might tie the extensive, lengthy, one-of-a-kind the prior markup they invoked the to from the perspective of religious be- hearing on Judge Pryor, there were two-hour rule, the Democrats did, so liefs? consistent questions about his deeply that we couldn’t possibly, during the Mr. HATCH. At least in one instance held beliefs. This has caused a lot of time the Senate was in session, vote on over and over it was on the issue of people to become very upset. Mr. Pryor. abortion. Several Democrats asked I said: Well, then we will meet after The PRESIDING OFFICER. The Sen- questions about that. the Senate goes out, which would get ator from Utah has the floor. Mr. SANTORUM. With respect to around the two-hour rule. That meant Mr. SANTORUM. Will the Senator abortion and Mr. Pryor’s beliefs, if the about 9 o’clock at night that night, the from Utah yield for a question? Senator from Utah will allow me, I Thursday before we finally voted. Ev- Mr. HATCH. I am sorry. I am happy would like him to comment on a letter erybody knew I had the votes. Every- to yield for a question without losing just received today, written by Carl body knew I was going to go ahead. We my right to the floor. Anderson, who is with the Knights of gave them all day to resolve any prob- Mr. SANTORUM. I thank the Senator Columbus. I ask unanimous consent lems they had in this so-called ‘‘inves- from Utah because he has hit on a that the letter be printed in the tigation’’ which is as phony as any in- point that is deeply disturbing to me as RECORD. vestigation I have ever seen. By the a member of the Senate. I understand There being no objection, the mate- time we got ready, nobody told me the Constitution talks about, we shall rial was ordered to be printed in the about this, but by the time we got establish no religion, and that is gen- RECORD, as follows: ready for the vote or for the Senate to erally termed, in many cases, the sepa- KNIGHTS OF COLUMBUS, go out of session and for us to meet— ration of church and State, although New Haven, CT, July 30, 2003. and we worked all day to make sure we the words ‘‘separation of church and Hon. ORRIN HATCH, would have a quorum—I was informed State’’ do not appear in the Constitu- Chairman, Senate Judiciary Committee, that there was a personal exigency tion. U.S. Senate. DEAR SENATOR HATCH: I am writing to ex- that existed, a legitimate personal exi- What appears to be going on in the press concerns as to the way the nomination gency, that was known about earlier in Judiciary Committee by Members of of Alabama Attorney General Bill Pryor for the day, and I agreed to not continue the other side of the aisle is not a sepa- the federal appeals court in Atlanta is being the markup. ration of church and State, but a sepa- handled in the Senate. I put it over then until the next ration of anybody who believes in Many have questioned Mr. Pryor’s fitness Wednesday, a full week, and said: Get church and faith from any public role. for this position because of his ‘‘deeply held the staffs together, interview the four I do not believe that is what the Con- beliefs,’’ in particular his opposition to abor- witnesses you want to, interview Gen- stitution was founded to do. I listened tion. Yet this ‘‘deeply held belief’’ is ground- ed in Mr. Pryor’s adherence to his Catholic eral Pryor in the process, but next to the comments of the Senator from faith, which unequivocally declares abortion Wednesday we are going to vote. There California who said because of General to be a grave evil. have been comments that our staff Pryor’s ‘‘strongly held beliefs’’ basi- Raising Mr. Pryor’s ‘‘deeply held beliefs’’ stalled that. That is not true. I believe cally he cannot be impartial. in terms of his qualifications to serve on the

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10237 federal bench thus suggests a de facto reli- your faith deeply, but only if you do. personal agenda. . . . But based on the com- gious test for public office, something clear- Would the Senator from Utah care to ments Attorney General Pryor has made on ly prohibited by the Constitution. Of even comment on this letter I just quoted the subject, I have some real concerns that more concern, it comes perilously close to he cannot because he feels these views so suggesting that Catholics who faithfully ad- briefly from? deeply and so passionately.’’ Mr. HATCH. First, I have seen the here to their church’s teaching on abortion, I don’t know how you read it any and perhaps other public moral issues, are letter dated July 30, 2003, which I be- lieve the Senator has put into the other way. unfit to serve their country in the federal ju- Another Senator told General Pryor: diciary. RECORD. The first time I have seen it is Those who fault Mr. Pryor’s ability to I think the very legitimate issue at ques- tonight. tion with your nomination is whether you serve on the federal bench argue that his Mr. SANTORUM. Yes, the July 30 let- deeply held beliefs preclude him from judg- have an agenda, and that many of the posi- ter. tions you have taken do not reflect just an ing and applying the law impartially. In ef- Mr. HATCH. Right. I am concerned fect, they are trying to put Mr. Pryor in the advocacy, but a very deeply held view and a very uncomfortable and very unjust position about this. I know some of these out- philosophy, which you are entitled to have, of choosing between following his faith or side groups have been doing this regu- but you are also not entitled to get every- serving his country. No candidate for any larly. I personally do not believe the one’s vote. public office should be put in such a position. distinguished Senator from California As you know, General Pryor is open- As Attorney General of Alabama, Mr. Pryor is—and I hope none of the other Demo- ly pro-life. has already demonstrated an unquestioned crat Senators on the committee are— Mr. SANTORUM. If the Senator will record of applying the law impartially. He against Mr. Pryor because of his reli- yield, does the Senator from Utah, who has already shown that one can be a faithful gious beliefs. But I have to admit that I know is not Catholic, know that as Catholic, with ‘‘deeply held beliefs’’ and still people all over the country have been part of the Catholic faith, one of the render unimpeachable service to his country central teachings with respect to faith and fellow citizens. calling me and talking to me and say- Perhaps it is worth remembering on this ing, how could it be anything else? and morals is that it is not an option occasion that many distinguished jurists People are drawing that conclusion, under the Catholic church doctrine to have dissented from the Supreme Court’s de- and I will be honest with you, I am be a faithful Catholic and not be pro- cision in Roe v. Wade including the current concerned about it. life. It is a core teaching of the church. Chief Justice of the United States and Mr. SANTORUM. If the Senator will It is not an optional teaching or a rec- former Justice Byron White. To suggest that ommended teaching; it is a core teach- such jurists are unfit to serve on the Federal yield for a further question, I want to read the next paragraph and get his ing of the church. So to be a faithful Bench does a disservice to the confirmation Catholic, according to the church, process itself. Moreover, it is worth reit- comment: erating that the Catholic Church teaches Raising Mr. Pryor’s ‘‘deeply held beliefs’’ someone has to embrace this opposi- that abortion is unjust, not as a matter of in terms of his qualifications to serve on the tion to abortion. Is the Senator aware faith, but as a matter of natural justice Federal bench thus suggests a de facto reli- of that? which obligates all citizens regardless of re- gious test for public office, something clear- Mr. HATCH. Yes. I am so advised. I ligious belief or lack thereof. This is attested ly prohibited by the Constitution. have studied the Catholic faith and I to by the many persons of diverse religious Would the Senator from Utah agree respect it deeply, as I do all religions. belief or none at all who find abortion to be that the religious test for holding an Mr. SANTORUM. So according to gravely unjust. office with the Government of the what the Senator has just said, some- As head of the world’s largest Catholic fra- one who considers oneself a faithful ternal organization and as a former member United States of America would be un- of the United States Commission on Civil constitutional? Catholic, faithful to the core teachings Rights, I am dismayed that the course of Mr. Mr. HATCH. There is no question of the Catholic church, which leaves no Pryor’s nomination compels me to make a about that. We all have to agree that leeway on the issue of abortion, under point which by now should be obvious: a our Constitution states no religious that understanding, someone who has a good Catholic can also be a good public serv- test shall ever be required as a quali- deep faith and understands that with ant. Much as I would wish otherwise, a con- fication to any office of public trust in deep faith as a Catholic comes the re- tinuation of the trend that critics of Mr. quirement to be against abortion, that Pryor’s nomination have set in motion will the United States. I don’t believe any Senator would intentionally impose a as a result of that deep faith and as a compel American Catholics to face religious result of that deep faith in Catholi- bigotry of a kind many of us thought to be religious test on the President’s judi- extinct in this nation. I urge that Mr. Pryor cial nominees. I do not think any Sen- cism, having to subscribe to the be judged solely on his ability, his qualifica- ators are guilty of anti-religious bias. church’s teaching on abortion, would tions and his judicial temperament. However, I am deeply concerned that that not lead, in a sense, to a prohibi- Respectfully, some are indirectly putting at issue tion by some Members of having any- CARL A. ANDERSON, the religious beliefs of several judicial body who is a faithful Catholic as a Supreme Knight. nominees. member of the judiciary? Mr. SANTORUM. I want to refer to a I will give you one illustration. Dur- Mr. HATCH. I cannot speak to that. couple of paragraphs and I want the ing the Pryor hearing, General Pryor’s All I can say is that I will take the Senator to comment, because this is religion was an issue—and this is why I Senator’s statement at face value, as I the point that I think is very impor- have raised it, which I have never done know he is a practicing member of the tant. There is a code word going on before. One Senator accused General Catholic faith, and I respect him for here—code words. When you hear the Pryor during the hearing of ‘‘asserting that. I know he is very sincere, and I know he has even written about it. But term ‘‘deeply held beliefs’’—I know the an agenda of your own, a religious be- I am concerned. Senator from Illinois was upset when I lief of your own.’’ In his opening state- Three of the people we have been told used the term ‘‘religious’’ as a charac- ment, another Senator stated: terization. I think it is a completely will be filibustered are traditional pro- ‘‘In General Pryor’s case, his beliefs are so life, Catholic conservatives. Certainly, accurate characterization of exactly well known, so deeply held that it is very what is going on. I am not alone. I will hard to believe that they are not going to Pryor is one of them. Kuhl is another. read a portion of the letter: deeply influence the way he comes about Holmes is another. It is a matter of Many have questioned Mr. Pryor’s fitness saying ‘I will follow the law,’ and that would great concern. I have to say that these for this position because of his ‘‘deeply held be true of anybody who had very deeply held inside-the-Beltway outside groups will beliefs,’’ in particular his opposition to abor- views.’’ use anything; they will distort a per- tion. Yet, this ‘‘deeply held belief’’ is ground- The only deeply held views that I know son’s record. It is abysmal what they ed in Mr. Pryor’s adherence to his Catholic outside of belief in the law would be his own are doing, and they are well heeled to faith, which unequivocally declares abortion personal religious beliefs. I will just say this the tune of millions of dollars, which to be a grave evil. on another point. On the subject of Roe v. they spend spreading this bile all over I am ending the quotation from Mr. Wade, Senator SCHUMER said, ‘‘I for one be- lieve that a judge can be pro-life, yet be fair, the Senate. Unfortunately, I believe Anderson’s letter, and I just suggest balanced, and uphold a woman’s right to there are some in this body who do not that it is obvious to anyone that this choose. But for a justice to set aside his or decry what they are doing. code word is an antireligious bias—not her personal views, the commitment to the Mr. SANTORUM. Mr. President, will an antireligious bias if you don’t hold rule of law must clearly supersede his or her the Senator yield for another question?

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10238 CONGRESSIONAL RECORD — SENATE July 30, 2003 Mr. HATCH. I will be happy to yield fication or repeal of section 5 of the would continue to do so as a Court of Ap- for another question without losing my Voting Rights Act. However, despite peals judge. right to the floor. General Pryor’s well-documented con- Chairman HATCH. Can we rely on that? Mr. SANTORUM. Mr. President, I cerns about section 5 of the Voting Mr. PRYOR. You can take it to the bank, Mr. Chairman. just described what is my under- Rights Act, he has vigorously enforced standing as a Catholic of what the all provisions of the act. He success- To be honest with you, that is the teachings of the church are and what fully defended before the Supreme way he is, and he is being condemned the responsibilities as a faithful Catho- Court several majority-minority vot- for that. lic are as a member of the church. I ing districts approved under section 5 I have to say that some of my col- also understand the oath of office you from a challenge by a group of white leagues on the other side have become take and the role that you play as a Alabama voters. He feels deeply about tremendously annoyed and hurt by the civil servant in a government and that these issues. issue of religion being brought up in you have an obligation to serve and to He also issued an opinion that the this matter, but the attacks on per- adhere to the law, particularly when use of stickers to replace one can- sonal beliefs came originally from you are sworn to uphold that law. didate’s name for another on a ballot these inside-the-Beltway groups. They Are there any examples where Attor- requires preclearance under section 5. are well heeled, with money coming ney General Pryor upheld the law even Again, General Pryor enforced the law out of their ears, hiring all kinds of far though he, as a Catholic, as a person of despite its conflicts with his beliefs. left liberal lawyers to make these deep beliefs, went ahead and followed Despite the distortions, half-truths, smear attempts and, frankly, that is the law even though his personal view- and outright falsehoods we have heard what is distorting this whole process. points may have been different? about him from the usual leftist inside- I suggest to my friends on the other Mr. HATCH. I think there are all the-Beltway interest groups, General side, they are going to have to start kinds of examples. Let me go through a Pryor is a diligent, honorable, faithful some day standing up to these people, few, if I can. Hopefully, this will be man whose loyalties as a public serv- but they do not seem to be able to do helpful in what the good Senator has ant have been to the law and its impar- it. asked for. tial administration. Frankly, during the Clinton years, I General Pryor’s record speaks with He has told us under oath he will con- stood up to some of the right wing far more authority and with much tinue to follow the law, just as he has groups that were occasionally trying to greater eloquence than the fulmina- demonstrated in his distinguished ca- distort somebody’s record. We did not tions against him. His record of enforc- reer in Alabama. We should be proud to see anywhere near what we are seeing ing the Supreme Court dictates on give his nomination an up-or-down today but I stood up. I am not asking abortion is unquestioned. He has en- vote. them to do something I did not do. forced them all. Despite criticizing Throughout his hearing, it was one Mr. SESSIONS. Mr. President, will them all as a traditional pro-life, question after another on abortion— the Senator yield for a question? Catholic conservative, he has criticized one question after another—and he Mr. HATCH. I will be glad to yield abortion but he has upheld the law. made it clear that as much as he without losing my right to the floor. Although he has been attacked for thinks that the outcome of the case of Mr. SESSIONS. I remember a con- his federalism arguments before the Roe v. Wade is an abomination, be- servative group demanded of Senator Supreme Court, the Supreme Court cause it has resulted in the death of HATCH, with regard to Clinton nomi- sided with him in most of those cases. millions of unborn children—and he nees, that he sign a Hatch pledge. I ask Arguing that Congress does not have was very straightforward about it, very the Senator how he handled outside the power that it has assumed through honest about it, and was complimented conservative pressure groups at that certain legislative acts is not activist by my colleagues for his honesty, yet time? or radical. It is principled, entirely they will not accept his honesty on Mr. HATCH. Mr. President, as my consistent with our constitutional sep- this topic—he said he would enforce colleague knows, I had to stand up to aration of powers, and it is General Roe v. Wade, which is the law. some in my own caucus. Not many. Pryor’s duty as State attorney general. Mr. SANTORUM. Mr. President, isn’t There were some, one or two, who In all the federalism cases he has ar- there a case of the partial-birth abor- wanted to filibuster President Clin- gued, he advocated that only certain tion law in Alabama where he actually ton’s nominees. As the Senator will re- portions of Federal laws were unconsti- gave advice that would be contrary to call, I stood up to that and said we are tutional. In all cases, remedies re- what his personal beliefs are with re- not going to filibuster judicial nomi- mained available for aggrieved parties spect to the issue of abortion? nees. It is not right, and I believe it is or the Federal Government. I cited Mr. HATCH. After the Supreme constitutionally unsound. some of these cases earlier. Court’s decision in Stenberg v. Some of the outside groups were sin- Let me give another illustration. His Carhart, he upheld that law by order- cere but they wanted to—I believed critics have also attempted to portray ing state officials not to enforce the them to be sincere but wrong—distort him as an official without the respect conflicting Alabama partial-birth abor- some of these matters, and I refused to for the separation of church and State. tion law. Earlier, he had enforced Ala- allow them to do it. They demanded to Again, it is simply beyond dispute that bama’s partial-birth abortion law nar- testify in a variety of cases, and I told his record proves his repeated ability rowly, to ensure consistency with Su- them no, we are not going to denigrate to enforce the law regardless of his preme Court’s dictates in Planned Par- the judicial process with that type of strong personal religious beliefs. enthood v. Casey. Even though he dis- stuff. In an effort to defeat challenges to agrees violently with both of those Mr. SESSIONS. If the Senator will school prayer and the display of the cases from a personal religious stand- yield for a further question? Ten Commandments in the Alabama point, but he enforced and upheld those Mr. HATCH. I am happy to yield Supreme Court, both the government laws, in the face of criticism from without losing my right to the floor. that appointed General Pryor and Ala- many of his conservative friends in Mr. SESSIONS. I note that the Sen- bama Chief Justice Roy Moore urged Alabama. ator made quite clear that elected Sen- General Pryor to argue that the Bill of Let me read one other item. At his ators have the responsibility to decide Rights does not apply to the States. hearing, I asked him this question: matters, and they cannot be driven by General Pryor refused, even though So even though you disagree with Roe v. forces outside. We have to do it on the his personal beliefs were different, and Wade, you would act in accordance with Roe facts and the law, and he has been hon- he argued the case on much narrower v. Wade on the Eleventh Circuit Court of Ap- orable and consistent on that. He de- grounds despite his own deeply held peals? serves great praise. Some of the criti- Catholic faith and personal support for This was his answer: cism that has come his way from those both of those issues. Mr. PRYOR. Even though I strongly dis- who are now altering the historic General Pryor has always been at- agree with Roe v. Wade, I have acted in ac- ground rules of confirmation is unjust tacked for his statements urging modi- cordance with it as attorney general and and wrong.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10239 As a former attorney general of Ala- that he was going to follow it. He fol- becoming a litmus test issue to Demo- bama and knowing that the attorney lowed it as an elected political official. crats, that is pro-abortion. I think that general had the power in Alabama to Now, if he can follow the law impar- is wrong. I remember what the media direct district attorneys on how to en- tially as an elected political official, did to Republicans during the Reagan force certain Alabama laws, I ask the imagine the honor he would bring to administration, continually trying to distinguished chairman of the Judici- the bench, where it’s his job to be im- say there was a litmus test. I know ary Committee is he aware that even partial. He did not have to do it as an there was not because the person who though Attorney General Pryor strong- elected political official, although I vetted all the judges is a former staffer ly believes that partial-birth abortion would not have respected him had he of mine who is now on the Michigan is one of the worst forms of abortion of not, but as a judge, I think we have Supreme Court. I know it is not being all, that he wrote a letter directing dis- more than ample evidence that this done by this administration. But lit- trict attorneys to narrowly construe an man would follow the law regardless of erally, Democrats are making abortion Alabama partial-birth abortion statute his personal beliefs. Yet he has been a litmus test issue. because he had concluded under the Su- smeared by the outside groups on his The Democrats are fond of saying, preme Court law that parts of it was personal beliefs. It is just that simple. yes, but we have passed all kinds of unconstitutional? Mr. SESSIONS. Mr. President, one Bush judges, 140 of them so far. Well, Mr. HATCH. Well, the Senator is more question. they cannot stop them all. So they se- right. Mr. HATCH. Without losing my right lectively pick people like General He is a very serious practicing Catho- to the floor. Pryor who clearly has very strongly lic. He despises Roe v. Wade. He makes Mr. SESSIONS. I have researched his held views but who clearly has abided very strong and principled arguments record and background. I find that even by the law. They ignore that he abided against it. He did not mince any words though he does firmly believe that by the law and attack him on his when he was asked, Did you call it an abortion is an immoral practice, that strongly held views. In large measure, abomination? And he said: Yes, I did, other than the matter I just raised it comes down to the issue of abortion sir. about directing on partial-birth abor- because he differs with them on the When they asked why, he said he tion not to enforce parts of the law, he policy issue of abortion. called it an abomination because, has not taken any action in any way to Mr. SANTORUM. If the Senator will words to the effect, he believes that it use the power of his office to under- yield for an additional question. led to the deaths of millions of unborn mine the law of the Supreme Court on Mr. HATCH. Without losing my right children. Yet when it came down to en- that matter. I just wonder if the Sen- to the floor. forcing the law on partial-birth abor- ator would agree with that? Mr. SANTORUM. Is the Senator fa- tion, that he despises, he enforced the Mr. HATCH. I do agree with that. miliar with a letter written by Austin law, and he directed his prosecutors in The Senator knows Bill Pryor better Ruse, president of the Catholic Family the State to do likewise. than anybody. He worked for the dis- and Human Rights Institute, which was I do not know whether we can find tinguished Senator when he was attor- sent yesterday? any better people than that. There are ney general. I am absolutely amazed at Mr. HATCH. I just saw it tonight, so a lot of politicians who have been at- how many Democrats and people of di- I am familiar. I have not read it in de- torneys general who I do not think versity and others in Alabama are sup- tail, but I am familiar with it. would have done that in the face of portive of him. The people who knew Mr. SANTORUM. Mr. President, I their personal beliefs, but he did be- him best are the people who support ask unanimous consent that this letter cause he is dedicated to the law. He him. The people of Alabama know him be printed in the RECORD. knows if one does not uphold the law, best. Yet we are going to second-guess Mr. SANTORUM. I say to the Sen- even if they disagree with it, it would that, for political reasons? ator from Utah that I wanted to bring not be long until we would not have Mr. SANTORUM. Will the Senator up this letter. This is not the only any laws. The Constitution would go yield? Catholic group that has expressed con- itself, and he understands that. He is a Mr. HATCH. I am happy to yield, cern about what is code worded as brilliant man, graduated magna cum without losing my right to the floor. ‘‘deeply held beliefs’’ but seems to be a laude from Tulane, which is a fine law Mr. SANTORUM. To get to the rest little stronger than that. I will read school, and was editor in chief of the of this letter by Carl Anderson, who is the second paragraph of this letter and Law Review, something that very few the head of the Knights of Columbus ask the Senator to comment again on people have the privilege of doing, and nationwide, I want to read the con- this: that is because he was one of the best cluding paragraph and ask the Senator I think of the young mother, struggling to students in his class. to comment as to whether he agrees raise her children in what is a challenging Frankly, he has more than shown an with Mr. Anderson in his conclusion as culture. She raises them to be good citizens and good Catholics. What should this mother aptitude to the law and an ability to to what is going on with this nomina- tell her children? ‘‘Sorry, in order to serve follow the law. tion. He says this: our government, you will have to shed your Mr. SESSIONS. If the Senator will As head of the world’s largest Catholic fra- Catholic beliefs.’’ Putting Catholics in this yield for another question. ternal organization and as a former member position is shameful and not a proper meas- Mr. HATCH. Without losing my right of the United States Commission on Civil ure of our great land? to the floor, I will be happy to yield. Rights, I am dismayed that the course of Mr. I ask the Senator if he has any Mr. SESSIONS. Is the Senator aware, Pryor’s nomination compels me to make a thoughts on this issue? being an Alabama official myself and point which by now should be obvious: a good Catholic can also be a good public serv- Mr. HATCH. This is the first time I keeping up with these things, that ant. Much as I would wish otherwise, a con- have seen this letter. To him, this is a when Attorney General Pryor, not re- tinuation of the trend that critics of Mr. very important issue. The views he ex- quired to do so but following what he Pryor’s nomination have set in motion will presses are drawn from what he’s heard believed was the proper procedure, di- compel American Catholics to face religious at the hearing and the markup. Rea- rected the district attorneys who bigotry of a kind many of us thought to be sonable people can draw these conclu- would be enforcing this partial-birth extinct in this nation. sions from the markup, from the de- abortion law to construe the statute Does the Senator agree that such bate. narrowly, that he was criticized by pro- continuation of activity could lead to It is coming down to where abortion life groups, sincere, wonderful people, such bigotry? is the be-all and end-all issue to my and one went so far as to say that his Mr. HATCH. Well, I believe it can be, colleagues on the other side. Sure, they decision had gutted the partial-birth and I believe there is some from the cannot vote against everyone. I don’t abortion law? outside groups. I do not think there is know how many of these people are Mr. HATCH. That is exactly right. He any question. I would not want to at- pro-life or pro-choice. I never ask any- took a lot of flack for it and he be- tribute that to any of my colleagues on one that. lieved the way they did, but he also the Judiciary Committee, although I The fact is, I can see why people are made it clear that that is the law and have to admit this issue of abortion is drawing this conclusion. I will give a

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10240 CONGRESSIONAL RECORD — SENATE July 30, 2003 few other reasons they are drawing treated to the bizarre spectacle of non- where our people were brutally mur- that conclusion before we are through Catholic Senators Orrin Hatch and Jeff Ses- dered and driven from State to State here tonight. sions defending Mr. Pryor’s constitutionally leaving trails of blood. Mr. SANTORUM. If the Senator will protected religious rights to Mr. Pryor’s I don’t like religious discrimination critics, including Senator Richard Durbin, in any way. I can see why people are yield for another question, I ask unani- an ‘‘abortion-rights’’ Catholic. mous consent to have printed an arti- According to Senator Durbin (as reported drawing these conclusions from this de- cle by Bishop Charles J. Chaput, Arch- by EWTN), ‘‘Many Catholics who oppose bate. I can see why people draw such bishop of Denver, written as a result of abortion personally do not believe the laws conclusions when you start attacking a this nomination. The article talks of the land should prohibit abortion for all man because he has deeply held beliefs. about a friend of his in Alabama and others in extreme cases involving rape, in- Earlier, I read one statement from Pry- the fact there were not very many cest and the life and the health of the moth- or’s hearing, questioning his religious Catholics in Alabama in the 1960s when er.’’ This kind of propaganda makes the beliefs. It was made; and anyone with abortion lobby proud, but it should humili- brains would say, what are his deeply he was growing up and how Alabama ate any serious Catholic. At a minimum, has changed to the point where they Catholic members of Congress like Senator held beliefs? He is a traditional pro-life can elect a Catholic as their attorney Durbin should actually read and pray over Catholic conservative. And I guess that general. the ‘‘Catechism of the Catholic Church’’ and is not a good thing to be if you’re be- There being no objection, the mate- the encyclical ‘‘Evangelium Vitae’’ before fore this body seeking confirmation to rial was ordered to be printed in the the explain the Catholic faith to anyone. the federal bench. RECORD, as follows: They might even try doing something I think it is a good thing to be. I [From www.archden.org, July 30, 2003] about their ‘‘personal opposition’’ to abor- don’t think it is bad to be a liberal pro- tion by supporting competent pro-life judi- life Catholic. I think it is important to SOME THINGS CHANGE, SOME THINGS REALLY cial appointments. Otherwise, they simply DON’T prove what many people already believe— live your religion, regardless of what Some things change, and some things that a new kind of religious discrimination religious persuasion you are. I under- don’t. is very welcome at the Capitol, even among stand religious discrimination. The In the summer of 1963, a friend of mine— elected officials who claim to be Catholic. name of my church is the Church of she was just 11 at the time—drove with her Some things change, and some things Jesus Christ of Latter-day Saints, yet I family to visit her sister, who had married don’t. The bias against ‘‘papism’’ is alive and am unacceptable in certain groups be- and moved away to Birmingham, Ala. Stop- well in America. It just has a different ad- ping for gas in a small Alabama town on a cause they don’t think we are Chris- dress. But at least some people in Alabama tians. I will match my Christianity up Sunday morning, her father asked where now know where the local Catholic church they could find the local Catholic church. is—and where she stands—even if some peo- against anyone’s. I read the Bible all The attendant just shrugged and said, ‘‘We ple in Washington apparently don’t. the time. I try to read it from begin- don’t have any of them here.’’ ning to end every year. I pretty well do Mr. HATCH. This article reads in The family finished gassing up, pulled out that. It is the greatest book in the part: of the station—and less than two blocks world. And it is the greatest literature. away, they passed the local Catholic church. I have never met Mr. Pryor, but his polit- But I understand discrimination. Some Most people my age remember the ’60s in ical life is a matter of public record. He has the South as a time of intense struggle for served the State of Alabama with distinc- people will not handle the music I civil rights. Along with pervasive racial dis- tion, enforcing its laws and court decisions write because they don’t think I am crimination, Southern culture often har- fairly and consistently. This is why Presi- Christian. I don’t mean to bring that bored a suspicion of Catholics, Jews and dent Bush nominated him to the 11th U.S. up here except that it applies. I under- other minorities. Catholics were few and Circuit Court of Appeals, and why the Senate stand that. I understand why people scattered. In the Deep South, like Alabama, Judiciary Committee approved him last feel this way. If my colleagues on the being Catholic often meant being locked out Wednesday for consideration by the full Sen- other side don’t understand it, I say of political and social leadership. ate. Today, much of the old South is gone. Cit- shame on them. But the committee debate on Pryor was When abortion becomes the be-all ies like Atlanta and Raleigh-Durham are ugly, and the vote to advance his nomination major cosmopolitan centers. Time, social re- split exactly along party lines. Why? Be- and end-all in the judicial nomination form and migration have transformed the cause Mr. Pryor believes that Catholic process—which is what these outside economy along with the political system. teaching about the sanctity of life is true; groups, almost every one of them, are The South today is a tribute both to the that the 1973 Supreme Court Roe v. Wade de- committed to on the Democratic side— courage of civil rights activists 40 years ago, cision was a poorly reasoned mistake; and it is a serious issue. There are serious and to the goodness of the people of the that abortion is wrong in all cases, even rape decent people on both sides of that South themselves. and incest. As a result, Americans were Most people, most of the time, want to do issue. But when it becomes the be-all treated to the bizarre spectacle of non- and end-all litmus test whether a per- the right thing. And when they change, they Catholic Senators Orrin Hatch and Jeff Ses- also change the world they inhabit, which is sions defending Mr. Pryor’s constitutionally son can serve—that’s wrong. And don’t one of the reasons why the Archdiocese of protected religious rights to Mr. Pryor’s give me the argument we have ap- Atlanta can now draw thousands of enthusi- critics, including Senator Richard Durbin, proved all kinds of people who may be astic Catholic participants to its Eucharistic an ‘‘abortion-rights’’ Catholic. pro-life. Of course, Members cannot Congress each year in a state where Catho- He concludes with: vote against everybody. lics were once second-class citizens. It also But we are filibustering, for the first explains how a practicing Catholic, William Some things change, and some things H. Pryor, can become Alabama’s attorney don’t. The bias against ‘‘papism’’ is alive and time in history, good people, judicial general—something that was close to incon- well in America. It just has a different ad- nominations to the Federal courts of ceivable just four decades ago. dress. But at least some people in Alabama the United States of America, for the I’ve never met Mr. Pryor, but his political now know where he local Catholic church first time in history. I know a lot of it life is a matter of public record. He has is—and where she stands—even if some peo- comes down to abortion. I did not let served the State of Alabama with distinc- ple in Washington apparently don’t. that happen when I was chairman dur- tion, enforcing its laws and court decisions I ask the Senator from Utah if he has ing the Clinton years. I don’t think it fairly and consistently. This is why Presi- seen that article. should happen right now, especially dent Bush nominated him to the 11th U.S. Circuit Court of Appeals, and why the Senate Mr. HATCH. I had not seen it before somebody such as Pryor who has a rep- Judiciary Committee approved him last tonight, that I was aware of. I had been utation for obeying and standing up for Wednesday for consideration by the full Sen- told the Catholic bishop had written the law even though he disagrees with ate. this article. I can see why he has drawn it. But the committee debate on Pryor was this conclusion. I can see why anyone As a politician he has that reputa- ugly, and the vote to advance his nomination would. tion. I imagine if he can do it as a poli- split exactly along party lines. Why? Be- I hear the moaning and groaning and tician, he can do it and we can take his cause Mr. Pryor believes that Catholic scheming, but I happen to be a member word on it that he would abide by the teaching about the sanctity of life is true; that the 1973 Supreme Court Roe v. Wade de- of the Church of Jesus Christ of Latter- law and sustain the law of the land as cision was a poorly reasoned mistake; and day Saints. I belong to the only church a judge. Yet the principal argument that abortion is wrong in all cases, even rape in the history of this country that had against him is that he won’t enforce and incest. As a result, Americans were an extermination order out against it, the law regarding abortion. There are

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00070 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10241 other arguments used, all of which are I also ask unanimous consent to have But I can see why people have done false, in my opinion. This abortion printed in the RECORD—because these this, because they believe that this— issue is becoming the be-all and end-all are people who are good people writing these debates are devolving to the issue for Democrats in the Senate. these letters. And they are just start- point of attacking a person for his or There is always somebody who wants ing. An avalanche is coming. This is her personal beliefs, in the case of to enforce an abortion litmus test, but from the Union of Orthodox Jewish Pryor, Kuhl, Holmes, others. we stopped it on our side. It ought to Congregations of America, July 23: Let me respond to Senator FEIN- be stopped on their side. DEAR SENATOR HATCH: We write to you STEIN’s concerns about the ad that used Mr. SANTORUM. If the Senator will with regard to the Judiciary Committee’s the slogan ‘‘Catholics need not apply.’’ yield for another question, I sincerely consideration of the nomination of William In fact, it was the liberal groups, the thank the Senator from Utah for his Pryor, the current Attorney General of the liberal inside-the-beltway groups, that yielding to me for these questions and State of Alabama, to the U.S. Court of Ap- used the slogan ‘‘Catholics need not peals for the Eleventh Circuit. for his very articulate defense of this The Union of Orthodox Jewish Congrega- apply’’ to argue against Republicans nominee and the principle which I be- tions of America, the nation’s largest Ortho- for supporting the Charitable Choice lieve and I think the Senator believes dox Jewish umbrella organization rep- legislation in 2001. in. resenting nearly 1,000 congregations nation- Let me put one of these ads up, along One of the reasons I brought the arti- wide, is a non-partisan, religious organiza- with the words of the Americans cle up was, many people outside of this tion and—like most other organizations in United for Separation of Church and Chamber—not just Catholic, not just the American Jewish community—it has State. Here is the paragraph down Christian, but of all faiths—are deeply been the UOJCA’s longstanding policy nei- here: ther to endorse nor oppose judicial nominees concerned about what is going on in in the confirmation process. However, to our Ashcroft’s Charitable Choice provisions this Chamber. I thank the Senator for dismay, we have witnessed several of our allow a government-funded program to hang his willingness to stand up and to have community’s organizations deviate from this a sign that says ‘‘Catholics need not apply.’’ the courage to articulate that. I make shared policy in recent weeks and oppose the I will not read the rest of it. We will the point that he is not alone in com- confirmation of Mr. Pryor. put it into the RECORD. ing to the conclusion he has come to, Moreover, we are profoundly troubled by I ask unanimous consent that the the manner in which this opposition has that many people in this Chamber have letter be printed in the RECORD. come to, that this litmus test that is been framed. We thus feel compelled, unlike There being no objection, the mate- our fellow communal organizations, to re- being applied ultimately is a religious main faithful to our non-endorsement policy rial was ordered to be printed in the one. but express our view on a critical issue that RECORD, as follows: Mr. HATCH. The practical applica- has been raised in connection with this nom- AMERICANS UNITED URGES SENATE TO REJECT tion. ination—Mr. Pryor’s personal religious faith ASHCROFT NOMINATION FOR ATTORNEY GEN- Mr. SANTORUM. Which is a very and his capacity to serve as a federal judge ERAL in light of that personal faith. threatening thing. BUSH NOMINEE’S VIEWS ARE ‘OUTSIDE THE As a community of religious believers com- I say for the record, as a pro-life MAINSTREAM,’ SAYS AU’S BARRY LYNN Catholic, I voted for hundreds of Clin- mitted to full engagement with modern American society, we are deeply troubled by In written testimony submitted to the U.S. ton nominees who I knew were not pro- those who have implied that a person of faith Senate Judiciary Committee, Americans life—hundreds of them—never voted cannot serve in a high level government post United for Separation of Church and State against one of them, never filibustered that may raise issues at odds with his or her today urged senators to reject the nomina- any of them. I will match up my fervor personal beliefs. There is little question in tion of John Ashcroft for attorney general. in defense of human life against anyone our minds that this view has been the ‘‘[W]e at Americans United have come to in this Chamber. But not once did I subtext for some of the criticism of Mr. the conclusion that Senator Ashcroft’s pol- Pryor. We urge you and your colleagues to icy positions and legal opinions are so far vote against one. outside the mainstream that it is doubtful Why? Because that is not my role as emphatically reject this aspersion and send a clear message that such suggestions, wheth- he could enforce the very laws and rights a Senator, as a civil servant. I know er explicit or implied, are beyond the pale of that the attorney general must protect and my duties under the Constitution. I our politics. In our view, Mr. Pryor’s record uphold,’’ said Barry W. Lynn, executive di- know my role. I know what I am sup- as Alabama’s Attorney General dem- rector of Americans United. ‘‘We call on this posed to do. What we are experiencing onstrates his ability to faithfully enforce the committee to reject his confirmation.’’ here now is not, again, the separation law, even when it may conflict with his per- In his statement to the Senate panel, Lynn of church and state but the separation sonal beliefs. noted that Ashcroft has frequently expressed The role of religion and of religious citi- contempt and disdain for the Supreme Court from anybody who is faithful to their and its legal precedents. (Hearings on the church from the state. That is turning zens in American life was much discussed during the last presidential campaign. To nomination begin today.) separation of church and state that our nation’s credit, it was discussed in a seri- For example, Lynn pointed to Ashcroft’s would cause any of the Founders to be ous and meaningful way, which revealed a comments to the Christian Coalition in 1998, spinning in their grave today. It is ex- national consensus favoring a society where where the former Missouri Senator said, ‘‘A actly what—you can call it anything citizens of many faiths are not only welcome robed elite have taken the wall of separation you want—but that is exactly what is in our society, but encouraged to bring their designed to protect the church and they have made it a wall of religious oppression.’’ going on. faith into our nation’s ‘‘public square.’’ We urge you to ensure that the deliberations Responded AU’s Lynn, ‘‘Ashcroft’s charac- The greatest of the freedoms we have terization of the Supreme Court as a ‘robed in this country, the greatest that any over William Pryor’s nomination do not un- dermine the great progress we have seen on elite’ shows a lack of respect unbefitting a country can have, is the freedom to be- this issue so critical to America’s civil soci- candidate for attorney general. It is a phrase lieve the freedom to think. Because if ety. more commonly associated with religious ex- you don’t have the freedom to think We pray your committee’s deliberations tremists and anti-government militias than what you want and the freedom to do will be fair and serve the nation well. our nation’s chief law enforcer and protector what you want, the freedom to speak, of civil rights and liberties.’’ There are a lot of people concerned Lynn also told the Senate committee that to assemble—the freedom to do any- about this around here. Let me make Ashcroft’s legislative efforts reflect a dis- thing else is meaningless. It is the first this point. I want to respond to the regard for constitutional principles. of all freedoms. That is under assault concerns of my dear friend, Senator ‘‘Senator Ashcroft’s contempt for First in this process. FEINSTEIN. She is one of my dearest Amendment case law is not merely rhetor- I commend the Senator from Utah friends in this body. I think the world ical, but also took legislative form,’’ Lynn for standing up in defense of this. of her. said. ‘‘During his sole Senate term, Ashcroft Mr. HATCH. If my colleague will stay She made comments about an ad that developed legislation called ‘charitable a few minutes longer, because I want to used the slogan, ‘‘Catholics need not choice,’ a plan that allows religious groups make one more point in this area and to receive taxpayer funds to perform govern- apply.’’ I don’t have a copy of it here ment services and then discriminate in the it needs to be made—a couple maybe. on a poster. employment of staff people to run the pro- I believe the Senator has put the let- She used that because she wants us gram. ters and op-ed piece from the Catholic to decry this ad. ‘‘Ashcroft’s Charitable Choice provisions Leader into the RECORD. Well, I am not happy with this ad. allow a government funded-program to hang

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10242 CONGRESSIONAL RECORD — SENATE July 30, 2003 a sign that says ‘Catholics Need Not Apply’ Mr. MCCONNELL. I ask the chairman say there is litmus test arising. Cer- or ‘Unwed Mothers Need Not Apply,’ ’’ Lynn of the committee if he is aware of any tainly there are outside groups that added. ‘‘Such a scheme amounts to no less time in which the Senate, having set a are trying to smear our nominees—es- than unconstitutional government-funded precedent, tended to unset it lately? pecially Attorney General Pryor, employment discrimination.’’ Lynn found Ashcroft’s comments to stu- Mr. HATCH. I have no doubt that we Judge Kuhl, and Mr. Holmes. dents at Bob Jones University in 1999 par- have unset precedents in this body. Mr. MCCONNELL. Mr. President, I ticularly revealing about the attorney gen- Mr. MCCONNELL. My fear, I say to further ask the chairman of the com- eral nominee’s commitment to government my friend from Utah, is that we mittee. He may well have received—I neutrality on religion. In the speech, crossed the Rubicon on the issue of fili- know I did and other Members of the Ashcroft said that America has ‘‘no king but bustering judges. Senate did—a letter today from Wil- Jesus.’’ Mr. HATCH. No question about that. liam Donohue, Ph.D., who is president ‘‘Such a statement shows a total lack of Mr. MCCONNELL. I can recall as re- regard for the principle that it is the U.S. of the Catholic League For Religious Constitution that serves as the basis for our cently as the last year of the Clinton and Civil Rights. He said, among other laws and national life, not one faith tradi- administration, the chairman of the things, in his letter: tion,’’ said Lynn. ‘‘Our Constitution guaran- Judiciary Committee and others and Some of Pryor’s critics are themselves tees unqualified religious liberties for each myself voting for cloture on judges Catholic and thus resist the contention that of us, regardless of our beliefs.’’ that we personally opposed and subse- is being opposed because of his religion. But Ultimately, Lynn argues that Ashcroft’s quently did oppose, even though we they do so by falsely claiming that on the hostility for our constitutional principles knew there was a chance of killing subject of abortion, there is more than one disqualify him for the position of attorney them on filibuster. I think of Paez and acceptable position for Catholics to take. general. I think of Berzon. They are dead wrong. Catholic teaching on ‘‘As the nation’s top law enforcement offi- abortion is unequivocal: It is gravely sinful. cer, the attorney general must represent all Does the chairman of the committee This is not a matter of dispute—it is a mat- Americans,’’ Lynn noted. ‘‘He must stand for share my view that we may have gone ter of doctrine that all Catholics are ex- the rights of Christians, Jews, Muslims, Bud- so far now that this would be the pat- pected to uphold. Especially public officials. dhists, and Hindus. He must advocate for tern forever in the Senate, denying The danger, then, is that Bill Pryor may be those who are completely devout about reli- judges up-or-down votes because we rejected because of his religious convictions. gion as well as those who are totally indif- find them unacceptably liberal or con- I think what is so disturbing here to ferent toward it. He must understand certain servative or too steeped in personal be- things about America—that the nation was many of us—I am personally not a not founded on any one particular set of reli- liefs that they are willing to express Catholic—is that you could adhere to gious beliefs but rather was deliberately de- before the committee? the teachings of your church and then signed to extend freedom to them all. Our Mr. HATCH. I have no doubt, to an- in effect be penalized for it even nation guarantees this freedom to all faiths swer the Senator’s question, if we con- though there is no evidence that in car- by erecting a wall of separation between tinue down this pathway we are going rying out your duties as a public offi- church and state. to devolve to where people with strong- cial you wouldn’t follow the law. ‘‘Senator Ashcroft views this wall as one ly held religious beliefs are not going I ask the chairman: Are we being pe- that fosters oppression, not freedom,’’ Lynn to be able to serve in this country. concluded. ‘‘By taking this position, he puts nalized for our own personal religious himself at odds with both the early Amer- That is what it comes down to. I have convictions in seeking public posi- ican statesmen who built that wall—men no doubt that if we continue to violate tions? like Thomas Jefferson and James Madison— the Constitution by allowing filibus- Mr. HATCH. There are people all over and more importantly, the decisions of the ters against—under our advise and con- this country who are coming to the U.S. Supreme Court. For these reasons, we sent mandate in the Constitution, we conclusion that Bill Pryor is being respectfully ask this committee to reject are going to wind up with a mess on treated that way. Personally, if you John Ashcroft’s confirmation as attorney our hands that we will not be able to are going to apply abortion as a litmus general of the United States.’’ Americans United is a religious liberty repair. So we have to get out of this. I test, and that is his deeply held per- watchdog group based in Washington, D.C. call on our colleagues on the other side sonal belief, even though he has exhib- Founded in 1947, the organization represents to get real here. ited more than an effort to obey the 60,000 members and allied houses of worship Mr. MCCONNELL. Further, I inquire laws no matter what they are, I can see in all 50 states. of the Senator from Utah, the chair- why people arrived at that conclusion. Mr. HATCH. Let’s go to People for man of the committee, whether he I see why Mr. Donohue feels that the American Way. It is estimated that thinks it will now be routine for every way. This is getting to be an ava- People for the American Way have be- nominee to be asked their personal be- lanche. The new code words for some tween $12 and $30 million given to liefs on a whole range of issues, per- are that, well, I don’t personally be- them, mainly by the Hollywood crowd sonal and religious beliefs on a whole lieve in abortion but I believe a woman and big business people, to do what range of issues, and be expected to an- ought to have a right to choose. they do in this town, which is to dis- swer those kinds of questions. Give me a break. That is a nice ex- tort Republican nominees’ records. Mr. HATCH. I do not think we will go cuse. But that certainly is not accept- This is People for the American Way. I that far. At least while I am chairman able, it seems to me, to many religions, will not read it all: of the committee we are not going to including the Catholic faith, as has Charitable Choice, a bad choice for govern- do that. I did ask him what his religion been said by these letters. ment and religion. was, after all of these questions that Mr. MCCONNELL. Mr. President, I Here is the paragraph. were asked in a very extensive hearing ask unanimous consent that this letter An Evangelical church running a govern- where religion was put squarely in to which I referred from Dr. Donohue ment-funded welfare program could state issue by the other side. I did ask him be printed in the RECORD. that ‘‘Catholics need not apply,’’ in a help that because I wanted to establish that There being no objection, the mate- wanted ad. this had gone too far. rial was ordered to be printed in the I do not recall any Democratic Sen- I don’t intend to ever ask that ques- RECORD, as follows: ators expressing outrage about that. I tion again. I don’t think my colleagues CATHOLIC LEAGUE did not see one comment about the fact will. The distinguished Senator from FOR RELIGIOUS AND CIVIL RIGHTS, that the liberals have used this lan- Vermont said he will never ask that New York, NY, July 25, 2003. guage against the Charitable Choice question, and he criticized me for doing DEAR SENATOR: You will soon be voting on legislation. so. But I think it was highly justified the candidacy of Alabama Attorney General Whether you agree with that or under the circumstances, and I think Bill Pryor for the federal appeals court in whether you agree with General Pryor, we made a pretty good case tonight Alabama. As president of the nation’s largest Catholic civil rights organization, I ask that or not—— that it was justified, although I am you subject him to the same standards as Mr. MCCONNELL. Will the Senator sure some of my colleagues will take you would any candidate. I am also asking yield for a question? umbrage. that you challenge any colleague of yours Mr. HATCH. I am happy to yield But let them take umbrage. People who may attempt to subject Pryor to a de without losing my right to the floor. all over this country are starting to facto religious test.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10243 I have plainly said there are no anti-Catho- He has more than amply shown that tion in this town—I am getting so I lics in the U.S. Senate. But I have also said he would, even under severe criticism don’t believe anything they do—criti- that this does not empty the issue. by his supporters—by his own Governor cized the Bush administration for sup- Bill Pryor’s deeply held opposition to abor- tion as a moral issue, as well as his deeply who appointed him, by the Supreme porting Charitable Choice legislation. held opposition to the jurisprudential rea- Court Chief Justice who begged him to They said: soning as evidenced in Roe v. Wade, have make certain arguments, he abides by Charitable Choice opens the door to gov- made him a lightning rod for abortion-rights the law. Yet his assertions and his ernment approved discrimination. . . . An advocates. In other words, it is precisely word as a man of integrity and honor evangelical church running a government- Pryor’s religious convictions that are bring all his life are given short shrift. funded welfare program could state that scrutinized. Given the cast of mind of some Democrats are playing this phony ‘‘Catholics need not apply.’’ of his critics, it makes it virtually impos- I am sure some will say maybe they sible for practicing Catholics to ascend to ‘‘gotcha politics’’ game, in which they the federal bench. ‘‘investigate’’ unauthenticated—and will do that. Maybe they will. I don’t Some of Pryor’s critics are themselves many believe, stolen documents—and know. But they are saying a lot of the Catholic and thus resist the contention that we object but participate only to keep best welfare programs in this country, he is being opposed because of his religion. our side informed. After weeks of their a lot of the best programs in this coun- But they do so by falsely claiming that on ‘‘investigation,’’ they didn’t find one try—from the taking care of people the subject of abortion, there is more than thing inconsistent with Pryor’s testi- standpoint—are done by religious orga- one acceptable position for Catholics to mony. They called almost everyone nizations, including the Catholic take. They are dead wrong. Catholic teach- Church. ing on abortion is unequivocal: it is gravely named in these documents. I don’t sinful. This is not a matter of dispute—it is know if they got all of them on the Where was the outrage back in 2001 a matter of doctrine that all Catholics are phone. But they didn’t find one thing when the liberals were using the slogan expected to uphold. Especially public offi- wrong. Pryor made himself available ‘‘Catholics Need Not Apply’’ against cials. twice, so they could ask any question the Bush administration and John The danger, then, is that Bill Pryor may be they wanted to ask, but twice, they Ashcroft? rejected because of his religious convictions. didn’t ask a single question. Then they My friends on the other side of the This would be outrageous and that is why I aisle were silent. I did not hear one of am asking you to do what you can to prevent come here and said they haven’t had this from happening. the full investigation. Give me a break. them complain about that. Sincerely, It is getting to be where it is hard for I met with some 50 people yesterday WILLIAM A. DONOHUE, Ph.D., people of devout beliefs to not be criti- from all over the country who believe President. cized if those beliefs contradict abor- we are devolving into an antireligious Mr. MCCONNELL. Mr. President, I tion rights. body because of what is going on here. ask the chairman of the committee, Look. We have people on our side Again, it is all coming down to abor- isn’t the important thing whether who feel very deeply about that. Some tion. there is demonstrable evidence that a of them—very few—wanted to fili- All we have asked is for Senators not nominee has been unwilling to follow buster. We stopped it because we knew to filibuster judges. We think it is a established law and it is my under- it would be terrible for this body to go dangerous, unconstitutional thing to standing—I ask the chairman whether through filibustering nominees to the do. Judicial nominees of any President it is his understanding—that Attorney Federal judiciary. deserve an up-and-down vote, espe- General Pryor has followed the law But now Democrats are filibustering cially once they are brought to the when it was very tough to do so as an nominees. When a person of the integ- floor. There are all kinds of ways of elected official in Alabama. rity of Bill Pryor is constantly called stopping them before they get to the I believe our friend from Alabama, into question because of deeply held floor, and colleagues on both sides of the junior Senator from Alabama, Mr. beliefs, I can see why people from all the aisle understand those ways. SESSIONS, cited a number of cases upon over the country are starting to ask But I can tell you this, we can match which Attorney General Pryor, as an what his deeply held beliefs are. They the decency of our approach any day of elected official and not insulated from are religious beliefs because he is a tra- the week to what went on during the the wishes of the voters, took very ditional pro-life Catholic—and God for- Reagan and Bush 1 administrations, tough positions on various issues be- bid conservative—and that is, frankly, and now what is going on in this ad- cause he was following the law. Isn’t behind this in the eyes of many people. ministration—any day of the week— that the fundamental question that we I don’t want to attribute that to my statistically, number-wise, fairness, ought to ask of nominees, whether to colleagues on the committee but I be- from a dignity standpoint. the left or to the right? Will you follow lieve they are letting this happen. I All we want are up-and-down votes the law? And if they have dem- call on them to help stop it. for these nominees, especially once onstrated examples where they have The reason I bring up these two post- they are brought to the floor. What is done so, that would be relevant to ers tonight is because these liberal really bothering our friends on the whether or not they ought to be con- groups use these slogans that ‘‘Catho- other side is, we do have a right to firmed. lics need not apply’’ to argue against bring people to the floor because we Mr. HATCH. It certainly would. We Republicans for supporting Charitable have this one-person majority. Can you have reached a point on the Judiciary Choice legislation. When that slogan imagine how much good work we could Committee where a person who has al- was used against Republicans, I did not do if we had a few more in the major- ways had an honorable reputation such hear any outcry from my friends on the ity? It would not be nearly this as General Pryor is immediately told other side. I did not hear any outcry. screaming and shouting and this bit- by my Democratic colleagues that he Specifically, Americans United for Sep- terness that sometimes does arise, cannot follow the law because of his aration of Church and State argued coming primarily from outside. deeply held beliefs. Come on. He has against John Ashcroft’s nomination for I think the public has a right to more than shown that he follows the Attorney General. Their press release know exactly where their Senators law even though sometimes it is to- stated that Ashcroft’s Charitable stand on these issues. If you do not like tally in conflict with his religious be- Choice provisions allow a government- Bill Pryor, vote against him. If you liefs because he is a great lawyer. He funded program to hang a sign that think that his religious views are going realizes that if you do not follow the says ‘‘Catholics Need Not Apply.’’ to color his decisions on the bench, law, pretty soon we will not have any That is ridiculous. But that is what vote against him. If I thought that, I laws. The quickest way to get rid of they did. I did not hear any screaming would vote against him. the Constitution is to not abide by it. about that. I did not hear any of this The public needs to know, how are Even though there are decisions by the righteous indignation from our col- you going to vote on these issues? Supreme Court that I abhor, and that I leagues over here about that. We didn’t Some of our colleagues are afraid to think are bad decisions to start with, dignify it; at least I didn’t. take on these outside groups. We did. I the fact is that when it is the law, I be- People for the American Way, which did. I have been condemned by some of lieve we ought to abide by it. I think has a very checkered reputa- them, even to this day, for having done

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00073 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10244 CONGRESSIONAL RECORD — SENATE July 30, 2003 so. And I put through a lot of Clinton ones I have been mentioning. I don’t health problems and that it has been judges. The all-time champion was understand it. I don’t understand why very difficult for him, but he is a Ronald Reagan: 382 judges in his 8 the other side is doing this. But they gutsy, strong Senator, one of the great- years. He had 6 years of a Republican are doing it. And I think they are hurt- est ones who has ever sat here. And he Senate to help him, only 2 years with ing this process tremendously. is never going to let you know that he Democrat opposition, and he got 382. It All I want—and all any reasonable has been hurting. But they know. was remarkable. Guess how many Clin- person should want—and all the public We can do this bill by the end of this ton got, with only 2 years of his own wants—is to have an up-and-down vote. week, and we can still have our votes party in control of the Senate? In 6 Let these people be voted upon. If they on cloture, which need to be done be- years, where I was chairman, 377—5 less are defeated, I can live with that. But cause the Senate is capable of doing than Reagan. Had it not been for some if they are not defeated, they should be multiple things. If we were not, we of the holds on the other side—one Sen- able to serve without having their rep- would not have lasted for over 200 ator was not getting his, so he stopped utation smeared, which is what these years. And we can do those trade bills, another from getting his—I think Bill outside groups are doing. I don’t think too, if we just have a modicum of co- Clinton would have been the all-time outside groups of the left or the right operation from the other side. But, no, confirmation champion, with 6 years of should be doing that. And they are dis- there is a slow-walk here. And some on a Republican Senate. We treated him torting this process like I have never our side—in fact, it is a growing num- fairly. Now, you can always find some- seen it distorted before. ber—are starting to believe that slow- thing to complain about on both sides, Now, Senator FEINSTEIN was not here walk is to try to make the Senate look but he was treated fairly under the cir- when I showed that the left used this bad. You can’t make it look bad be- cumstances. And I know it, and I know slogan ‘‘Catholics Need not apply.’’ I cause we have had a lot of legislation he knows it. don’t think it is a good idea, whether go through this year. And we are going These people deserve an up-and-down these ‘‘Catholics need not apply’’ signs to keep plugging away until we get vote, at least once they come to the or ads come from the left or from the more that this country needs. But it floor. Justice delayed is justice denied. right. And I would prefer them to be sure is a chore every step of the way. There are many of these cases, among stopped. I don’t want to hear these phony ar- the litany of people the Democrats I don’t like my colleague from guments that we can’t have 15 minutes have indicated they are going to fili- Vermont thinking that I think he has for a cloture vote, or even an hour de- buster—it is not just two. Pryor looks even an ounce of religious bigotry. I do bate beforehand. We can start at any like he is going to be filibustered. Kuhl not. He needs to know that. But he time in the morning. looks like she is going to be filibus- can’t just slide off and not recognize Most people do not even get moving tered. Holmes looks like he is going to that this is where we are being taken around here until 10 o’clock. We can do be filibustered. We have talked about by some of the attitudes and some of that without interfering with the en- the approaches that are going on in the Pickering being filibustered. You can ergy debate. Senator DOMENICI was go down through some others as well— Senate Judiciary Committee—at least willing to be here all night long, if he Boyle from North Carolina, et cetera. that is what the people outside think, had to, to take amendments and move Our courts cannot work if we don’t religious people. this along. I think we Republicans were I have to tell you something, some of have judges to run them. What is really ready to be here for as long as it took the greatest judges in this country are bothering some of our colleagues on to support him and others on the Dem- Catholics—and from every other reli- the other side is that in relation to the ocrat side who believe we need an En- gion. And some of the greatest ones American Bar Association, their gold ergy bill. have deeply held beliefs. But they are standard during all my 6 years as But to come out here and make these honorable, decent, honest people, just chairman of the Judiciary Committee points against Bill Pryor that are not during the Clinton years has suddenly like Bill Pryor. Now, look, what really has offended only false but demeaning to this body not been a gold standard but a tin is wrong. standard to them, because people like me and got me going here today—and I I am going to yield the floor. I know Miguel Estrada, with the unanimously knew we were not going to go any fur- my colleague would like to speak. I am well-qualified highest rating of the ther on energy tonight because the tired of hearing these arguments how American Bar Association, are stopped. Democrats brought this up. We have an holy some on the other side are. But I For what reason? They do not even hour scheduled for the debate early in tell you this, there are people all over have a good reason. the morning tomorrow for a cloture The first Hispanic ever nominated to vote. They don’t want this cloture this land who are starting to think this the Circuit Court of Appeals for the vote. Why not? It takes 15 minutes. system is not fair to people of belief, to District of Columbia, and not even a And they are trying to say that we are people who have deeply held beliefs. I valid reason—at least I have not heard tossing energy over the hill. They want you to know I am one of them. one yet, and I have heard everything brought it up. And I am not going to I yield the floor. they have said. let them get away with it anymore. The PRESIDING OFFICER. The Sen- Priscilla Owen, you can’t find a bet- I care a lot for my colleagues on the ator from Alabama. ter woman. Priscilla Owen became a other side. There is not one I do not Mr. SESSIONS. Mr. President, I top-flight partner in one of the major like. That is not the usual BS around thank so much the distinguished chair- law firms, broke through the glass ceil- here. I do like my colleagues, and they man of the Judiciary Committee. He ing for women, has been a mentor for know it. I don’t feel good pointing out has been a consistent defender of an women, is unanimously well qualified, to them that what they are doing is independent judiciary. He takes those and a justice on the Texas Supreme dangerous for this process, and that issues exceedingly seriously. He has de- Court. She has all kinds of Democrat people all over this land are starting to fended them when there was a Demo- support from Democrat co-justices get some wrong ideas—maybe right cratic President and he was Chairman right on through the State—the people ideas. I think these church leaders are of the majority-Republican Judiciary who know her the best. And she is not too far off. In fact, they may very Committee. He defended the Presi- being filibustered. well be right. They took the time to let dent’s legitimate prerogatives in nomi- Bill Pryor is as good a man as I have us know how they feel. nations. He has been consistent on that seen come before the committee; yes, a But to come out here tonight and and everybody knows it. There is no person with very deeply held views. He start this mess, and make these points, basis to criticize him. might be filibustered. and then say that we are not willing to Bill Pryor is a friend of mine. He is Judicial nominees’ qualifications get the Energy bill done—come on. We one of the finest, most decent people I should matter most. And a person’s ju- have been doing a slow-walk around have ever known. There is not a Mem- dicial qualifications ought to be the here for weeks now on the Energy bill. ber of this body or a member of any of sole criteria by which we judge them. My colleagues on the other side know these outside groups that has any more You cannot find better people than the that Senator DOMENICI has had some integrity, any more decency, any more

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00074 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10245 character than Bill Pryor. He is a ster- that. But the Democrats insisted there Now that is the kind of thing People ling individual, an honest man. He tells be an investigation, even though they for the American Way do. That is the the truth. had the records for many weeks. kind of attack the Alliance for Justice When asked, ‘‘if you disagree with a Parenthetically, let me just talk puts out. I am sure some staff person law or a court opinion that goes about how they got those records. The put that language together for the Sen- against your values, will you enforce records came to Senator KENNEDY, not ator, and perhaps she made her speech it?’’, he said: ‘‘Senator, you can take it to the chairman of the committee, my- and didn’t really understand what she to the bank.’’ Not only did he say that, self, or the senior Senator from Ala- was saying. as so many of our nominees have and bama. Senator KENNEDY had them for That is a false and unfair statement. as we have accepted, he has dem- some time before anyone else knew Let me tell you what he argued with onstrated it time and time again as At- they existed. The lady who gave them respect to the Violence Against Women torney General of Alabama. to him had been an associate of a cer- Act. He participated as amicus in an It is really extraordinary to me. I tain Lannie Young in Alabama, who re- appeal to the Supreme Court ques- don’t think there is a politician in cently pled guilty to a bribery scheme tioning whether the part of that act America who has so consistently taken investigated by the United States At- creating a federal civil remedy for a very difficult positions in a political torney’s Office and Attorney General purely intrastate act violated the Com- environment—positions most people Bill Pryor. So she leaks those docu- merce Clause. Pryor argued his posi- would say a politician was crazy to ments to Senator KENNEDY, and then, tion to the Supreme Court, and the Su- take—than Bill Pryor. He did it, and at his staff’s suggestion, to Senator preme Court agreed with him. there is only one principle guiding him. LEAHY. And then the Democrats want This falsehood about Bill Pryor’s in- What is that principle? It was required to have an investigation. So the chair- difference to violence against women is by the law. He is a man of the law. man’s staff says, OK, let’s get the at- also ironic, because he has a tremen- Yes, he is a Christian gentleman. torney general on the phone. You can dous reputation in the State of Ala- When he makes a statement, part of interview him, ask him any questions bama for standing up for the victims of his religion teaches that it ought to be you want to ask him about this effort domestic violence. Kathryn Coumanis an honest statement. So when he said, to raise funds for the committee. is one of the leaders in the State in the The bipartisan investigative staff had ‘‘if the courts rule on something I don’t movement to protect women against the phone call. The chairman’s staff agree with, if it my contradicts my domestic violence. She heads the Pe- asked many detailed questions, and At- views on abortion, I will follow the nelope House. She has written on Bill torney General Pryor’s answers cor- law,’’ you can take it to the bank. That Pryor’s behalf and noted that the wom- roborated his testimony before the is the kind of man Bill Pryor is. en’s groups in the State involved in the There has been an awful lot of railing committee during his hearing and in written questions. The Democrats re- issue of violence against women put about this ad by the Committee for fused to ask Attorney General Pryor Bill Pryor in their Hall of Fame. Yet Justice. It has a courthouse chambers any questions. Why? Because they we have people on this floor and we with a little sign on it, and the sign wanted to stall his vote in committee. have outside groups saying Bill Pryor says ‘‘Catholics need not apply.’’ Isn’t It was already the fourth time his does not care about violence against this a legitimate commentary on how hearing had been set. The time had women. That is flat-out wrong. people feel about what is happening We have seen some outside groups at- come up for a vote to be cast on his here? You can agree or disagree, and tack Bill Pryor, saying that he was nomination in committee. The Demo- say it is not a really an accurate state- against the disabled. These groups crats didn’t want a vote. So they ment if you want to. I say it is legiti- should have been ashamed of them- dragged it out, partly by invoking a mate commentary. selves. Who are they? The ACLU, the rarely used two-hour rule, cut off de- My colleagues went into a conniption People for the American Way, the Na- fit about it. The ranking member bate, and obstructed a vote. The chairman then said we were tional Abortion Rights Action League, twice, in two separate hearings, called going to continue the investigation Alliance For Justice. They work to- this ad despicable. Let me read for you again that night. He gave the Demo- gether and they have a tremendous what it says. crats another chance to call Attorney amount of money. They created this As Alabama Attorney General, Bill Pryor General Pryor on the phone. They supposed issue, sent out information to regularly upheld the law even when it was at newspaper editors and made these alle- odds with his personal beliefs. Raised a again turned down this opportunity. So the investigation dragged on for over gations that Bill Pryor had gutted the Catholic, those personal beliefs are shared by Americans With Disabilities Act, and Mainers all across the Pine Tree State. But another week. They were given yet an- some in the U.S. Senate are attacking Bill other chance to get Attorney General he didn’t care about people with dis- Pryor for having ‘‘deeply held’’ Catholic be- Pryor on the phone and ask him any abilities. They said so directly. liefs to prevent him from becoming a Federal questions they had about this alleged But what did he really do? He argued judge. Don’t they know the Constitution pro- issue. Instead, they called 20 of the al- in the Garrett case against the con- hibits religious tests for public office? Bill leged contributors on the list. They stitutionality of one small part of the Pryor is a loving father, a devout Catholic, called employees of the Republican At- Americans With Disabilities Act that and an elected Attorney General who under- said a State employee could sue the stands the law. The job of a judge is to up- torneys General Association. Not one contradiction was found. Nothing un- State of Alabama, or any other State, hold the law, not legislate from the bench. for money damages in federal court for It’s time for his political opponents to put ethical was found. Yet the Democrats his religion aside and give him an up-or- continue to sully his reputation by im- violations of the Act. It was a suit down vote. It is the right thing to do. plying that the investigation proved against the University of Alabama, a Thanks Senators Snowe and Collins for mak- that Pryor misled the Committee. This State institution; and the Attorney ing sure that the Senate stops playing poli- is wrong, because not one person in General of Alabama, charged with the tics with religion. this body has the integrity of Bill responsibility of defending the State, I think that is a legitimate ad. It rep- Pryor, I would say. This is a fine, de- said this in his brief: I believe in the resents the view of a lot of Americans. cent man who has lived his life doing Disabilities Act. I believe people with There is nothing despicable about that. the right thing. I feel strongly about disabilities should be treated fairly. But I will tell you what is despicable. that. I won’t back down. The State of Alabama believes that It is despicable to lie and distort and I will tell you some other things that under the Federal statute this person misrepresent this fine man’s reputa- are despicable in the attack on Bill can get his or her job back. The Fed- tion, to impugn his integrity, to sug- Pryor. One of our Senators just said re- eral court can issue an injunction gest he did one thing wrong when he cently on this floor, with regard to Bill against the State of Alabama to rem- and a group of attorneys general raised Pryor’s participation in a certain Su- edy a violation. But the Congress could money for the Republican Attorneys preme Court case: He used his power as not allow this State employee to sue General Association. They are can- attorney general to obstruct the en- the State for money damages because, didates for office. They raise money all forcement of the Violence Against under the Eleventh Amendment prin- the time. There is nothing wrong with Women Act in Alabama. ciple of sovereign immunity, a state

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00075 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10246 CONGRESSIONAL RECORD — SENATE July 30, 2003 cannot be sued for money damages in raphy. The ACLU opposes laws against cus brief from the NAACP—won in the federal court. This is because the power child pornography. Who is out of the U.S. Supreme Court. His argument was to sue is the power to destroy. A State mainstream here? plain and simple. He said the plaintiffs always controls and limits the power of And let me ask you this: Why would did not have standing to file a lawsuit. a suit against itself. leading African-American Democrats Whether the lawsuit had been meri- Bill Pryor took this argument to the like our Congressman ARTUR DAVIS, a torious or not, it was not a legitimate Supreme Court. What did the Supreme Harvard graduate and a lawyer himself, lawsuit because they did not have Court do? The Supreme Court ruled At- former U.S. Attorney; why would Rep- standing. Attorney General Pryor took torney General Pryor was correct. And resentative Joe Reed, chairman of the it to the Supreme Court, and the Su- in any event, this affected only 4 per- Alabama Democratic Conference, a preme Court ruled with him. Some of cent of all the cases that might be member of the Democratic National my friends and some of Bill’s friends brought, because only 4 percent of the Committee, one of the most powerful are still mad about that situation, but employees in America work for States. political figures in Alabama for 30 he believed that was the right thing to Most States have disability rights pro- years; why would Representative Alvin do under the law, and he made that call tections, anyway. They don’t need to Holmes, Representative Holmes, a lieu- as the attorney general for the State of file under the Federal Act. tenant with Dr. Martin Luther King, Alabama. This is why it is wrong and des- who has been beaten for his commit- He had taken an oath to defend the picable and dishonest to say Bill Pryor ment to civil rights, all speak up for State of Alabama. These gerry- lacks sensitivity for the disabled sim- him? Why does the former Democratic mandered districts were the laws of the ply because he legitimately defended Governor of Alabama speak so highly State of Alabama, endorsed by the leg- the State of Alabama and won in the of him? Why does the Speaker of the islature. So he defended the districts Alabama House speak so admiringly of Supreme Court. This attack should not even when it went against the interest have been made. him? All these people support him because of his political allies. Some say Bill Pryor is an activist. I That is why Joe Reed and Alvin he is not as Beltway attack groups would say he is an active attorney gen- Holmes speak highly of Bill Pryor. have caricatured him. He has been a eral. He is constantly working to pre- They have seen him in action. champion of liberty and of civil rights. serve the rule of law and protect the le- On one of the church-and-state issues Much has been changed in Alabama gitimate interests of the people of Ala- that came up not long after he was ap- over the years. We have the highest bama. That is what he is paid to do. He pointed Attorney General by our number of elected African-American is absolutely not an activist in the way former Governor, the Governor had a officeholders in the United States. On Chairman ORRIN HATCH defines it. As firm view about separation of church the day we had General Pryor’s nomi- Chairman HATCH defines it, an activist and State. Basically, he did not think nation hearing, it marked the anniver- is a nominee for the bench who will not there was much separation. He read the sary of a sad day in which Governor restrain himself or herself to the law, Wallace stood in a schoolhouse door. Constitution pretty plainly. The First but in fact seeks to carry out and fur- But you must know that Bill Pryor was Amendment says Congress shall make ther their personal ideological agenda not part of that. He was a mere child at no law respecting the establishment of by twisting the meaning of words in that time. Secondly, his parents were a religion, and the Governor thought statutes and the Constitution, and to John F. Kennedy Catholic Democrats. I that meant the United States Con- otherwise act in a way that allows suspect this hearing might change gress, not the State of Alabama. He did their personal views to dominate their some of their views. When he gave his not adhere to the view that the 14th legal requirements. An activist who inaugural speech after winning elec- amendment incorporates the First and seeks to be on the bench is someone tion as attorney general, with 59 per- applies it to the States. who ought to be scrutinized carefully. cent of the votes, he opened that Then-Governor James said: What is Bill Pryor is no activist. In fact, he is speech with these very telling words: wrong with coaches leading the players absolutely committed to the rule of in prayer? He wanted Bill Pryor to file Equal under the law today; equal under the law. His whole life and whole political law tomorrow; equal under the law forever. a lawsuit to vindicate him. Shortly philosophy has been built on the fact Not segregation today, tomorrow, after having been appointed Attorney that judges should be true to the law and forever, but equality. That is how General—at a very intense and emo- whether they agree with it or not. That he led off his speech, and that is the tional time in the State, with the Gov- is the whole purpose of the rule of law. kind of man Bill Pryor is. Those words ernor of the State speaking up for That is why this Nation is so wonder- were a fitting response 40 years after a prayer in schools—Bill Pryor had to ful, why we have so much freedom. We promise of another kind. make a tough decision. He had to re- follow the law to an extraordinary de- Bill Pryor is one of the good guys. He view the law carefully. gree. A lot of countries that have great does the right thing. He frequently has What did he do? He filed a respect- potential never reach it because they refused pleas from his Republican able brief in court. He would not file don’t have a rule of law that ensures friends when he thought the law didn’t the brief the Governor wanted, so the predictability and justice. support their position. For example, Governor got his own lawyer and he As attorney general, Bill Pryor had those friends rightly believed the legis- also filed a brief. As I know as a former to be an advocate. He proved to be a lative district lines had been gerry- Attorney General of Alabama, only the great one. As attorney general, he con- mandered in the State, making it very Attorney General is legally allowed to sistently has followed the law coura- difficult for Republicans to win legisla- speak for the State in court. So Bill geously, even when he knew he might tive seats. Pryor, as Attorney General, filed a face complaints from friends and allies. In fact, although we had in Alabama brief saying that the Governor—who Members of the Senate should study two Republican Senators, five Repub- had just appointed him—did not speak his testimony carefully and evaluate lican Congressmen, and a Republican for the State of Alabama. his real record, not the trumped-up Governor, only a third of the state leg- Opponents said that Bill Pryor some- charges, not the bogus attack sheets islature was Republican. Some Repub- how is a tool of the chief justice of the being produced by outisde groups, and licans felt that this was a redistricting Alabama Supreme Court, Roy Moore, not mischaracterizations by these problem. So they filed a voting rights who has deep convictions about how groups, some of which themselves have suit arguing that the majority-minor- the Constitution and the laws ought to very out-of-the-mainstream positions. ity legislative districts were improper. be applied with regard to separation of Let me say, parenthetically, that a They asked for support from the Re- church and State, and who put in a number of these groups have extreme publican Attorney General. He would monument in the court recently that views on the separation of church and not take their side. He courageously had the Ten Commandments on it. The State. Some of these groups believe led the case, as it turned out, for the judge did not think anything was there can be no drug laws, that we African-American Democratic position. wrong with that. He met with the At- ought to legalize drugs. Some believe He lost before the three-judge dis- torney General, and they discussed there can be no laws against pornog- trict court—and backed up by an ami- legal actions against him to remove

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00076 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10247 the monument. They did not reach an which he has dealt with abortion. The the ballot, and the people of Alabama accord. The attorney general did not first had to do with Alabama’s partial- eliminated it from our constitution. agree with the Chief Justice on his birth abortion statute, that severely Bill Pryor campaigned for that elimi- views of what the law was. So eventu- restricted partial-birth abortion. Par- nation throughout the State because ally, the Chief Justice had to hire his tial-birth abortion is a very horrible he thought it was wrong that our con- own lawyer and file his own brief, and procedure. Overwhelmingly, Americans stitution would have those words still Attorney General Pryor filed a more reject it. The American Medical Asso- in it. limited brief pointing out that if you ciation said it is never justified as a This is a man of quite extraordinary go to the Supreme Court of the United medical procedure. And Alabama character, a man of great skill and States, there are several different de- passed legislation to virtually elimi- ability, who has taken cases to the Su- pictions of the Ten Commandments on nate it. preme Court and won them to an ex- the walls of the U.S. Supreme Court. As Attorney General, he super- traordinary degree. He basically said: What is good for the intended the State’s district attorneys So I submit there is nothing wrong U.S. Supreme Court ought to be good who enforced this law. He sent them a with the ad that that group put out to for the Alabama Supreme Court. directive in 1997 stating that parts of defend Bill Pryor. It is basically an Opponents say Bill Pryor is extreme the partial-birth abortion bill were un- honest evaluation of the situation. on religious issues. That is not true. constitutional and could not be en- Somebody might disagree with it, but For example, I mentioned earlier how forced. Isn’t that proof that he will fol- it is honest. he stood up and did what was right low the law even if he disagrees with In contrast, many of the attacks on with regard to the pressure from the it? Bill Pryor have not been honest. Out- Governor on school prayer. After that The other example involving abor- side groups have been unfair and have decision, there was much confusion in tion was when Attorney General Pryor deliberately twisted his record. What the State. School boards did not know issued stern warning that those who they have done is not right. Some in this chamber say we need what to do; teachers were leading threatened violence against abortion collegiality. They say Republicans prayer; others said you cannot do that. clinics, or against those who sought to should renounce this outside ad about What was the law? exercise the constitutional right to ‘‘Catholics need not apply.’’ I would To answer that question, Attorney abortion at those clinics, would be say this to my friends: Let’s see you re- General Pryor wrote guidelines for fully prosecuted. nounce some of these ridiculous, ob- school systems in Alabama advising So outside groups attack him on his scene, despicable misrepresentations of them on what they could legally do as deeply held beliefs, even deeply held re- Bill Pryor’s record and his character. I teachers, principals, and coaches, and ligious beliefs, and they suggest that would like to see that. what they could not do, and what chil- somehow he is an extremist because he dren could do and what they could not Yes, we do have a problem with personally thinks that abortion is a collegiality, but I do not think it is the do. taking of innocent human life. result of Chairman HATCH’s leadership. The Atlanta Journal Constitution Bill is a thoughtful person. He is not wrote an editorial praising him for When he was Chairman of the Com- some automaton for any church or any mittee, we moved 377 Clinton nomi- stepping up in a tough, emotional time person. He thinks about these issues and providing good leadership. And, in- nees. Only one was voted down. When carefully. He has shared his views deed, the Clinton Administration basi- he was Chairman of the Committee, about it. He believes that the life that cally adopted verbatim Bill Pryor’s not one time did we vote down a Clin- is in the womb has all the characteris- guidelines, and sent them around the ton nominee on a party-line vote. Dur- tics of what that life will be as an country to other schools. ing that short time, a year and a half This idea that he is some sort of ex- adult. There is no doubt that it is going or so, that the Democrats had a major- tremist is absolutely false. This is a to become a human being. He believes ity in the Senate Judiciary Committee, courageous lawyer who does the right that we ought not to withdraw the they voted down in committee, on a thing day after day, time after time to law’s protection from that life. That is party-line vote, two President Bush a degree I have never seen before by his view. nominees. any politician in my life. But the Supreme Court has not In May, President Bush nominated 11 On abortion, they say he has deeply bought it. In Roe v. Wade and Planned judges for the court of appeals. He re- held beliefs about abortion; he cannot Parenthood v. Casey they held dif- nominated one Democrat who had been be trusted to be a judge. The distin- ferently. Bill Pryor said: I understand nominated by President Clinton, but guished Senator from Kentucky a few that. I will follow the Supreme Court not confirmed, and two Democrats moments ago hit it exactly correctly. precedents. overall. The Democratic Judiciary When a nominee has taken a view that How do we know he will? Because he Committee promptly moved the 2 they believe abortion is wrong, then it did it even with respect to the partial- Democrats and confirmed them. Al- is perfectly proper for the Senate to in- birth abortion statute in Alabama. So I most 2 years later, several of the re- quire about that. What should the in- do not know what more a person can do maining nine had not even had a hear- quiry be? Senators should not say: Mr. to prove his fidelity to the rule of law. ing in committee. This was an unprece- Pryor, we want you to grovel down Bill has gained great support in the dented slowdown of the confirmation here on the floor; we want you to re- State. He is a man who is respected process. nounce your views about abortion; we across party lines, across racial lines. The Democrats met and decided de- want you to say, ‘‘I don’t believe that Representative Alvin Holmes wrote liberately and consciously to change anymore,’’ as a price for being con- this powerful letter on his behalf, and the ground rules for confirmation. firmed—that is absolutely wrong. he told the story about Alabama’s old There is no doubt about that. Who is What should Senators say? They constitutional provision that prohib- changing the ground rules? I submit it should say: Mr. Pryor, you have ex- ited interracial marriages. Of course, is the Democratic members of the Ju- pressed your view that abortion is bad, that had been struck down some time diciary Committee, by some of their that you do not think Roe v. Wade was ago by the United States Supreme tactics. They started an effective fili- rightly decided; but will you follow it? Court. It was unconstitutional, but it buster in the committee, creating a sit- Then see what he says. Senators do not remained in the constitution. uation in which 9 out of the 19 mem- have to accept what he says; they can Alvin Holmes, as a lieutenant for Dr. bers of the committee could withhold a inquire further. To those inquiries, Bill Martin Luther King, and still a vibrant vote by relying on a misinterpretation Pryor said ‘‘Of course, I will follow the battler for civil rights in Alabama, said of Rule IV. I have never heard of that. law, Senator. You can take it to the it ought to come out of the constitu- The chairman properly ruled under bank.’’ What is significant is that Bill tion. Attorney General Bill Pryor, as Rule IV that the chairman has the pre- Pryor has a record showing that he will Alvin Holmes said, was the only white rogative to bring a matter up for a live up to that answer. politician in the State, Democrat or vote. As far as I can tell, there have been Republican, who supported him. They Their citation of rule IV ignores only two instances in his public life in got it out of the legislature, put it on what it says the purpose of that rule.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00077 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10248 CONGRESSIONAL RECORD — SENATE July 30, 2003 The first sentence says to bring a mat- All of us take it very seriously and all John Kennedy, a Catholic, went to ter up for a vote and to deal with a re- of us take the wording of this Constitu- Texas to a Baptist convention to tell calcitrant chairman who will not allow tion very seriously because within this those gathered that his first allegiance a matter to be voted on, if you get one small document are words that have as President was to the United States member of the other party and a ma- endured for more than two centuries. and not to any religion. He said: I be- jority vote, then you can bring a mat- There was wisdom in that Constitu- lieve in America where the separation ter up for a vote even if the chairman tional Convention which America has of church and State is absolute. does not agree. But the rule does not relied on ever since. Many people think that statement give a group a right to filibuster and Sometimes people say, times have and that visit turned the election for keep a vote from occurring, which is changed. And we do amend the Con- John Kennedy, an election which he what they wanted to do. stitution from time to time. By and won by just a very small margin. It dis- We have had two open, notorious and large the principles that guided those pelled the fears and concerns of many unprecedented filibusters on the floor men who wrote this Constitution have people across the country that a Catho- against superb circuit court nominees, guided this Nation to greatness. I am lic would be first loyal to Rome and Miguel Estrada and Priscilla Owen. honored to be a small part of this Na- then loyal to the United States. Both received the highest rating by tion’s history and to serve in the Sen- ate. It is an interesting thing to reflect ABA, and both have extraordinary on the view of Catholics in public life records. In the history of this country, I looked to this Constitution for guidance for this debate tonight, and I in 1960 and the debate which is taking we have never had filibusters of circuit place tonight. The issue has come full and district judges, but the Democrats find that guidance in Article 6 of the Constitution. Let me read a few words circle. Now there are those who argue have started two now because they de- from that book. that because a nominee comes before cided to change the ground rules. the Senate and professes to be a Catho- Now we have these Members come . . . no religious Test shall ever be required as a Qualification to any Office or public lic that we cannot ask that nominee down on the Senate floor and act all Trust under the United States. questions about his political beliefs. upset that somehow collegiality is Most of the men who wrote this Con- There are many religious beliefs that being upset here. They do not know stitution were religious people. They are also political beliefs. There are why the chairman has determined to had seen the abuse of religion. They some religious beliefs that are not. You move nominations forward and not let had seen leaders in other countries can be an adherent to the Jewish reli- them be obstructed and delayed. I call using religion for political purposes gion, keep kosher, and I cannot imag- on the Democratic leader, Senator and against other people. They came to ine how that becomes a political issue. DASCHLE who speaks for this party. this land and said, it will be different What is the purpose of asking a ques- There would not be a filibuster of these in America. We are going to protect tion about that? But whether you are nominations if he did not approve it. your right to believe. We are not going Jewish, Catholic, Protestant, or Mus- He needs to remember the history of to establish a government church and lim, it is appropriate to ask any nomi- this body. It is a mistake for him to we will say in our Constitution that no nee for a judicial position, Where do lead the Democrats into an unprece- religious test will ever be required of a you stand on the death penalty? That dented period in which we filibuster person seeking a nomination for public is a political issue. It is a social issue. Presidential nominees for the federal office in our land. And yes, it is also a religious issue. courts. Those are very absolute and clear Some have argued tonight if a person I firmly believe a fair reading of the words. I am a Catholic, born and comes before the Senate with strong Constitution is that nominations for raised. My mother and father were religious convictions that somehow we judgeships should be confirmed based Catholics. My children have been are disqualified from asking questions on a majority vote. Any fair reading of raised in the Catholic faith. In my life- about political issues. I see it much dif- the Constitution will show that. That time, I have seen some amazing things ferently. I think the Constitution is why we have never filibustered in happen. In 1960, I was about 15 or 16 makes it very clear we should never the history of the country, but the years old. There was a Presidential ask a person their religious affiliation. Democrats have now created what in race with a candidate by the name of Article 6 of the Constitution says that effect is a supermajority requirement John Fitzgerald Kennedy of Massachu- is not a qualification for public office. to block the right of nominees to an setts. That may be the first Presi- So what business do we have asking up-or-down vote. dential election I followed closely. I re- that question? But to say that because There are many more things I could member watching the Los Angeles con- a person’s political beliefs also happen say about Bill Pryor. But I will not do vention on my black-and-white tele- to be their religious beliefs, that for that tonight. I appreciate the indul- vision at home in East St. Louis. I some reason we cannot ask questions gences of my colleagues and the staff. took a special interest because I had a about them, goes entirely too far. This battle to allow people to have stake. The John Fitzgerald Kennedy honest personal views, so long as those candidacy was the first opportunity Consider a so-called church in my views do not influence their official in- since Alfred Smith for the election of a State, the World Church of the Creator terpretations of existing law, is an im- Catholic to be President of the United in Pekin, IL. A deranged individual portant battle for America. I intend to States. We do not think twice about named Matt Hale—who could not be be a part of it and a lot of others do, that now, but in 1960 it was a big deal. approved by the committee on char- too. It is not going away. We are not And a big problem for John Kennedy. acter and fitness after he had passed backing down. So much so that he feared he might law school and therefore was never li- I yield the floor. lose the election over that issue. censed to practice law—decided to cre- The PRESIDING OFFICER. The Sen- He did something that was historic ate a church and an Internet Web site ator from Illinois. and I guess unprecedented. He went to in the name of that church, the World Mr. DURBIN. Mr. President, to those Texas and addressed a Baptist conven- Church of the Creator, and started ped- of us who have been given this great tion to explain his view of the relation dling the most venomous beliefs imag- honor to serve in the Senate, there is a of church and State because there were inable—bigoted, hateful, racist, anti- moment when we are asked to take the real concerns. Many people felt that Semitic beliefs in the name of religion. oath of office. In taking that oath of those who were believers of the Catho- This church and its so-called teachings office, we swear to uphold one docu- lic church were so connected and so drew some demented followers. It cul- ment. That document, of course, is the committed to the teachings of the minated one day when one of those fol- Constitution of the United States of church and to the leader of the church, lowers went on a shooting spree, kill- America. the Pope in Rome, that they could not ing a basketball coach of Northwestern We are not asked our religion, nor make objective decisions on behalf of University, Ricky Birdsong, and then our beliefs in our religion. We are only the United States; they would be driving over to the University of Indi- asked if we will take an oath to God clouded in their judgment because of ana and gunning down an Asian stu- that we will uphold this Constitution. the demands of their faith. dent, and was finally apprehended.

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00078 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10249 When Matt Hale was asked about the John Paul II, St. Louis, MO, January Priscilla Owen, anti-woman. With Charles activities of this individual, he said, 22, 1999: Pickering, anti-Baptist. And now, with Wil- liam Pryor, anti-Catholic. that is just our religion. Their religion. The new evangelization calls for followers These charges have been described by some If someone who comes before us with of Christ who are unconditionally pro-life, as ‘‘scurrilous,’’ and I agree. To describe who will proclaim, celebrate, and serve the unusual beliefs and political issues Democrats as anti-Hispanic after the many Gospel of life in every situation. A sign of says, stop, you cannot ask me about Hispanic Clinton nominees that were stopped hope is the increasing recognition that the those beliefs because they are my deep- in their tracks by a Republican majority is dignity of human life must never be taken ly held personal religious convictions, disingenuous at best. away, even in the case of someone who has To call us anti-woman, well, [as Senator are we then disqualified? If we are, done great evil. Modern society has the Feinstein said] I don’t have to tell you how imagine where that can lead. means of protecting itself without defini- bizarre it is for me to be called anti-woman. In this case we have an individual, tively denying criminals the chance to re- And to say we have set a religious litmus William Pryor, Attorney General of form. I renew the appeal I made most re- test is equally false. Alabama, who is a Catholic. The reason cently at Christmas for a consensus to end Many of us have concerns about nominees the death penalty, which is both cruel and I know that is the chairman of the Sen- sent to the Senate who feel so very strongly unnecessary. ate Judiciary Committee, ORRIN about certain political beliefs, and who make HATCH, asked him. That is the first The words of Pope John Paul II. You intemperate statements about those beliefs time I can recall in the 41⁄2 years I have didn’t hear much reference to the that we raise questions about whether those served on this committee that it has Catholic Church’s position on the nominees can be truly impartial. ever been asked of any nominee. To- death penalty tonight by those who And it is true that abortion rights are often at the center of those questions. As a night Senator HATCH said he would were saying that William Pryor is never do it again. I am glad to hear being discriminated against because of result, accusations have been leveled that anytime reproductive choice becomes an him say that. I hope he never does that his Catholic beliefs. Perhaps it is be- issue, it acts as a litmus test against those again and I hope no committee chair- cause Mr. Pryor not only supports cap- whose religion causes them to be anti- man of any committee ever asks any ital punishment, he fought State legis- choice. nominee for office their religion. The lation in Alabama which sought to re- But pro-choice Democrats have voted for Constitution makes it clear we should place the electric chair with lethal in- many nominees who are anti-choice and who not. But the exception was made by jection. believe that abortion should be illegal—some of whom may have even been Catholic. I Senator HATCH and he asked Mr. Pryor I am not going to stand in judgment as to whether or not he is a good don’t know, because I have never inquired. his religion. So this is not about religion. This is about That triggered this ad campaign Catholic. That is not my place. But I confirming judges who can be impartial and which we have discussed tonight and bring this issue before my colleagues so fair in the administration of justice. And this heated debate which many have they can understand that the Catholic when a nominee like William Pryor makes followed in the Senate. We have had Church is about more than one issue. some fairly inflammatory statements and Members come to the Senate, one who There are those who hold beliefs which evidences such strongly held beliefs on such is a Catholic, saying, This is what good may or may not agree with all the core issues, it is hard for many of us to ac- Catholics believe. teachings of that church, and that is cept that he can set aside those beliefs and I guess I was raised in a little dif- within their conscience and their right act as an impartial judge. ferent branch of the Catholic church, to do. It is not mine to judge. Somehow, that was characterized as maybe a branch that believes there But for us to be told repeatedly by questioning General Pryor’s religious ought to be a little more humility in the other side of the aisle that to op- beliefs. I do not think any fair reading religious belief. I don’t like to stand in pose William Pryor is to be against would reach that conclusion. In fact, I judgment of my peers as to whether him because he is Catholic is just plain think Senator FEINSTEIN was as careful they are good people or not; let their wrong, and I resent it. I resent it be- as we all have been to draw that clear lives speak for themselves. And I cer- cause, frankly, there are many reasons and bright line that the Constitution tainly would never stand in judgment to oppose his nomination—because of requires us to draw. of someone’s adherence to a certain re- his political beliefs. She said at one point there—and it ligious belief. That is personal, as far Oh, yes, some relate to his religion may come as curious to people fol- as I am concerned. But not personal to and some don’t. But what we are told lowing the debate—that she is not cer- some of my colleagues. in the Constitution is that distinction tain about how many Catholics we They come to the floor and make makes no difference; whether they are voted for because, you see, that is not pronouncements about who is a good religious or not, stick to political be- one of the required questions when a religious person and who is not. I am liefs. And I believe my colleagues have person applies for a judgeship in this not comfortable with that. In fact, I really tried to do that on the com- country. We do know, though, just by am a little bit uncomfortable dis- mittee. taking a look at some of their resumes, cussing this issue of religion in the Let me also say I was disappointed that they belong to some organizations Senate, but I have no choice. It has that the Senator from Pennsylvania, which suggest that they might be been brought before us. Mr. SANTORUM, earlier quoted, I believe Catholic. So I would like to say for the What I believe is this: Within the out of context, the statement made by record that the argument that we have Catholic church there are many dif- Senator FEINSTEIN of California. It was somehow discriminated against Catho- ferences of opinion, even within the unfair to her because she had left the lics who are opposed to abortion is not church members who serve in the Con- floor and he characterized some of her supported by the evidence. gress. I know of one or two who I think remarks in ways that I don’t believe We have, for example, confirmed a are really close to adhering to all of she intended. To make certain that the circuit judge who was active in the the church’s beliefs in the way that record is clear, I asked her staff to pro- Knights of Columbus and the Serra they vote, but only one or two, because vide me with a copy of the speech Club and sits on the board of a Catholic although those who come to the floor which she gave, and I would like to school—Michael Melloy. want to argue to you that the Catholic read an excerpt of that speech given on We confirmed a district court judge Church is only about one issue, abor- the floor this evening by Senator FEIN- who is a member of the parish council tion, there are many of us who believe STEIN to clarify and make certain the of his Catholic church, the president’s it is about a lot of issues. Senate understands that the quote advisory board of a Jesuit High School It is about the death penalty—the which was referred to earlier by the Parents’ Club, the St. Thomas More death penalty, where the church has Senator from Pennsylvania was inac- Society for Catholic lawyers, and his been fairly clear in its position. Again, curate. State’s chapter of Lawyers for Life— I am troubled that I would even read I quote what Senator FEINSTEIN said: Jay Zainey. this and put it into the CONGRESSIONAL Each time the Democrats oppose a nomi- We confirmed a district court judge RECORD, but I have no choice, based on nee, we are accused of some sort of bias unre- who was the former president of Catho- what has been said over the last 3 lated to the merits. With Miguel Estrada, we lic Charities of her city’s diocese and a hours. This is a statement by Pope were accused of being anti-Hispanic. With member of both the Catholic League

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00079 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10250 CONGRESSIONAL RECORD — SENATE July 30, 2003 and of the St. Thomas More Society— picion or not. But in fairness to him, in with separation of church and state, he Joy Flowers Conti. fairness to the process, in fairness to also has problems separating law and This serves as clear evidence that the Senate, should not we have com- politics. He believes that it is the job of Democrats do not have an abortion lit- pleted that investigation before he was a Federal judge to carry out the polit- mus test for judicial nominees. There reported from committee? ical agenda of the President. How else have been many we have confirmed When it comes to critical issues in- could you interpret his comments who were opposed to Roe v. Wade and volving Mr. Pryor’s background, a lot about the Bush v. Gore case in the year have made it very clear that they are of different groups have raised ques- 2000 when he said: opposed to it. tions about him. The argument is being I’m probably the only one who wanted it 5 Some names that I can refer to very made on the other side that the only to 4. I wanted Governor Bush to have a full quickly: John Roberts, DC Circuit; Jef- reason you can possibly oppose William appreciation of the judiciary and judicial se- frey Howard, First Circuit; John Rog- Pryor is if you are anti-Catholic. lection so we can have not more appoint- ers, Sixth Circuit; Deborah Cook, Sixth How then do you explain the edi- ments like Justice Souter. Circuit; Lavenski Smith, Eighth Cir- torials in opposition to his nomina- That is a statement by William cuit; Timothy Tymkovich, Tenth Cir- tion? Editorials from Tuscaloosa, AL; Pryor. cuit; Michael McConnell, Tenth Cir- editorials from Huntsville, AL; the On another occasion, he said: cuit; and the list goes on. Washington Post; Charleston, SC; St. [O]ur real last hope for federalism is the So for colleagues to stand before us Petersburg, FL; Arizona; the Atlanta election of Gov. George W. Bush as President and say we discriminate against Catho- Journal-Constitution; Honolulu Ad- of the United States, who has said his favor- lics, the record doesn’t show it. There viser; Pittsburgh newspapers—the list ite Justices are Antonin Scalia and Clarence are people who clearly have Catholic goes on. Thomas. Although the ACLU would argue affiliations in their background who Are we to suggest that all these that it is unconstitutional for me, as a pub- have been approved by this committee newspapers that oppose his nomination lic official, to do this in a government build- and are supported by Democrats. For are anti-Catholic? Not if you read the ing, let alone at a football game, I will end them to argue that we have a litmus editorials. They have gone to his my prayer for the next administration: Please God, no more Souter. test and turn down judges just because record and they have come to the con- they oppose abortion denies over 140 clusion that he is not the appropriate I ask Mr. Pryor, a member of the nominees coming out of the Bush person to serve in this circuit court ca- Federalist Society, whether he agrees White House, most of whom are pro-life pacity. with the following statement from the and most of whom disagree with Roe v. Let me tell you some of the issues Federalist Society mission: ‘‘Law Wade personally and still have won our they raise. Mr. Pryor’s zeal to blur the schools and the legal profession are approval. I read a partial list. lines between church and state, a line currently strongly dominated by a In my own situation, I am pro-choice. that was clearly drawn in our Constitu- form of orthodox liberal ideology I have personal feelings against abor- tion and clearly drawn by John Ken- which advocates a centralized and uni- tion but believe that in my public ca- nedy, Presidential candidate, is a prob- form society.’’ I have asked this ques- pacity women should have the right to lem. He is so ideological about the tion of almost every Federalist Society choose. And yet in my own home State issue that he has confessed, ‘‘I became member that has been nominated by of Illinois, of the 12 judges I have had a lawyer because I wanted to fight the President Bush. Mr. Pryor is the only the privilege to appoint to the Federal ACLU.’’ He then derided that organiza- person who gave me a one word answer. bench, at least 3 I have come to learn tion as standing for ‘‘the American He said, ‘‘Yes.’’ afterward were pro-life. I learned it ‘Anti-Civil’ Liberties Union.’’ I asked On the issue of federalism, Mr. Pryor afterward because I didn’t ask them in him if he would recuse himself in cases has been a predictable, reliable voice advance. It really wasn’t a condition involving the ACLU. He said no, but he for entities seeking to limit the rights for their appointment as far as I was pledged: of Americans in the name of States’ concerned. I just want them to be fair As a judge, I could fairly evaluate any case rights. He has filed brief after brief minded and balanced. Whether they brought before me in which the ACLU was with the Supreme Court arguing that disagree with me on that issue or one involved. Congress has virtually no power to pro- other issue is really secondary. Mr. Pryor and I are just going to tect State employees who are victims So what we have before us today is have to disagree on that particular of discrimination. an effort by the proponents of William statement. Under his leadership, Alabama was Pryor to ask us to look beyond his po- He has been a staunch supporter of the only State in the Nation to chal- litical beliefs and really turn this into Alabama Chief Justice Roy Moore and lenge the constitutionality of parts of a debate about religion. I hope we don’t his midnight installation of a 6,000- the Violence Against Women Act, do that. I hope we don’t do it for his pound granite Ten Commandments while 36 States filed briefs urging that sake and I hope we don’t do it for the monument in the middle of the State this important law be upheld in its en- sake of the Senate. courthouse. The Eleventh Circuit tirety—the exact opposite position of The Senate Judiciary Committee Court recently ruled that the display one Attorney General William Pryor. meeting of last week was one of the was patently unconstitutional and had He also filed a brief in the recently saddest times I have spent as a Sen- to be removed. decided case of Nevada v. Hibbs. He ar- ator. I saw things happen in that com- At his confirmation hearing, Senator gued that Congress has no power to en- mittee that I hope will never be re- FEINSTEIN asked him to explain his sure that State employees have the peated. I saw members of the com- statement that: right to take unpaid leave from work mittee raise the issue of religion in a . . . the challenge of the next millennium under the Family and Medical Leave way which the Constitution has never will be to preserve the American experiment by restoring its Christian perspective. Act. A few months ago the Supreme countenanced and I hope and pray has Court rejected his argument and said: never happened before in that com- He ducked the question. Mr. Pryor, you have gone too far this time. mittee. I hope it never happens again. I think if you are going to serve this The nomination of William Pryor is Nation and you are going to serve this The issue of women’s rights has been fraught with controversy. This whole Constitution, you have to have some well documented. I will not go into question about his involvement with sensitivity to the diversity of religious those again. the Republican Attorneys General As- belief in this country. To argue that On the issue of voting rights, Mr. sociation—we haven’t even completed this is a Christian nation—it may have Pryor urged Congress to eliminate a that investigation. This man’s nomina- been in its origin but today it is a na- key provision in the Voting Rights Act tion comes to the floor before ques- tion of great diversity. That diversity which protects the right to vote for Af- tions have been asked and answered is protected by this Constitution. Obvi- rican Americans and other racial mi- that are serious questions about pos- ously, Mr. Pryor has some problems in norities. While testifying before this sible ethical considerations. grasping that concept. committee in 1997, Mr. Pryor urged I won’t prejudge the man as to On the issue of judicial activism, not Congress to ‘‘seriously consider . . . whether he will be cleared of any sus- only does Mr. Pryor have problems the repeal or amendment of section 5 of

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00080 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10251 the Voting Rights Act’’ which he la- On the issue of environmental protec- are many options to do that. After nu- beled ‘‘an affront to federalism and an tion, time and again he has looked the merous discussions today, it is clear to expensive burden that has far outlived other way when it comes to protecting me we are not on a course to complete its usefulness.’’ our environment. this bill over the next couple of days. Given the importance of section 5 of For people to argue that the only po- It is important to do. I set out sev- the Voting Rights Act to the ability of sition against William Pryor is based eral weeks ago—actually 2 months African Americans and other racial mi- on his religion ignores the obvious. ago—stating that the objective would norities to achieve equal opportunity When it comes to his political beliefs, be to work aggressively over the course in voting, this call for its repeal is when it comes to his actions as attor- of this final week, having had the bill deeply disturbing. Thankfully, the Su- ney general of Alabama, time and time before us in May, spending a number of preme Court and Congress disagreed again he has taken extreme positions. days before this week on this bill. with Mr. Pryor about the importance Should this man be entrusted to a In spite of that commitment on my of section 5 of the Voting Rights Act. lifetime appointment to the second part to plow ahead, it appears to me There was one case involving in- highest court of the land? I think not. now—Wednesday night at 10 o’clock— mates’ rights which I thought was par- Many others agree with that conclu- that the writing is on the wall: We are ticularly noteworthy. He has been a sion. not going to be able to complete the vocal opponent of the right of criminal I certainly hope that when this de- bill. defendants. In Hope v. Pelzer, Attorney bate ends, however it ends, that we will Having said that, I think it is impor- General Pryor vigorously defended Ala- call an end to the involvement of reli- tant that Members have an oppor- bama’s practice of handcuffing prison gion in this debate. tunity to really prove their commit- inmates to outdoor hitching posts for It has been a sad night for me to lis- ment to this underlying bill. Again and hours without water or access to bath- ten to what some of my colleagues again, I have heard: Yes, we want to rooms. The Supreme Court rejected Mr. have said in an effort to promote the pass a comprehensive national energy Pryor’s arguments citing the ‘‘obvious political agenda of a certain part of policy. Although I hear that, and I ex- cruelty inherent in the practice,’’ and America in an effort to promote the press this willingness—and I think that calling the practice ‘‘antithetical to candidacy of an individual. I am afraid is probably right—it is important, be- human dignity’’ and circumstances many of my colleagues have crossed a fore we leave for this August recess, to ‘‘both degrading and dangerous.’’ line they should never have crossed. see what that commitment really rep- In a July 2000 speech, Attorney Gen- I hope and pray that before we utter resents. Thus, I will shortly file clo- eral Pryor was outspoken in his disdain the next sentence in relation to the ture, and the Senate will have the op- for the Supreme Court’s reaffirmation Pryor nomination that each of us who portunity to go on record for com- in Dickerson v. United States of the has taken an oath to uphold this Con- pleting a bill which will accomplish constitutional protection of self-in- stitution will stop and read article VI: just that—establishing a national en- crimination first articulated in Mi- No religious test shall ever be required as ergy policy. randa. He called the Dickerson deci- a qualification to any office or public trust Mr. President, in that regard, I now sion, authored by Chief Justice in the United States. ask unanimous consent to set aside the Rehnquist an ‘‘awful ruling that pre- Those words have guided our Nation pending amendments in order for me to served the worst example of judicial for over 200 years. They should guide offer an amendment. activism.’’ each of us in good conscience. The PRESIDING OFFICER. Is there The list goes on. I yield the floor. In the case called United States v. objection? Mr. REID. Mr. President, I served in Mr. REID. I object. Emerson, Attorney General Pryor filed the Congress since 1972. I have had the an amicus brief to argue that a man The PRESIDING OFFICER. Objec- good fortune to listen to some brilliant tion is heard. who was the subject of a domestic vio- statements made on various subjects MOTION TO COMMIT lence restraining order should be al- over 21 years. But I have to say that lowed to possess a firearm. the statement by the senior Senator Mr. FRIST. Mr. President, I send to Let me repeat that. the desk a motion to commit the pend- The man who was the subject of a do- from Illinois tonight is the finest state- ment I have ever heard in some 21 ing legislation with instructions. mestic restraining order should be al- The PRESIDING OFFICER. The lowed to own a firearm. years. I hope the people of Illinois know what pride we have in DICK DUR- clerk will report the motion. Mr. Pryor called the Government’s The legislative clerk read as follows: position a ‘‘sweeping and arbitrary in- BIN. The Senator from Tennessee [Mr. FRIST] fringement on the second amendment I suggest the absence of a quorum. The PRESIDING OFFICER. The moves to commit S. 14 to the Committee on right to keep and bear arms.’’ He was Energy and Natural Resources with instruc- the only State attorney general in the clerk will call the roll. The assistant legislative clerk pro- tions to report back forthwith with the fol- United States of America to file a brief lowing amendment numbered 1432. in support of that position. ceeded to call the roll. Mr. FRIST. Mr. President, I ask (The amendment is printed in today’s When it comes to tobacco, he has RECORD under ‘‘Text of Amendments.’’) been one of the Nation’s foremost oppo- unanimous consent that the order for AMENDMENT NO. 1433 nents of a critical public health issue— the quorum call be rescinded. compensation for the harms caused by The PRESIDING OFFICER (Mr. GRA- Mr. FRIST. Mr. President, I send an tobacco companies. He has ridiculed HAM of South Carolina). Without objec- amendment to the desk and ask for its litigation against companies stating: tion, it is so ordered. immediate consideration. This form of litigation is madness. It is a f The PRESIDING OFFICER. The clerk will report. threat to human liberty, and it needs to ENERGY POLICY ACT OF 2003— The legislative clerk read as follows: stop. Continued Mississippi Attorney General Mi- The Senator from Tennessee [Mr. FRIST] Mr. FRIST. Mr. President, obviously chael Moore said: proposes an amendment numbered 1433 to in- we have not had the progress we had Bill Pryor was probably the biggest de- structions of the motion to commit S. 14. fender of tobacco companies of anyone I hoped for on the Energy bill over the Mr. FRIST. Mr. President, I ask know. He did a better job of defending the to- course of the last several days. I know unanimous consent that reading of the bacco companies than their own defense at- that Senators have indicated they still amendment be dispensed with. torneys. have amendments to the electricity The PRESIDING OFFICER. Without Arizona Attorney General Grant amendment. And it is clear to me there objection, it is so ordered. Woods, a Republican, said of William is not a definite sign as to when we The amendment is as follows: Pryor: might finish that issue. At the end of the amendment add the fol- He’s been attorney general for about five Members have the ability to slow lowing: ‘‘All provisions of Division A and Di- minutes, and already he’s acted more poorly down this bill. With the lengthy vision B shall take effect one day after en- than any other attorney general. amendment list that is before us, there actment of this act.’’

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00081 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S10252 CONGRESSIONAL RECORD — SENATE July 30, 2003 AMENDMENT NO. 1434 TO AMENDMENT NO. 1433 termined by the majority leader, after CLOTURE MOTION Mr. FRIST. Mr. President, I send a consultation with the Democratic lead- Mr. FRIST. Mr. President, I now send second-degree amendment to the desk er, the Senate proceed to executive ses- a cloture motion to the desk. and ask for its consideration. sion for the consideration of Calendar The PRESIDING OFFICER. The clo- The PRESIDING OFFICER. The No. 169, the nomination of Carolyn ture motion having been presented clerk will report. Kuhl, to be U.S. Circuit Judge for the under rule XXII, the Chair directs the The legislative clerk read as follows: Ninth Circuit; further, that there be 4 clerk to read the motion. The Senator from Tennessee [Mr. FRIST] hours of debate equally divided in the The legislative clerk read as follows: proposes an amendment numbered 1434 to usual form, and that following that de- CLOTURE MOTION amendment No. 1433. bate, the Senate proceed to a vote on We the undersigned Senators, in accord- Mr. FRIST. Mr. President, I ask the confirmation of the nomination, ance with the provisions of Rule XXII of the unanimous consent that reading of the with no intervening action or debate; Standing Rules of the Senate, do hereby amendment be dispensed with. finally, I ask consent that following move to bring to a close debate on Executive The PRESIDING OFFICER. Without that vote, the President be imme- Calendar No. 169, the nomination of Carolyn objection, it is so ordered. diately notified of the Senate’s action Hill, of California, to be United States Cir- The amendment is as follows: and the Senate then resume legislative cuit Judge for the Ninth Circuit. On line 3 of the amendment strike ‘‘one Bill Frist, Orrin G. Hatch, Ben day’’ and insert ‘‘two days.’’ session. Nighthorse Campbell, Craig Thomas, The PRESIDING OFFICER. Is there CLOTURE MOTION Charles Grassley, John Cornyn, Chuck objection? Mr. FRIST. Mr. President, I send a Hagel, Jim Talent, Thad Cochran, Mr. REID. The Senator from Nevada cloture motion to the desk. Richard Shelby, Wayne Allard, Eliza- objects. beth Dole, Conrad Burns, Larry E. The PRESIDING OFFICER. The clo- The PRESIDING OFFICER. Objec- Craig, Jeff Sessions, Lindsey Graham ture motion having been presented tion is heard. of South Carolina, and Rick Santorum. under rule XXII, the Chair directs the Mr. FRIST. I would ask if the request Mr. FRIST. Mr. President, I ask clerk to read the motion. were modified to 10 or 12 hours, would unanimous consent that the live The legislative clerk read as follows: it be agreed to? quorum provided for under rule XXII be CLOTURE MOTION Mr. REID. At this time, it would not. waived. We the undersigned Senators, in accord- The PRESIDING OFFICER. Is there ance with the provisions of Rule XXII of the f Standing Rules of the Senate, do hereby EXECUTIVE SESSION objection? move to bring to a close debate on the pend- Without objection, it is so ordered. ing motion. f Bill Frist, Pete Domenici, Orrin G. NOMINATION OF CAROLYN B. Hatch, Rick Santorum, Saxby Cham- KUHL, OF CALIFORNIA, TO BE LEGISLATIVE SESSION bliss, Larry E. Craig, Jon Kyl, Craig UNITED STATES CIRCUIT JUDGE Mr. FRIST. Mr. President, I ask Thomas, Charles Grassley, Sam Brown- FOR THE NINTH CIRCUIT back, Lamar Alexander, Norm Cole- unanimous consent that we resume leg- man, Mike DeWine, John Cornyn, Mr. FRIST. Mr. President, I now ask islative session. Mitch McConnell, Gordon H. Smith. unanimous consent that the Senate The PRESIDING OFFICER. Without Mr. FRIST. Mr. President, I ask proceed to executive session for the objection, it is so ordered. unanimous consent that the live consideration of Calendar No. 169, the quorum be waived. Kuhl nomination. f The PRESIDING OFFICER. Without The PRESIDING OFFICER. Is there MORNING BUSINESS objection, it is so ordered. objection? f Without objection, it is so ordered. Mr. FRIST. Mr. President, I ask The clerk will report. unanimous consent that the Senate UNANIMOUS CONSENT REQUEST— The legislative clerk read the nomi- proceed to a period for morning busi- EXECUTIVE CALENDAR NO. 169 nation of Carolyn B. Kuhl, of Cali- ness. Mr. FRIST. Mr. President, I now ask fornia, to be United States Circuit The PRESIDING OFFICER. Without unanimous consent that at a time de- Judge for the Ninth Circuit. objection, it is so ordered.

N O T I C E Incomplete record of Senate proceedings. Except for concluding business which follows, today’s Senate proceedings will be continued in the next issue of the Record.

ORDERS FOR THURSDAY, JULY 31, the vote on the motion to invoke clo- Following the cloture vote, the Sen- 2003 ture. ate will resume consideration of S. 14, Mr. FRIST. Mr. President, I ask I further ask unanimous consent that the Energy bill. It is the chairman’s in- unanimous consent that when the Sen- following the cloture vote, regardless tention to continue to work through ate completes its business today, it of the outcome, the Senate resume con- amendments tomorrow, and Senators stand in recess until 9 a.m., Thursday, sideration of S. 14, the Energy bill. should expect votes throughout the July 31. I further ask that following The PRESIDING OFFICER. Without day. As a reminder, cloture was filed in the prayer and pledge, the Journal of objection, it is so ordered. relation to the bill tonight, and that proceedings be approved, the time for f cloture vote will occur on Friday the two leaders be reserved for their morning. use later in the day, and the Senate PROGRAM We have a lot of work to complete then begin debate in relation to the Mr. FRIST. Mr. President, for the in- prior to adjourning for the scheduled motion to invoke cloture on the nomi- formation of all Senators, tomorrow recess. I encourage all Members to nation of William Pryor, to be U.S. Cir- morning the Senate will debate the make themselves available for a busy cuit Judge for the Eleventh Circuit, cloture motion relating to the Pryor with the time until 10 a.m. equally di- nomination until 10 a.m. Following day tomorrow. vided between the chairman and the that debate, the Senate will proceed Mr. REID. Mr. President, if I can say ranking member of the Judiciary Com- with the cloture vote. Therefore, the briefly to the majority leader—I am mittee, or their designees; provided first vote of tomorrow’s session will be speaking only for this Senator; the ul- that at 10 a.m. the Senate proceed to at 10 a.m. timate decision will be made, of course,

VerDate Mar 15 2010 22:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00082 Fmt 0637 Sfmt 0634 E:\2003SENATE\S30JY3.REC S30JY3 mmaher on DSKCGSP4G1 with SOCIALSECURITY July 30, 2003 CONGRESSIONAL RECORD — SENATE S10253 by the distinguished Democratic lead- PATRICK R. BASAL, 0000 JO A. J. BLANDO, 0000 DAVID S. BOWERMAN, 0000 LANNY L. BOSWELL JR., 0000 er—from what has gone on today and CLAUDE W. BRITTIAN, 0000 MARK J. BOURNE, 0000 the fact the distinguished majority STEPHEN L. BROADUS, 0000 JAMES C. BRENNAN, 0000 ANDREW W. CHOI, 0000 CHRISTINE L. CONGDON, 0000 leader has filed cloture on still another JOHN CHUN, 0000 GLENN C. CONTE, 0000 judge, I do not think there will be DOYLE M. COFFMAN, 0000 ALBERT E. COOMBS, 0000 CLOYD L. COLBY, 0000 ANTHONY P. DORAN, 0000 much done in the way of the Energy TAMMIE E. CREWS, 0000 MICHAEL E. EBY, 0000 bill tomorrow on this side. We have to STEPHEN G. CRUYS, 0000 DEMETRI ECONOMOS, 0000 PETER O. DISSMORE, 0000 ANTHONY W. FRABUTT, 0000 get ready for the Kuhl nomination, BETH M. ECHOLS, 0000 DAVID L. HAMMELL, 0000 about which the two Senators from STEVEN R. FIRTKO, 0000 LINDA S. HITE, 0000 MARK A. FREDERICK, 0000 PHILLIP E. JACKSON, 0000 California feel very strongly. ALBERT J. GHERGICH JR., 0000 WILSON G. KNIGHT, 0000 I know it is the chairman’s intention ROBERT B. GILLETTE, 0000 TRACY J. KOLOSIK, 0000 WILLIAM C. HARRISON, 0000 KIM L. LEFEBVRE, 0000 to work through amendments tomor- DARRYL E. HOLLOWELL, 0000 MARGARET A. LLUY, 0000 row on S. 14, but I think there will be MILTON JOHNSON, 0000 GARY W. MOSMAN, 0000 MARK R. JOHNSTON, 0000 RONALD A. NOSEK JR., 0000 a lot of other issues done and there will GARRY R. KERR, 0000 REGINA P. ONAN, 0000 not be amendments offered on that bill. WILLIAM R. KILMER, 0000 KELLY S. PAUL, 0000 JOHN W. KISER JR., 0000 JAMES B. POINDEXTER III, 0000 As I indicated when I started this brief JOSEPH H. KO, 0000 MARY C. POLKOSKI, 0000 statement, the ultimate decision will VICTORIO S. LANUEVO, 0000 CELIA A. QUIVERS, 0000 DOUGLAS R. LAX JR., 0000 ROBERT A. RAHAL, 0000 be made by Senator DASCHLE, but I am SAMUEL S. LEE, 0000 DARIN P. ROGERS, 0000 giving the majority my thoughts this DAVID M. LOCKHART, 0000 MARK C. RUSSELL, 0000 GIAN S. MARTIN, 0000 WILLIAM E. SCHUTT, 0000 evening. TIMOTHY S. MEADOR, 0000 ALAN V. SIEWERTSEN, 0000 Mr. FRIST. Mr. President, I thank DENISE S. MERRITT, 0000 LESLIE L. SIMS, 0000 MARK E. MOSS, 0000 ANNA H. STALCUP, 0000 the Senator. I have talked to both the SAMUEL H. MURRAY, 0000 CARL V. TRESNAK, 0000 Democratic leader and the chairman, ROBERT NAY, 0000 RESA L. WARNER, 0000 LEE W. NELSON, 0000 DANIEL W. WATTS, 0000 and we agree after the cloture vote to DARIN A. NIELSEN, 0000 MARVA L. WHEELER, 0000 go to the bill to work through the PABLO PEREZMAISONET, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT amendments. I am very hopeful over KEVIN M. PIES, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY SCOTT RIEDEL, 0000 UNDER TITLE 10, U.S.C., SECTION 624: the course of the morning and over the CHARLES B. RIZER, 0000 STEVEN J. ROBERTS, 0000 To be commander course of the day that we will be able PERRY J. SCHMITT, 0000 VIDA M. ANTOLINJENKINS, 0000 DAVID L. SHOFFNER, 0000 to make substantial progress on this STEVEN M. BARNEY, 0000 JERRY C. SIEG, 0000 MICHAEL M. BATES, 0000 important bill. DAVID L. SPEARS, 0000 KEVIN M. BREW, 0000 SID A. TAYLOR SR., 0000 f KENNETH B. BROWN, 0000 HENRY T. VAKOC, 0000 FRANCIS J. BUSTAMANTE, 0000 EARL W. VANDERHOFF, 0000 JAMES R. CRISFIELD JR., 0000 RECESS UNTIL TOMORROW AT 9 JOSEPH F. VIEIRA III, 0000 JEFFREY A. FISCHER, 0000 DAVID E. WAKE, 0000 A.M. STEPHEN A. JAMROZY, 0000 DALLAS M. WALKER, 0000 RANDALL G. JOHNSON, 0000 Mr. FRIST. Mr. President, if there is DAVID G. WAWERU, 0000 TODD M. KRAFT, 0000 NATHAN L. ZIMMERMAN, 0000 no further business to come before the SCOTT J. LAURER, 0000 Senate, I ask unanimous consent that THE FOLLOWING NAMED ARMY NATIONAL GUARD OF PAUL C. LEBLANC, 0000 THE UNITED STATES OFFICERS FOR APPOINTMENT TO JONATHAN S. THOW, 0000 the Senate recess under the previous THE GRADE INDICATED IN THE RESERVE OF THE ARMY JONATHAN H. WAGSHUL, 0000 order. UNDER TITLE 10, U.S.C., SECTION 12203 AND 12211: DOMINICK G. YACONO JR., 0000 There being no objection, the Senate, To be colonel THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT TO THE GRADE INDICATED IN THE UNITED STATES NAVY at 10:17 p.m., recessed until Thursday, MICHAEL J BULLOCK, 0000 UNDER TITLE 10, U.S.C., SECTION 624: July 31, 2003, at 9 a.m. DANIEL E CAMERON, 0000 STEPHEN M DOYLE, 0000 To be commander f SHERYL E GORDON, 0000 JAMES J. ANDERSON, 0000 LEODIS T JENNINGS, 0000 CHARLES R. BAILEY, 0000 NOMINATIONS CHRISTOPHER R KEMP, 0000 PATRICK W. BLESCH, 0000 ELTON LEWIS, 0000 GEORGE D. BOWLING, 0000 Executive nominations received by JAMES F MULVEHILL, 0000 CATHERINE L. BUTLER, 0000 the Senate July 30, 2003: RAYMOND F SHIELDS JR., 0000 WILBERT R. BYNUM, 0000 PAUL A TRAPANI, 0000 JAMES F. COONEY, 0000 DEPARTMENT OF STATE IN THE NAVY MARK P. DIBBLE, 0000 JAMES CASEY KENNY, OF ILLINOIS, TO BE AMBAS- TEDDIE L. DYSON, 0000 SADOR EXTRAORDINARY AND PLENIPOTENTIARY OF THE FOLLOWING NAMED OFFICERS FOR REGULAR AP- ANDREW C. ESCRIVA, 0000 THE UNITED STATES OF AMERICA TO IRELAND. POINTMENT TO THE GRADES INDICATED IN THE UNITED DIONISIO S. GAMBOA, 0000 PAMELA P. WILLEFORD, OF TEXAS, TO BE AMBAS- STATES NAVY UNDER TITLE 10, U.S.C., SECTION 531: MICHAEL J. GARDELLA, 0000 SADOR EXTRAORDINARY AND PLENIPOTENTIARY OF To be captain RUDOLPH K. GEISLER, 0000 THE UNITED STATES OF AMERICA TO SWITZERLAND, PAUL A. GODEK, 0000 AND TO SERVE CONCURRENTLY AND WITHOUT ADDI- STEPHEN M. SAIA, 0000 SHAWN D. GRUNZKE, 0000 TIONAL COMPENSATION AS AMBASSADOR EXTRAOR- MICHAEL S. HANSEN, 0000 DINARY AND PLENIPOTENTIARY OF THE UNITED STATES To be commander ERNEST D. HARDEN JR., 0000 OF AMERICA TO THE PRINCIPALITY OF LIECHTENSTEIN. CARL R. HERRON, 0000 LINDA C. C. CHAN, 0000 SCOTT J. HOFFMAN, 0000 DEPARTMENT OF HEALTH AND HUMAN SERVICES CHRISTOPHER J. COBB, 0000 ARISTIDES ILIAKIS, 0000 KENNETH J. KELLY, 0000 MICHAEL P. KOLSTER, 0000 CRISTINA BEATO, OF NEW MEXICO, TO BE MEDICAL DI- FERNANDO MORENO, 0000 RICKY A. KUSTURIN, 0000 RECTOR IN THE REGULAR CORPS OF THE PUBLIC JOHN T. NEFF, 0000 THOMAS J. LACOSS, 0000 HEALTH SERVICE, SUBJECT TO THE QUALIFICATIONS LOREN J. STEENSON, 0000 JEFFREY S. LECLAIRE, 0000 THEREFOR AS PROVIDED BY LAW AND REGULATIONS, JAMES M. LOWTHER, 0000 AND TO BE AN ASSISTANT SECRETARY OF HEALTH AND To be lieutenant commander JOSEPH F. MAHAN, 0000 HUMAN SERVICES, VICE EVE SLATER, RESIGNED. RICHARD D BERGTHOLD, 0000 MATTHEW K. MARTIN, 0000 THE JUDICIARY VORRICE J. BURKS, 0000 PAUL E. MARTIN, 0000 JACK L CARVER, 0000 KENNETH W. MCKINLEY, 0000 GEORGE W. MILLER, OF VIRGINIA, TO BE A JUDGE OF LAURIE A. HALE, 0000 JAMES W. MELONE, 0000 THE UNITED STATES COURT OF FEDERAL CLAIMS FOR MELVIN J. HENDRICKS, 0000 MIGUEL D. MIRANO II, 0000 THE TERM OF FIFTEEN YEARS, VICE JAMES T. TURNER, SCOTT D. LOESCHKE, 0000 JOSEPH D. NOBLE JR., 0000 TERM EXPIRED. MICHAEL J LYDON, 0000 DAVID C. NYSTROM, 0000 F. DENNIS SAYLOR IV, OF MASSACHUSETTS, TO BE WAYNE A. MACRAE, 0000 JOAN R. OLDMIXON, 0000 UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF JAMES F. MCALLISTER, 0000 TIMOTHY L. PHILLIPS, 0000 MASSACHUSETTS, VICE ROBERT E. KEETON, RETIRED. CARLOS B. ORTIZ, 0000 MARK R. PIMPO, 0000 ARMY JOHN A. RALPH, 0000 FRANK M. RENDON, 0000 MICHAEL J. RECKLING, 0000 DAWN D. RICHARDSON, 0000 THE FOLLOWING ARMY NATIONAL GUARD OF THE RANDALL H. RUSSELL, 0000 WALTER W. ROBOHN, 0000 UNITED STATES OFFICER FOR APPOINTMENT IN THE RE- JEFFREY N. SAVILLE, 0000 RICHARD P. RUIZ, 0000 SERVE OF THE ARMY TO THE GRADE INDICATED UNDER MICHAEL S. SEXTON, 0000 DANIEL P. SEEP, 0000 TITLE 10, U.S.C., SECTION 12203: BRIAN J. STAMM, 0000 MARCOS A. SEVILLA, 0000 To be brigadier general JOHN A. SWANSON, 0000 MELVIN A. SHAFER, 0000 SCOTT A SWOPE, 0000 ANTHONY A. SORELL, 0000 COL. JERRY M. RIVERA, 0000 DAVID A. TUBLEY, 0000 DEBORAH A. STARK, 0000 VAUGHN L. STOCKER, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT KEITH E. SYKES, 0000 TO THE GRADE INDICATED IN THE UNITED STATES ARMY TO THE GRADE INDICATED IN THE UNITED STATES NAVY MICHAEL L. TAYLOR, 0000 AS CHAPLAINS AND FOR REGULAR APPOINTMENT UNDER TITLE 10, U.S.C., SECTION 624: TIMOTHY J. THATE, 0000 UNDER TITLE 10, U.S.C., SECTIONS 624, 531, AND 3064. To be commander HARRY T. THETFORD JR., 0000 To be major MICHAEL E. THOMAS, 0000 ROLAND E. ARELLANO, 0000 BARBARA D. TUCKER, 0000 STEPHEN W. AUSTIN, 0000 LEA A. BEILMAN, 0000 JOSEPH M. VITELLI, 0000

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DEREK K. WEBSTER, 0000 JASON J. ROSS, 0000 ALICIA A. MORRISON, 0000 DONALD J. WILLIAMS, 0000 MARY K. RUSHER, 0000 JOHN H. NAGELSCHMIDT, 0000 JOHN F. ZOLLO, 0000 JOHN W. SANDERS III, 0000 IRENE M. NIEDERHUT, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT ELIZABETH K. SATTER, 0000 ANGELA S. NIMMO, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY BRYAN P. SCHUMACHER, 0000 MARY K. NUNLEY, 0000 UNDER TITLE 10, U.S.C., SECTION 624: JAVAID A. SHAD, 0000 MARIA E. PERRY, 0000 RICHARD L. SIEMENS, 0000 SABRINA L. PUTNEY, 0000 To be commander ANDREW E. SIMAYS, 0000 ANN RAJEWSKI, 0000 ROBERT C. STABLEY, 0000 SHIRLEY L. RUSSELL, 0000 MICHAEL T. AKIN, 0000 KARLYNA L. D. ANDERSEN, 0000 ZSOLT T. STOCKINGER, 0000 AMANDA G. SIERRA, 0000 JOEL M. APIDES, 0000 MICHAEL J. STRUNC, 0000 HARRY F. SMITH III, 0000 THOMAS E. BATES, 0000 KEITH A. STUESSI, 0000 MARK E. SNIDER, 0000 LYNN L. BEACH, 0000 WILLIAM SUKOVICH, 0000 CONSTANCE E. STAMATERIS, 0000 WALTER S. BEW, 0000 DAVID A. TARANTINO JR., 0000 JAMES X. STOBINSKI, 0000 HEATHER I. BLOMELEY, 0000 GREGORY J. TARMAN, 0000 THOMAS A. SWEET, 0000 CARLOS V. BROWN, 0000 MICHAEL D. THOMAS, 0000 SARA J. THELIN, 0000 WILLIAM C. BRUNNER, 0000 WILLIAM E. TODD, 0000 NELIDA R. TOLEDO, 0000 MARGARET CALLOWAY, 0000 JOHN M. TRAMONT, 0000 CYNTHIA D. TURNER, 0000 BRETT B. CARMICHAEL, 0000 SAMUEL K. TSANG, 0000 VICKIE A. WEAVER, 0000 WAYNE A. CAROLEO, 0000 GUIDO F. VALDES, 0000 RAYMOND D. WILSON, 0000 DAVID T. CARPENTER, 0000 PETER WECHGELAER, 0000 HILARY V. WONG, 0000 BROOKS D. CASH, 0000 CHRISTOPHER WESTROPP, 0000 ANNA L. WRIGHT, 0000 TIMOTHY L. CLENNEY, 0000 PERRY N. WILLETTE, 0000 JOAN L. WRIGHT, 0000 DAVID W. CLINE, 0000 ROBERT O. WOODBURY, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT JOHN P. COLMENARES, 0000 CLIFTON WOODFORD, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY MICHAEL J. COLSTON, 0000 JON S. WOODS, 0000 UNDER TITLE 10, U.S.C., SECTION 624: CATHERINE S. COPENHAVER, 0000 PETER G. WOODSON, 0000 GLEN C. CRAWFORD, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT RHODEL F. DACANAY, 0000 To be commander MASON X. DANG, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY UNDER TITLE 10, U.S.C., SECTION 624: LEANNE K. AABY, 0000 SUBRATO J. DEB, 0000 TONY L. AMMONS JR., 0000 JOHN E. DEORDIO, 0000 To be commander SHAWN J. BERGAN, 0000 JUDITH M. DICKERT, 0000 KEVIN L. BROWN, 0000 JEROME G. ENAD, 0000 RICHARD E. AGUILA, 0000 DAVID R. BUSTAMANTE, 0000 JOSEPH W. FLANAGAN, 0000 MARC E. A. ARENA, 0000 LEONARD W. W. COOKE, 0000 JONATHAN T. FLEENOR, 0000 ELDON G. BLOCH, 0000 THOMAS F. GEORGE, 0000 BRYAN A. FOX, 0000 SIDNEY L. BOURGEOIS, 0000 JOSEPH E. GREALISH, 0000 MICHAEL I. FREW, 0000 JERRY N. BURTON JR., 0000 BETH L. HARTMANN, 0000 DARIN S. GARNER, 0000 STEPHEN L. CHRISTOPHER, 0000 LEWIS S. HURST, 0000 MARILYN L. GATES, 0000 SCOTT A. CURTICE, 0000 STEPHANIE M. JONES, 0000 WILLIAM R. GRAF, 0000 TODD L. EVANS, 0000 CHRISTOPHER J. LACARIA, 0000 WALTER M. GREENHALGH, 0000 RODNEY L. GUNNING, 0000 IAN C. LANGE, 0000 MICHAEL N. HABIBE, 0000 BRADLEY H. HAJDIK, 0000 CHRISTOPHER S. LAPLATNEY, 0000 MARK E. HAMMETT, 0000 SHEHERAZAD A. HARTZELL, 0000 CHRISTINE W. LONIE, 0000 KEITH A. HANLEY, 0000 MILAN J. JUGAN JR., 0000 SCOTT W. LOWE, 0000 JENIFER L. HENDERSON, 0000 DONALD A. LONERGAN, 0000 MARKO MEDVED, 0000 ERIC P. HOFMEISTER, 0000 THOMAS F. MOONEY III, 0000 ROBERT N. MORRISON, 0000 MICHAEL T. HOPKINS, 0000 BRENT E. NEUBAUER, 0000 SHARON B. OBY, 0000 THANH T. HUYNH, 0000 CHARLES W. PATTERSON, 0000 PAUL J. ODENTHAL, 0000 MICHAEL M. JACOBS, 0000 THOMAS M. PRATER, 0000 KENNETH T. OGAWA, 0000 GREGORY W. JONES, 0000 SCOTT D. THOMAS, 0000 LAURENCE J. READAL, 0000 BENJAMIN W. JORDAN, 0000 CHARLES R. REUNING, 0000 FREDERICK C. KASS, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT DAVID J. ROBILLARD, 0000 DAVID J. KEBLISH, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY DALE M. ROHRBACH, 0000 JOHN S. KENNEDY, 0000 UNDER TITLE 10, U.S.C., SECTION 624: THOMAS P. SCHEUERMANN, 0000 WILLIAM J. KLORIG, 0000 To be commander EDWARD G. SEWESTER, 0000 MARK A. KOBELJA, 0000 CHARLES M. SMITH, 0000 KAREN J. KOPMANN, 0000 LINDA M. ACOSTA, 0000 SCOTT G. SMITH, 0000 CHARLES S. KUZMA, 0000 UNKYONG S. ARCHER, 0000 MATTHEW E. SUESS, 0000 PATRICK R. LARABY, 0000 KHIN AUNGTHEIN, 0000 MARSHALL T. SYKES, 0000 CATHY T. LARRIMORE, 0000 EDWARD S. BATES JR., 0000 DANIEL J. THERRIEN, 0000 THOMAS R. LATENDRESSE, 0000 ALLISON R. BEATTY, 0000 ROBERT B. TOMIAK, 0000 JOSEPH T. LAVAN, 0000 TERRY V. BOLA, 0000 DEAN A. TUFTS, 0000 PATRICK L. LAWSON, 0000 ELIZABETH N. BOULETTE, 0000 RICHARD L. WHIPPLE, 0000 NORMAN LEE, 0000 JANET M. BRADLEY, 0000 GARY L. WICK, 0000 GREGORY S. LEPKOWSKI, 0000 MARY A. BRANTLEY, 0000 MICHAEL J. ZUCCHERO, 0000 CON Y. LING, 0000 CATHALEEN A. CANLER, 0000 FRANCESCA K. LITOW, 0000 DAVID T. CASTELLANO, 0000 THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT JASON D. MAGUIRE, 0000 JAY E. CHAMBERS, 0000 TO THE GRADE INDICATED IN THE UNITED STATES NAVY RICHARD T. MAHON, 0000 KATHERINE H. CONNOLLY, 0000 UNDER TITLE 10, U.S.C., SECTION 624: MARTIN A. MAKELA, 0000 RACHELE A. CRUZ, 0000 CHRISTOPHER J. MCARTHUR, 0000 DEBRA A. DELEO, 0000 To be commander JOHN M. MCCURLEY, 0000 DAVID A. FARMER, 0000 FREDERICK J. MCDONALD, 0000 TRISHA L. FARRELL, 0000 LEE A. AXTELL, 0000 MICHAEL T. MCHALE, 0000 TERENCE FINNERTY, 0000 MILES J. BARRETT, 0000 DAVID B. MCLAREN, 0000 SHELLY A. FOLTZ, 0000 ROBERT A. CALLISON, 0000 ROBERT D. MENZIES, 0000 ANN L. FORREST, 0000 JOHN D. DENTON, 0000 MARK E. MICHAUD, 0000 JEAN B. FREEMAN, 0000 TIMOTHY R. EICHLER, 0000 ALLEN O. MITCHELL, 0000 CYNTHIA J. GANTT, 0000 BRYAN K. FINCH, 0000 MELISSA A. MOHON, 0000 DEBRA C. GARDNER, 0000 WAYNE R. FREIBERG, 0000 JOHN B. NEWMAN, 0000 JANET M. K. GEHRING, 0000 MILTON D. GIANULIS, 0000 SANDOR S. NIEMANN, 0000 KIRSTEN L. HARVISON, 0000 DAVID L. GIBSON, 0000 DONALD E. OLOFSSON, 0000 SANDRA HEARN, 0000 THOMAS P. HALL, 0000 JOHN J. PAPE, 0000 JAMES T. HOSACK, 0000 VAL J. JENSEN, 0000 RICHARD J. PAVER, 0000 LORETTA A. HOWERTON, 0000 RONALD KAWCZYNSKI, 0000 TODD B. PETERSON, 0000 RICHARD W. JOHNSON, 0000 MICHAEL S. KLEPACKI, 0000 DAVID S. PLURAD, 0000 RICHELLE L. KAY, 0000 TIMOTHY J. KOESTER, 0000 TIMOTHY J. POREA, 0000 TINA L. KEY, 0000 GLEN A. KRANS, 0000 MAE M. POUGET, 0000 LORI J. KRAYER, 0000 GUY M. LEE, 0000 KENNETH G. PUGH, 0000 RICHARD S. MAFFEO, 0000 ARTHUR H. LOGAN, 0000 SCOTT W. PYNE, 0000 JOHN T. MANNING, 0000 ROBERT K. MCGAHA, 0000 CHRISTOPHER S. QUARLES, 0000 SANDRA A. MASON, 0000 MICHAEL A. MIKSTAY, 0000 RICHARD D. QUATTRONE, 0000 CAROLYN R. MCGEE, 0000 DAVID A. MUDD, 0000 TIMOTHY R. QUINER, 0000 BRADLEY A. MCGLOIN, 0000 WESLEY B. SLOAT, 0000 JEFFREY D. QUINLAN, 0000 MICHELLE L. MCKENZIE, 0000 JOHN A. SWANSON, 0000 JUAN P. RIVERA, 0000 CHRISTINE T. MILLER, 0000 GREGORY N. TODD, 0000 STACY J. ROGERS, 0000 ANNE M. MITCHELL, 0000 DALE C. WHITE, 0000 MARY A. RONALD, 0000 JOLENE M. MOORE, 0000 DENNIS W. YOUNG, 0000

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SENATE COMMITTEE MEETINGS Meetings scheduled for Thursday, ceive the legislative presentation of July 31, 2003 may be found in the Daily The American Legion. Title IV of Senate Resolution 4, Digest of today’s RECORD. SH–216 agreed to by the Senate on February 4, 1977, calls for establishment of a sys- MEETINGS SCHEDULED tem for a computerized schedule of all POSTPONEMENTS meetings and hearings of Senate com- AUGUST 1 mittees, subcommittees, joint commit- 9:15 a.m. SEPTEMBER 9 tees, and committees of conference. Commission on Security and Cooperation 2:30 p.m. This title requires all such committees in Europe Energy and Natural Resources to notify the Office of the Senate Daily To hold hearings to examine issues with National Parks Subcommittee respect to missing persons in South- To hold hearings to examine S. 808, to Digest—designated by the Rules Com- east Europe. mittee—of the time, place, and purpose provide for expansion of Sleeping Bear 334 CHOB Dunes National Lakeshore, S. 1107, to of the meetings, when scheduled, and 9:30 a.m. enhance the Recreational Fee Dem- any cancellations or changes in the Judiciary onstration Program for the National meetings as they occur. To hold hearings to examine the Greater Park Service, and H.R. 620, to author- As an additional procedure along Access to Affordable Pharmaceuticals ize the Secretary of the Interior to pro- with the computerization of this infor- Act. vide supplemental funding and other SD–226 mation, the Office of the Senate Daily services that are necessary to assist Digest will prepare this information for the State of California or local edu- SEPTEMBER 16 cational agencies in California in pro- printing in the Extensions of Remarks 10 a.m. viding educational services for stu- section of the CONGRESSIONAL RECORD Veterans’ Affairs dents attending schools located within on Monday and Wednesday of each To hold joint hearings with the House the Park. week. Committee on Veterans’ Affairs to re- SD–366

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

VerDate jul 14 2003 03:20 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0626 Sfmt 0634 E:\CR\FM\M30JY8.000 E30PT1 Wednesday, July 30, 2003 Daily Digest Senate Rejected: Chamber Action By 48 yeas to 50 nays (Vote No. 311), Cantwell Routine Proceedings, pages S10171–S10254 Amendment No. 1419 (to Amendment No. 1412), Measures Introduced: Seventeen bills and two reso- to prohibit market manipulation. Pages S10173–88 lutions were introduced, as follows: S. 1489–1505, Bingaman Amendment No. 1413 (to Amendment No. 1412), to strengthen the Federal Energy Regu- and S. Res. 205–206. (See next issue.) latory Commission’s authority to review public util- Measures Reported: ity mergers. (By 53 yeas to 44 nays (Vote No. 313), S. 1125, to create a fair and efficient system to re- Senate tabled the amendment.) solve claims of victims for bodily injury caused by Pages S10173, S10213–14, S10215 asbestos exposure, with amendments. (S. Rept. No. Bingaman Amendment No. 1418 (to Amendment 108–118) (See next issue.) No. 1412), to preserve the Federal Energy Regu- Measures Passed: latory Commission’s authority to protect the public interest prior to July 1, 2005. (By 54 yeas to 44 Native American Technical Corrections Act: nays (Vote No. 314), Senate tabled the amendment.) Senate passed S. 523, to make technical corrections Pages S10173, S10214–15, S10215–16 to law relating to Native Americans, after with- Feingold/Brownback Amendment No. 1416 (to drawing the committee amendment in the nature of Amendment No. 1412), to protect the public and a substitute, and agreeing to the following amend- investors from abusive affiliate, associate company, ment proposed thereto: (See next issue.) and subsidiary company transactions. (By 50 yeas to Frist (for Campbell) Amendment No. 1435, in the 48 nays (Vote No. 315), Senate tabled the amend- nature of a substitute. (See next issue.) ment.) Pages S10203–13, S10216 Pending: Over-the-Road Bus Security and Safety Act: Sen- Campbell Amendment No. 886, to replace ‘‘tribal ate passed S. 929, to direct the Secretary of Trans- consortia’’ with ‘‘tribal energy resource development portation to make grants for security improvements organizations’’. Page S10173 to over-the-road bus operations, after agreeing to the Durbin Modified Amendment No. 1385, to committee amendments. (See next issue.) amend the Internal Revenue Code of 1986 to pro- Federal Employees Student Loan Assistance Act: vide additional tax incentives for enhancing motor Senate passed S. 926, to amend section 5379 of title vehicle fuel efficiency. Page S10173 5, United States Code, to increase the annual and Domenici Amendment No. 1412, to reform cer- aggregate limits on student loan repayments by Fed- tain electricity laws. Page S10173 eral agencies. (See next issue.) Motion to commit the bill to the Committee on Energy and Natural Resources, with instructions to Honoring Dr. William R. Bright: Senate agreed report back forthwith, with Frist Amendment No. to S. Res. 206, honoring the memory of Dr. Wil- 1432 (to instructions on motion to commit), to pro- liam R. (‘‘Bill’’) Bright and commending his life as vide a national energy policy for the United States an example to succeeding generations. of America. Page S10251 (See next issue.) Frist Amendment No. 1433 (to instructions on Energy Policy Act: Senate continued consideration motion to commit), to provide that all provisions of of S. 14, to enhance the energy security of the Division A and Division B shall take effect one day United States, taking action on the following after enactment of this Act. Page S10251 amendments proposed thereto: Frist Amendment No. 1434 (to Amendment No. Pages S10173–88, S10203–18, S10251 1433), to make a technical correction. Page S10252 A motion was entered to close further debate on the pending motion to commit (listed above) and, in D915

VerDate jul 14 2003 05:06 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D30JY3.REC D30JY3 D916 CONGRESSIONAL RECORD — DAILY DIGEST July 30, 2003 accordance with the provisions of Rule XXII of the James Casey Kenny, of Illinois, to be Ambassador Standing Rules of the Senate, a vote on cloture will to Ireland. occur on Friday, August 1, 2003. Page S10252 Pamela P. Willeford, of Texas, to be Ambassador A unanimous-consent agreement was reached pro- to Switzerland, and to serve concurrently and with- viding for further consideration of the bill on Thurs- out additional compensation as Ambassador to the day, July 31, 2003. Page S10252 Principality of Liechtenstein. Nomination Considered: Senate continued consid- Cristina Beato, of New Mexico, to be Medical Di- eration of the nomination of Miguel A. Estrada, of rector in the Regular Corps of the Public Health Virginia, to be United States Circuit Judge for the Service, subject to the qualifications therefor as pro- District of Columbia Circuit. Pages S10196–S10203 vided by law and regulations, and to be an Assistant During consideration of this measure today, Senate Secretary of Health and Human Services. also took the following action: George W. Miller, of Virginia, to be a Judge of By 55 yeas to 43 nays (Vote No. 312), three-fifths the United States Court of Federal Claims for the of those Senators duly chosen and sworn, not having term of fifteen years. voted in the affirmative, Senate rejected the seventh F. Dennis Saylor IV, of Massachusetts, to be motion to close further debate on the nomination. United States District Judge for the District of Mas- Page S10203 sachusetts. Nomination: Senate began consideration of the 1 Army nomination in the rank of general. nomination of Carolyn B. Kuhl, of California, to be Routine lists in the Army, Navy. Pages S10253–54 United States Circuit Judge for the Ninth Circuit. Measures Read First Time: (See next issue.) Page S10252 A motion was entered to close further debate on Executive Communications: (See next issue.) the nomination and, in accordance with the provi- Executive Reports of Committees: (See next issue.) sions of Rule XXII of the Standing Rules of the Additional Cosponsors: (See next issue.) Senate, a vote on cloture will occur on Friday, Au- gust 1, 2003. Page S10252 Statements on Introduced Bills/Resolutions: (See next issue.) Nomination—Agreement: A unanimous-consent- time agreement was reached providing for further Additional Statements: (See next issue.) consideration of the nomination of William H. Amendments Submitted: (See next issue.) Pryor, Jr., of Alabama, to be United States Circuit Notices of Hearings/Meetings: (See next issue.) Judge for the Eleventh Circuit, at 9 a.m., on Thurs- day, July 31, 2003, with a vote on the motion to Authority for Committees to Meet: (See next issue.) close further debate to occur at 10 a.m. Page S10252 Privilege of the Floor: (See next issue.) Partial-Birth Abortion Ban Act House Mes- Record Votes: Five record votes were taken today. sage—Agreement: A unanimous-consent agreement (Total—315) Pages S10188, S10203, S10215, S10216 was reached providing that at a time to be deter- mined by the Majority Leader, after consultation Recess: Senate met at 9 a.m., and recessed at 10:17 with the Democratic Leader, Senate proceed to con- p.m., until 9 a.m., on Thursday, July 31, 2003. (For sideration of the House message on S. 3, to prohibit Senate’s program, see the remarks of the Majority the procedure commonly known as partial-birth Leader in today’s Record on pages S10253–53.) abortion; provided further, that the only motion in order be a motion to disagree to the House amend- ment to the Senate bill; that there be 8 hours of de- Committee Meetings bate with respect to that motion, with the time (Committees not listed did not meet) equally divided and controlled between the Majority and Democratic Leaders or their designees; that upon the use or yielding back of time, the Senate proceed BUSINESS MEETING to a vote on the motion to disagree; that upon dis- Committee on Armed Services: Committee ordered favor- position of that motion, the Senate agree to the re- ably reported the nominations of Lawrence Mohr, Jr., quest for a conference and that the Chair be author- of South Carolina, to be a Member of the Board of ized to appoint conferees on the part of the Senate Regents of the Uniformed Services University of the with a ratio of 3–2. (See next issue.) Health Sciences, Department of Defense, and 1,293 Nominations Received: Senate received the fol- nominations in the Army, Navy, Air Force, and Ma- lowing nominations: rines.

VerDate jul 14 2003 04:54 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0627 Sfmt 0627 E:\CR\FM\D30JY3.REC D30JY3 July 30, 2003 CONGRESSIONAL RECORD — DAILY DIGEST D917

SPACE EXPLORATION projects involving procurement of cement or con- Committee on Commerce, Science, and Transportation: Sub- crete, with an amendment in the nature of a sub- committee on Science, Technology, and Space con- stitute. cluded hearings to examine space exploration, focus- H.R. 1018, to designate the building located at ing on the National Oceanic and Atmospheric Ad- 1 Federal Plaza in New York, New York, as the ministration, National Aeronautics and Space Ad- ‘‘James L. Watson United States Court of Inter- ministration, and Department of Defense partner- national Trade Building’’; ships in future spacecraft systems and products and S. 1210, to assist in the conservation of marine services developed through their collaborative efforts, turtles and the nesting habitats of marine turtles in sensor development, research to operations, and col- foreign countries; laborative activities in ground systems support, after S. 1425, to amend the Safe Drinking Water Act receiving testimony from Brigadier General Richard to reauthorize the New York City Watershed Protec- C. Zilmer, USMC, Director, Strategy and Plans Di- tion Program, with an amendment; and vision, Plans, Policies, and Operations Department, S. 1486, to amend the Toxic Substances Control Headquarters, Marine Corps; Orlando Figueroa, Di- Act and the Federal Insecticide, Fungicide, and rector, Mars Exploration Program Office, Office of Rodenticide Act to implement the Stockholm Con- Space Science, National Aeronautics and Space Ad- vention on Persistent Organic Pollutants, the Pro- ministration; Gregory W. Withee, Assistant Admin- tocol on Persistent Organic Pollutants to the Con- istrator for Satellite and Information Services, Na- vention on Long-Range Transboundary Air Pollu- tional Oceanic and Atmospheric Administration, De- tion, and the Rotterdam Convention on the Prior In- partment of Commerce; Michael J.S. Belton, Belton formed Consent Procedure for Certain Hazardous Space Exploration Initiatives, Tucson, Arizona; and Chemicals and Pesticides in International Trade, Louis J. Lanzerotti, New Jersey Institute of Tech- with an amendment in the nature of a substitute to nology, Newark. Title 1. BUSINESS MEETING Committee on Environment and Public Works: Com- NOMINATIONS mittee ordered favorably reported the following bills: Committee on Foreign Relations: Committee concluded S. 1279, to amend the Robert T. Stafford Disaster hearings to examine the Nominations of Jeffrey A. Relief and Emergency Assistance Act to authorize Marcus, of Texas, to be Ambassador to Belgium, the President to carry out a program for the protec- who was introduced by Senators Hutchison and tion of the health and safety of residents, workers, Cornyn, Constance Albanese Morella, of Maryland, to volunteers, and others in a disaster area, with an be Representative of the United States of America to amendment in the nature of a substitute. the Organization for Economic Cooperation and De- H.R. 274, to authorize the Secretary of the Inte- velopment, with the rank of Ambassador, who was rior to acquire the property in Cecil County, Mary- introduced by Senators Sarbanes and Warner, George land, known as Garrett Island for inclusion in the H. Walker, of Missouri, to be Ambassador to Hun- Blackwater National Wildlife Refuge; gary, who was introduced by Senators Bond and Tal- S. 930, to amend the Robert T. Stafford Disaster ent, and Jackie Wolcott Sanders, for the rank of Relief and Emergency Assistance Act to establish a Ambassador during her tenure of service as United program to provide assistance to enhance the ability States Representative to the Conference on Disar- of first responders to prepare for and respond to all mament and the Special Representative of the Presi- hazard, with an amendment in the nature of a sub- dent of the United States for Non-Proliferation of stitute. Nuclear Weapons, who was introduced by Senator S. 269, to amend the Lacey Act Amendments of 1981 to further the conservation of certain wildlife Warner, testified and answered questions in their species, with amendments. own behalf. S. 551, to provide for the implementation of air quality programs developed in accordance with an SARS Intergovernmental Agreement between the Southern Committee on Governmental Affairs: Permanent Sub- Ute Indian Tribe and the State of Colorado con- committee on Investigations concluded hearings to cerning Air Quality Control on the Southern Ute In- examine the best practices for identifying and caring dian Reservation, with an amendment. for new cases of SARS, focusing on control measures S. 793, to provide for increased energy savings to help contain the spread of SARS should future and environmental benefits through the increased use outbreaks occur, after receiving testimony from Mar- of recovered mineral component in federally funded jorie E. Kanof, Director, Health Care-Clinical and

VerDate jul 14 2003 04:54 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0627 Sfmt 0627 E:\CR\FM\D30JY3.REC D30JY3 D918 CONGRESSIONAL RECORD — DAILY DIGEST July 30, 2003 Military Health Care Issues, General Accounting Of- tice; Terry Virden, Director, Bureau of Indian Af- fice; and James M. Hughes, Director, National Cen- fairs, Department of the Interior; Josh Filler, Direc- ter for Infectious Diseases, Centers for Disease Con- tor, Office of State and Local Government Coordina- trol and Prevention, Department of Health and tion, Department of Homeland Security; William F. Human Services. Raub, Principal Deputy Assistant Secretary of Health and Human Service for Public Health Emergency BUSINESS MEETING Preparedness; Roland E. Johnson, Pueblo of Laguna, Committee on Governmental Affairs: Committee ordered Laguna, New Mexico; Audrey Bennett, Prairie Island favorably reported the Nominations of Joe D. Whit- Tribal Council, Welch, Minnesota; Earl Old Person, ley, of Georgia, to be General Counsel, and Penrose Blackfeet Tribal Business Council, Browning, Mon- C. Albright, of Virginia, to be Assistant Secretary, tana; Vivian Juan-Saunders, Tohono O’odham Na- both of the Department of Homeland Security, and tion, Sells, Arizona; Alvin Windy Boy, Sr., Chip- Joel David Kaplan, of Massachusetts, to be Deputy pewa Cree Tribe, Box Elder, Montana; Tim Sanders, Director of the Office of Management and Budget. Gila River Indian Community, Sacaton, Arizona; and BUSINESS MEETING Tex Hall, National Congress of American Indians, and Gary Edwards, National Native American Law Committee on Health, Education, Labor, and Pensions: Association, both of Washington, D.C. Committee ordered favorably reported the nomina- tions of Howard Radzely, of Maryland, to be Solic- NOMINATIONS itor for the Department of Labor, Michael Young, of Committee on the Judiciary: Committee concluded Pennsylvania, to be a Member of the Federal Mine hearings on the nominations of Henry W. Saad, of Safety and Health Review Commission, and Michigan, to be United States Circuit Judge for the Thomasina V. Rogers, of Maryland, to be a Member Sixth Circuit, who was introduced by Representative of the Occupational Safety and Health Review Com- Rogers (MI); Larry Alan Burns, to be United States mission. District Judge for the Southern District of Cali- fornia, and Dana Makoto Sabraw, to be United BUSINESS MEETING States District Judge for the Southern District of Committee on Indian Affairs: Committee ordered favor- California, who were both introduced by Senator ably reported S. 428, to provide for the distribution Feinstein; Glen E. Conrad, to be United States Dis- of judgment funds to the Assiniboine and Sioux trict Judge for the Western District of Virginia, who Tribes of the Fort Peck Reservation, with an amend- was introduced by Senators Warner and Allen; ment in the nature of a substitute. Henry F. Floyd, to be United States District Judge COBELL V. NORTON LAWSUIT for the District of South Carolina, who was intro- duced by Senators Hollings and Graham (S.C.); Kim Committee on Indian Affairs: Committee concluded R. Gibson, to be United States District Judge for oversight hearings on potential settlement mecha- the Western District of Pennsylvania, who was intro- nisms of the Cobell v. Norton lawsuit, after receiv- duced by Senators Specter and Santorum; and Mi- ing testimony from James Cason, Associate Deputy chael W. Mosman, to be United States District Secretary of the Interior; Tex G. Hall, National Con- Judge for the District of Oregon, who was intro- gress of American Indians, Washington, D.C.; John duced by Senators Wyden and Smith, after each Berrey, Quapaw Tribe of Oklahoma, Quapaw; John nominee testified and answered questions in their E. Echohawk, Native American Rights Fund, Boul- own behalf. der, Colorado; Harold Frazier, Cheyenne River Sioux Also, testimony was received from Senators Levin Tribe, Eagle Butte, South Dakota; and Donald T. and Stabenow. Gray, Nixon Peabody, LLP, San Francisco, California. MENTALLY ILL OFFENDER TREATMENT TRIBAL GOVERNMENT AMENDMENTS TO AND CRIME REDUCTION ACT HOMELAND SECURITY Committee on the Judiciary: Committee concluded Committee on Indian Affairs: Committee concluded hearings to examine S. 1194, to foster local collabo- hearings to examine S. 578, Tribal Government rations which will ensure that resources are effec- Amendments to the Homeland Security Act of 2002, tively and efficiently used within the criminal and a bill to amend the Homeland Security Act to in- juvenile justice systems, after receiving testimony clude Indian tribes among the entities consulted from Vermont State Senator John F. Campbell, with respect to activities carried out by the Secretary Quechee; Justice Evelyn Lundberg Stratton, Supreme of Homeland Security, after receiving testimony Court of Ohio, on behalf of the Advisory Committee from Thomas B. Heffelfinger, United States Attor- on Mentally Ill in the Courts, and Reginald A. ney (Minneapolis, Minnesota), Department of Jus- Wilkinson, Ohio Department of Rehabilitation and

VerDate jul 14 2003 04:54 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0627 Sfmt 0627 E:\CR\FM\D30JY3.REC D30JY3 July 30, 2003 CONGRESSIONAL RECORD — DAILY DIGEST D919 Correction, on behalf of the Association of State Cor- Ron Honberg, National Alliance for the Mentally rectional Administrators and the Council of State Ill, Arlington, Virginia, on behalf of the Campaign Governments, both of Columbus; Donald F. for Mental Health Reform; and Rhonda Atkins, Eslinger, Seminole County Sheriff, Sanford, Florida; Sarasota, Florida. h House of Representatives a hearing on union financial reporting disclosure; and a Chamber Action hearing on a proposed rule on overtime pay, 2 p.m., The House was not in session today. Pursuant to SD–192. the provisions of H. Con. Res. 259, providing for a Committee on Armed Services: to hold a closed briefing re- conditional adjournment of the House of Representa- garding the work of the Iraq Survey Group, 9:30 a.m., tives and a conditional recess or adjournment of the S–407, Capitol. Senate, it stands adjourned until 2 p.m. on Wednes- Committee on Banking, Housing, and Urban Affairs: busi- day, September 3, 2003. ness meeting to mark up S. 627, to prevent the use of certain payments instruments, credit cards, and fund transfers for unlawful Internet gambling, and H.R. 659, Committee Meetings to amend section 242 of the National Housing Act re- No committee meetings were held. garding the requirements for mortgage insurance under such Act for hospitals; to be followed by a hearing to ex- f amine measures to enhance the operation of the Fair NEW PUBLIC LAWS Credit Reporting Act, 9:30 a.m., SD–538. Committee on Commerce, Science, and Transportation: busi- (For last listing of Public Laws, see DAILY DIGEST, p. D912) ness meeting to consider pending calendar business, 9:30 H.R. 255, to authorize the Secretary of the Inte- a.m., SR–253. rior to grant an easement to facilitate access to the Subcommittee on Communications, to hold hearings to Lewis and Clark Interpretative Center in Nebraska examine Internet Corporation for Assigned Names and City, Nebraska. Signed on July 29, 2003. (Public Numbers (ICANN), 2:30 p.m., SR–253. Law 108–62). Committee on Foreign Relations: Subcommittee on East H.R. 733, to authorize the Secretary of the Inte- Asian and Pacific Affairs, to hold a closed briefing on rior to acquire the McLoughlin House in Oregon corruption in North Korea’s economy, 2 p.m., S–407, City, Oregon, for inclusion in Fort Vancouver His- Capitol. toric Site. Signed on July 29, 2003. (Public Law Subcommittee on East Asian and Pacific Affairs, to 108–63). hold hearings to examine corruption in North Korea’s H.R. 1577, to designate the visitors’ center in economy, 3 p.m., SD–106. Organ Pipe Cactus National Monument in Arizona Committee on Governmental Affairs: to hold hearings to as the ‘‘Kris Eggle Visitor Center’’. Signed on July examine origination, organization and prevention in rela- 29, 2003. (Public Law 108–64). tion to terrorism financing, 10 a.m., SD–342. S. 1399, to redesignate the facility of the United Committee on Health, Education, Labor, and Pensions: to States Postal Service located at 101 South Vine hold hearings to examine solutions to the problem of Street in Glenwood, Iowa, as the ‘‘William J. Scherle health care transmission of HIV/AIDS in Africa, 10 a.m., SD–430. Post Office Building’’. Signed on July 29, 2003. Committee on the Judiciary: business meeting to consider (Public Law 108–65). pending calendar business, 9:30 a.m., SD–226. f Subcommittee on Administrative Oversight and the Courts, to hold hearings to examine the funding of COMMITTEE MEETINGS FOR THURSDAY, forensics sciences, 2 p.m., SD–226. JULY 31, 2003 Select Committee on Intelligence: to hold closed hearings to (Committee meetings are open unless otherwise indicated) examine certain intelligence matters, 2:30 p.m., SH–219. Senate House Committee on Appropriations: Subcommittee on Labor, No committee meetings are scheduled. Health and Human Services, and Education, to hold hear- ings to examine proposed Mine Safety and Health Ad- ministration (MSHA) rule on coal dust; to be followed by

VerDate jul 14 2003 04:54 Jul 31, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0627 Sfmt 0627 E:\CR\FM\D30JY3.REC D30JY3 D920 CONGRESSIONAL RECORD — DAILY DIGEST July 30, 2003

Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9 a.m., Thursday, July 31 4 p.m., Friday, August 1 *

Senate Chamber House Chamber Program for Thursday: Senate will resume consideration * Program for Friday: The House stands adjourned until of the nomination of William H. Pryor, Jr., of Alabama, 4 p.m. on Friday, August 1, 2003, unless it sooner has to be United States Circuit Judge for the Eleventh Cir- received a message from the Senate transmitting an cuit, with a vote on the motion to close further debate amendment to H. Con. Res. 259 in the form that was on the nomination to occur at 10 a.m.; following which, reported at the desk, in which case the House shall be Senate will continue consideration of S. 14, Energy Policy considered to have concurred in such amendment and Act. shall stand adjourned until 2 p.m. on Wednesday, Sep- tember 3, 2003.

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