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

Vol. 150 WASHINGTON, WEDNESDAY, JULY 7, 2004 No. 92 Senate The Senate met at 9:30 a.m. and was SCHEDULE ORDER OF PROCEDURE called to order by the President pro Mr. FRIST. Mr. President, this morn- Mr. REID. Before the distinguished tempore [Mr. STEVENS]. ing the Senate will conduct a period of The PRESIDENT pro tempore. To- majority leader leaves the Senate morning business for up to 60 minutes. floor, I wanted to alert him and the day’s prayer will be offered by our Following morning business, we will two managers of the bill that after guest Chaplain, Rabbi Israel Zoberman, resume consideration of the class ac- morning business, we have a number of Congregation Beth Chaverim, Virginia tion fairness bill. Last night we had a Beach, VA. series of opening statements, and Democratic Senators, both for and against the legislation, who wish to PRAYER therefore today we hope to make progress on that bill. make opening statements on the bill. I The guest Chaplain offered the fol- As I mentioned yesterday, the issue have six Senators who have contacted lowing prayer: surrounding class action has been thor- me, and the time they will consume Our one God of Shalom, who brings oughly debated before the Senate. This will probably take us until at least the us together to be one family, having bill has bipartisan support. I continue noon hour on just opening statements just celebrated July Fourth, inspire to hope we can reach an agreement to on the bill. I have not heard from any- our tireless Senators these trying consider relevant amendments to the one else, but I wanted the managers to times of unique challenge and singular underlying legislation. I believe we know that. I have heard—I am not sure opportunity to safeguard and increase should debate and vote on any class ac- this is the case—that the managers are our blessings in our beloved and lead- tion amendments and allow the Senate ing land of flourishing democracy. going to first look to a Republican to Enable and ennoble these faithful to ultimately vote on passage of the offer an amendment, and then how we partners of Yours to be coworkers with legislation after a fair time for consid- normally do things is to go back and the Creator—for that is our glory—in eration. forth. There is certainly no rule that the healing of society’s blemishes, yet Having said that, I am concerned that needs to be the case, but we do, turning our planet Earth into a para- about all the reports in the various after morning business, have a number dise for all. Facing complex issues and periodicals with regard to this bill of Senators who wish to make state- raging debates, allow them to connect being used as fly paper, as a vehicle to ments on this bill. Under what we have to the inner calming call of divine carry all kinds of unrelated issues. I done in the past, that certainly is ap- just simply hope that will not be the presence, awed by the wonder of being propriate. No one has taken an inordi- case and that we can stay on the bill and reassured by the spirit of renewal nate amount of time. with relevant amendments. The legis- at the heart of life’s awesome drama. Mr. FRIST. Mr. President, I am sure May they perceive in their own journey lation is too important to become the managers will shortly be aware of God’s guiding hand of majesty, mys- mired down in a myriad of completely that. It is important that people are tery, and mastery, ever sustained in unrelated issues. Therefore, I believe in both trial and triumph. order for the Senate to pass the class heard on a very important bill. We As son of Polish Holocaust survivors, action bill, we should reach an agree- began the bill late yesterday, and we I thank You and America. Amen. ment as to how best to proceed. It is need to have a very productive day not my intent to cut off any Member’s f today and possibly into tonight to con- right to offer amendments; however, I tinue progress on the bill. PLEDGE OF ALLEGIANCE do believe we should be clear that the The PRESIDENT pro tempore. The amendments will be related to the un- The PRESIDENT pro tempore led the Senator from Nevada. Pledge of Allegiance, as follows: derlying bill. I will continue to talk to I pledge allegiance to the Flag of the the other side to find a path by which Mr. REID. Mr. President, when the United States of America, and to the Repub- we can complete this bill, and I will distinguished Presiding Officer makes lic for which it stands, one Nation under have more to say on the schedule fol- a statement as to our going into morn- God, indivisible, with liberty and justice for lowing the period of morning business. ing business, I would ask unanimous all. consent that Senator LINCOLN be recog- f f nized on the Democratic side for 15 RECOGNITION OF THE MAJORITY RECOGNITION OF THE ASSISTANT minutes and Senator HARKIN for 10 LEADER MINORITY LEADER minutes. The PRESIDENT pro tempore. The The PRESIDENT pro tempore. The The PRESIDENT pro tempore. With- majority leader is recognized. Senator from Nevada is recognized. out objection, it is so ordered.

∑ 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 May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.000 S07PT1 S7690 CONGRESSIONAL RECORD — SENATE July 7, 2004 RESERVATION OF LEADER TIME ous, they would have resolved this This is about discovering those in our The PRESIDENT pro tempore. Under matter immediately, without the aid of Government who have so little respect the previous order, the leadership time a grand jury, subpoenas, experienced for the value of our intelligence assets is reserved. prosecutors, polygraphs, and, most that they are willing to use those as- likely by now, millions of dollars of ex- sets as political weapons. f pense. Both the President and the Vice MORNING BUSINESS The President has never demanded President have been questioned by the The PRESIDENT pro tempore. Under answers from his White House staff. I special prosecutor’s office in this mat- the previous order, there will now be a remind my colleagues that the pivotal ter, but almost a year after the leak we period for the transaction of morning Washington Post article was published still don’t know who is responsible. Valerie Plame was a seasoned covert business for up to 60 minutes, with the on a Sunday in late September. On operator, we are told. She performed first 30 minutes under the control of Monday morning, the President could the kind of human intelligence gath- the Democratic leader or his designee have, and should have, demanded an- ering that is crucial to our national se- and the second 30 minutes under the swers from his staff. He could have, and curity. So why was her identity com- control of the majority leader or his should have, called his senior staff promised? Why was the identity of a designee. members into the Oval Office, put them valuable intelligence asset treated so The Senator from Iowa is recognized under oath, and asked them one by one cavalierly and recklessly by senior offi- pursuant to previous agreement. if they were involved in the leak of the CIA agent’s name to the media. He cials in the White House? Was it done f could have, and should have, laid down as part of an ongoing effort to discredit LEAK INVESTIGATION the law and resolved this matter imme- and retaliate against critics of the ad- ministration—especially anyone who Mr. HARKIN. Mr. President, on a diately. Indeed, that is exactly the way dared to suggest that the intelligence matter of utmost importance to the a President who truly wanted to iden- used to justify the war in Iraq ranged national security of the United States, tify the leakers would have acted. But from flawed to fabricated? I want to point out that it has now President Bush took no such action. Instead, the President joked about Let me recap. Since 2002, the admin- been almost a full year since the iden- the leak with reporters. Judging from istration’s top officials, including Vice tity of a covert CIA agent was revealed his statements, he doesn’t seem all President CHENEY, Defense Secretary in print by columnist Robert Novak. In that eager to find and punish the peo- Rumsfeld, National Security Adviser fact, it has been 359 days, 1 week short ple responsible. He said he has no idea Rice, and the President himself, have of a year. Next Wednesday will be 1 whether the leakers will ever be identi- all claimed Saddam Hussein was ac- year exactly. It has been 10 months, ex- fied. tively developing weapons of mass de- actly 285 days, since the Washington The disclosure of the identity of the struction, and that he tried to buy ura- Post reported that a senior administra- agent, Valerie Plame, as a covert CIA nium from the nation of Niger. These tion official said that two ‘‘senior operative represents an extremely claims persisted despite conflicting in- White House officials called at least six damaging breach of national security. telligence reports, including one by Washington journalists and disclosed In her 20-year career, we now know, she Ambassador Joseph Wilson. Ambas- the identity of a covert CIA agent.’’ operated with ‘‘nonofficial cover,’’ sador Wilson, we later learned, is Val- We still do not know the identity of meaning she had no diplomatic immu- erie Plame’s husband. those ‘‘senior White House officials’’ nity. Effectively, her only defense was Ambassador Wilson was sent on a responsible for this destructive leak. It a painstakingly created and main- fact finding mission by the CIA to is simply astounding to me that as I tained cover. She worked gathering Niger. After an investigation, he found stand here, the person or persons re- human intelligence, the kind of intel- no evidence to support the claim that sponsible for destroying the 20 years ligence we have heard over and over Niger had sold uranium to Iraq. and millions of dollars invested in this since September 11, 2001, is so critical Still, the President made the Niger agent and for jeopardizing the lives of to fighting terrorism. She ran agents claim in his State of the Union mes- other agents in the field could at this and worked closely with other under- sage. A few months later, the New very moment still be exercising a sen- cover operatives and contacts. These York Times published Mr. Wilson’s op- ior decision making role in this admin- people were also potentially placed in ed piece, which questioned the Presi- istration. jeopardy and exposed to danger by the dent’s assertion and indeed refuted the In late December, I welcomed the ap- disclosure. President’s assertion that Niger had pointment of Patrick Fitzgerald, the One publication reported that after sold uranium to Iraq. It was after U.S. attorney for Illinois, as a special reading of her own blown cover, Ms. that—at least in this Senator’s opin- prosecutor to investigate this matter. I Plame immediately had to make a list ion—that in order to discredit and pun- don’t understand why it took almost 6 of all of the contacts and associates of ish Wilson, two senior White House of- months for this appointment to be hers who could be in jeopardy. I only ficials leaked to the press the identity made, but from all reports I have hope when Mr. FITZGERALD discovers of Wilson’s wife and the fact that she heard, Mr. Fitzgerald has been con- the identity of the leaker, that person was a covert CIA operative. In doing so ducting a very aggressive investigation is forced to see this list and be con- they broke the law and undercut our over the past 190 days. But what I still fronted with the full extent of their be- national security in time of war. don’t understand is how this adminis- trayal—yes, betrayal—of this country One day Ms. Plame was a valued tration can claim to be cooperating and its citizens. That is what it is. human intelligence asset; the next day with this investigation when the only More important, Mr. FITZGERALD she was political fodder. public statement the President has needs to discover how the information What guarantees does any other in- made on this matter was to say: on Ms. Plame’s status came into the telligence agent have he or she could I don’t know if we’re going to find out hands of these leakers, or senior White not be next? It is not enough to find [who] the senior administration official [is]. House officials. Is someone in the CIA out who leaked the names; we have to Of course, that statement was an ob- responsible for identifying Ms. Plame find out how senior White House offi- vious wink and a nod to the leaker or as a means of discrediting her husband, cials were given the classified informa- leakers. The subtle message seems to former Ambassador Joseph Wilson? Is tion about Valerie Plame’s status as a be, don’t worry. Sit tight. We can someone in the National Security covert CIA agent. Who did this das- stonewall this and get it behind us. Council responsible? tardly deed? Who betrayed our country So while I welcome the investigation We cannot stop at identifying the in- and our intelligence asset? of the special prosecutor, I find it hard dividual or individuals who leaked her It is not only Ms. Plame, it is all of to believe that the President and the identity and her status to the press. We the other CIA agents we have who do administration are serious about get- also need to identify the person or per- not have diplomatic immunity and are ting to the bottom of this grave breach sons who gave this classified informa- operating undercover, collecting of national security. If they were seri- tion to the leakers in the first place. human intelligence for the safety of

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.003 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7691 our country. What is there to give they were giving to this woman was in- Mr. DURBIN. I thank the Chair. Mr. them assurance they are not the next formation being given to a CIA opera- President, how much time is remaining Valerie Plame? What is there to give tive; is that true? in morning business? them the assurance they won’t be fin- Mr. HARKIN. Absolutely. Their lives The PRESIDENT pro tempore. There gered at some time in the future? would be at risk, and their lives are at is 11 minutes 12 seconds remaining. What happened here is not only con- risk, I believe. Mr. President, I say to f fined to Ms. Plame, bad enough as that my friend from Nevada, that is the ISSUES IMPORTANT TO AMERICAN is. It sends all of the wrong signals to damage that has been done. But think FAMILIES our CIA operatives that they could be about the damage that will be done in next. Some future administration the future if we do not resolve this Mr. DURBIN. Mr. President, there is could finger them if they disagree or if matter. Because other CIA operatives a lot of talk across this country about their husband or wife, brother or sister, who operate without diplomatic immu- the important issues in this Presi- or maybe a friend, disagreed with offi- nity, like Valerie Plame, will have this dential campaign. Some people are cial administration policy; they could cloud hanging over them. They will going to try to define those issues on be outted. fear that they, too, could be outed in the floor of the House and Senate in And what does it say to all of the the future; that their name could be the weeks ahead, but the issues in this contacts these people we have devel- made public if their husband or wife or campaign will not be defined in Wash- oped and nurtured over years and someone such as that disagreed with ington, not on Capitol Hill. Those years, in countries where their lives official administration policy. issues will be defined in homes across would be at risk if they were identified To me, that is the real damage. The America where families will decide as giving intelligence to our CIA peo- leak has undermined the human intel- what is important, and they will listen ple? What assurance do these networks ligence assets we have developed over to the candidates for Congress—the House and Senate—and those who are have they won’t be uncovered similarly years and years. I am told it takes over running for President and Vice Presi- at some time in the future? 10 years of CIA training to develop a dent. They will listen to hear whether I have waited, and we have all waited good covert operative such as Ms. those candidates are responding to to get answers; 359 days is too long. Plame. There are over 10 years of train- One year is too long for this to drag on. their real concerns. ing and seasoning and intelligence There will be an effort here to manu- It is time for the administration to gathering before they are a solid source facture issues to try to divert Amer- come clean. It is time for those who of intelligence. So when we think of ican families from their real concerns. leaked Ms. Plame’s identity to be iden- that, we think about all of this thrown In just a short time, I suspect we will tified and to suffer the consequences. It away because someone had a vendetta have this rush of proposed constitu- is also time to find out who gave them against Mr. WILSON, her husband. tional amendments coming to the floor this highly classified information, how I say to my friend from Nevada, it of the Senate. It is suggested one will it was they came to have the name of was a vicious act, political intimida- be on the issue of marriage and one on Ms. Plame. tion and retribution, and I think it is a the flag. Quite honestly, it is very ap- Only a thorough airing of this, only clear pattern that we have seen over parent why they are being brought to prosecuting those who were involved, 359 days of coverup, concealment, and the floor. I personally think we should finding out who gave this name to contempt for the truth by this admin- pass one law—and do it quickly—which these people in the White House, mak- istration. It is time to resolve this says no one can propose a constitu- ing sure they no longer have positions, issue. tional amendment in a Presidential wherever they are, in the National Se- I yield the floor and suggest the ab- election year, certainly not within 6 curity Council or in the CIA—only then sence of a quorum. months of an election. Such proposals will we send a clear signal we are not The PRESIDENT pro tempore. The are automatically suspect and clearly going to let this happen again. We clerk will call the roll. political. must send a clear signal to those who The legislative clerk proceeded to In this case, the Republican leader- would betray this country in order to call the roll. ship is going to bring constitutional get political retribution against some- Mr. REID. Mr. President, I ask unan- amendments to the floor in the hopes body who disagreed with an adminis- imous consent that order for the that they can divert the attention of tration’s position. Only then will we be quorum call be rescinded. American families from the issues they able to send a clear signal that these The PRESIDENT pro tempore. With- care about to some new set of issues. kinds of actions will never be toler- out objection, it is so ordered. Why would the Republican leadership ated. Mr. REID. Mr. President, I ask that want the American people to look at Mr. REID. Will the Senator yield for the time under the quorum call be issues other than those they take per- a question? charged against Senator LINCOLN to sonally? Because, frankly, they do not Mr. HARKIN. Yes. whom I, through the Chair, yielded 15 have many answers to the questions Mr. REID. Would the Senator suc- minutes. I ask that the time be most families ask. cinctly state what harm was done, or charged against her. The families in Illinois and across could have been done, as a result of di- The PRESIDENT pro tempore. With- America with whom I talk are working vulging the name of this woman? out objection, it is so ordered. families concerned about their inabil- Mr. HARKIN. I thank the Senator for Mr. REID. I suggest the absence of a ity to keep up with costs. his question. quorum. Not surprising, take a look at this Succinctly, what was done and what The PRESIDENT pro tempore. The chart as an illustration. What has hap- more could be done—Ms. Plame had a clerk will call the roll. pened to real earnings over the past number of assets and contacts, people The legislative clerk proceeded to year in America? For families, average in other parts of the world who were call the roll. weekly earnings have gone down, but giving her information valuable to our Mr. REID. Mr. President, I ask unan- for corporate profits, they have gone national security. These people have imous consent that the order for the up dramatically. There is a disconnect. been put at risk. quorum call be rescinded. We want business to be successful. Of Mr. REID. And these people, I inter- The PRESIDENT pro tempore. With- course, we do. Successful business rupt the Senator through the Chair, out objection, it is so ordered. means more people working and more did not know—her friends, neighbors, Mr. REID. Mr. President, I have been good jobs in America. But what is people around America—she was a spy; told that Senator LINCOLN is unable to wrong with this picture? Why did cor- is that right? be here. I yield her remaining time to porate profits go up so dramatically Mr. HARKIN. That is correct. As I the Senator from Illinois, Mr. DURBIN. and yet working families fell behind so understand it, she operated—— The PRESIDENT pro tempore. With- much? The obvious reason is because Mr. REID. And the people supplying out objection, it is so ordered. The Sen- there are elements in the budget of her information certainly did not want ator from Illinois is recognized pursu- most families that are not being ad- the world to know the information ant to the request. dressed in Washington.

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.006 S07PT1 S7692 CONGRESSIONAL RECORD — SENATE July 7, 2004 What is causing this middle-class tration, ignored by the Republican and say: Senator, the most important squeeze across America that is basi- leaders in this Congress? Because the thing facing us is gay marriage. That is cally denying families their weekly leaders in this Congress and the Repub- just ruining my life. Take that up. Ban earnings? Why won’t the Republican lican Party refuse to confront the it because that is what I think about leadership in the Senate and the House health care insurance industries, the night and day. No. They tell me they address the middle-class squeeze? Why pharmaceutical companies, and those are worried about paying college tui- won’t we address issues with which that are driving up the cost of health tion; they are worried about filling up people are concerned? Let’s be more care. Those special interest groups are their gas tank; they are worried about specific about what that squeeze con- sacred cows in this town, and because not being able to afford prescription sists of. the Republican leadership will not con- drugs. Look at this chart which shows real front them, American families are So my question to my friend is, growth during President Bush’s admin- being victimized by them. Could we not do more to implore this istration. Average weekly earnings These are the issues that families leadership to take up some of the have gone up 1 percent since President care about. They are the ones we are issues that are really affecting the peo- George W. Bush has come to office—1 going to bring to this Presidential ple we all represent? percent. What about college tuition campaign, and they are the ones the Mr. DURBIN. I thank the Senator costs? They have gone up 28 percent; Republican leadership wants to ignore. from California for her question. The gas prices, 28 percent. And here is one, They want us to rush off and debate at answer is clear to all of us. This Con- this is the killer for business, labor, length constitutional amendments gress, under the Republican leadership and families: family health care pre- that, frankly, are going nowhere. and this administration, has decided miums. I am happy to yield to my colleague that the special interest groups are One can say to oneself: What in the from California for a question. more important than these issues that world can Congress do about these Mrs. BOXER. I came to thank the are facing working families. They have issues that are raising the cost of liv- Senator for bringing out that chart, if decided that giving tax cuts to the ing for working families? The answer he would keep it up there for a minute, wealthiest people in America is more is, ‘‘plenty.’’ What have we done? Noth- and for making this point to our col- important than giving working fami- ing, absolutely nothing. leagues and anyone else who might be lies the deductibility of college edu- What we have done, unfortunately, is listening. It is one thing for us to cri- cation expenses. They have decided to ignore the real issues facing fami- tique the administration and say they that giving breaks to oil companies is lies. We have ignored the issues they are not addressing the real issues. more important than confronting those are coping with on a regular basis. Col- When I go home, people say this admin- oil companies and OPEC to bring down lege tuition costs: My colleague, Sen- istration cares about everybody else in gasoline prices. They have decided that ator SCHUMER of New York, when we the world; there is money for every- the pharmaceutical companies and the were discussing tax cuts, said the most body else in the world; we are going to health insurance companies in America important tax cuts for working fami- help everybody else; we are going to are more important, their bottom line lies and for our future include the de- help the people of Iraq. Fine, but they profits are more important than the ductibility of college education ex- are going to have universal health care cost of health insurance to businesses, penses. and we are not? They are going to have to labor union members, and to fami- Well, that is obvious. What do I hope their classrooms built and we are not? lies across America. They have caved for for my kids, for the kids of my col- And it goes on. in time and time again to special inter- leagues, and for all who are following So what I believe our people want us est groups, and they refuse to listen to this debate? A chance for a good edu- to address is what is happening to the real concerns of America. cation. What stands in the way? Well, them, and what my friend has done in That is why Americans are saying, by certainly their own achievement—they a most eloquent way, as he always a margin of almost 2 to 1, that we are have to do a good job in school to be el- does, is to point out this middle-class headed in the wrong direction as a na- igible to go to college—but then the squeeze that is hitting our people. tion. They want leadership in Wash- cost. My colleagues know what I am These are the problems I care about. ington that responds to the real issues, talking about. How many college grad- I say to my friend, we have a bill about the family room issues, the kitchen uates today face college tuition costs reforming class action. I have taken a table issues families face every single which are absolutely crippling? look at some class action lawsuits, and day. This administration has refused to Senator SCHUMER and others said if I have realized that is one tool to help do it. Frankly, this Congress has re- we are going to talk about tax cuts to middle-class families who may be fused to do it. They want to divert at- help working families, why do we not harmed by products that are not safe. tention. They want to have the old allow them to deduct the cost of col- So I do not know why they are running sleight of hand. Let us talk about con- lege education expenses? We offered off to do that and they are ignoring all stitutional amendments. Let us not that amendment. It was defeated by of these other things. talk about things that deal with the the Republicans. They said, no, the tax I guess my question to my friend is, real issues facing families. cuts should go to the highest income As we debate the Presidential election I am happy to yield to the Senator individuals and they will decide what and we have a point of view that this from Nevada. to do with that extra income and they administration is ignoring this middle- Mr. REID. Will the Senator from Illi- will ultimately help working families. class squeeze, do we not find that hap- nois yield for a question? Gasoline prices—— pening right here with the Republicans Mr. DURBIN. I am happy to yield for Mrs. BOXER. Will my friend yield? who are in charge of this Senate? Are a question to the Senator from Nevada. Mr. DURBIN. I will yield in just one they not ignoring this middle-class Mr. REID. I say through the Chair to moment. squeeze? The best way to prove the my distinguished friend from Illinois, Gasoline prices are another illustra- point is what they bring up before the also the two constitutional issues, gay tion. These prices have gone up dra- Senate. Are they bringing up anything marriage and flag burning, no matter matically in the State of California to deal with college tuition and giving how strong someone may feel about and in the State of Illinois. What has tax breaks to those folks who so des- each of those, would the Senator ac- this administration done about it? perately need it? Are they doing any- knowledge they have no chance what- Nothing. A cost to business, a cost to thing at all to help with gas prices, soever of passing, so we are not only families, a cost out of the bottom line health care premiums, or prescription taking up issues that may be secondary of the paycheck people bring home, and drugs, or are we going to face, after to the vast majority of the American this administration refuses to confront this class action debate, these con- people, but also they have no chance of OPEC about fair gasoline prices. stitutional amendments my friend re- passing? All they are doing is bringing Why do family health care premiums ferred to that I have to say in all hon- these up to try to satisfy a small num- continue to be the No. 1 issue across esty and frankness I have never had ber of people in this country to divert America, ignored by the Bush adminis- one person in California come up to me attention from the real pocketbook

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.008 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7693 issues the American people deal with These are issues we ought to be talk- doing it. They are frivolous lawsuits. every day. Would the Senator acknowl- ing about and these are issues this Re- They are unproductive. edge that? publican leadership consistently ig- Then take a look at those class ac- The PRESIDING OFFICER (Mr. nores. tion lawsuits. Those end up being law- GRAHAM of South Carolina). The Demo- Mr. NELSON of Florida. Will the suits by consumers across America who cratic time has expired. Senator yield? may have just lost $100 personally, but Mr. REID. Mr. President, if the Mr. DURBIN. I am happy to yield. when aggregated turn out to be a large Democratic time has expired, the Chair Mr. NELSON of Florida. It is also the group of people who have created a has not properly advised the minority. cost of prescription drugs, I add to my great profit for a company that didn’t I yielded 25 minutes this morning to colleague from Illinois. I will tell you deserve it. Senators LINCOLN and Senator HARKIN, of the riveting experience I had last Those are ways that Americans leaving 5 minutes. So where has the 5 week as I was doing townhall meetings speak to the issues that concern them. minutes gone? in my State of Florida, where a senior Those are opportunities which the Re- The PRESIDING OFFICER. Senator citizen, a lady, broke down crying in publican majority wants to silence. HARKIN asked for an additional 5 min- the middle of a jam-packed townhall I yield the floor. utes. meeting as we were talking about the The PRESIDING OFFICER. The Mr. REID. I am sorry. I should never issues of the day such as Iraq. She said: Democratic time has expired. The Sen- step off the floor. I cannot afford a roof over my head and ator from Arizona. The PRESIDING OFFICER. Which Mr. KYL. Mr. President, it has been the cost of prescription drugs. She said: completes the Democratic time. interesting to hear some of our Demo- I don’t have any choice; I have to pro- Mr. REID. No problem. I should never cratic colleagues this morning make vide a home. That means I cannot buy step off the floor. the charge that the Republican leader- prescription drugs. I ask unanimous consent that each ship is somehow diverting attention Yet what did we do in this Senate? side have an additional 5 minutes. from the real problems of the day by The Senator from Illinois and I did not The PRESIDING OFFICER. Without scheduling a vote on an issue which, vote for the prescription drug bill be- objection, it is so ordered. when I was back home this last week- cause it said Medicare could not nego- Mr. DURBIN. I say to my colleague end, was certainly on the minds of a lot tiate by using bulk purchases, negoti- from the State of Nevada, he is going of my constituents, and that is this ating the price of drugs down as does to find out in the rollcall votes, in the question of whether judges in America the Veterans’ Administration. ultimate vote, that these constitu- are going to redefine what they have It is inexcusable. It is unexplainable, tional amendments are not going to always understood to be their defini- except that it rewards special interest pass. This is a political grandstand. tion of marriage. Frankly, we should pass a law that politics to the neglect of senior citi- To take 1 day, or perhaps as much as says a constitutional amendment can- zens and allows those prescription drug 3 days, to debate that issue and get not be proposed within 6 months of a prices to stay as high as they are so that issue resolved in the Senate does Presidential election. That is what this seniors cannot afford them. not seem to me to be too much to ask, is all about. It really demeans this Would the Senator reflect on that ex- in terms of conducting our business. great Constitution we have sworn to perience I had in my townhall meeting? With respect to the claim that it is uphold that we are playing games by Mr. DURBIN. I would say to the Sen- diverting us from attention to the eco- bringing issues like the gay marriage ator from Florida, he will hear the nomic issues that are of most concern amendment to the floor of the Senate same response in Illinois, in California, to Americans, I have two responses. without even a markup in the Judici- in Nevada, in South Carolina. People First, Americans seem to be concerned ary Committee. can’t afford prescription drugs. They about more than one thing. They are Why? Frankly, it should not be done. can’t afford college tuition. They can’t concerned about raising their families; Maybe one or two times in the recent deal with health insurance costs. They they are concerned about a good home history of this body have we brought can’t deal with these rising gas prices. for their children; they are concerned an amendment to the Senate floor Here is the problem. We need to cre- about a good economic future for their without a markup in the Judiciary ate a special interest group called children. All of these are wrapped up in Committee—I think Senator HOLLINGS, Working Families in America. the totality of the things that were ex- through unanimous consent, dis- Wouldn’t it be great if they had a lobby pressed to me over this Fourth of July charged a proposed constitutional here? Wouldn’t it be great if we walked break. amendment from committee. So they out in that hallway and men in three- I don’t think it is either fair or accu- are not taking it seriously. It is just a piece suits and Gucci loafers were rep- rate to say there is only one thing record vote to put Members on the spot resenting working families in America? Americans are concerned about and and to try to gas up the special inter- There are plenty out there for the drug that is their economic future. But to est groups that feel strongly on this companies, plenty out there for the the extent that is an issue and it be- issue. That really does not address the health insurance companies. But this comes an issue in the Presidential cam- issues working families care about. Senate and this Congress only responds paign this year, I think some facts are If this Senate is going to be relevant to special interest groups and those are worth pointing out. to the people we represent, we ought to groups such as the pharmaceutical I realize that sometimes facts get in speak to the issues they care about. companies that have record profits at the way of arguments. One of the main Whether the people are coming to this the expense of consumers across Amer- arguments of our colleagues on the gallery or watching the proceedings by ica. other side of the aisle is that this is a television, they know what working When are we ever going to address bad economy. The Democratic Presi- families care about. It is the cost of issues that real families care about? If dential candidate has talked about the health insurance. It is the fact that one we are not here to address those issues, Depression and the worst economy may have a dollar an hour more in then, frankly, we ought to just close up since—I don’t know, Hoover, I guess. their contract this year and do not shop and go home, and I don’t think we But the facts belie that claim. So per- have a penny more in take-home pay should. I think we have a responsibility haps this morning we should take a lit- because health insurance has gone up. to stay here and work and make cer- tle time to discuss some facts, some ac- It is the cost of sending your kids to tain that we deal with the issues real tual statistics, some reality about the college. Your child works hard and has families care about instead of all these economy and not just the economy in good grades, gets into a great college, special interest groups that come in. general but the economy as it affects and look at the cost: I’m sorry, you Now they want to get rid of class ac- the average American. can’t go to school; we can’t come up tions. They have said class actions, On the question of jobs, one of the with $20,000 a year. that is a dirty phrase. We should not criticisms has been—originally the It is the cost of gasoline which is say that in America because the people idea was there was no economic recov- killing small businesses and families who go to court and sue on behalf of a ery. Then the economic recovery be- alike. large group of people have no business came undeniable. Then the claim was

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.011 S07PT1 S7694 CONGRESSIONAL RECORD — SENATE July 7, 2004 it is a recovery in every sense except And I talked about manufacturing jobs This is what disturbs me about some the creation of jobs. Then for several earlier. of the rhetoric from the other side. months in a row we began creating More than 81 percent of part-time Every measurement of the economy is record numbers of jobs. Then the argu- workers in June indicate they have improving and every measurement ment became: But they are not really chosen part-time employment for non- with respect to individuals within the good jobs. economic reasons. The point is that economy is improving substantially There are some people you can never while full-time jobs are increasing, and is better than the comparable please, of course. In an election year, those who are working part time are times during the Clinton administra- the party that is on the ‘‘out’’ has to primarily working part time according tion, yet you hear people constantly criticize the party that is on the ‘‘in.’’ to their own testimony for reasons talking it down. There is a point at It is just that it is becoming harder that do not have anything to do with which this itself can have a negative and harder to criticize the Republicans economics. impact. because the economy has rebounded so I also mention the fact that tem- I would like to quote from a Wall well, largely because of policies that porary jobs in June represented only Street Journal commentary that sort have been pursued by the Bush admin- 2.225 percent of all payroll jobs in the of describes this phenomenon I am istration. private sector. talking about. Here is the Wall Street Let’s examine the specific claim I make all of these points not to sug- Journal: about employment and about wages gest that we can’t do better. In fact, Here’s a quick primer on how to track an and about what kinds of jobs Ameri- the President has said we will not rest economic recovery. When the media fret that cans have and how the economic recov- until everybody who wants to work can the U.S. is heading for a decade of stagnation ery is positively impacting the average find a job. like Japan, that means profits and invest- When you look at some of the coun- ment are picking up. When you hear that American. Look at the June employ- ties in Arizona, for example, in Pima profits have risen but we’re stuck in a ‘‘job- ment figures, which are the latest and Maricopa Counties where the em- less recovery,’’ businesses have started hir- numbers we have. They demonstrate ployment rate is 4.1, 4.2, or 4.3 percent, ing. And finally when a cry goes up that several things. American workers can find only low-paying First, the quality of new jobs is ris- something in that order, and when you menial jobs, that’s the tip-off that the econ- ing. Nearly 80 percent of the new jobs look at an area where there is a sub- omy is booming. stantial amount of illegal immigration Congratulations, America. The return of created in June were in industry cat- with the people working in sectors that ‘‘McJobs’’ rhetoric signifies that an expan- egories that pay an average hourly rate Americans have not wanted generally sion is in full swing. in excess of the overall average hourly to work, you can see this is the closest Of course, the Journal goes on to de- rate in the private sector. So these new thing to full-time employment we tail a lot of the statistical information jobs in manufacturing pay a higher could possibly have in this country. I have been talking about. wage than the average. The inflation- Let me give some more statistical By focusing on the quality of the jobs adjusted average hourly earnings have data because part of the problem in the that are being created, the pessimists increased 2.224 percent during the first debate has been claims by one side and are once again counting on the public 3.5 years of the Bush administration, facts on the other side. I know that to overlook the facts we have been compared with only a .13-percent in- sometimes people’s eyes glaze over talking about here. As I have indi- crease during the same period of the when they hear too many numbers, but cated, the facts demonstrate that the first Clinton administration. the reality is that numbers tell the U.S. economy is not only producing a People say, What about disposable in- story here. They are like pieces of a steady stream of jobs, but the new po- come? Not just wages but disposable puzzle. They are reality. When you put sitions are well paying and they are in- income. Per capita aftertax disposable them together, what they represent is dustrial jobs. So whether you are talk- income, adjusted for inflation, has in- not just a strong economy but an econ- ing quality or quantity, it is very hard creased 7.1 percent, since President omy that is helping individual families to deny that this economic recovery is Bush took office, well above the 5.2- provide more income and more secu- helping all Americans. percent increase during the same pe- rity for their work situation. One of the concerns has been about riod of the first Clinton administra- The employment data released by the manufacturing. There is no question tion. Bureau of Labor Statistics earlier this that there are shifts occurring all It doesn’t much matter how you look month demonstrate this strong job around the world to an information at it, statistics in every respect are su- growth. In June, nonfarm payroll em- technology kind of economy, and a lot perior to the Clinton administration ployment increased by 112,000 net new of the old industrial base of this coun- statistics. They represent economic jobs. So far this year, nearly 1.3 million try has been affected by that. But growth. They represent real return in net new payroll jobs have been created, there are also some statistics that I be- terms of wages and inflation-adjusted and over 1.5 new payroll jobs since last lieve give hope with respect to manu- wages for the average American as well August. According to the Bureau of facturing in this country, which is still as the American working in manufac- Labor Statistics’ current population the No. 1 country for manufacturing in turing. survey, which is the household survey, the world. Since the start of the Bush adminis- the unemployment rate remains steady In June, nearly 80 percent of the new tration, full-time employment has at 5.6 percent, which is well below the jobs were created in major industry averaged 82.56 percent, nearly a full peak of 6.3 percent in June of 2003. In categories which pay an average hourly percentage point higher than full-time other words, more Americans are work- rate in excess of the overall average employment during the same period of ing than at any time in the country’s hourly rate in the private sector of the first Clinton administration. So, history—139 million individuals. I $15.65. In June, 39,000 new professional again, no matter what comparison you think that is a record we can be proud and business services jobs were created make, Americans individually are bet- of. in an industry with an average wage of ter off today. It is not just a matter of I make this point: There is a certain $17.38 per hour—11 percent more than the economy performing better, but sense in which talking down the econ- the overall average hourly wage; 19,200 they are individually better off today omy creates a psychology in the mar- new transportation and warehousing in terms of employment, in terms of ket and becomes a self-fulfilling proph- jobs were created in an industry with jobs, in terms of earnings. ecy. I notice there has been criticism an average wage of $16.50—7 percent In the past year, the number of full- in the past by Members on the other above the overall average. In contrast, time positions has increased by nearly side when Republicans have, during the because some speak about the leisure 1.3 million. I mention that because Clinton administration, noted certain or hospitality industry where wages some make the argument that some of problems with the economy. They said are less, the average wage there is these are called ‘‘McJobs’’—a play on don’t talk down the economy, that it $8.86. That only accounted for 6 percent McDonald’s—that they are just ham- will have an effect itself on confidence of the new jobs created. burger-flipping kinds of jobs. No. We in the market and confidence among Again, for those who say there are are talking about full-time positions. consumers. new jobs being created but they are in

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.014 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7695 the lower paying categories and not in ministration has really made big We used to have an expression that the industrial categories, the statistics strides because of the tax cuts we politics ends at the water’s edge. We simply belie that. They say that is not passed, which some on the other side of did not allow debates between can- true. the aisle would take away. didates to confuse the way foreign pol- The point is, very broadly speaking, In the first 12 quarters, the Bush ad- icy was conducted abroad. There is the employment figures in June are ministration’s per capita aftertax in- something akin to that with the econ- consistent with an upward trend of come increased by 12.5 percent, in large omy. Certainly the issue of jobs and well-paying industries creating valu- measure as a result of the individual economic growth are appropriate for able jobs, and this has been occurring tax rate reductions we enacted in 2001 political discussion. No doubt about for more than a year. and 2003 that were part of the Bush tax that. I worry when it reaches a point In June, the average hourly earnings reduction programs which he signed that the volume and nature of the de- of production or nonsupervisory work- into law and is asking us to make per- bate is actually hurting the economy. ers increased at an annualized rate of manent. With that kind of improve- Maybe we have gone too far. So much 1.2 percent, the sixth consecutive ment in per capita income—this is dis- of our economic activity is based on monthly increase. Importantly, the posable income, dollars left over after the way we perceive the direction of growth in hourly earnings was broad you pay the taxes that our colleagues the economy. Perception does have based, with wages increasing in 9 out of on the other side of the aisle ought to some impact on reality. Those who try the 11 major industry sectors and un- be joining in making the tax cuts per- to shape the negative perception for changed in 3 sectors since June. manent and not that the tax cuts political ends should reflect a little Since the beginning of the Bush ad- should be eliminated—per capita more on that. It is the political season, ministration, real average hourly earn- aftertax disposable income in real, the Presidential race is coming up, but ings—that means adjusted for inflation meaning inflation-adjusted, terms has the volume of negative statements in —have increased by 2.224 percent com- increased 7.1 percent since President absolute denial of what is happening with this economy is a little dis- pared to the Clinton administration. In Bush took office. That is a significant concerting. the first Clinton administration, real improvement over the 5.2-percent in- average hourly earnings grew by only I am concerned about those who are crease during the same period in the tempted to believe good economic news 1.3 percent. Moreover, in the 21⁄2 years first Clinton administration. is bad political news, and bad economic following the 1990–1991 recession, real In a courtroom, I would say I rest my news is good political news. We should average hourly earnings fell .66 per- case. By every conceivable measure of be better than that. It reminds me of cent. So the current increase dem- how Americans have been affected by the Lutheran Church in Minnesota onstrates that earnings are outpacing this economy and the economic growth that got their first female pastor. inflation to the benefit of American spurred by the position of the Presi- Some of the older guys in the con- workers and their families—again, in dent and the action of the Republican gregation were skeptical. They thought sharp contrast to the Clinton years. House and Senate in support of the ad- she would not be able to preach. After Finally, using the broader measure of ministration, by every measure, Amer- her first sermon, they were very im- ‘‘compensation,’’ which includes both icans’ lives have improved. We ought to pressed. wages and benefits, the earnings pic- count that as good news, whether we Then they said, Well, she will not ture improves even more. Between the are Democrats or Republicans, regard- work very hard. But after she balanced first quarter of 2001 and the first quar- less of what economic strata we are in. the congregation’s books, organized ter of this year, compensation paid to It represents the best in this country, the church picnic, and got the Sunday workers in the private industry has in- the opportunity we all have, the kind school on track, they were impressed. creased a total of 12.18 percent. Specifi- of idea that President Kennedy, all the Then they thought, Well, she will not cally, wages have grown by 9.44 per- way through President Reagan, talked relate to guys like us. Then she asked cent, and employment benefits, includ- about. if she could go fishing with them. They ing health and pension benefits, have When the economy is improving, ev- did not like the idea, but they could increased by 18.98. eryone in this country is better off, and not say no. After a couple of hours on No matter how you look at this, indi- we should be grateful. We should un- the water, the pastor said: Guys, I need vidual employees are doing better in derstand the causes. We should support a restroom. A little annoyed, they terms of the kind of jobs they have, those legislative policies that rep- started pulling up their line. She said: what those jobs are paying both in resent those causes and not denigrate That’s okay, and stepped out of the terms of compensation and in terms of an economy which is helping the Amer- boat and walked on water to the shore. money, as well as compensation in ican public. And one of the guys said: Figures, she terms of other benefits. There is no It is time to be a little bit more opti- can’t even swim. way to look at the economic growth mistic about our future. This is a great For those who continue to be skep- and its impact on individual families country. It is a great country because tical about the progress of this econ- and workers without seeing the good of the people who create the jobs and omy, I am beginning to think they news. As I said, the only explanation I who do the work. We should give them would be discouraged even if it walked have for pessimistic talk is the reality a lot more credit than some people on on water. I read an estimate that the of politics. the other side of the aisle have, credit economy will grow at a rate of 4.8 per- If you are going to try to replace for helping this country to become ev- cent this year. That sounds good. It somebody in an office, you have to erything it can become for the benefit would be the highest growth in two complain about something. In this of American families. decades. This is an economy that is case, however, I think those who are The PRESIDING OFFICER. The Sen- carrying on its back a war on terror, complaining about the economy and ator from Minnesota. the aftermath of September 11, the cor- are somehow suggesting that President Mr. COLEMAN. How much time re- porate scandals, the uncertainties of a Bush and the Republican administra- mains? Presidential campaign. The economy is tion have not done enough to improve The PRESIDING OFFICER. Sixteen not just walking on water, it is run- the economy for working families basi- minutes. ning. cally have not been looking at the Mr. COLEMAN. Mr. President, I will Economic growth is at a 20-year high. facts. The facts have demonstrated talk about good economic news, the op- Work and productivity rose by almost 4 quite clearly that this economic recov- timism that my friend and colleague percent last quarter and remains above ery is helping a very broad spectrum of from Arizona has discussed. I have al- its historic average as businesses con- people in this country, from industrial ways been a believer in looking at the tinue to utilize technology in a more jobs to all other kind of jobs. cup half full rather than half empty. efficient manner. We are increasing Disposable income is another meas- This cup is pretty full right now and is productivity at the same time. We are ure by which you can determine wheth- filling every day. It tastes good to growing jobs. The manufacturing sec- er families are better off—dollars left drink from it. There is good news out tor on balance has grown since the be- after taxes. Here is where the Bush ad- there and we need to talk about that. ginning of the year as factories have

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.016 S07PT1 S7696 CONGRESSIONAL RECORD — SENATE July 7, 2004 boosted employment to meet strong There was an article printed in USA And again, in Minnesota—back at consumer demand. Today a couple weeks ago by former home—the President’s tax relief led to Why do we have strong consumer de- Labor Secretary Robert Reich, author the creation of 7,200 new jobs in May. mand? Because we cut taxes, because of ‘‘Reason: Why Liberals Win the Bat- Over the months of April and May, we put more money in the pockets of tle for America.’’ He wrote this at the Minnesota gained almost 20,000 new moms and dads. And when moms and request of the Kerry campaign. What is jobs, leading to the highest 2-month dads spend that money on a good or the title? ‘‘Gloom Is Reality for Citi- gain in the last 5 years. service, the person producing that good zens.’’ Senator KERRY talks about mis- Both the construction and manufac- or service has a job. ery indexes. Robert Reich, ‘‘Gloom Is turing sectors in Minnesota continue That makes it more likely, more Reality for Citizens.’’ to improve. Construction employment profitable, easier for small business That is not the reality of what is grew by 2,200 in May, building on folks to reinvest in their business. By happening in the economy today. Part April’s 2,800 new jobs, and 1,600 new cutting capital gains, providing bonus of this discussion Reich talks about is manufacturing jobs were created in depreciation, you increase expensing, saying, well, we have a lot of jobs. May, while 7,400 manufacturing jobs opportunities and options for small They recognize there is an increase—1.1 have been created in the last 10 business. They invest in the business million jobs—but they talk about the months. and they grow jobs. The manufacturing quality of jobs. They talk about wages The employment outlook for the employment index is pointing to an ex- that are stagnant. third quarter for Minnesota employers pansion in hiring. If you look at, again, the facts—look is the strongest in more than 25 years; The National Association of Business at the facts, the facts, ma’am, the 30 percent of Minnesota employers ex- Economics, at its quarterly survey on facts—three-quarters of the new jobs pect to hire more employees. business conditions, shows that 41 per- created in May were in industry cat- There is an article in today’s Min- cent of the respondents expect their egories that pay an hourly average rate neapolis Star Tribune talking about: companies to increase employment in excess of the overall average hourly ‘‘Analysts expect excellent economy.’’ over the next 6 months, up from 34 per- rate in the private sector. Inflation-ad- I will read from the article: cent 3 months earlier. justed hourly earnings have increased The economy appears headed for a banner Consumer and producer confidence 1 2.3 percent during the first 3 ⁄2 years of year despite a springtime spike in energy remains solid. In fact, consumer con- the Bush administration, compared prices and a recent increase in interest rates. fidence got a huge boost last week, with only a 0.13-percent increase dur- In fact, many analysts are forecasting that reaching a 5-month high. Consumers ing the same period of the first Clinton the economy, as measured by the gross do- are optimistic. The politicians who administration. mestic product, will grow by 4.6 percent or benefit, unfortunately, seem to think I mentioned before that the aftertax better this year, the fastest in two decades. they benefit from bad news. They are disposable income is way above what it There were strong 4.5 percent growth rates the pessimists. was during the Clinton administration. in 1997 and 1999, when Bill Clinton was presi- The reality is, this economy is mov- Then the pessimists say: Well, these dent and the country was in the midst of a ing forward. The consumers understand aren’t full-time jobs. They are a lot of record 10-year expansion. But if this year’s growth ends up a bit fast- that. Unfortunately, my friends on the part-time jobs, but ‘‘jobs’’ they call it. er than that, it will be the best since the other side of the aisle seem to find it Again, as I said before, three-quarters economy roared ahead at 7.2 percent in 1984, difficult to accept that, difficult to of the new jobs created in May were in a year when another Republican President— admit that, difficult to recognize that industry categories that pay an hourly Ronald Reagan—was running for re-election. there is consumer and producer con- average rate in excess of the overall A survey of top economists showed fidence today. That is good for the average hourly rate in the private sec- further optimism: economy. That helps grow jobs. The tor. Ninety-one percent said they expected the housing market is strong. The national Since the start of the Bush adminis- economy to grow at an annual rate of any- home-ownership rate in sales of new tration, full-time employment has where from 2 to 5 percent in the second half homes are at a record high. averaged 82.57 percent, nearly a full of this year . . . My friend from Arizona talked about percentage point higher than full-time Forty-one percent said they expected per capita, aftertax disposable income; employment during the period of the stepped-up hiring in the next six months . . . in other words, the amount of money first Clinton administration. In the ‘‘By almost any measure—output, employ- people get to spend themselves after past year, the number of part-time po- ment, profit margins, capital spending—this they pay taxes. It has increased 7.1 per- sitions has declined about 240,000, while economy is strong,’’ said Duncan Meldrum, cent. This is higher than it was after full-time positions have increased by the association’s president and the chief economist for Air Products and Chemicals the first 4 years of the Clinton adminis- more than a million. Inc. tration during this boom period that More than 80 percent of part-time folks talk about. Last month, 112,000 workers in May indicated they have The reality is the economy is moving jobs were added to the economy. In the chosen part-time employment for non- forward. More needs to be done. I do past 4 months, payrolls have grown by economic reasons. Some people choose hope we get class action passed here. A almost 1.1 million, a pace of more than to work part time. But, again, the report by the National Association of 3 million jobs annually. number of full-time jobs is increasing Manufacturers found that domestically It is fascinating that although the at an all-time high. The number of un- imposed costs, including tort litiga- amount of jobs increased last month by employed is decreasing. tion, reduced America’s manufacturing 112,000, the pessimists will say that is In Minnesota, a few months ago, the cost competitiveness by 22 percent in less than what was projected, as if that drop in the rate of unemployment went the world market. There is no doubt is a negative. Over 1.1 million jobs in from 4.8 percent to 4.1 percent in 1 about it, our legal system puts Amer- the past 4 months. I remind the pes- month. That .7 percent drop was the ican jobs at a competitive disadvan- simists that in every year of the job largest monthly drop since we began tage with foreign firms. Money it has boom of the late 1990s, it included at keeping records in over 20 years. That spent fighting frivolous lawsuits should least 1 month where payroll growth fell is significant. Does that mean there be spent back in the business growing below 150,000 and in a few instances it are people out of work? Absolutely. As jobs and growing the economy. went even negative. This is the ebb and long as one American is out of work, So instead of making speeches flow of the economy. Everyone can then we have to do something about it. downplaying the positive economic forecast but no one can guarantee eco- That is why, by the way, we have to numbers, instead of casting about with nomic growth. pass the class action bill. It is being doom and gloom, instead of writing ar- The trends are clear, the movement filibustered. That is why we have to ticles about gloom being reality for is clear. It is like you have a chance to pass an energy bill. It is being filibus- Americans, instead of talking about do a little fishing over the break. You tered. That is why we have to get a misery indexes, let’s celebrate what we kind of watch that stream and it is highway bill through this Congress. We have. Let’s commit to keep moving for- moving in a direction. The economy is have to get some things done, but we ward. Let’s get the class action bill moving in the right direction. are moving in the right direction. passed. Let’s get the Energy bill

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.020 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7697 passed. Let’s get the highway bill The assistant legislative clerk read decided in a favorable county or favor- through. And let’s keep doing the as follows: able State. Once that window during things we are doing. Let’s make perma- A bill (S. 2062) to amend the procedures which the real class action target can nent the Bush tax cuts that increase that apply to consideration of interstate remove the case to the Federal court particularly the low and middle class, class actions to assure fairer outcomes for closes, that unlucky mom-and-pop the per-child tax credit, get rid of the class members and defendants, and for other small business that happened to be in marriage penalty, make sure we make purposes. the wrong town at the wrong time is permanent the expansion of the 10-per- The PRESIDING OFFICER. The ma- dropped from the case, but not until cent bracket, do those things that put jority leader. they have spent considerable money money in the pockets of moms and Mr. FRIST. Mr. President, we are on defending themselves. dads so when moms and dads spend the Class Action Fairness Act of 2004. These frivolous lawsuits are hurting that money, the economy grows. Smart progrowth fiscal policy is the economy. They are hurting tax- If we do that, if we keep moving for- helping lead job creation in the Nation, payers. They are hurting the justice ward and we get some stuff done, and and I am optimistic we will continue to system, and they are hurting the prac- put the politicking aside, we put the see the improvement we have seen over tice of the law. election-year politics aside, and we put the last 6 months of last year. Eco- The Class Action Fairness Act of 2004 the doom and gloom and negativity nomic reports show the economy is is a remedy to this problem. For the sake of our Nation’s economy and faith aside, this country can be all that it is continuing to experience growth but in our system of justice, I do encourage and all we know it to be: the greatest not in a manner that would create an my colleagues to act in a bipartisan country in the world, the economically unsustainable boom/bust-type scenario. nature and pass commonsense, mean- strongest country in the world. Indeed, employment growth has been ingful class action reform. But we have to keep moving in the positive for the 10th straight month with that report from June. In fact, 1.2 As I mentioned this morning and yes- right direction. We are committed to terday, I want the debate to be fair and doing that. Let’s stop the pessimism. million jobs have been created since the 1st of the year and almost 1.5 mil- full on this bill. Over the last week a Let’s stop the gloom and doom. We whole slew of unrelated, nongermane have a job to do, and I hope we can lion jobs since a year ago. As we all know from recent reports, amendments have been brought for- work it in a bipartisan way, to finish ward. It has been written about. People the work we need to do. consumer confidence is high. Last Tuesday the conference board reported have called the floor saying they want With that, Mr. President, I yield the the opportunity to offer an amendment floor. the largest monthly gain in consumer confidence in years. Confidence has not which has absolutely nothing to do Mr. HATCH. Mr. President, I suggest with class action reform. the absence of a quorum. been this high in over 2 years. In spite of all this positive economic We only have about 33 legislative The PRESIDING OFFICER. The days left. We have the appropriations growth and job creation, there are clerk will call the roll. bills to do and a whole range of issues structural problems this body needs to The assistant legislative clerk pro- to address. That is why when we take address if we are to make sure our Na- ceeded to call the roll. up a bill such as class action, we need tion remains competitive in the global Mr. REID. Mr. President, I ask unan- to stay on that particular bill and han- economy. One of those critical areas is imous consent that the order for the dle relevant amendments and debate the bill we are considering today. The quorum call be rescinded. them in a fair and timely way. Rel- focus of that bill is class action reform. The PRESIDING OFFICER. Without evant amendments can improve the un- Over the last decade, class action law- objection, it is so ordered. derlying bill. I want this full and fair suits have grown exponentially. One re- Mr. REID. Mr. President, how much debate to occur, to achieve this goal, time, if any, remains in morning busi- cent survey found State court class ac- and to have the appropriate manage- ness? tion filings skyrocketed by 1,315 per- ment tool by which we can consider the The PRESIDING OFFICER. There is cent over the last 10 years. relevant amendments. I will be offering 1 minute 45 seconds. The result of this glut of claims is to a unanimous consent request at this Mr. REID. Mr. President, if my dis- clog State courts, to waste taxpayer time. tinguished friend, the chairman of the dollars, to inhibit the innovation and Mr. President, I ask unanimous con- Judiciary Committee, would yield that entrepreneurship that is so crucial to sent that, with respect to the pending back on behalf of the Republicans, we job creation in this country. Often all class action bill, there be five relevant could get to the bill. the purported victims ever get in this amendments to be offered by each lead- Mr. HATCH. Mr. President, I would sordid process is a little coupon. That er or his designee; provided further, be happy to yield it back. is one example. There are numerous ex- that they be subject to relevant sec- Excuse me, let me withhold that. amples we heard on the floor last night ond-degree amendments. I further ask I suggest the absence of a quorum. and yesterday. We have heard it in the that, in addition to the relevant The PRESIDING OFFICER. The past as we brought this to the floor. amendments, it be in order for each clerk will call the roll. In Alabama, the court approved a leader or his designee to offer an The assistant legislative clerk pro- class action settlement against a bank amendment related to minimum wage, ceeded to call the roll. on the grounds they overcharged their again subject to relevant second de- Mr. FRIST. Mr. President, I ask clients. The settlement granted $8 mil- grees; provided further, that following unanimous consent that the order for lion in fees to the plaintiffs’ attorneys, the disposition of the amendments, the the quorum call be rescinded. but awarded only $8.76 to each plain- bill be read the third time and H.R. The PRESIDING OFFICER. Without tiff. Worse, the settlement deducted up 1115, the House companion measure, objection, it is so ordered. to $100 from many of those plaintiffs’ then be discharged from the Judiciary accounts to pay for the attorney fees, f Committee and the Senate proceed to leaving some plaintiffs with over a $90 its consideration, all after the enacting CONCLUSION OF MORNING dollar loss versus the $8 million in fees clause be stricken and the text of S. BUSINESS to the plaintiffs’ attorney. We have had 2062, as amended, if amended, be in- The PRESIDING OFFICER. Morning numerous examples that have been serted in lieu thereof; provided further, business is closed. brought to the floor. It is not only that the bill be read the third time, f large business; it is small business as and the Senate then proceed to vote on well. passage of the bill, with no intervening CLASS ACTION FAIRNESS ACT OF Why do the small businesses get action or debate. 2004 dragged into all of this? In order to Finally, I ask that the Senate then The PRESIDING OFFICER. Under avoid going to Federal court, the class insist on its amendment, request a con- the previous order, the Senate will re- action legal team in many cases will ference with the House, and the Chair sume consideration of S. 2062, which rope in a number of small local busi- be authorized to appoint conferees on the clerk will report. nesses as codefendants to get the case the part of the Senate.

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.022 S07PT1 S7698 CONGRESSIONAL RECORD — SENATE July 7, 2004 The PRESIDING OFFICER. The allow for 10 relevant amendments on the point that we want to stay on class Democratic leader is recognized. our side and 10 relevant amendments action with relevant amendments that Mr. DASCHLE. Mr. President, I will on the other side, again, in addition to can improve or modify the bill. Right object to this request. the minimum wage issue. now, I am not requesting any limita- We have only been on the bill now for Mr. DASCHLE. Mr. President, the tion on the debate. We can stay on it a matter of a couple of minutes, lit- distinguished majority leader knows and consider each one. That is up to erally. We just went to it this morning. that it is not the question of numbers the managers. Let’s have the relevant The bill has only been laid down. This that matters; it is the question of rel- amendments come through, but let’s legislation has not been the subject of evancy. He is already violating his own have an unlimited number of relevant one hearing, one amendment in com- request by suggesting that we can do amendments on class action and finish mittee. There hasn’t been any thought- nonrelevant amendments on minimum this and get it to conference and also ful, careful committee consideration wage. If we can do that, why have any include minimum wage. on this legislation whatsoever. conditions about relevancy at all? We Therefore, I ask the other side if they I am surprised and very troubled by have already indicated our willingness would be agreeable to an agreement al- the unanimous consent request made to work with the majority to complete lowing for unlimited—unlimited—rel- by the majority leader. He knows the the work on this bill. Nobody has any evant amendments, in addition to the minority has been very open in ex- desire to filibuster, to artificially ex- minimum wage issue, and an agree- pressing our interest in having a full tend debate for an indefinite period of ment to go to conference. debate about this legislation, indi- time. The PRESIDING OFFICER. Is there cating from the very beginning that we The majority leader made a comment objection? will have relevant and nonrelevant recently about the dwindling number Mr. DASCHLE. Mr. President, I will amendments. We have been the ones of days. If he wants to finish this legis- simply offer a counterproposal. I ask who have attempted to keep the major- lation, the only way we are going to do the majority leader if he would be pre- ity on track with regard to committing that is by working together. pared to allow the Senate to consider to bringing the bill before the Senate The Senator from Idaho and the Sen- this legislation with 5 nonrelevant at all. ator from Massachusetts have a very amendments and 10 relevant amend- As people may recall, there have been important amendment having to do ments. I make that request. a number of occasions where the ma- with temporary workers in this coun- The PRESIDING OFFICER. Objec- jority has chosen not to bring up the try. I think it is a critical debate. We tion is heard, and it is your serve. Ob- bill, even though that was the regular have already agreed to a very limited jection is heard in the Senator’s capac- order, and it was at our insistence time time. Why the majority leader would ity. Is there objection to the majority and again that we bring this bill before preclude the Senator from Idaho and leader’s unanimous consent request? the Senate because we made a commit- the Senator from Massachusetts from Mr. DASCHLE. Mr. President, I ob- ment to a number of our colleagues, offering this amendment with an ex- ject, but I repeat the request that the even though I don’t particularly sup- pectation that we can resolve it in a Senate consider 10 relevant and 5 non- very short period of time is a question port the bill, and I will get into that in relevant amendments. I cannot answer. But the majority a moment. The PRESIDING OFFICER. The ma- We would be denying the right of leader himself has said that, obviously, jority leader has the floor. Will the ma- every single Senator to offer amend- nonrelevant amendments have their jority leader modify his request to ac- place on this bill. He is advocating two ments, in the truest tradition of the commodate the minority leader’s rec- nonrelevant amendments as it is. Senate, to say that now, even though ommendation? Let’s get beyond relevancy and just Mr. FRIST. Mr. President, I would be this bill has not been the subject of any recognize the importance of allowing happy to modify the request, and I ob- hearings, has not been the subject of a Senators the opportunity to debate. I ject to the request. The purpose is to markup, even though this is the very will commit to him an effort to try to stay on the class action bill, to stay fo- first moment we have had an oppor- resolve this legislation in a meaningful tunity to amend the bill, we are al- way and in a period of time I think cused on it. I have already offered un- ready going to say to all Senators that could accommodate Senators, but also limited amendments as long as they you have to limit yourself to relevant would accommodate his goal of com- are relevant amendments, and that has amendments. pleting work in the regular order. been objected to. We have said from the beginning—in I object. I am disappointed by my colleague’s fact, I said it on the floor and at a news The PRESIDING OFFICER. Objec- refusal to accept what I consider a fair conference again yesterday—that it is tion is heard. offer if our goal is to complete the bill. not our intention to filibuster this leg- Mr. FRIST. Mr. President, the pur- I do think we may well be able to reach islation. It would be our intention to pose of the unanimous consent request an agreement on the terms for debate work with the majority to complete de- is simply to address the issue of class on this bill. In the meantime, I will be bate on this bill, with the under- action reform, a bipartisan bill that sending amendments to the desk. standing, of course, that we would have does have support—not overwhelming AMENDMENT NO. 3548 an opportunity to offer amendments. but more than 60 votes of support on Mr. FRIST. Mr. President, I send an This is not the way to get this legis- the floor of the Senate, but to do it in amendment to the desk and ask for its lation passed. In fact, I would argue such a way that we can consider one consideration. that this is probably an absolute guar- amendment at a time—a relevant The PRESIDING OFFICER. The antee that it will never get passed, be- amendment on class action with the clerk will report. cause we will never get cloture on a objective of taking this bill on class ac- The assistant legislative clerk read bill that denies Senators their right to tion, which we absolutely know will as follows: offer amendments regardless of the have an impact across this great coun- The Senator from Tennessee [Mr. FRIST] subject matter. So I strongly object. try, in a positive way that addresses proposes an amendment numbered 3548. The PRESIDING OFFICER. Objec- fairness and equity and improves the Mr. FRIST. Mr. President, I ask tion is heard. economy indirectly, but in a fairly unanimous consent that the reading of Mr. FRIST. Mr. President, to clar- great way creates jobs—to stay on it the amendment be dispensed with. ify—because I know the unanimous and be focused on it. The PRESIDING OFFICER. Without consent request was long—what was I have offered 5 amendments on ei- objection, it is so ordered. objected to were five relevant amend- ther side and then 10 amendments on The amendment is as follows: ments on our side, five relevant amend- either side, both with minimum wage. I At the end, add the following: ments on the other side, plus address- would be happy to propound a request SEC. 10. FURTHER EFFECTIVE DATE. ing the minimum wage issue on both without minimum wage, if that would The amendments made by this act shall sides, plus going to conference. accommodate people. apply to any civil action commenced one day In light of that objection, I will mod- I will keep it in for now. I will pro- after or any day thereafter the date of enact- ify the unanimous consent request to pound one more request to drive home ment of this act.

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.026 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7699 Mr. FRIST. Mr. President, I ask for The PRESIDING OFFICER. The all of our cooperation to get to this the yeas and nays on the amendment. clerk will report. point, the majority would try to shove The PRESIDING OFFICER. Is there a The assistant legislative clerk read this down our throats is unclear. But sufficient second? as follows: that is exactly how I perceive it. It is There appears to be a sufficient sec- The Senator from Tennessee [Mr. FRIST] a sham. This almost guarantees this ond. proposes an amendment numbered 3551 to bill will not get done, and why they The yeas and nays were ordered. amendment No. 3550. would want to do that is unclear to me. AMENDMENT NO. 3549 TO AMENDMENT NO. 3548 The amendment is as follows: We were prepared, as I said, to limit Mr. FRIST. Mr. President, I now send On line 3 of the amendment, strike ‘‘three’’ the number of nonrelevant amend- a second-degree amendment to the and insert four. ments and the time to debate in the in- desk, and I ask for its consideration. Mr. FRIST. Before I yield the floor, terest of time. No one on this side has The PRESIDING OFFICER. The Mr. President, I want to make clear a desire to extend debate indefinitely, clerk will report. where we are. We are prepared to con- but let’s make sure everybody under- The assistant legislative clerk read sider relevant class-action-related stands: I have to go home and explain as follows: amendments. We are willing to set to the people of South Dakota, if this The Senator from Tennessee [Mr. FRIST] aside the pending amendments in order legislation passes, why if in a case proposes an amendment numbered 3549 to to make progress on the bill. However, where 98 percent of the people who are amendment No. 3548. we are not prepared to have this bill adversely affected are from my State, Mr. FRIST. I ask unanimous consent become a magnet for every unrelated the action occurred in my State, and that the reading of the amendment be issue that is brought to the floor. I en- was taken by, let’s say, a corporation dispensed with. courage Members to come forward with that may be in violation of South Da- The PRESIDING OFFICER. Without their relevant amendments. We can kota law cannot go to court in South objection, it is so ordered. work on time agreements on those rel- Dakota. That is basically what this bill The amendment is as follows: evant amendments, and we will allow does. Why should the people harmed in On line 3 of the amendment, strike ‘‘one the Senate to work its will on the my State, if 98 percent of those ad- day’’ and insert: ‘‘two days’’. issue. versely impacted are from South Da- MOTION TO COMMIT WITH INSTRUCTIONS Mr. President, I ask unanimous con- kota, and if the law was violated in Mr. FRIST. Mr. President, I send a sent that the time between now and 2 South Dakota, be forced to go to Fed- motion to commit with instructions to p.m. today be equally divided between eral court, a court that could be lo- the desk. the two leaders or their designees. cated in some other State, to resolve a The PRESIDING OFFICER. The The PRESIDING OFFICER. Is there serious legal question? clerk will report. objection? I find it amazingly ironic that those The assistant legislative clerk read Mr. REID. Reserving the right to ob- on the other side who claim to be advo- as follows: ject. cates of States rights would say, no; The Senator from Tennessee [Mr. FRIST] Mr. FRIST. Mr. President, I modify not in this case. In this case, we are moves to commit the bill, S. 2062, to the that unanimous consent request to, in- going to take away the rights of the Committee on the Judiciary with instruc- stead of 2 p.m., 2:45 p.m. today. States; we are going to put them at the tions to report back forthwith. The PRESIDING OFFICER. Without Federal level. Mr. FRIST. Mr. President, I ask for objection, it is so ordered. There is a new trend happening on the yeas and nays on the motion. Mr. FRIST. Mr. President, I yield the the other side. When it is inconvenient The PRESIDING OFFICER. Is there a floor. for States to have the power, they sufficient second? The PRESIDING OFFICER. The mi- seem to find it just fine to move to the There appears to be a sufficient sec- nority leader is recognized. Federal level. That is what we are ond. Mr. DASCHLE. Mr. President, I ask, going to be telling the people of this The yeas and nays were ordered. what is the majority afraid of? This country. Forget about States rights, AMENDMENT NO. 3550 TO THE INSTRUCTIONS TO clearly is not a question any longer of forget about civil rights, forget about THE MOTION TO COMMIT time because the majority leader, in workers’ rights. Mr. FRIST. Mr. President, I now send one of his many unanimous consent re- This is special interest legislation at an amendment to the instructions to quests, proposed an unlimited number its worst, and it deserves a full debate the desk. of amendments, as long as they are rel- in the Senate, not the sham that we The PRESIDING OFFICER. The evant. We can come up with 100 rel- are going to have under these cir- clerk will report. evant amendments to a bill this con- cumstances filling trees. We have been The assistant legislative clerk read troversial and of this complexity. through that. We have learned the les- as follows: Let’s understand what we are doing. son the hard way. We ought to have The Senator from Tennessee [Mr. FRIST] This is a sham. This is a sham. The ma- learned it this time, too. I yield the proposes an amendment numbered 3550 to jority leader, for some reason, wants to floor. the instructions to the motion to commit S. deny his own caucus and the minority The PRESIDING OFFICER. The Sen- 2062 to the Judiciary Committee. the right to offer legitimate amend- ator from Kentucky. The amendment is as follows: ments in the Senate. This may be the Mr. MCCONNELL. Mr. President, my In the motion to commit before the period, first time this majority leader has ac- good friend, the Democratic leader insert, ‘‘with the following amendment’’. quiesced to pressures within his caucus said: What are we afraid of? Let me an- At the end of the bill add: to do this, and that is unfortunate. swer the question. SEC 10. FURTHER EFFECTIVE DATE. This happened on many occasions in Back on May 21, the distinguished The amendments made by this act shall previous years, and I think if anyone majority leader was trying to make apply to any civil action commenced three talks with those who have served in his progress on the Defense authorization days after or any day thereafter the date of capacity before, I think the lesson bill, which we began on May 17, and our enactment of this act. learned is that it was to no avail, and good friend from Nevada, the assistant Mr. FRIST. Mr. President, I ask for it was actually counterproductive. It Democratic leader, said on May 21: I the yeas and nays on the amendment. did exactly the opposite of what the would say that we take about 10 days The PRESIDING OFFICER. Is there a majority attempted to do. on this bill normally. We don’t think sufficient second? For us now to find ourselves in this this bill will take that much time. There appears to be a sufficient sec- situation seems a little bit to me like That was the Defense authorization ond. deja vu all over again. We have tried bill, and on May 21, having been on the The yeas and nays were ordered. this, and it is going to backfire on this bill five days already, our good friend AMENDMENT NO. 3551 TO AMENDMENT NO. 3550 majority and this majority leader, just from Nevada said it takes typically Mr. FRIST. Mr. President, I send a as it has in past circumstances. about 10 days to finish the bill. We fin- second-degree amendment to the desk So let’s be clear, this has nothing to ished the bill on June 23, almost a and ask for its consideration. do with finishing this bill. Why, given month later, having spent 18 legislative

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.029 S07PT1 S7700 CONGRESSIONAL RECORD — SENATE July 7, 2004 days on it. Clearly, what the majority percent of its workforce as illegals, un- cannot be found, or if it is not this leader is concerned about is that this documented foreign nationals, in order body’s will to send a message to the bill not only be taken up but that it be to get the crops out of the field. American agricultural community that finished. We should have learned our lesson we are going to solve this problem and It is absolutely clear from the obser- post-9/11 that we have failed mightily solve it timely, responsibly, and appro- vations of our good friend, the Demo- at the border, that we have not effec- priately. cratic leader, he does not want the bill tively built immigration laws that We are not going to be allowed to do to pass in any event. In fact, he said on work. In a post-9/11 environment, we that today. Maybe tomorrow or maybe several occasions and repeated several have learned there may be between 8 the next day or maybe next week, but times this morning he is against the million and 12 million undocumented— I say to my leadership as kindly and as bill. It is clear what he would like to do in other words, illegal—foreign nation- responsibly as I can, before we sine die is structure a way of dealing with this als in this country. We ought to be ex- the 108th session of the U.S. Congress, bill that allows his party to get the pediting every way possible to identify we will deal with this issue. Its time is vote on all of its favorite issues and we them, to do background checks on now. Its time is ready. never pass the bill in any event. them, to control them first at the bor- Let us—the Senator from Massachu- So the majority leader, to his credit, der and those who are in country in- setts and I—bring this to the Senate is trying to structure a way to proceed country, and to build effective law en- floor, get a limited amount of time to on this bill on the Senate floor that forcement tools, as some Senators and deal with it and adequate time for does two things: No. 1, guarantees that I are working on, to build a total pack- those to come to the floor of the Sen- it be brought up, and No. 2, guarantees age. ate to discuss it, to oppose or to sup- that it will be finished by structuring The reason I am bringing this amend- port it. That is what a responsible, de- it in such a way that the amendments ment to the Senate floor is that its liberative body does, and that is what we deal with are related to the bill. time is ready. Our time is limited be- we must do in this instance. That is not an unusual request. It is cause we have mighty few days remain- So I hope that at some point the mes- not an outrageous request and not an ing until the end of this session. sage I am delivering at this moment unprecedented request—in fact, a nor- There are now 400 organizations and registers with my leadership that we mal request. groups across America supporting the will vote on this issue this year. It is So it is perfectly clear, it seems to legislation I bring to the Senate floor important that we do so and send a me, that there are those on the other as an amendment today. It is S. 1645. message to the most critical segment side and maybe even a few on this side We call it ‘‘ag jobs,’’ and it only deals of our economy that we are going to who would like to use this bill for with a small segment—1.4 million to 1.5 work with them to get legal employees, other purposes. The majority leader is million—of that total universe of near- that we are going to legalize a process, right on the mark in offering this per- ly 12 million undocumented, illegal for- control a process, do the background fectly reasonable way, a game plan for eign nationals in our country. We have checks, get the bad actors out of the taking up and finishing this important worked on the House side and the Sen- system instead of simply turning our legislation. I am sorry that at the mo- ate side, Democrat and Republican back again and again. Our President wants reform. He has ment, at least, it looks as if there is alike. We have spent 5 years crafting spoken openly and boldly about it. It is not a will. Even though we keep hear- this legislation, and I am extremely important we bring this reform. I agree ing there are over 60 Senators who are disappointed this morning that we do with my President. Its time has come. in favor of this bill, there have to be 60 not have the opportunity to offer it, that my leader has blocked me from Let us deal with it. Senators in favor of the bill who are I will be back on the Senate floor doing so. willing to also support a procedure today, tomorrow, next week, or the As kindly as I can say to my leader, that guarantees we can finish it. balance of this month, until this issue ag jobs will be voted on this year. As I yield the floor. is debated. The PRESIDING OFFICER. The Sen- our side has recognized the need to I yield the floor. ator from Idaho. offer the other side the opportunity to The PRESIDING OFFICER. The Sen- Mr. CRAIG. Mr. President, we have vote on minimum wage, this issue’s ator from Utah. watched an unusual process this morn- time has come, and this is an issue Mr. HATCH. Mr. President, I have ing that a good many of us in a bipar- that I will stay on the Senate floor been listening to this debate, and I tisan spirit are reacting to, and I am with and I will offer it unless the lead- would first like to respond to the con- one of those who do not appreciate er proposes in every legislation that cerns raised by some of my colleagues what the majority leader has now just comes to the floor the strategy he has on the other side of the aisle about the done. I understand why he has done it. just handed out. That is not a way to majority leader’s decision to fill the I support the underlying legislation, S. allow this body to work and work effec- amendment tree. First, I commend the 2062, but I also recognize that Senators, tively, and we know it. leader for taking this unfortunately unless effectively blocked by a proce- He has been reasonable and our dis- necessary step because it significantly dural action that has just occurred, do cussions have been substantive, but minimizes the mischief that will in all have the right to offer amendments, there are some who do not want immi- certainty occur if this bill is left open germane, relevant, and nonrelevant. gration as an issue voted on this year. to amendments that have absolutely I am bringing to the Senate floor one This bill is ready to be voted on. This nothing to do with the subject of class of those amendments. It is bipartisan. bill has 63 cosponsors. It has 26 Repub- action. It has 63 Senators as cosponsors, and it licans, 37 Democrats. It is vastly bipar- These are amendments that are of- is widely received by not only this tisan. It has been worked on for 5 fered to score political points in an body but by all of the communities of years, and 9/11 now emphasizes the im- election year and that, at the end of interest at large. portance of us doing substantive immi- the day, will obliterate any chances I have approached the leadership gration reform. This is a small piece of that class action reform will become time and again, been as courteous as I the total picture but a critical piece to law. That is exactly what is involved, should be to my leader but assuring a very important segment of America’s and we all know it. We know that if him that I and the Senator from Mas- economy: agriculture. Yet we are sug- some of these amendments are added to sachusetts would limit the time, that gesting now, by controlling our borders this bill, it will kill the bill. this was not to drag the bill out, that as tightly as we must, that we are cre- We thought we had an agreement last we would expedite it because we be- ating a circumstance that is driving November, of 62 people. As I have al- lieve, with 63 Senators, Democrat and some agricultural employers and pro- ways interpreted it, when you get an Republican, that this bill’s time has ducers out of business because they agreement to support a bill, that come. It deals with immigration. It cannot find the workforce. means support it against all amend- deals with a near crisis in American This fall, harvest should not rot in ments unless those who made the agriculture at this moment that now the fields of America, but in some in- agreement agree otherwise. My col- finds itself having to employ nearly 80 stances it might if a viable workforce leagues on the other side say that was

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.033 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7701 not the agreement. That has been the us reached in good faith. We reached a and neither does the leader, and for agreement every time around here, compromise because I thought the end good reason. We know the games where you know that mischief is going goal was to get a class action bill around here. to occur and we just continue on and passed into law. I can say, in all cer- There are a significant number of on. tainty, that my agreement to further Democrats who do not want this bill By filling the tree, the leader has ef- moderate this bill was certainly not under any circumstances because the fectively protected key bipartisan leg- premised on letting it become a Christ- No. 1 hard money funder to Democrats islation from the same procedural pit- mas tree for unrelated measures so happens to be the personal injury law- falls that faced the DOD authorization people can score political points on the yers in this country. The No. 1 funder bill, FSC/ETI, and the Internet tax bill, floor of the Senate—people who never of the Presidential campaign happens just to name a few. would vote for this bill to begin with. to be personal injury lawyers in this To be sure, the current move to pro- If the supporters of the underlying country, for the Democrats. The No. 1 tect the bill from nonrelevant or non- bill really want class action reform, I opponents against this bill happen to germane amendments is nothing new, see no reason why they should not sup- be some of the personal injury lawyers. as former majority leaders have in- port the leader’s action. No one is de- Not all, because the really good law- voked this prerogative with other im- nying Members from offering amend- yers can go to Federal court and get portant pieces of legislation in the ments that are germane to the bill, al- big verdicts. They don’t have to have past. The ranking member from though I would recommend we even false mechanisms to be able to get Vermont even admitted on the floor vote those down unless the people who good verdicts on behalf of their clients. last night that S. 2062 was probably the agreed in a bipartisan way agree to They don’t have to play games with last amendable vehicle to be considered allow those amendments to pass. That magnet courts that are, if not corrupt, by the Senate this year. While this bill is what we usually do on legislation so close to being corrupt in some of has legs to move out of the Senate— around here. But now we have all new these special jurisdictions in this coun- that is why it is the last amendable bill rules here that suddenly spring up. try where they have had a field day. in his eyes—I can assure you it will go No one is denying Members from of- Regarding the jurisdictional test in nowhere if it is bogged down with ex- fering amendments that are germane S. 2060, the minority leader made the traneous amendments that peel votes to the bill, amendments that Members, point they cannot get their cases tried in the Senate. in their view, believe will improve the in South Dakota if this bill passes. That is the game here and everybody bill. If they will, we can agree on those. That is total poppycock. You know, knows it. Everybody on the outside I see no reason why we cannot give the jurisdictional test in S. 2062 moves should know it, too. We made a deal; these amendments an up-or-down vote. only larger interstate class actions to we had 62 people agree to the language In fact, the leader explicitly made this Federal court, including large cases in this amendment. Now we have peo- offer to the other side when he ten- where there are more than 100 class ple peeling off from the language in dered a time agreement to consider members and more than $5 million in this amendment by wanting to be able several key amendments, including a amount in controversy. to vote for nongermane and nonrel- vote, a vote on a nongermane, nonrel- If they fit that jurisdictional cat- evant amendments which will kill the evant amendment, Senator KENNEDY’s egory, then they will have to go to bill. amendment on the minimum wage Federal court. But as somebody has Assuming the bill goes out of the measure which he has been trying to tried a lot of cases in both Federal and Senate with controversial amend- get up for quite a while. That is how State courts, I have to say we used to ments, what is going to happen in the far the majority leader went. But, no, love to get to Federal court because House after they alter the bill? I seri- they want a lot of other buzz amend- people know it is a more important ously doubt we will have enough time ments that are political in nature, that case. The reason some of these attor- this year to resolve differences in con- they think they can pass, that will kill neys want to go to some of these State ference. Indeed, I think the chances are this bill. Anybody with brains knows courts, such as Madison County, is that pretty slim, especially since the minor- the game. is where it is a field day for plaintiffs’ ity leader has threatened to oppose the This was a good-faith offer by the lawyers whether they have a good case appointment of conferees for the rest of leader. We have heard for some time or not—and they know it, and they the year. how important a minimum wage have been milking this system and How do we get it done if we put non- amendment is to my colleagues and to hurting people all over this country in relevant amendments on this very im- the country. I don’t know of anybody ways that are unseemly and, frankly, portant bill that we have worked on for on our side objecting to consideration wrong. S. 2062 also has exceptions to 6 years to get to this point? A lot of de- of the minimum wage amendments and keep local controversies in State cent people on both sides have worked any amendment also to it. What we do courts. We have these exceptions. very hard, but we know we are going to object to is a never-ending moving of To make a long story short, I have have to have 60 votes to vote on this the goalposts where more and more heard my colleagues on the other bill. amendments are added, especially non- side—some of the people who have The minority leader himself has germane and nonrelevant amendments. agreed to be cosponsors of this bill, threatened to oppose the appointment Because the Democrats objected to who have agreed to be in the 62 who of conferees for the rest of the year. this very generous unanimous consent have supported this bill which would How do you get this bill if these non- request, the leader had no choice other make up enough to be able to invoke germane, nonrelevant amendments are than to protect the class action bill cloture on this bill—now moaning and added? It is apparent some of them from this open season of political groaning they want a right to bring up might be. Even if you could, how do amendments that will kill it anyway. nonrelevant, nongermane, political you get it by the House? Even if you That is what it comes down to. Ei- amendments to score points. That is get it by the House, how do you get it ther we are going to vote for this class not the way I have operated around by the conference? action bill, the 62 of us who have here, and that is not the way most Sen- Then, when those amendments are agreed it should pass—and I think ators have operated around here, but taken off, also if they were taken off in more would vote for it in the end—or it that is what we are faced with here. conference—assuming we would be is going to be killed. Because that is Either we are going to invoke—prob- given the privilege of being able to the choice. We made a deal last Novem- ably we will have to file cloture in hold a conference, something that has ber to pass class action reform and order to end another filibuster. I hope not been denied to my recollection be- that is the direction our leader is tak- the 62 people who said they would be fore this year—we may not have time ing us today. for this bill will vote for cloture. If to get this bill done anyway. When it comes to nongermane they are not, then this bill is going to S. 2062 embodies the bipartisan deal amendments that appear to be offered be dead and 6 years of honest work, 6 we reached in good faith last Novem- to score political points in an election years of bipartisan effort, is going to ber, Democrats and Republicans, 62 of year, I want no part of that on this bill, go right down the drain.

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.037 S07PT1 S7702 CONGRESSIONAL RECORD — SENATE July 7, 2004 We all know what the game is around There was a period of about 4 years of smoked as much as you wanted—no here. It is by those who have never my life where I defended insurance problem. That was the advertising. wanted this bill to pass anyway, some companies. I have tried cases as a They were lying. They were cheating. who want to play both sides on this plaintiff’s attorney in slip-and-fall It wasn’t true. How was that resolved? thing, who basically want to have the cases. I have tried automobile accident We didn’t stop it here in the National right to foul up the bill with amend- cases where some people were injured Legislature. It was stopped as a result ments they know the House won’t take severely and some were killed. I have of a class action that was filed. Sure and they know if we have to go to con- done liability litigation. I did an anti- enough, light cigarettes were gone. ference we are probably not going to be trust case, and I didn’t know enough Lots of environmental cases have able to get conferees. about it. Shell oil company drowned been decided by class actions. Compa- That is what is involved, and it is a me with depositions all over the coun- nies were doing awful things to the en- game. It is a bad game at that. I have try. I settled for a fraction of what it vironment, and people asked about the been known to stand up for the trial was worth. That was the last antitrust detriment being created. They went to lawyers when they are right. I have case I took. But I took one in San the Government, and the Government taken a lot of grief for it from some Francisco with cocounsel who knew did nothing. As a last resort, who do people on our side who are wrong, too. what he was doing in my first antitrust you go to? You go to a lawyer. We have a big class action pending I am going to stand up for them when case. now—Wal-Mart, big, fat Wal-Mart. The they are right because trial lawyers do I have never done a class action law- initial evidence indicates that they a lot of good in our society when they suit. But there are attorneys who spe- have been discriminating against stand up and fight for those who are cialize in class action lawsuits. Are women from the day they became a downtrodden and not treated properly these people who specialize in these company. There is a big class action lawsuits a bunch of bums who are in our society. lawsuit against Wal-Mart. We didn’t do What has been going on for years in cheating the system and doing illegal anything about it here legislatively. this area is the abysmally dishonest things? But this class action lawsuit, I have As my friend from Utah has said, it forum shopping to local areas where been told, is almost a slam dunk—that they can get huge verdicts that may not be fraud, but it is close to it— Wal-Mart is going to lose that and the shouldn’t be gotten because they don’t or words to that effect. women they have discriminated Lets talk about a few issues that I get them in their own jurisdiction. against will be made whole. That is wrong. I think a lot of trial know of which were class action law- Mr. CARPER. Mr. President, will the lawyers are starting to get upset about suits. A lot of us have had the experi- Senator yield for a question? it because it is giving all trial lawyers ence of receiving a telephone bill when Mr. REID. Not right now. I will finish a bad name because of the few who we didn’t sign up with AT&T, but they my statement. I know my friend is an milk the system like this to the det- are on our bill. It is called ‘‘slam- avid supporter of this legislation. I ad- riment of consumers, to the detriment ming.’’ They put their product on your mire him. We came to Congress to- of the little people, to the detriment of bill without your permission. People gether. I am going to finish my state- those who can’t make it. That is what had to pay these bills. We didn’t do ment. I have been waiting 2 days to do is involved, and everybody knows it. anything legislatively to stop it. An at- this, and I want to finish my question. To play this political game and bring torney filed a class action against Mr. CARPER. Will the Senator yield up nongermane and nonrelevant AT&T saying don’t do that. Why? Be- for a question? amendments that we know will kill cause people were being charged $8 to Mr. REID. I yield for a question. this bill is a terrible thing. $10 a month for a product they didn’t Mr. CARPER. The Senator raises the All I can say is there comes a time ask for. This was stopped as a result of question of the issue of the class action when you have to vote. There comes a a class action lawsuit. They were en- case against Wal-Mart. The class ac- time when you have to stand up and do joined from doing it and had to pay the tion has been certified so it can go for- what you said you would do. If you do people they cheated with actual dol- ward. Does the Senator know whether not do it, then shame on you. All I can lars. it was certified in Federal court or say is, that is what is involved, and One of the great movies I watched— State court or county court? anybody who says otherwise, it seems because it was true—was called ‘‘Erin Mr. REID. I don’t know. I talked to to me, is wrong. Brockovich.’’ Erin Brockovich—just to some attorneys today involved with I yield the floor. recount what she did, for lack of a bet- the case. I did not ask them that. Mr. CARPER. It has been certified in The PRESIDING OFFICER. The Sen- ter word—was a paralegal but not one ator from Nevada. Federal court in California. who was really trained to be a good Mr. REID. I ask a question to my Mr. REID. Mr. President, my distin- paralegal. But she was trained and friend, certified in State or Federal guished friend, the senior Senator from wanted to go help people. She went court? Kentucky, who is my counterpart, indi- around and dug up information like Mr. CARPER. Federal court. cated that on May 20 or 21—I indicated one of the sleuths you hear about in a Mr. REID. Mr. President, I appreciate at that time publicly that we could fin- good mystery novel, or watch on tele- my friend asking the question which, ish the Defense authorization bill in 10 vision—a private detective. She went as far as I am concerned, at this stage more days. He didn’t go on to say that around and did some sleuthing and is meaningless. is what we did. That really is not quite came out with the fact that the ground Class action is an important part of true. We took 11 days. So my state- water was being contaminated with our legal system. It has done a great ment was 1 day off. Of course, it was pollutants from a company. She got a deal to help people work their way interrupted by President Reagan’s fu- friend, a lawyer of hers, to file a law- through the process. The fact that I as neral and a few other things. When we suit, and sure enough they won. They a trial lawyer have not taken a class came here and we told the majority found the ground water was being con- action lawsuit does not mean I didn’t they could finish the Defense author- taminated. like class action litigation. It is a spe- ization bill in 10 days, we were 1 day As a result of this class action law- cialty. As with the example I gave off. So no one should make a big deal suit, Erin Brockovich became a hero. dealing with antitrust litigation, you out of the fact that the time was more People had been killed as a result of better know what you are doing before than 10 days because, unfortunately, this company, and no one else had to you get into the class action litigation. President Reagan died. die or become sick. We all know what took place with to- I want the record to be spread with That was a class action lawsuit. Is bacco litigation. Attorneys general the fact that I am a trial lawyer. I am there anything wrong with that? I from all over America joined in that. a proud trial lawyer. I graduated from think not. The State of Nevada has benefited from law school, and I went back to Nevada We all know all about the big tobacco that class action litigation dealing and tried lots of cases. I have had over cases. A lot of people do not know with tobacco. We have a program a Re- 100 jury trials. I have tried murder about a tobacco company that started publican Governor in the State of Ne- cases, and I have tried robbery cases. advertising a light cigarette, and you vada initiated that is very popular. It

VerDate May 21 2004 01:18 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.039 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7703 is called the Millennial Scholarships. If action mechanism. However, S. 2062 fun- wards the purchase of other goods sold by de- you graduate from a Nevada high damentally alters the basic principles of fed- fendants. If so, then this ‘‘reform’’ should school—any place in Nevada; there are eralism, and if enacted would result in far apply only to consumer class actions. Class 17 counties—with good grades, you get greater harm than good. It therefore is not action treatment provides a particularly im- surprising that organizations such as AARP, portant mechanism for adjudicating the to go to school with your tuition paid AFL–CIO, Consumer Federation of America, claims of low-wage workers and victims of for by tobacco. Consumers Union, Leadership Conference on discrimination, and there is no apparent That is what this is all about. It is Civil Rights, NAACP and Public Citizen all need to place limitations on these types of about people having the opportunity to oppose this legislation in its present form. actions. Senator Kennedy reportedly will go forward with litigation, when nor- 1. Class Actions Should Not Be ‘‘Federal- offer an amendment on this issue, which also mally these people would be totally un- ized’’. should be adopted. protected. When we do things legisla- S. 2062 would vastly expand federal diver- 4. The Notification Provisions Are Mis- sity jurisdiction, and thereby would result in guided. tively, it is rare that people who have most class actions being filed in or removed S. 2062 requires that federal and state regu- been harmed get their money back. to federal court. This transfer of jurisdiction lators be notified of proposed class action That is an effect of class action. in cases raising questions of state law will settlements, and be provided with copies of As we speak about attorneys general, inappropriately usurp the primary role of the complaint, class notice, proposed settle- I received in my office yesterday a let- state courts in developing their own state ment and other materials. Apparently this ter from the attorney general of the tort and contract laws, and will impair their provision is intended to protect against ‘‘col- ability to establish consistent interpreta- lusive’’ settlements between defendants and State of New York. I have never met plaintiffs’ counsel, but those materials would Eliot Spitzer. I know him by reputa- tions of those laws. There is no compelling need for such a sweeping change in our long- be unlikely to reveal evidence of collusion, tion. He is one of America’s great at- established system for adjudicating state law and thus would provide little or no basis for torneys general. The State of New issues. Indeed, by transferring most state objecting to the settlement. In addition, York has been—I don’t want to say court class actions to an already overbur- class members could be misled into believing ‘‘blessed,’’ but for lack of a better dened federal court system, this bill will that their interests are being protected by word, New York has received a great delay (if not deny) justice to substantial their government representatives, simply be- numbers of injured citizens. The federal judi- cause the notice was sent to the Attorney deal from that man who has taken on General of the United States and other fed- big companies, to his detriment on ciary faces a serious challenge in managing its current caseload, and thus it is no sur- eral and state regulators. many occasions. We have a letter from Equal access to the American system of prise that the Judicial Conference of the justice is a foundation of our democracy. S. him sent to Senator FRIST and Senator United States has opposed the ‘‘federaliza- 2062 would effect a sweeping reordering of DASCHLE. The letter is three pages tion’’ of class action litigation. long. I ask unanimous consent it be S. 2062 is fundamentally flawed because our nation’s system of justice that will dis- enfranchise individual citizens from obtain- printed in the RECORD. under this legislation, most class actions brought against a defendant who is not a ing redress for harm, and thereby impede ef- There being no objection, the mate- forts against egregious corporate wrong- ‘‘citizen’’ of the state will be removed to fed- rial was ordered to be printed in the doing. Although the Attorneys General of eral court, no matter how substantial a pres- RECORD, as follows: California, Illinois, Iowa, Maine, Maryland, ence the defendant has in the state or how Massachusetts, Minnesota, Montana, New STATE OF NEW YORK, OFFICE OF THE much harm the defendant has caused in the Mexico, New York, Oklahoma, Vermont, and ATTORNEY GENERAL, THE CAP- state. While the amendments made last fall West Virginia oppose S. 2062 in its present ITOL, give the federal judge discretion to decline form, we fully support the goal of preventing Albany, NY, June 22, 2004. jurisdiction in some cases if more than one- abusive class action settlements, and would Hon. BILL FRIST, third of the plaintiffs are from the same be willing to provide assistance in your ef- Majority Leader, U.S. Senate, Dirksen Senate state, and place additional limitations on Office Building, Washington, DC. fort to implement necessary reforms while the exercise of federal court jurisdiction if maintaining our federal system of justice Hon. TOM DASCHLE, more than two-thirds of the plaintiffs are Minority Leader, U.S. Senate, Hart Senate Of- and safeguarding the interests of the public. from a single state, even in those cir- Sincerely. fice Building, Washington, DC. cumstances there are additional hurdles that ELIOT SPITZER, DEAR MR. MAJORITY LEADER AND MR. MI- frequently will prevent the case from being NORITY LEADER: On behalf of the Attorneys Attorney General of heard in state court. the State of New General of California, Illinois, Iowa, Maine, 2. Many Multi-State Class Actions Cannot York. Maryland, Massachusetts, Minnesota, Mon- Be Brought in Federal Court. tana, New Mexico, New York, Oklahoma, Another significant problem with S. 2062 is W. A. DREW EDMONDSON, Vermont, and West Virginia, we are writing that many federal courts have refused to cer- Attorney General of in opposition to S. 2062, the so-called ‘‘Class tify multi-state class actions because the the State of Okla- Action Fairness Act,’’ which reportedly will court would be required to apply the law of homa. be scheduled for a vote in the next few different jurisdictions to different plain- Mr. REID. Mr. President, this letter weeks. Although S. 2062 has been improved tiffs—even if the laws of those jurisdictions Eliot Spitzer wrote, joined by the at- in some ways over similar legislation consid- are very similar. Thus, cases commenced as torneys general of California, Illinois, ered last year (S. 274), it still unduly limits state class actions and then removed to fed- Maine, Maryland, Massachusetts, Min- the right of individuals to seek redress for eral court may not be able to be continued as nesota, Montana, New Mexico, New corporate wrongdoing in their state courts. class actions in federal court. York, Oklahoma, Vermont, and West We therefore strongly recommend that this In theory, injured plaintiffs in each state legislation not be enacted in its present could bring a separate class action lawsuit in Virginia, says the legislation now be- form. federal court, but that defeats one of the fore this body right here today, now be- As you know, under S. 2062, almost all main purposes of class actions, which is to fore the Senate, is inaptly named Class class actions brought by private individuals conserve judicial resources. Moreover, while Action Fairness Act. in state court based on state law claims the population of some states may be large I will begin by reading excerpts from would be forced into federal court, and for enough to warrant a separate class action in- a letter the Senate Republican and the reasons set forth below many of these volving only residents of those states, it is Democratic leader recently received cases may not be able to continue as class very unlikely that similar lawsuits will be from Attorney General Spitzer. The actions. All Attorneys General aggressively brought on behalf of the residents of many letter was sent by Spitzer, as I have prosecute violations of our states’ laws smaller states. We understand that Senator through public enforcement actions filed in Jeff Bingaman will be proposing an amend- said, in opposition to this legislation. state court. Particularly in these times of ment to address this problem, and that Joining in the letter are the attorneys state fiscal constraints, class actions provide amendment should be adopted. general I mentioned from other States. an important ‘‘private attorney general’’ 3. Civil Rights and Labor Cases Should Be There are a number of Members of supplement to our efforts to obtain redress Exempted. this body who have been attorneys gen- for violations of state consumer protection, Proponents of S. 2062 point to allegedly eral in the past. The one that comes to civil rights, labor, public health and environ- ‘‘collusive’’ consumer class action settle- my mind is Senator BINGAMAN. Senator ments in which plaintiffs’ attorneys received mental laws. BINGAMAN is representative of the peo- We recognize that some class action law- substantial fee awards, while the class mem- suits in state and federal courts have re- bers merely received ‘‘coupons’’ towards the ple who become attorneys general. He sulted in substantial attorneys’ fees but purchase of other goods sold by defendants. went to undergraduate school at Har- minimal benefits to the class members, and If so, then this ‘‘reform’’ should apply only vard College, he graduated from Stan- we support targeted efforts to prevent such to consumer class actions. Class action ford Law School, two of the finest edu- abuses and preserve the integrity of the class treatment provides a received ‘‘coupons’’ to- cational institutions in the world, and

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.042 S07PT1 S7704 CONGRESSIONAL RECORD — SENATE July 7, 2004 he was an attorney general. He under- . . . by transferring most state court ac- rush things through that body now as stands, as well as any, that special tions to an already overburdened federal they did 200 years ago. weight should be given to the authors court system, this bill will delay (if not The Founding Fathers wanted, as we of the letter. It is an attorney general’s deny) justice to substantial numbers of in- have been told numerous times, a sau- jured citizens. job to prosecute violations of the law. cer that would cool the coffee. That is These attorneys general begin by This is the case, they note, because what we are. And no matter how incon- stating: the class actions this bill will stop are venient the Senate is to that party in important ‘‘mechanisms for adjudi- We strongly recommend that this legisla- power—and we have been in power on tion not be enacted in its present form. cating the claims of low-wage workers occasion—no matter how the Senate and victims of discrimination, and The letter goes on to explain that rules slow us down, cause us problems, there is no apparent need to place limi- under the bill: we have to be the Senate. tations on these types of actions.’’ I respectfully suggest to the majority . . . almost all class actions brought by They conclude their letter by re- private individuals in State court based on leader he is making a big mistake here state law claims would be forced into federal minding this body, the Senate: in not allowing the Senate to be the court . . . and many of these cases may not Equal access to the American system of Senate. We have only a few days left— be able to continue as class actions. justice is a foundation of democracy. S. 2062 32 days left—and some of those days would effect a sweeping reordering of our na- I say to the distinguished chairman tion’s system of justice. It will disenfran- are Mondays and Fridays, and we do of the Judiciary Committee, the exam- chise individual citizens, while retaining re- not get a lot done around here anymore ple he used with the State of South Da- dress for harm and thereby impede efforts on Mondays and Fridays. Thirty-two kota, 100 plaintiffs and $5 million, against corporate wrongdoing. days. there is not a class action case that In recent months, events here and We have a lot to do, and I recognize you would not have at least 100 plain- abroad should remind us of the impor- that. That is why the Senator from tiffs and at least $5 million in damages. tance of this last remark and the con- Idaho and the Senator from Massachu- That is pretty easy to do. As Senator sequences. Our justice system is funda- setts have every right in the world to DASCHLE said, that case would likely mental to sustaining our democratic offer this nonrelevant, nongermane not occur in South Dakota. values as a nation. This bill takes too amendment because, as the Senator The reason attorneys general say al- broad a strike at the heart of the sys- from Idaho said, we have a season com- most all class actions brought by pri- tem and undermines these very values. ing, farm season. Crops are growing vate individuals in State court based I know the majority leader has a now. Crops are going to have to be on State claims would be forced into very difficult job. He has to balance taken from the ground in a few weeks. Federal court, and many of these cases what we do and what we do not do. I This legislation is so important, dur- may not be able to continue as class don’t in any way denigrate the dif- ing the Fourth of July Members of actions, the reason this is important, ficulty of his job. But I also remind my Congress were working on this amend- the letter explains: distinguished friend, the Senator from ment, and I received calls at my home All attorneys general aggressively pros- Tennessee, the Senate is going to be in Searchlight, NV, of legislators inter- ecute violations of our states’ laws through ongoing long after he leaves this body ested in this legislation, seeing if there public enforcement actions filed in state and long after I leave this body. We was something I could do to help them courts. Particularly in these times of state have had approximately 1,750 Senators move it along. I said: We have a piece fiscal constraints, class action provides an who have served in this body. During of legislation coming up. The debate on important ‘‘private Attorney General’’ sup- your amendment is not going to take plement to our efforts to obtain redress for those periods of time, there have been violations of state consumer protection, civil some who have done things that de- very long. This is an appropriate vehi- rights, labor, public health, and environ- layed pieces of legislation. We have cle to do it. mental laws. done things over the years that have That is what the Senate is all about. That is, class actions help ensure made this body appear not to be as co- We should not fill the tree. What this that violations of these important laws ordinated, as efficacious as the House. means is for the legislation now before do not go without punishment. The That is right. That is the way we are. this body, no one else can offer an threat of such enforcement helps en- The Senate is that way. We will con- amendment. They cannot offer a rel- sure compliance with these laws. tinue to be that way. evant amendment. They cannot offer a The authors of this letter note that We are not a House of Representa- nonrelevant amendment. They can do some reform may be appropriate, an ar- tives that has absolute dominance with nothing because it has been filled up. gument I do not disagree with. They the party that rules. The party that is We on this side are not going to allow find that: in power in the House is like the Brit- that. However, S. 2062 fundamentally alters the ish Parliament. The distinguished Pre- I know the distinguished senior Sen- basic principles of federalism, and if enacted siding Officer served in the House of ator from Connecticut likes this legis- would result in far greater harm than good. Representatives for a time, as did I. lation. I am sure it is not perfect. I Joining in their opposition to this That Rules Committee is an aggrava- know he has worked on it for years. bill are the AARP, AFL–CIO, Consumer tion. They determine on every piece of But I have every confidence—he being Federation of America, Consumers legislation how long the debate will be, a more senior legislator in the Senate Union, Leadership Council and Civil if they are going to allow amendments, than I am—I have no doubt that he Rights, NAACP, and Public Citizen, to and how long you can debate those does not like what took place here in a name a few. amendments. parliamentary fashion today. He be- The attorneys general letter also But the chairman of the Rules Com- lieves in the Senate. He believes the spells out the particular problems mittee and the members of the Rules Senate should work as the Senate and which arise from this legislation’s Committee are chosen by the Speaker that we should not bring a piece of leg- broad expansion of Federal court juris- of the House of Representatives, and islation here—no matter how impor- diction. they do what he wants done. I accept tant the majority feels it is, you can- This transfer of jurisdiction in cases rais- that system. That is the way the House not bring a piece of legislation before ing questions of state law will inappropri- works. It is a large body of 435 people. this body and say: This is more impor- ately usurp the primary role of state courts They can work more quickly than we tant than other things and we are not in developing their own laws and will impair can. If they did not have the Rules going to allow any amendments on it. their ability to establish consistent interpre- Committee, they would not get any- That is wrong, absolutely wrong. tation of those laws. thing done. I know my friend from Connecticut. I They go on to say: The Founding Fathers, in their wis- do not know of anyone in the Senate There is no compelling need for sweeping dom, set up this system of the legisla- who is a better orator than the Senator change in our long-established system for ad- ture where you have one body such as from Connecticut. There is no one in judicating state law issues. the House of Representatives that is in the Senate who can better express him- Most importantly, the attorneys gen- touch with the people every minute of self than the Senator from Con- eral note that: their 2-year existence, and they can necticut. But I say that even someone

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.043 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7705 who is a proud sponsor of this legisla- guished Democratic leader, the Sen- The Senator from Idaho, myself, and tion cannot go along with what the ator from South Dakota, for the way 63 Members of the Senate in a bipar- majority leader is trying to do. I have he has addressed the Senate earlier tisan way are reflecting an expression talked to him. I know the Senator from today on the proposals by the majority of the workers and agribusiness, which Connecticut. We cannot allow this to leader to limit the debate on this very is the first time that those groups have happen. We may have some disagree- important subject matter. come together to help solve a very im- ments on this legislation, as I have As the Senator from South Dakota portant issue that affects hundreds of outlined how I feel about it. I do not pointed out, this legislation is broad, thousands of individuals and their fam- think it is necessary. I think it is im- wide sweeping. It affects not only the ilies and to do it in a very brief time proper. I think we need to do some business community, but it affects, in period. There is strong support for this things to improve class action, but this a very important way, workers, work- over in the House of Representatives as isn’t it. ers’ rights, environmental rights. It af- well. We could do it in a bipartisan way But the majority has shot themselves fects the issues on civil rights. It af- and get something done for justice and in the foot. This is foolishness. We have fects the rights and the needs of many fairness that has been a thorn in the wasted all day. We could have a couple, of our fellow citizens. It is an ex- side of this country for some time. three amendments already debated. tremely serious piece of legislation The Senator from South Dakota So I say to my friend, the manager of that deserves debate. talked about maybe even having five this bill, I am no neophyte here. Clo- We have a set of rules in the Senate, amendments. There are many of us ture is going to be filed today and we and if the majority leader and his col- who, with all due respect to the major- will have a vote on cloture on Friday league from Kentucky want to alter or ity leader and the Republican leader- morning, and we will have to see how change those rules, let’s have a debate ship, feel if we could get that done in a the cards stack up Friday morning. on altering or changing the rules. But, short period of time, that would be a But if I were a betting man—and I do effectively, what the request and the major step for progress. That would be not bet on anything—I would say clo- action of the majority leader today is, a major step for progress and justice ture will not be invoked on this legisla- is to basically circumvent the rules of and fairness for so many of these fami- tion Friday morning. the Senate. Those are rules that have lies who have been exploited over time. The PRESIDING OFFICER (Ms. MUR- been accepted. They are rules that There are probably several other KOWSKI). The Senator from Utah. have been altered to some extent— issues. I know Members on their side Mr. HATCH. Madam President, I most significantly, the rule on cloture, have their choice issues. But the idea know some of my colleagues on the since I have been here for 42 years—but that we don’t have mental health par- other side want to speak. I have much they have worked pretty well for this ity here in the United States is a great- more to say about this issue, and espe- institution historically. They work er priority at least for me and I would cially after the distinguished minority pretty well. say for millions of families in this Part of the rules of the Senate are if whip has chatted. country—I know it is for the Senator a bill is authorizing legislation, we The PRESIDING OFFICER. The Sen- from New Mexico—than having the have an opportunity to bring amend- ator from Nevada. class action legislation that is before ments on that authorization bill. If Mr. REID. Madam President, my us. good friends have been waiting all those who are opposed to it are able to We have seen an expression where we morning to speak. I wonder if the Sen- vote against it, that is the way the have had in excess of 60 votes. I believe ator from Utah would allow a unani- process works. it was close to 70, 72 votes in the Sen- The majority has both the right and mous consent agreement that they ate. Why not have a short time period the privilege to raise the priorities could speak next in order, the two Sen- on something that has strong bipar- they believe are the most important. A ators from Massachusetts and Con- tisan support and can make a dif- number of us have serious differences necticut. ference to families and try to work out Mr. HATCH. That would be fine. Do with the priorities our Republican col- leagues have raised. They have raised a time limit? That certainly seems to we know how long they would speak? me to be a matter of importance. It Mr. REID. I do not know how long the issue of class action. I support the efforts of the Senator seems to me to be a matter of con- they would speak. sequence, something we could do in a Mr. HATCH. Can we get some idea? from Idaho, Mr. CRAIG, who is trying to bipartisan way in the Senate. Mr. KENNEDY. Ten minutes at this focus on a particular problem that may They have mentioned the minimum time. And I see my colleague, the Sen- not make a great deal of difference in wage. For 7 years we haven’t given an ator from Connecticut, in the Chamber. many parts of the Nation, but makes increase in the minimum wage to the Mr. REID. It is my understanding the an extraordinary difference to this hardest working Americans at the low- Senator from Massachusetts needs country because it deals with an agri- est rung of the economic ladder. They about 15 minutes and the Senator from cultural issue that has been a painful say: We will permit you to vote on it. Connecticut about 30 minutes; is that one for this Nation for the 40-odd years That is all well and fine. After 7 years right? I have been in the Senate. Mr. HATCH. I have no problem with When I first came to the Senate we and after the fact that we have seen that. had what was called the bracero issue, the Senate increase its own salary five Mr. REID. Madam President, I ask where many temporary workers came different times, it won’t increase the unanimous consent that the Senator to the United States, and they were ex- minimum wage for hard-working from Massachusetts be recognized for ploited in the most dehumanizing way Americans, the majority of whom are 15 minutes, followed by the Senator that we could possibly imagine. Arti- women, a great percentage of them are from Connecticut for up to 30 minutes. cles were written about it. In a bipar- Americans who are working hard, try- The PRESIDING OFFICER. Is there tisan way, we freed this Nation from ing to provide for their families and objection? that particular issue. falling farther and farther behind on Without objection, it is so ordered. But there has been, obviously, ten- the economic ladder. Now we are say- Mr. REID. Madam President, before I sion between those individuals who ing, as sort of a gratuity, we will let leave the floor, I express my apprecia- perform the hardest work in America you have a debate. Don’t get all so ex- tion to the Senator from Utah. I know and those who are working in the field cited about that. We will grant you he would like to respond to what I said of agriculture and are paid the least, that. That is not the U.S. Senate I and he will want to respond to what which happen to be these workers. A know. That is not the U.S. Senate our the Senator from Massachusetts says, great percentage of them are undocu- Founding Fathers fought for. but I appreciate his courtesy here, as mented workers who put the food on Those are just three. We could go on. usual. the table which benefits American fam- We could go on to try to deal with the The PRESIDING OFFICER. The Sen- ilies. It is a national tragedy that is issue of prescription drugs. There is ator from Massachusetts. taking place. Seventy percent of the not a family in this country who Mr. KENNEDY. Madam President, over 1 million workers are undocu- doesn’t have a senior member, a parent first of all, I commend our distin- mented. or grandparent, who is not today

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.046 S07PT1 S7706 CONGRESSIONAL RECORD — SENATE July 7, 2004 thinking about the cost of the increase place, in terms of workers’ wages; yet This measure is very important. in prescription drugs, 50 percent in the they are included. There has been no There are a lot of other important last 4 years. And they are wondering case that has been made that we ought measures that the Senator from Massa- today whether they can afford the next to try and change the whole approach chusetts mentioned, all of which I sup- batch of prescription drugs. It seems to in protections for civil rights, although port and with which I agree. But in this me that could be on a list of four. We it has been included. That case has not legislative body that the Framers have bipartisan support on the issue on been made. And you will deny under founded some 220 years ago, the idea reimportation. That seems to this Sen- this legislation the opportunity for that we are not going to even agree to ator to be more important. It could States such as my own that have a process that would allow for a lim- make a difference in the lives of people passed genetic antidiscrimination leg- ited number of germane and non- if we passed it today, if we were able to islation so that you cannot discrimi- germane amendments to be offered, is get the House of Representatives to go nate in the workplace based upon your to in effect deny the Senate the oppor- along with that. That seems to be a genetics—the great protection of that tunity to work its will. higher priority. is for women because under the DNA Even before a single amendment has We are not even asking that we make now there are so many kinds of tests been offered, the Majority Leader has it a higher priority. All we are asking that would indicate the possibilities of decided to fill up the amendment tree. is for our day in court and an account- women developing breast cancer. We In effect, he has precluded all Senators ing on the floor of the U.S. Senate on have prohibited that in Massachusetts, from offering amendments unless he the people’s agenda. and effectively you are wiping that deems them worthy to be offered. That We have been closed out by the ma- kind of protection out. includes, of course, Republican Sen- jority from getting action on those Maybe it will be heard in some dis- ators as well as Democratic Senators. I matters until now. If you want to tant Federal court, but why should our also add that the Majority Leader has make a unanimous consent request, we citizens in Massachusetts who have done this without any basis. As I have can make it and let you object to it taken a position on this have to rely on said, not a single amendment has yet about getting a time definite to vote that? We have issues of substance on been offered. This tactic is like a doc- on each and every one of those. We this, and we will have a chance, hope- tor prescribing a remedy for a perfectly know what the answer would be be- fully an opportunity to debate these healthy patient. cause we have made the requests. The matters and to come to some conclu- Last evening, I looked at the number majority leader is not here, and I sion on it. of amendments filed. There were some would not do so now without notifying I thank our Democratic leader for his 13 amendments filed. Most of them are him, but we know what the answer is. courageous action. It is one I support germane amendments. There were sev- We want to be able to express the completely. I think if our majority eral nongermane amendments. The people’s view in a short time limit on a leader followed his admonition, we Democratic leader offered a proposal of series of issues that have strong bipar- would make progress in advancing the 10 germane amendments and 5 non- tisan support, and we are being told no. interests of this body. germane amendments on either side, We are also being told that we should I yield the floor. with time limits. I am quite confident pass this legislation. The Chief Justice The PRESIDING OFFICER. The Sen- the authors would be willing to agree of the United States has told us not to ator from Connecticut. to a time agreement. I suspect that pass this bill. The National Association Mr. DODD. Madam President, I want with a universe of 30 amendments, of State Chief Justices has told us not to take some time to describe what was about half of them maybe would fall to pass the bill. And we are being de- a very lengthy and worthwhile effort even before being offered. But the idea nied to even debate these kinds of ex- some 10 months ago to come up with a that we could not set parameters pressions by the Chief Justice, who is compromise proposal which is the sub- around the consideration of a bill this not known to be a Democrat, a liberal, stance of S. 2062, the legislation now important I find rather breathtaking. or any of the other names. He is cau- before the Senate. I will do that in a After all, this how the Senate operates. tioning us. But no, we can’t. No, no, we moment. I floor managed with the Senator know better. The other side says: We Before doing so, I want to express my from Texas a number of years ago the know better. We are not going to let great disappointment at the process securities litigation reform bill, which you debate it or offer any amendments which the majority Leader has chosen. was another so-called tort reform bill. to it. We may let you, if we want, if we As my colleagues know, we worked We spent 11 days on the floor of the make up our mind, let you have a par- very hard last October and November Senate. Numerous amendments were ticular amendment if we decide that it trying to come up with a compromise offered to that piece of legislation. The is OK. to give the class action reform bill an then-majority leader, Senator Dole, That is not the Senate I was elected opportunity for consideration before threatened on a couple of occasions to to. That is the expression that was said the Senate. It is now the middle of file a cloture motion but never did. He so well by our Democratic leader. That July. In fact, this bill initially was to allowed the Senate to work its will on is my concern with the legislation. I be brought up as the first item of busi- that legislation. That is what ought to would certainly follow those who feel ness in January. For one reason or an- be done here as well. The fact that that with a fair opportunity to have an other, over the past number of months, there has been an offer to limit the expression on the kinds of proposals this bill has not been brought forward amount of time and the number of that our Democratic leader had pro- until now. amendments ought to be embraced by posed, which was the 5 nongermane, I regret that deeply. Having served the Majority Leader, not rejected by the 10 other kinds of amendments, and here for over a quarter of a century, I him. then go to final passage. Even though I know that in a Presidential election I am a cosponsor of this bill and I have reservations about it, I would sup- year, the likelihood of getting some- care about it. If I am going to be con- port that proposal and move ahead. thing done becomes less and less. So fronted with voting on cloture Friday That was not an unreasonable request. those who set the agenda have to bear and cutting off debate, then take me We should not diminish the role of any some responsibility, in a sense, for the off the bill right now. If you want to Member of the U.S. Senate by agreeing situation we now find ourselves in pro- kill the bill, you can do it today, if to anything less. cedurally. that is the intention of the majority. I I will address the underlying issue in Having worked on this very hard for spent almost a year helping to write terms of class action, particularly as it a long time, and now finding myself in this bill, but I will not stand here affects issues on civil rights, particu- a situation where we are being told at today and deny Members of this body, larly as it affects workers’ rights. this hour that the only amendments we under limited time agreements, to There has been no case that has been can consider are ones that will be ap- offer some ideas that the Senate can ei- made in the Judiciary Committee that proved by the majority, is highly offen- ther accept or reject and move forward. there needs to be this action to deal sive to me and it ought be to any Mem- This is an important piece of legisla- with the abuses in terms of the work- ber of this body. tion, but it is not so important to this

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.048 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7707 Member that we would deny this insti- reform measures. I suggest that what In November of last year, Senators tution the right to be able to do its we are talking about here is more SCHUMER, LANDRIEU, and I entered into business under the rules and proce- court reform than tort reform. discussions with Senators FRIST, dures that have been provided for more For example, I opposed medical mal- HATCH, and GRASSLEY. Those negotia- than two centuries ago. practice reform, not because I don’t tions resulted in the compromise that Obviously, there are problems. Some think we ought to do something about is before us today. of these nongermane amendments may it, but it was a poorly crafted bill. I do believe this legislation is a sig- be adopted. Maybe germane amend- I also opposed liability protection for nificant improvement over the earlier ments would be adopted that would gunmakers. By the way, most manu- bill considered by the Senate last year. cause some of us not to be able to sup- facturers of firearms reside in my When Senator SCHUMER, LANDRIEU, and port the bill. That is the risk you run State, but the idea that we are going to I sent our letter to the Majority Lead- in a legislative body. There are 100 of exclude an entire industry from litiga- er, we asked for five changes in that us, as coequals, who have the right to tion was highly offensive to me. legislation: offer our ideas to legislation. Unlike in I opposed liability protection for No. 1, we wanted to ensure that the the other body down the corridor, non- manufacturers of the so-called MTBE, jurisdictional provisions keep truly germane amendments can be offered in which pollutes ground water. I sup- local cases in State courts. the Senate. That is how the Senate ported a patient’s right to sue their No. 2, we wanted provisions on mass functions. HMOs and insurance companies, which tort actions to be as precise as pos- There is a risk, obviously, that this are a major industry in my State. Ob- sible. bill will get complicated. But the idea viously, I helped write and helped to No. 3, we wanted to prevent the po- that we are going to shut off the possi- support the securities litigation re- tential for repeated removal and re- bility of these ideas being offered form, uniform standards, Y2K legisla- mand between State and Federal ought to be offensive to every Member, tion, and the terrorism insurance bill. courts, the so-called ‘‘merry-go-round even those who support the legislation. So I don’t fall into a category here of effect.’’ If it can happen here, it can happen on being for whatever is titled ‘‘tort re- No. 4, we wanted to provide appro- a bill you support or oppose for one form,’’ supporting it or opposing it. I priate compensation to those plaintiffs reason or another. have a record that I believe is one of who take the risk of coming forward. I am terribly disappointed that I am balance and support of those ideas and And No. 5, we wanted stronger provi- looking at a procedural situation that efforts that truly were designed to try sions on abusive coupon settlements. I warned about, which is that if you to improve a litigation system. That is We got those changes and more. In didn’t provide adequate time for Mem- the background of my own voting fact, we asked for those 5 changes, and bers to be able to offer amendments— record. yet we got 12 improvements to the bill even amendments not particularly I will give you a history in terms of as originally proposed. helpful in the eyes of some of my col- this compromise. On October 22 of last I am pleased to say that the com- leagues—you run the risk of undercut- year, the Majority Leader sought to promise we reached last year is a meas- ting the legislation. Maybe that is proceed to an earlier class action meas- ured, bipartisan response that fixes what the majority wants to do anyway, ure, S. 1751. The vote on that motion to many aspects of our broken class ac- on the assumption that those groups proceed was 59 to 39, which is 1 vote tion system. In addition, it strikes the outside who support the underlying bill short of the required number to invoke appropriate balance between pro- will blame those of us who are willing cloture. tecting Americans’ access to the court- to shut down the debate and, if not, At the time of that legislation, I house while ridding the class action give us an opportunity to let the Sen- voted no on invoking cloture, and I did system of its most egregious abuses. ate work its will. That is a false hope. so with some reluctance. I noted that, I want to emphasize at the outset I believe people are much smarter than while I supported some reform of class that this bill is a fragile, carefully- that. They understand that if you don’t action procedures, I could not support crafted compromise. There are some let the Senate work its will, even under S. 1751. I also expressed concern about who will argue the bill goes too far, time constraints and amendments that whether there would be any meaningful and others will tell you it does not go are being limited in number, you do a opportunity for Senators to negotiate far enough. I happen to believe it great bit of damage to this institution. changes in that bill in a bipartisan achieves the right balance. It may not It is late in the year, but I believe we fashion. be perfect, but I think it is a good bal- have a good bill here. I want to de- I told colleagues in October of last ance overall. scribe it briefly, if I may. We have year that reaching an agreement on Having entered into a good-faith worked on an excellent compromise class action reform required us to roll agreement with my colleagues on both that a majority of colleagues here can up our sleeves to get it done. Many sides of the aisle, I want to see the support. long hours of painstaking negotiations compromise preserved both on the Sen- First of all, I am a very strong sup- were ahead of us. As an author of the ate floor and in conference. No state- porter of class action as a procedural securities litigation reform bill, the ment has been made by the Democratic device. Class action lawsuits have pro- uniform standards legislation, ter- leader that he is opposing the appoint- vided individuals of modest means the rorism insurance, and the Y2K bill, I ment of conferees on this bill. Part of ability to band together to achieve sys- know that principled compromise the agreement was that the com- temic change when they could not have could be reached on class action reform promise we reached in the Senate done so individually. In fact, important as well. would be the one approved by the legal developments in such areas as I argued at the time, and my senti- House in conference. If that was not civil rights, sex discrimination, and en- ment still holds true today, that ‘‘the the case, then those of us who agreed vironmental protection have been the American people deserve better. We are vote on the motion to proceed would result of class action lawsuits. not working together as often as we reserve the right to filibuster the con- But there is considerable evidence should on critical questions. If we do ference report. We certainly continue from courthouses across the country not do it, then we do a great disservice to hold that view. that class actions are being abused. to the American people.’’ S. 2062 reforms the current class ac- Procedural rules that are designed to Subsequent to the vote in October tion system in a number of meaningful decide fair and just outcomes for indi- 2003, I joined with three of my col- ways. Let me go through them if I can vidual plaintiffs and defendants are not leagues in sending a letter to the Ma- rather quickly. being followed in too many cases. As a jority Leader on November 14. In that First, it addresses the issue of coupon result, the class action system is not letter, we outlined the specific policies settlements which constitutes one of working, in my view, the way it was in- that we believed needed to be addressed the greatest abuses in our courthouses tended, and justice is not being served. in a class action bill that would garner today. Here the plaintiffs receive cou- Madam President, I am also one who the necessary votes to pass in this pons, or a token payment, for a dis- has supported and opposed various tort body. count off their next purchase while

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.051 S07PT1 S7708 CONGRESSIONAL RECORD — SENATE July 7, 2004 their attorneys pocket millions of dol- for what one believes is right, and un- quirements that must be met for an lars in fees. fortunately those who have the cour- out-of-State litigant to claim Federal It is not only the plaintiff attorneys age to do the right thing are some- diversity jurisdiction and have his or who benefit from these coupon settle- times attacked, ridiculed, and ostra- her case heard by a Federal court. ments, but the defendants benefit as cized. First, every member of the class must well. For example, the average redemp- If the bounty provision in the earlier be seeking damages in excess of $75,000, tion rate in a settlement involving food bill were to have remained in the com- including interest and costs. Second, and beverage coupons have been be- promise, it would have simply stripped there must be complete diversity; that tween 2 and 6 percent. As a result, the away any incentive for individuals to is, every named member of the class purpose of these coupon settlements come forward and protect the rights of must be a citizen of a different State has changed. They no longer serve the class. Under current Federal law, a than every defendant in the same liti- class members but defendant and plain- class representative in a successful gation. tiff attorneys instead. class action can be rewarded for taking Walter Dellinger, the former Solic- The original class action bill brought the initiative to fight unlawful dis- itor General during the Clinton admin- to the Senate last year in October only crimination. Most class members istration, noted that when Congress provided for greater judicial scrutiny choose to sit on the sidelines and reap first drafted the diversity jurisdiction of such coupon settlements. Senators the benefits of the case when it is fin- statute, the class action system as we on the Judiciary Committee who op- ished. Class representatives, on the know it today did not exist at all. In posed the bill rightly argued that ‘‘re- other hand, take an active role in their the years since its enactment, however, forms with real teeth were needed to cases, and they do so not only for the law has been interpreted to exclude end worthless coupon settlements in themselves but to obtain justice for most nationwide class actions from class action cases.’’ others in similar situations. Under the Federal court. We agreed with their view. The com- earlier bill, the courts would not have For example, Dellinger remarks that promise does a much improved job of been able to recognize the special ef- the requirement for complete diversity reining in these coupon settlements by forts or contributions made by class can easily be avoided by the simple ex- pegging the lawyers’ fees to the value representatives. pedient of including at least one named of the coupons actually redeemed by We have listened to the civil rights plaintiff and defendant that share a class members or on the reasonable community which was strongly op- common State citizenship. value of the legal work actually per- posed to the bounties provision in the With regard to the amount in con- formed by the counsel in the litigation. original bill. The compromise deletes troversy requirement, Mr. Dellinger As a result, there will be a strong in- this provision, which will ensure that contends that a class action can easily centive to resist easy settlements and the courtroom doors remain open for be configured to ensure that at least fight for an outcome that is truly fair those plaintiffs willing to serve as class one class member does not satisfy the and equitable to the plaintiffs. representatives. minimum amount, or by seeking $74,999 The compromise bill also responds to Another important consumer protec- in recovery on behalf of each and every the concerns of the Federal Judicial tion enshrined in the compromise bill plaintiff and class member. concerns the payment of so-called Conference and others about the class As a result, attorneys bringing class settlement notice provisions in the ear- bounties. The earlier legislation in- actions can manage to avoid Federal lier measure. The provision in the cluded a provision that prohibited set- court all together, and have the case original legislation was intended to tlements that allow one member of a tried in a State court, often in the provide clear and simpler notices to plaintiff class from receiving a higher county of their choosing, even though class members regarding proposed class settlement award than other members the total amount at stake might ex- settlements. However, we heard from of that class. ceed hundreds of millions of dollars and the Federal Judicial Conference that On its face, such a provision might have true multi-State national impli- the notice requirements, while well in- seem innocuous. After all, it appears to cations. This practice is commonly tentioned, would have actually been confirm the notion that all plaintiffs known as ‘‘forum-shopping.’’ While it too burdensome and too complicated to should be treated equally and fairly. implement. is in concept a long-standing part of However, the bounties provision in the According to the Judicial Conference our law, it has become a growing prob- original bill would have unintention- Rules Committee, these notice require- lem in the United States. ally created a significant problem. ments would have ‘‘undermined the Under S. 2062, the bill now before us, While it makes sense for all plaintiffs’ bill’s stated objectives by requiring no- the current rules for diversity jurisdic- class members to be treated equally in tices so elaborate that most class tion are carefully adjusted so that cer- many cases, in some other instances it members [would] not even attempt to tain large multiparty cases, namely, is more appropriate for some class read them.’’ In addition, they would those that are truly nationwide in members, particularly class represent- have conflicted with the December 1, scope, affecting many or even all atives, to receive larger awards than 2003 amendments to Rule 23 of the Fed- States at once, will be litigated in the others in the same class. For example, eral Rules of Civil Procedure, which Federal courts rather than in the in a class action designed to prevent are similarly intended to guide the courts of just one State or county. In the wrongful discharge of employees, it form and content of settlement and other words, the compromise would would be appropriate for those who certification notices provided to class bring the class action process closer to have already been fired, for instance, members. The compromise, therefore, the Framers’ intent by allowing cases to receive larger settlements than deletes the confusing notice provisions that are multi-State or national in those who are merely threatened with in the earlier bill and simply enacts scope, where the risk of local biases are being fired. the recommendations of the Judicial the greatest, to be heard in Federal Furthermore, in many cases, the Conference. Yet another compromise in court and not in State court. named plaintiffs—the people whose this legislation. Specifically, the Federal district names appear on the papers filed with At the very heart of the compromise court will have original jurisdiction the court—are subjected to harass- are provisions concerning when inter- over any class action with more than ment, angry phone calls, hate mail, state class actions can be removed to 100 members if the following two re- even death threats. Anybody who has Federal court. Under Article III of the quirements are met. First, the aggre- seen Julia Roberts’ movie ‘‘Erin U.S. Constitution, out-of-State liti- gate claims must exceed $5 million, Brockovich’’ or the earlier Meryl gants are protected against the possi- rather than each and every class mem- Streep movie about the life and death bility of prejudice of local courts by al- ber must exceed $75,000 in alleged dam- of Karen Silkwood will recall that lowing for Federal diversity jurisdic- ages. Second, rather than requiring being a named plaintiff in a lawsuit tion when the plaintiffs and the defend- every member of a class be a citizen of against a company that employs many ants are from different States. a different State than every defendant, people can be a very unpopular thing to Title 28, section 1332(a) of the United S. 2062 allows for Federal jurisdiction if do. It often takes courage to stand up States Code specifies the current re- any class member is a citizen from a

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.052 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7709 different State from any defendant. Yet it is not only the sheer numbers to clarify when a Federal court can ex- Again, the purpose of these changes is of filings in Madison County that is so ercise its jurisdiction if between one- to ensure that more substantial multi- astonishing. What is so surprising is third and two-thirds of the proposed State class actions are heard in Fed- that many of these class actions have class members and all primary defend- eral court. little connection to the county. In fact, ants are citizens of the same State. Mr. DURBIN. Will the Senator yield sometimes only a few class members Specifically, the compromise author- for a question? actually came from that particular ju- izes Federal courts to consider any Mr. DODD. Could I finish? I only risdiction. Even the Illinois Supreme ‘‘distinct nexus’’ or connection be- have a limited amount of time, and I Court has noted the congested dockets tween the forum where the action was apologize, and I will get through this in this court and declared ‘‘the conges- brought and the class members, the al- statement. tion is aggravated by the presence of leged harm, or the defendants. The pur- These moderate changes to the Fed- [nonresident] cases that have little or pose of this provision is to require Fed- eral diversity statute were included in no connection to Madison County.’’ eral judges to consider whether the the original legislation that came be- For example, a recent case that interstate class action has any rela- fore the Senate last October. Under the found its way to Madison County in- tionship to the jurisdiction where it is compromise, however, we further refine volved a purported class action on be- brought. If there were no such connec- these provisions to address two impor- half of 30 million customers who tions, as in the case of many of the tant concerns that were not fully claimed to be injured by Sears in con- class actions filed in Madison County, taken into account in the earlier bill. I nection with an allegedly deceptive the Federal judge would then have the want to especially commend Senator tire balancing service. Only one plain- discretion of moving the case to Fed- FEINSTEIN of California for her leader- tiff, a Madison County resident, was eral court. Such a provision would ship in helping to clarify these issues, named, and only one Sears automotive therefore rein in the blatant forum both during the Senate Judiciary Com- repair shop was actually located in shopping that is so prevalent in Madi- mittee’s consideration of the earlier Madison County. The class action, son County and other magnet jurisdic- measure and in the discussions that led however, sought to certify a nation- tions today. to this compromise. wide class, allegedly subject to the Illi- The other improvement to the Fed- First, the compromise responds to nois Consumer Fraud Act, despite the eral diversity statute that the com- concerns that the original bill did not promise bill makes concerns the so- adequately address the handful of fact that the vast majority of class called ‘‘local class action exception.’’ small, rural State courts that have in- members and the vast majority of The purpose of this exception is to en- creasingly become a magnet for more Sears locations have no connection to sure that State courts can adjudicate and more nationwide class actions. Illinois at all, much less to Madison class actions that are truly local in na- Such ‘‘magnet jurisdictions’’ have County. Madison County has especially been a ture, and they should have that right. tended to have lax class certification Under the original bill, Federal juris- requirements, and have been less than magnet for asbestos cases. In fact, diction would not have been extended rigorous in reviewing proposed settle- Madison County led the Nation 2 years to those cases in which two-thirds or ments. In fact, one of the most flagrant ago in the number of mesothelioma more of the members of the plaintiff abuses of the current class action sys- cases filed. In most of these cases, how- class and the primary defendants were tem occurs when lawyers ‘‘forum shop’’ ever, the plaintiffs did not live in Madi- citizens of the State in which the suit that is, invent an injured class and son County, were not exposed to asbes- was filed. Such cases would have re- then file a national class action in a tos in Madison County, and were not mained in State court, since virtually ‘‘magnet jurisdiction’’ where the treated for any asbestos-related ill- all of the parties in such cases would judges are more likely to lend a sympa- nesses in Madison County. thetic ear. For example, in a recently decided have been local, and local interests Perhaps the most famous of these so- case, an Indiana resident claimed that therefore presumably would have pre- called ‘‘magnet jurisdictions’’ is Madi- he was exposed to asbestos at the U.S. dominated. son County, IL. According to a 2001 Steel plant in Gary, IN. He sued U.S. There were concerns raised in the study in the Harvard Journal of Law Steel, which is based in Pennsylvania, earlier bill, however, that class actions and Public Policy, the per capita rate in Madison County. Despite the total with a truly local focus may be moved of class action filings was almost twice lack of connection to the local forum, to Federal court because of the pres- that of the second-ranking jurisdiction the case proceeded to trial and a Madi- ence of an out-of-State defendant nec- in the United States. In recent years, son County jury awarded him $50 mil- essary to prosecuting the action. The compromise responds to these the study found that class action fil- lion in compensatory damages and $200 concerns by further refining the cri- ings in Madison County increased by million in punitive damages. teria as to when a class action is to re- 1,850 percent during the period between Clearly, such practices need to be main in State court. First, under our 1998 and 2001. curtailed in any meaningful reform of Although the population of Madison the class action system. proposal, there must be a primarily County is only 250,000, it ranks third Again, I emphasize I am a strong sup- local class—that is, more than two- nationwide in the number of class ac- porter of class action. Class action liti- thirds of the class members should be tions filed each year, behind only Los gation is critically important, but citizens of the forum State. Second, Angeles County, CA and Cook County, when these things get out of control, there must be at least one real local IL. then we have to get them back on defendant. Third, the principal injuries Mr. DURBIN. Would the Senator track again. resulting from the alleged conduct or yield for a question? There are many more examples of na- related conduct of all of the defendants Mr. DODD. I am limited on time, I tional class actions implicating hun- must have occurred in the forum State. say to my colleague. When I get dreds of millions if not billions of dol- Finally, there must be no other class through this, I will be glad to respond. lars being decided by Madison County actions having been filed in the pre- Mr. DURBIN. The Senator is talking judges because of its reputation as a vious 3 years based on the same or about Illinois. I wanted to ask a ques- magnet court. That means that the similar allegations against any of the tion or two about Illinois. laws of Madison County, Illinois on ev- defendants. Again, these provisions re- Mr. DODD. I will come back to the erything from insurance policy to con- spect State sovereignty by ensuring Senator. sumer fraud to environmental protec- that class actions of a truly local na- Even more astounding is the data re- tion are being imposed on the residents ture are kept at the State level, while ported in the January 11, 2004 St. Louis of the other 49 states, despite the fact complex class actions with nationwide Post-Dispatch, which discovered that that many of those States have adopt- implications are heard in Federal in anticipation of Congress reforming ed different legal views. courts. class action procedures, the number of The compromise bill specifically ad- I want to briefly respond to some of class actions filed in Madison County dresses this serious problem. It in- the concerns raised about the jurisdic- Circuit Court rose to an all-time high. cludes language not in the earlier bill tional provisions in the bill. Critics of

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.054 S07PT1 S7710 CONGRESSIONAL RECORD — SENATE July 7, 2004 this legislation have claimed that the to adjudicate those same rights, and I We listened to the concerns of the measure would sweep most if not all believe that we have struck the appro- law professors and deleted the provi- State class actions into Federal court, priate balance in making this deter- sion in the original bill allowing plain- where overburdened and unsympa- mination. tiffs to remove class actions. We also thetic judges would let them wither I want to now return to the other retain current law permitting indi- and die. provisions in the compromise that rep- vidual plaintiffs from opting out of I believe that such concerns are resent significant improvements over class actions. The compromise would largely misplaced. First, as I noted ear- the earlier legislation. therefore make a real difference in lier, we included provisions in the com- We have clarified the date when the curbing abuse of the removal process promise to ensure that State preroga- plaintiff class could be measured. The by various counsel. tives are respected. These provisions— compromise makes clear that citizen- Two further improvements in the namely, the ‘‘local class action excep- ship of the proposed class members is compromise are also worth men- tion’’ and the ‘‘distinct nexus’’ lan- to be determined on the date plaintiffs tioning. guage—are intended to keep truly local filed the original complaint. If there is First, we responded to concerns that cases in State court. no Federal jurisdiction over the first the ‘‘mass actions’’ provisions in the In fact, the compromise leaves in complaint, however, citizenship is to be original legislation were too broad. The State court a wide range of class ac- determined when plaintiffs serve an earlier bill would have treated all mass tions, such as those in which all the amended complaint or other paper in- actions involving over 100 claimants as plaintiffs and defendants are residents dicating the existence of Federal juris- if they were class actions. of the same State; those with fewer diction. Under the compromise, only more than 100 plaintiffs; those involving less The original bill had been silent on substantial claims in a mass action— than $5 million; those in which a State when class composition could be meas- namely, those that would meet the government entity is the primary de- ured, which caused some concern that normal jurisdictional amount require- fendant; those brought against a com- a court would have to constantly re- ment of $75,000 for individual actions— pany in its home State in which two- consider jurisdiction as the contours of will be subject to Federal jurisdiction. thirds or more of the class members the class changed. I believe that the In addition, we change the ‘‘single are also residents of that State; and compromise has adequately addressed sudden accident’’ exception to exclude shareholder class actions alleging this matter, and has provided much from Federal jurisdiction mass actions breaches of fiduciary duty. needed clarity to determining class What the compromise does target for in which all claims arise from an composition. ‘‘event or occurrence’’ that happened Federal jurisdiction, however, are Another provision in the earlier bill those nationwide or multistate class in the State where the action was filed that caused great difficulty would have and that allegedly resulted in injuries actions that are filed in magnet courts required Federal courts to dismiss such as Madison County, IL. While I re- in that State or in a contiguous State. class actions if the court determined The purpose of this change is to allow spect the views of those who assert that the case did not meet Rule 23 re- that State courts are appropriate fo- a much broader range of truly local quirements. The bill provided that the cases to remain in State courts. rums for such cases, I must respect- class action complaint may be amend- The compromise also clarifies that fully disagree. In my view, such large, ed and refiled in State court, but that there is no Federal jurisdiction under multistate or nationwide class actions the new complaint would be subject to the mass action provision for claims are precisely the kinds of cases that removal again if it met Federal juris- that have been consolidated for pre- are most appropriately tried in Federal dictional requirements. Thus, even if a trial purposes. court. I believe that the provisions we State court subsequently certifies the included in the compromise are quite class, it could be removed again and Second, the original bill would have discriminating about which class ac- again, creating a judicial merry-go- allowed defendants to seek unlimited tions will be removed to Federal court round between Federal and State appellate review of Federal court or- and which will remain in State court. court. ders remanding cases to State courts. Second, critics of the legislation The compromise stops the merry-go- If a defendant requested an appeal, the have argued that Federal courts are so round altogether. It eliminates the dis- Federal courts would have been re- overburdened that they do not have the missal requirement, giving Federal quired to hear the appeal and the ap- resources to handle class actions for- courts discretion to handle Rule 23-in- peals would have taken months or even merly assigned to State court judges. eligible cases appropriately. Poten- years to complete. Again, these concerns are unfounded. tially meritorious suits will therefore The compromise would obviate the The real workload issues are not in the not be automatically dismissed simply potential for workload problems and Federal courts but in the State courts, because they fail to comply with the long delays in two important ways. where the average State court judge is class certification requirements of First, it would give the appellate assigned three times as many cases as Rule 23. courts the discretion to conduct re- his or her Federal counterparts. Ac- The original bill would have also al- views at their discretion. Presumably, cording to the Court Statistics Project, lowed the removal of a case at any Federal courts would refuse to hear an State court judges are assigned over time to Federal court even if all other appeal unless it presented novel issues 1,500 new cases each year. In contrast, class members wanted the case to re- or where a district court has clearly the Administrative Office of the United main in State court. In June 2003, 106 abused its discretion. Second, it re- States Courts finds that each Federal professors of constitutional law and quires such appeals to be heard on an court judge was assigned an average of civil procedure wrote to Majority expedited basis by establishing tight 518 new cases during the 12-month pe- Leader FRIST and Minority Leader deadlines for completion of any appeals riod ending September 30, 2002. DASCHLE expressing their concerns over so that no case can be delayed more Third, I also want to be perfectly this provision. They argued that: than 77 days, unless all parties agree to clear on one further matter. There is [It] would give a defendant the power to a longer extension. absolutely nothing in this legislation yank a case away from a state-court judge Finally, the compromise is in no way that would alter any individual’s right who has properly issued pretrial rulings the retroactive—that is, it will not upset to seek redress for his or her injury. It defendant does not like, and would encour- or alter in any way cases filed before does not grant defendants any new de- age a level of forum-shopping never before enactment, should in fact the bill be fense. Consumers can bring the same seen in this country. Moreover, this provi- signed into law. Unlike other litigation exact claims as they are bringing now. sion would allow an unscrupulous defendant, reform bills considered by this Con- Civil rights, environmental, and em- anxious to put off the day of judgment so gress on guns, medical malpractice, that more assets can be hidden, to remove a ployment claims are in no way pre- case on the eve of a state-court trial, result- and MTBE, the compromise does not cluded. The only issue that this bill ing in an automatic delay of months or even shut the courtroom door on anyone. In- would address is whether it is more ap- years before the case can be tried in Federal stead, it will just direct them to a Fed- propriate for a State or Federal court courts. eral rather than a State courthouse.

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.058 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7711 These changes I have discussed rep- fect. There are some colleagues who the majority leader would like to fore- resent a fair and a balanced com- fundamentally disagree with me on close. promise. They constitute a significant this issue, and I respect their views. All of the holier than thou ‘‘we must improvement over the earlier class ac- What I cannot tolerate, however, is preserve the Senate’’ comments are tion reform legislation brought before the procedure under which this bill is meaningless in this context. If this the Senate last October. going to be considered. I say to my were the first time this bill had ever I want to reemphasize my long-held friends on the other side of the aisle been considered, if it had not had ex- view that a strong class action system with whom I worked very closely, if tensive debate through at least four can ultimately serve as a force for you constrain this institution’s ability hearings through the years, if it hadn’t good. It can be used to hold companies to offer either nongermane or germane had an extensive internal debate as we accountable for significant violations amendments to this bill, then this Sen- agreed to accept a whole raft of amend- that may result in a small monetary ator will not be able to support the mo- ments by the three who came on this charge for one victim. It can also be tion to invoke cloture. bill back in November of last year with harnessed to allow large groups to seek We failed to invoke cloture by only the understanding that we are going to redress for civil rights and other harms one vote last October. Although I care invoke cloture—if we had not gone where they could not have done so indi- about this bill very much, I care far through all that, then I might see some vidually. In short, the class action sys- more about the Senate and how we do reason for the comments made here tem is the great equalizer in the Amer- our business. It is going to disappoint today, but those comments should not ican judicial system. me terribly to have to vote against clo- see the light of day if you look at the Yet nobody can deny that the class ture. But if you constrain the ability of facts and you look at what has gone on action system is being seriously Members of this body to offer specific here. abused. As The Washington Post edito- amendments, then this Senator is Let me mention my support of S. rialized last year: going to have to wait for another day 2062, the Class Action Fairness Act of 2004. I appreciate Senator REID’s im- No area of the United States civil justice to fully consider this measure. system cries out more urgently for reform There are many people across this passioned defense of trial lawyers. It is than the high stakes extortion racket of country who believe we put together a a profession I proudly belong to and class actions. good compromise, but I am not going share with him. But this bill is not In addition, an excellent Newsweek to vote for a compromise that doesn’t about attacking trial lawyers. It is about correcting certain grotesque article published last December enti- allow the Senate to work its will on abuses of our judicial system by a tled ‘‘Lawsuit Hell: How Fear of Litiga- this important matter. tion is Paralyzing our Professions’’ I realize my time has expired. handful of class action lawyers who are noted that such lawsuits are: The PRESIDING OFFICER. The Sen- giving all the other trial lawyers a bad name. On this point the evidence is . . . changing and complicating the lives of ator from Utah. millions of American professionals in ways Mr. HATCH. Did the Senator have clear and undeniable. Furthermore, I would like to note that confound common sense and cast a enough time? Is the Senator finished? I that the Erin Brockovich case, which shadow over a system that can, at its best, would certainly grant him more time. offer people relief and redress from legiti- Mr. DODD. I am. my Democratic colleague from Nevada mate grievances. Mr. HATCH. Madam President, I ap- mentioned, would have remained in Even former Solicitor General Walter preciate much of what the distin- State court. There is no question about Dellinger commented that such evi- guished Senator from Connecticut has that. The suit of Anderson v. PG&E, dence of class action abuses in State said with regard to this bill. He is right known as the Erin Brockovich case, was brought in California by California and county courthouses: on. I do not agree with him that he residents against a California com- . . . gives me great concern that the rights should not vote for cloture on this pany. of truly injured individual plaintiffs, as well matter because he knows, we all know, as the rights of corporate defendants, have There is no question that if they if we do not get cloture, this bill is not wanted to stay in State court they fallen victim to manipulation, and even eva- going to make it. sion, of settled rules—rules that, no less could. Under this bill, the case would The Senate is used to having than financial disclosure laws, are intended not have been eligible for removal to ensure openness and accountability, as nongermane, irrelevant—nonrelevant under diversity jurisdiction principles. well as fundamental fairness, in the judicial amendments foreclosed in order to get Our concern is to remove truly na- resolution of major disputes with national legislation passed. We all know unless tional actions to Federal court and not consequences. we foreclose that, this legislation is local controversies like this one. Ultimately, the real losers of a bro- never going to see the light of day. The evidence is clear and undeniable. ken class action system are not busi- That is what we have been putting up The well-documented abuse of the class nesses or consumers. Rather, it is the with now for 6 years. action litigation device victimizes American public’s overall confidence in To come on the floor today, as some plaintiffs—the very people that class the legal system that will suffer unless have, and indicate that the Senate is actions are supposed to benefit. These a sensible class action reform package, going to be broken if we proceed on abuses cheat millions of consumers such as that contained in the com- this bill in a way that permits only who unwittingly have their legal rights promise, is enacted into law. germane amendments and with one adjudicated in local courts thousands Bipartisan legislation addressing the nongermane amendment which those of miles away. They deny the due proc- class action system’s most egregious on the other side have wanted for ess rights of defendants who are relent- abuses is long overdue. This carefully months, and which I think the major- lessly hauled into a handful of small balanced compromise that is now be- ity leader was willing to give them, is county courts where the playing field fore the Senate will make a real dif- not shooting straight, as far as I am is unfairly tilted in favor of the plain- ference in reducing the abuse and ma- concerned. As everybody knows, we tiffs’ bar. And if that were not enough, nipulation of the class action system. have worked 6 years on this bill; 62 peo- class action abuses are eroding public It would restore class actions to their ple signed off on this bill as prime co- confidence in our civil justice system. original noble purpose as a force for sponsors. We lost on cloture by one To give the class action problem positive change in society, and I urge vote last time, one solitary vote. If we some perspective, I want to consider my colleagues not to let this golden op- get only one of the three who agreed to the effect of this litigation in just one portunity be squandered. go ahead with this bill, knowing it locale—Madison County, IL, which the I know time is getting short. My col- would cut off the extended debate or Senator from Connecticut mentioned. league from Illinois was here, and he the filibuster, which is what we agreed There we find a case study in the ramp- would like to be heard on this matter. to, then this bill is going to go forward ant misconduct within the class action Let me return to where I started. I and we will only have to deal with ger- system, its corrupting effect on the spent a lot of time on this measure. I mane amendments and not a whole courts, and the desperate need for re- think we have written a very good bill. proliferation of nongermane, political, form. This small town in the South- I would not claim that this bill is per- politicized amendments, which is what western part of that state provides all

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.060 S07PT1 S7712 CONGRESSIONAL RECORD — SENATE July 7, 2004 the evidence necessary to convince always on the lookout to find suitable the hilt. The same five firms appeared anyone that the legal system is cur- venues for enriching itself. Entrepre- as counsel in 45 percent of all cases rently being exploited by shameless neurial plaintiffs’ lawyers or personal filed between 1999 and 2000. Of the 66 and self-seeking plaintiffs lawyers. injury lawyers, many who practice in firms appearing in these cases, 56 of Madison County, IL is a rural county. the field of personal injury, are sucked them—85 percent—had office addresses I imagine that it is the type of place into its orbit. outside of Madison County. where Abraham Lincoln first got his The numbers alone tell the story. In this small county, with a popu- start as a young lawyer and advocate Over the last 5 years, the number of lation of 259,000, there are somehow for justice. In some notes taken in class actions in the county has in- more mesothelioma claims from asbes- preparation for a Law Lecture around creased by 1,000 percent. tos exposure than in all of New York 1850, Lincoln set the ideal for his pro- Let me repeat that so this astronom- City, with its population of 8 million. fession, a profession practiced by many ical figure can sink in: a 1,000-percent On 9-member firm with an office in in this Chamber. increase. It almost defies logic. In 1998, Madison County claims to handle more No. 1: Discourage litigation. Point there were only two class actions filed mesothelioma cases than any firm in out how the nominal winner is often in the county. In 2000, that number the country. the real loser in fees, expenses, and rose to 39. In 2001, there were 43 new And who benefits form all this litiga- waste of time. class actions. tion? One Madison County judge ap- No. 2: Never stir up litigation. The One year later, the bridges leading to proved a $350 million settlement worst man can scarcely be found than the riches of Madison County were against AT&T and Lucent for allegedly the one who does this. Who can be clogged with carpet-bagging lawyers as billing customers who leased tele- more nearly a fiend than he who habit- word hit the street that the local court phones at an unfair rate. What did the lawyers get? Forty-four lawyers from ually overhauls the register of deeds in there was giving away money like it our firms will split $80 million for legal search of defective titles and stirs up was Christmas Morning. Enterprising fees and $4 million for expenses. And strife to put money in his pocket. The plaintiff’s lawyers looking to make a the customers? They actually lost moral tone ought to be infused into quick buck knew that Madison County money. After their legal fees, the aver- such a profession which should drive was the place for business. This in- age class member got hit for $6.49. That such man out of it. cludes millions of people. In 2002, 77 is outrageous. No. 3: An exorbitant fee should never class action suits were field. In 2003, Lincoln’s example is a distant mem- be claimed. there were another 106. Between 1998 ory in Madison County and clearly That was Abraham Lincoln. These and 2003, the number of class actions in something is rotten in middle America. words were uttered during a time when the county rose from 1 to 106. The Washington Post has succinctly being a lawyer carried a title of honor, In the classic American musical The described the situation. ‘‘Having in- integrity and trust. Unfortunately, Music Man, a con man came to take vented a client, the lawyers, also get to these words no longer carry such mean- advantage of a small Midwestern town. choose a court. Under the current ab- ing for the lawyers who descend on In today’s revival, a marching band of surd rules, national class actions can Madison County. In the ‘‘Land of Lin- lawyers has descended on Madison be filed in just about any court in the coln,’’ the rule of law has been cor- County, with tall tales of jackpot jus- country.’’ And those lawyers are pick- rupted almost beyond recognition by tice and the dream of getting some- ing Madison County. They’re picking it self-interested personal injury lawyers, thing for nothing. Only this time the because it is what some call a magic plaintiffs, and public officials without judges of that Midwestern town have jurisdiction. any sense of shame. joined hands with the con-men to take Dickie Scruggs happens to be a friend Unscrupulous personal injury law- all of America for a ride. Even when of mine. He made this comment. Dickie yers go forum shopping to find friendly the purveyors have law degrees on is one of the most wealthy and success- jurisdictions such as Madison County. their walls, snake oil is still snake oil. ful trial lawyers in the country. But he Then the judges in those jurisdictions Just in the last 3 years, the lawyers said this regarding Madison County are frequently compromised by cam- who flocked to Madison County suc- and the ‘‘magic jurisdictions.’’ paign contributions from the very ceeded in having the following classes What I call the ‘‘magic jurisdictions’’ ... same law firms arguing in their court- certified: is where the judiciary is elected with verdict rooms and certify these cases with the All Sprint customers in the entire money. The trial lawyers have established proverbial rubberstamp, even though Nation who have ever been discon- relationships with the judges that are elect- they don’t deserve certification. nected on a cell phone call in a suit in ed; they’re state court judges; they’re popu- Finally, sympathetic local juries try- Madison County; every RotoRooter lists. They’re what got large populations of ing out-of-state corporations bestow customer in the country whose drains voters who are in on the deal, they’re getting their [piece] in many cases. And so, it’s a po- unjustified and sometimes outrageous might have been repaired by a non-li- litical force in their jurisdiction, and it’s al- awards. censed plumber; and all consumers who most impossible to get a fair trial if you are This pattern of behavior is not only purchased limited edition Barbie dolls a defendant in some of these places. The an affront to the due process right of that were later allegedly offered for a plaintiff lawyer walks in there and writes the defendants, but it breeds disrespect lower price elsewhere. the number on the blackboard, and the first for the rule of law itself. Those are just three examples of how juror meets the last one coming out the door Let me refer to this chart. ‘‘Honest ridiculous this was getting. If it were with the amount of money. The cases are not Abe’’ would be ashamed, and I would won in the courtroom. They’re won on the not so tragic, it would almost be easy back roads long before the case goes to trial. say anyone else would be ashamed who to laugh at these cases. We laugh at Any lawyer fresh out of law school can walk studied his life. The ‘‘Land of Lincoln’’ the thought of small county court- in there and win the case, so it doesn’t mat- has become the land of lawsuits. Madi- house in Illinois adjudicating cases ter what the evidence or the law is. son County has become the principal against national companies, involving This was Dickie Scruggs talking to place where they bring these frivolous various State and Federal regulations, Asbestos for Lunch, in May 2002. I lawsuits and where they bring them be- and involving millions if not billions of think Dickie Scruggs has been very cause they are forum shopping. They dollars in settlements—but where nei- honest and accurate. I don’t think any- know they can take unfair advantage. ther the plaintiffs nor the defendants body can deny what he is saying. It is easy to see. They hire the attor- are typically residents of the county. What makes it so magical? In a neys right there in Madison County These locally elected judges, with the magic jurisdiction, the supposedly ob- who have helped to support the judges close assistance of interested plaintiffs’ jective judge and jury both stand to who sit on the bench. The juries in that attorneys, merrily continue to set pol- gain from the settlement. Madison county don’t care what the rule of law icy for the entire nation, defying the County is, the Chicago Tribune noted, is or what reasonable approaches to the principles of self-government on which a jackpot jurisdiction where local law really may be. our Federal system is based. newspapers ‘‘sport advertisements The courthouse in Madison County, This situation is a mess and a few looking for the local plaintiff who can IL is now described as ‘‘magnet court,’’ plaintiffs’ lawyers are exploiting it to provide a convenient excuse to file.’’

VerDate May 21 2004 01:42 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.005 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7713 This choice of venue might have porations that do business in every It simply defies belief that the small something to do with the fact that the state. Madison County is not chosen as county courts are the proper venue, elected judges of the circuit court of the venue because of its quaint sce- much less a capable one, for complex Madison County receive at least three- nery. It is chosen because it is a sure multijurisdictional litigation. The quarters of their campaign funding thing, a sure bet. The fix is in. If it was plaintiffs bar has put its business from the lawyers who appear before a sport, we would say the game was model into motion in Madison County. them in these class action suits. Unbe- thrown. Defendants in these class ac- First, find sympathetic judges, then lievably, since it so obviously smacks tions do not get a fair shake in Madi- bankroll their campaigns, and to seal of corruption, this is an increasingly son County. the deal rush defendants into court common occurrence all over the coun- This is not a triumph of federalism without giving them an opportunity to try. It is all enough to make an honest and local decisionmaking. It is the investigate the claims against them. person cringe. evisceration of federalism. One of the Justice demands fairness, but our sys- As a fellow attorney, who has taken bedrock principles of a Federal govern- tem of decentralized class action liti- an oath to support justice and the law, ment is that states are largely free to gation is fundamentally unfair to de- this story of juries and judges in the regulate their own particular affairs. fendants, to plaintiffs, and the average back pockets of those arguing before To allow one State to legislate for an- American who ends up footing the bill them, turns my stomach. Magic juris- other is to violate an important prin- for the unjustified billion-dollar settle- ciple of self-government that this diction? Judicial black hole is more fit- ments. country is built upon. In the case of ting. I thought we would compare this to In a simpler time, a State court Madison County, a trial bar that knows few limits, coupled with a ready and Monopoly. Let’s play Class Action Mo- would only certify a class if there was nopoly. Go. Come up with an idea for a a substantial local connection. The able courthouse, is in fact imposing the will of a small few on the entire Na- lawsuit. Find a named plaintiff to pay judges of Madison County have created off. Make allegations, no proof is need- an environment, however, where a life- tion. Madison County has been flooded with class action claims and now the ed. Get out of rule 23—which is an ap- time resident of Washington State, propriate rule—get out of rule 23 free. who worked in Washington, was alleg- Nation is drowning in them. This is a classic case for Federal intervention. Convince your ‘‘magnet’’ State court edly exposed to asbestos in Wash- judge to certify the ‘‘class,’’ even ington, never received medical treat- In fact, this is a case study for the type of intervention in Federal affairs the though it is not certifiable. File copy- ment in Illinois, and had no witnesses cat lawsuits in State courts all over in Illinois to testify on his behalf, actu- Constitution was meant to allow. Let me refer to what happens in the country. Sue as many companies in ally thought it was worth a shot to Madison County and how it affects the as many States as possible, even if bring suit in a strange town halfway whole country. As this chart shows, the they have no connection to the State. across the country. What was his con- white dot in the middle is Madison Who gets the money? Columbia nection to Madison County? He vaca- County. The overwhelming majority of House case: $5 million for lawyers, dis- tioned in Illinois for 10 days with his class actions filed in Madison County count coupons for plaintiffs. Block- family nearly 50 years ago. are nationwide lawsuits in which 99 buster case, $9.25 million for lawyers, In this case, the court did the right percent of the class members live out- free movie coupons for plaintiffs. And thing and refused to certify this man’s side of Madison County. As a result, de- they were not very many of those, at claim. But that a lawyer would even cisions reached in Madison County that. Bank of Boston case, $8.5 million consider bringing it shows how far gone courts affect consumers all over the for lawyers. Some plaintiffs even had Madison County is. So far that the Illi- country. The county’s elected judges to pay out of their own pockets to pay nois Supreme Court took the extraor- effectively set national policies on im- for this, even though they were the dinary step of rebuking it. As legal eth- portant commercial issues. They do it ones for whom the suits were allegedly ics Professor Susan Koniak of Boston in a way that is basically dishonest. brought. University School of Law explains, There is a place for personal injury You ought to ask yourself, What hap- ‘‘Madison County judges are infamous law in the American justice system. pens to me? Your employer takes a hit, for approving anything put before Americans have a sacred right to take maybe lays you off. Your health and them, however unfair to the class or their case to court when they are car insurance premiums go up dramati- suggestive of collusion that is.’’ harmed by a person or a product. I will This isn’t justice. This is a travesty. cally, which we have been seeing. The stand up for those rights against any- lawyers win; you lose. The St. Louis Post-Dispatch, one of body and everybody, if necessary. Yet this Nation’s great newspapers, has fol- Almost everything in society goes this right is endangered by a seriously out of sight and goes up in cost because lowed this epidemic of litigation close- compromised class action regime, not ly, and they describe the run on the of what is happening in these jurisdic- just in Madison County but in other ju- tions and in these cases that really Madison County courthouse as resem- risdictions throughout this country. To bling ‘‘gleeful shoppers mobbing a should never have been brought to help resecure it we must enact this re- begin with. The Class Action Fairness going-out-of-business sale.’’ Due proc- form. ess itself is corrupted by this circus. Act is a modest reform. It is not a Today’s lawyers do not take cases great big change. It does not deprive What is going on in Madison County that come to them, they invent cases. substantive legal rights to any Amer- too closely resembles blackmail for my They behave like entrepreneurs who ican in this country. All it does is taste. The deck is stacked against find an issue before they find a plain- make it easier to put these national these companies hauled to Illinois to tiff. They act like businessmen, the cases where they belong; that is, in our answer these charges. The cases are CEOs of Trial Lawyers Incorporated. heard on an expedited basis that barely The problem is their business plan national courts. According to one gives the defendants a chance to re- makes hash of our system of impartial study, 98 of the 113 class actions filed spond. Under these pressures, they are justice and mocks our Federal arrange- in Madison County from 1998 to early typically given an offer they can’t ments. Much of this has occurred once 2002 could have been moved to Federal refuse, and they settle regardless of the the Supreme Court allowed attorneys court under this legislation. merits of the case. These ultimatums to advertise. The great lawyers never Justice demands that we act. Those offered by lawyers in cahoots with advertise. It is only those who are in who are injured will get their day in judges are better suited to an episode business to rake off the top of the crop. court. By voting for S. 2062 we will help of The Sopranos than to a supposedly To be honest, I personally would be make sure they get it in a court where impartial justice system. ashamed to advertise. If I was not good justice can be dispensed. Let’s be clear. These are not local enough to get clients without adver- I yield the floor. disputes. S. 2062 does nothing to re- tising, I would be ashamed. Now, it is The PRESIDING OFFICER (Mr. move local suits from local courts. legal under our system, but since that HAGEL). The Senator from Hawaii. These are suits brought on behalf of a happened, this is what is happening Mr. AKAKA. Mr. President, I thank nationwide class of clients against cor- throughout the country. you very much for recognizing me.

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.063 S07PT1 S7714 CONGRESSIONAL RECORD — SENATE July 7, 2004 I rise today to express my extreme those that have been precluded is the tree. He has precluded all Senators disappointment, along with the Sen- amendment by the Senator from Ha- from offering amendments. We recog- ator from Idaho, Mr. CRAIG, with the waii, which has bipartisan support, a nized in those dark days in the late actions of the majority leader in pre- good amendment, and I hope we can 1990s, when this was done with some venting the consideration of amend- get to it and get to it soon. frequency, what a counterproductive ments, including amendment No. 3547, I see our Democratic leader in the effort that was. Now we find ourselves the Native Hawaiian Government Reor- Chamber, Senator DASCHLE. I know he in exactly the same situation. ganization Act of 2004. Senator INOUYE has spoken to this issue many times. I Well, I was told this morning. I was and I filed this amendment in an effort would like to address the class action very troubled by this action. Now I am to have our legislation considered by bill, but I will at this point yield to the told that maybe one of the reasons it the Senate. minority leader and then ask to be rec- was done is because there are those on We have been working to enact this ognized after he has spoken. that side who do not want this version legislation now for the past 5 years. The PRESIDING OFFICER. The of class action passed. So in an effort The Senate Committee on Indian Af- Democratic leader is recognized. to preclude this version of class action fairs has favorably reported this bill Mr. DASCHLE. Mr. President, I being passed, they knew if they filled for the past three Congresses. Our leg- thank the distinguished Senator from the tree they would never get to final islation enjoys widespread support in Illinois. passage and they could, without finger- Hawaii, and nationally also. We con- As I was on the Senate floor, I no- prints, kill this version of class action, sider this a bipartisan measure. Our ticed he was calling attention to the knowing there would be unanimous op- Governor supports it, our State legisla- amendment that was contemplated by position to this procedural approach, ture supports it, and a majority of our the two Senators from Hawaii. They just as there has been on every occa- constituents support it. For 5 years we both spoke powerfully and eloquently sion when it was done in the past. have worked to enact this bill which about a month ago before the caucus So whatever the motivation was, it is has effectively been blocked from Sen- and at that time expressed the hope counterproductive, it is a real dis- ate consideration by a few of our Sen- that the caucus could support their ef- service to the Senators of Hawaii and ators who refuse to acknowledge native forts to deal, once and for all, on the Idaho and others who simply want Hawaiians as indigenous peoples. issue of Hawaiian recognition. their day in court, their opportunity to We have the votes to pass this legis- This is a very important issue for present their issues, who have not had lation. In fact, I am confident that we them. I think I can say without equivo- that opportunity, with the calendar have the votes to succeed on a motion cation or concern for contradiction pages turning and the clock ticking to proceed to S. 344. I must at this that our caucus was ready to stand and the time running out. point say that S. 344 has been cospon- unanimously in support of their effort. It is very unfortunate. I had told the sored by my colleague who preceded But it is the amendment offered by the majority leader that we would be will- me, my colleague from Utah, who is co- Senator from Hawaii that illustrates ing to work with him and I offered to sponsoring S. 344 as a freestanding the point we were making earlier have a limited number of nonrelevant version of my amendment. today. amendments—five. He objected. So Because of the kind of support we There is, I am told, one person in the given our circumstances, we are left have here on both sides of the aisle, we entire body who has an objection to the without recourse. are trying to have it considered. This is amendment offered by the Senators But, again, I thank the Senator from why we sought to have our legislation from Hawaii—one person. One person is Illinois for his kindness in yielding the considered today—because we knew we holding up the effort made by the two floor for me to make a couple com- could debate it quickly and pass it. I Senators from Hawaii courageously ments. join my other colleagues in expressing and persistently to deal with this ques- I tell the Senator from Hawaii that my disappointment, again, with the tion. And they came to us for advice: we will continue to find an opportunity procedural maneuvering that has oc- What do you think we should do? My for him to present his case to the Sen- curred today. suggestion was: Well, given the fact ate, and we will support him when his Thank you, Mr. President. I yield that we are in this situation, offer it as legislation reaches a vote. back my time. an amendment to the next vehicle. I yield the floor. The PRESIDING OFFICER. The Sen- This happens to be the next vehicle. The PRESIDING OFFICER. The Sen- ator from Illinois. They said: We don’t need a lot of time. ator from Illinois. Mr. DURBIN. Mr. President, first, I We could probably resolve this matter, Mr. DURBIN. Mr. President, I thank salute my colleague and friend from given the fact there is overwhelming the Democratic leader, Senator Hawaii. I am honored to be a cosponsor support for it, in a few minutes. I said: DASCHLE, for explaining the situation. of his bill. Senator AKAKA and Senator I will tell you this: Once we get on the Perhaps I am mistaken or maybe even INOUYE are two of our very best Mem- bill, you will have the first amendment naive, but it strikes me that the busi- bers in the U.S. Senate. It is rare, if on our side. And that is exactly what ness of the Senate is to debate and ever, that they ask their colleagues for the case was going to be. amend and consider important legisla- a helping hand. In this situation, Sen- We heard already from the Senator tion. When we reach a point where ator AKAKA and Senator INOUYE have from Idaho. He, too, has been working there is an effort to stop the process, to shown extraordinary leadership to diligently with the Senator from Mas- stop the debate, or to stop an amend- make recognition of a situation in sachusetts. He, too, said: This is not ment, it is pretty clear the underlying their home State that deserves our going to take a lot of time, but there is bill is not likely to pass. I don’t under- help. I am more than happy to join the a very critical question of temporary stand Senator FRIST’s strategy, but I Senator. workers and their status today, le- leave it to him to explain. I am disappointed, as Senator AKAKA gally, and if we don’t address this prob- I would like to speak for a moment is, that we are not going to have a lem, we are going to be facing increas- to the merits of the bill before us. It chance, apparently, to vote on this ingly difficult legal questions. And it is has a title anyone would fall in love amendment. As I understand it now, a crime that this—he did not use the with, ‘‘Class Action Fairness Act of Senator FRIST has come to the floor of word ‘‘crime.’’ That is my word. It is a 2004.’’ Probably most people following the Senate and has used a procedural crime. It is a shame that we are pre- this debate wonder why we are debat- device called ‘‘filling the tree,’’ which cluded from addressing the temporary ing it and what it means. If you ask means he has filed so many amend- worker issue. people if they are a member of a class, ments that no one else can file an But that goes to the heart of the sit- they will say: Not since I graduated amendment. So we are just stopped. uation we find ourselves in right now. from school, unless you mean the mid- The underlying bill, the class action In the first instance I can recall, the dle class. But this is different. bill, is an important and controversial majority leader has now done some- These are lawsuits that are brought bill, and now Senator FRIST has thing I thought we would never see by more than one individual in a par- stopped any amendments to it. Among under his leadership. He has filled the ticular complaint against a certain

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.065 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7715 company, for example. It might be all that I don’t think should be certified, nois or any other State for that matter the people who did business with a cer- some that are nothing short of harass- with similar circumstances? tain company who believe that they ment. But that is what the court sys- This legislation says the lawsuit have been wronged, that they are enti- tem is for. The court system is for a must be brought in the Federal court tled to some sort of compensation. It judge—in some cases, a jury—to decide system. We have two different court might be all the people living in a com- that question. Is there a legitimate systems, two major court systems. munity who have been victimized by class action? Could there be a class ac- There are other courts but two major the pollution of air or water by a cer- tion lawsuit filed on behalf of a group court systems. Each State has a court tain company. So instead of filing indi- of people in America that should be system, and then there is the Federal vidual lawsuits against the company or heard in a State court? That is the un- court system which, of course, applies the individual responsible for the derlying question because if this bill to us as a nation with its district and wrongdoing, they come together as a passes, sadly, we are going to make it circuit courts, and the U.S. Supreme class, a group of plaintiffs, and bring difficult, if not impossible, for State Court. many lawsuits into one. courts to try lawsuits involving class- Why would the people who wrote this Of course, this is a challenge to bring es, class action lawsuits. bill want to take that case that I have together a class of people who have a Let’s use an illustration. Let’s as- just described out of the courts of Illi- common interest. It is also difficult sume I own a company that I have de- nois and put it into a Federal court, many times to have these classes cer- cided to incorporate in the State of even in Illinois? Why? tified. In most lawsuits when you file, Delaware, which is a common thing, I think the reason is obvious. First, the first thing the court asks is, Do and that I sell a product. Let’s assume they are trying to create an environ- you have the right to file this lawsuit I sell a pharmaceutical product, a pre- ment and circumstance where that under the laws of the State or jurisdic- scription drug. I want to do business in group of people who bought that prod- tion in which you are filing? Illinois. Although I am incorporated in uct and were injured by it cannot bring When it comes to a class of plaintiffs, Delaware, I want to sell my prescrip- a lawsuit. They want to make it more a group of people filing a lawsuit, the tion drug in Illinois. difficult for them to bring a lawsuit as first thing the court asks is, Is this a One of the things I have to do is reg- a class of customers who have been legitimate legal class under the law? It ister my corporation in Illinois. In my wronged and injured. They put it in is the first step in the process. State you have to go to the Secretary Federal court because they know Fed- My colleagues from Connecticut and of State’s office, Index Division, and eral courts are already extremely busy Nevada have come to the Senate floor register—Corporations Division with criminal prosecutions and exist- to talk about one county in my home today—the name of your corporation, ing civil cases, so the likelihood that State of Illinois, Madison County, where it is located, and who can be the Federal courts will take on a new about the incidence of class action law- served with process. class action case is limited. They also suits in that county. They have told in- In other words, I have to identify a know that these Federal courts, when teresting stories but not the complete person in my corporation who will ac- it comes to figuring out which laws to story. We have done an analysis of cept a subpoena if my pharmaceutical apply, are very strict, much stricter class action files in Madison County. company is ever sued. That is one of than many State courts. We started in 1996. Since 1996, through So those who are arguing that we are the laws in Illinois. Almost every other February of this year, there have been changing this law, moving cases from State has the same law. You want to do 306 class actions filed. Some have said State court to Federal court so we can business as a corporation in Illinois, this sets a national record. It may. It get a more efficient outcome, I don’t you comply with the laws of Illinois. certainly is near the top in terms of think are being candid with the people The laws of Illinois require this filing the number of cases filed in this 8- or 9- following this debate. year period of time. But it doesn’t tell so you know who is doing business, and The underlying reason for this bill, the whole story. it is also an acknowledgment that you the so-called Class Action Fairness Act The next question is, How many of are bound by the laws of the State in of 2004, is to limit and restrict the these cases in Madison County, IL, which you are doing business. number of class action lawsuits that have been certified; that is, approved Now, let’s assume the pharma- can be brought across America. That is by the court to go forward? Remember ceutical my Delaware corporation is why the business interests in this town the earlier reference I made. You file selling in Illinois causes a serious prob- have spent not a small fortune, but a the complaint, a class action, and then lem. Let’s assume many people get sick large fortune, lobbying for passage of the defendant says to the judge: I chal- after they have taken my drug, and in- this bill. They are not looking for re- lenge the class. I don’t think it is a stead of each individual person wanting form of class action; they are looking legal class under Illinois State law or to file a lawsuit against my pharma- for repeal of class actions in many the law that is being applied. Then the ceutical company, the customers who areas, to stop people from filing these judge has to look at the plaintiffs, look purchased this pharmaceutical decide lawsuits. at the complaint, and make the deci- to come together as a class and bring a Those who are following the debate sion whether he will certify the class. lawsuit against my company. may say: Why should I even care about So of the 306 class actions filed in So all of the Illinois consumers and that? I am not going to file a lawsuit Madison County over this 8-year period customers who bought my pharma- or join a class filing a lawsuit, and I of time, how many have been certified; ceutical drug and were injured by it de- don’t care if anybody else does either. that is, gone forward with the lawsuit, cide to file a lawsuit against my com- I wish people would step back and over 8 years? Mr. President, 39 certified pany because I have sold a dangerous take into consideration some of the cases in 8 years, fewer than 5 cases a product in their State. class action lawsuits that have been year. Do you know what this class action filed. I think you will get an idea about It is because of this county, obvi- fairness bill says? This bill says that why this is an important part of our ously, that we have decided we need to customers of my company—registered legal process. We have three branches amend the law of America because five to do business in Illinois, having ac- of Government: legislative, Congress; class action cases are filed and cer- knowledged the fact that it is bound by executive, the President; and the court tified on average each year in one the laws of the State of Illinois, selling system at the State and Federal level. county in Illinois. That strikes me as its product in Illinois, having injured We say to Americans you have a right curious, that we would respond with a consumers in Illinois—cannot file a to elect the President, you have a right national law because five cases a year class action lawsuit in the State courts to elect Members to Congress, and you on a class action basis are being filed of Illinois. Why? Why would we say in also have a right to go into your State in Madison County, IL. The Senators that circumstance all of the injured and Federal courts and be represented from Connecticut and Nevada, time parties, residents of the State, the and to plead your case and to receive and again, say this is the reason. product is sold in the State by a cor- justice. Let me say in all honesty, there are poration licensed to do business in the What this underlying bill will do is to some cases filed in Madison County, IL, State, can’t be sued in the State of Illi- restrict individual American citizens

VerDate May 21 2004 04:00 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.068 S07PT1 S7716 CONGRESSIONAL RECORD — SENATE July 7, 2004 in their rights to come together as a to a settlement, and here was the set- class they stand together, bring the class and file lawsuits in State courts tlement: Class members, those who lawsuit, and they can recover. against corporations doing business in bought the drug Rezulin, would receive There are so many other cases. Here their States, selling goods and services up to 85 percent of their out-of-pocket is one. On July 26, 1993, the chemical in their States. expenses related to the prescription Oleum, a sulfuric acid compound, Let’s look at a few examples of class drug. leaked from a railroad tank car at Gen- action lawsuits which I think illustrate While Warner Lambert’s liability for eral Chemical’s Richmond, CA, plant. these are not cases that should be eas- concealing the true dangers is clear, General Chemical, based in New Jer- ily dismissed or restricted, as the bill look what happened when you see the sey, is one of the largest manufacturers does. Here is a product made by Warner same lawsuit brought to a Federal of sulfuric acid in America. The leak Lambert, a drug company. Warner court, which this underlying bill would caused a cloud to spread over North Lambert made a product known as try to achieve, as opposed to Illinois Richmond, CA, a heavily populated Rezulin. They prescribed it for type II State court. When this lawsuit was community. Over 24,000 people sought diabetes and started selling it in 1997. brought in a Federal court in the medical treatment in the days fol- They told the people it was as safe as Southern District of New York, that lowing the leak. General Chemical en- a placebo, extraordinarily safe, and not Federal court denied class certification tered into a $180 million class action harmful to consumers. and basically came to the conclusion settlement with 60,000 northern Cali- There was a couple living in Granite that if the drug was dangerous, there fornia residents who were injured or City, IL, which happens to be in Madi- would be an awful lot of personal in- sought treatment from the effects of son County, and the man who lived jury cases filed. Therefore, this class the release of this dangerous gas. While there was suffering from diabetes. He action wasn’t necessary. only California residents were injured was an older fellow who served in the The Illinois trial court disagreed. As and the harm occurred only in Cali- Navy. There are many people like him a result, the victims in Illinois re- fornia, this case would have been re- in those blue-collar neighborhoods in ceived compensation. It turned out moved from California courts under the Granite City. He was on oxygen at age they were going to receive up to 85 per- bill we are considering to a Federal 71. He got along pretty well, but he had cent of their out-of-pocket expenses for court. Why? Because the company, General Chemical, was based in New heart problems and bypass surgery. Un- this drug. That is an example of a class Jersey. All of the injuries were in Cali- fortunately, he had to take some medi- action lawsuit. fornia, all the victims were in Cali- cations. He took nitro tablets and You go to the doctor tomorrow. He fornia, the actual harm occurred in about 15 medications a day, two of prescribes a drug. You find it was over- California, the company was doing which were insulin. He was diagnosed priced or dangerous and an effort is business in California, transporting its with diabetes 20 years ago and had very made to say to the pharmaceutical chemicals. Yet under this bill they few complications. He went to his doc- company you cannot benefit from these could not be sued in a California court. tor and the doctor prescribed Rezulin, ill-gotten gains, you must pay back to We talk about dangerous drugs. Post- which is made by Warner Lambert. He the consumers what you overcharged. al workers were given Cipro after the remembers when the prescription was A class of consumers who brought the anthrax attacks of 2001. We remember given to him because when he went to drug came together and they received that on Capitol Hill. Many of them the drugstore, he found out it was very the money back from the pharma- were from New Jersey. The postal expensive. He told the doctor he could ceutical company, as they did in this workers filed a class action in New Jer- not afford it. The doctor gave him sam- class action case. This is an illustra- sey State court for damages and harm ples to take home. tion. In Illinois, the case went forward. arising from the drug’s side effects. Three years after this drug, Rezulin, Consumers had money come back to The suit was filed against Bayer AG— came on the market, the FDA asked them. In the Federal court, the case you have heard of Bayer Aspirin; it’s Warner Lambert to voluntarily remove was basically stopped. the same German company—and its the drug from the market because it Here is another one. This involves a U.S. subsidiary that is based in Penn- was causing too high an incidence of New York State court certifying a sylvania, as well as against several liver failure and many other deadly class of over 200 nursing home resi- New Jersey hospitals. The side effects side effects. Then this individual was dents living at Barnwell Nursing Home listed in the suit include joint and ten- taken off the drug because of that in Valatie, NY. don injuries; neurologic, cardiologic, or warning. They gave him another drug. In the process of certification, it was central nervous system disorders; and A class action lawsuit was filed by found the Barnwell Nursing Home resi- gastrointestinal disorders. Bayer sold people who purchased this drug in Illi- dents potentially received substandard the drug. The people who used it were nois. The case they brought said the care, violating the public health laws largely from New Jersey. Bayer was a pharmaceutical company violated the of the State, which protect nursing company based in Pennsylvania, but New Jersey consumer fraud statute, home residents from the deprivation of doing business in New Jersey. which is the State in which Warner basic necessities like heat, good food, In this case, while several named de- Lambert was incorporated. They vio- privacy, and socialization. fendants are New Jersey hospitals, the lated the New Jersey consumer fraud The plaintiff died of septic shock be- case would have been removed to Fed- statute by pricing the drug much more cause she was neglected by nursing eral court. The reason behind this is in excess of the price the drug would home staff. Following her death, the not only to move them to Federal have been. If anybody had known the New York Department of Public Health court, but to make it less likely the side effects, nobody would have taken issued a 24-page statement of defi- cases could be successfully filed. We it, anyway. So not having disclosed the ciencies at the Barnwell home. The have seen, when cases are brought to side effects, Warner Lambert was still reason I raise this is to give you an Federal court, they favor less liability. charging more than they should have idea of the variety of class action We have seen that the Federal courts been charging for the drug. It turns out cases. Here, 200 residents of a nursing are less likely to certify class. We have many insurance companies came to the home were not receiving what they seen that Federal law discourages Fed- same conclusion. They thought they were required to receive under State eral judges from providing remedies were paying too much to Warner Lam- law. One died from neglect in that under State laws. bert for a drug that wasn’t that good nursing home. They came together as a The people who brought this bill to and had deadly side effects. class to say the nursing home was not the floor understand that. Whether it The case was certified by the Illinois treating them fairly. Some would is because of a dangerous gas leak in State court as a class action on behalf argue, why didn’t they file individual California or a drug that is sold in Illi- of all of the purchasers of this drug in lawsuits? How likely is it your grand- nois or New Jersey, they want to limit Illinois, and the case would apply New father or grandmother who is in a nurs- their liability and exposure. So they Jersey law as the violation of the con- ing home will look for a lawyer to fight are basically closing the courthouse sumer fraud statute. Shortly after the a lawsuit in court, when in fact they door to hundreds, if not thousands, of class was certified, the parties agreed have been treated wrongly? But as a American citizens.

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.071 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7717 Whether we are talking about envi- given advice on this issue: Please do Mr. SCHUMER. Mr. President, I ask ronmental pollution that is dangerous not pass these bills. Please do not send to be recognized for 10 minutes. to our families caused by an out-of- these class actions to Federal court. The PRESIDING OFFICER. Without State company, or about a dangerous Those of us who sit on the Judiciary objection, it is so ordered. gas leak here, the purpose of this bill is Committee know many of our Federal Mr. SCHUMER. Mr. President, I rise to make it more difficult for injured courts are extremely busy. They are today to express my support for S. 2062, individuals, injured customers, and in- dealing with cases involving criminal the Class Action Fairness Act. Until jured families to recover. law, terrorism, and a very crowded this morning, I was very hopeful we Why in the world would we do this? civil docket already. What this bill would finally have the opportunity to We do this because the businesses that would do is send these same complex discuss this important issue and move are being sued by these class action class action lawsuits, now in State the bill forward. lawsuits do not want to be exposed to courts, off to the Federal courts in As is well known now, last fall I these lawsuits. By having less exposure large number. Chief Justice Rehnquist joined with my colleagues, the Senator to these lawsuits, they will be able to has advised us that the Federal court from Connecticut, Mr. DODD, and the keep more money. They will not pay system is not ready to receive these Senator from Louisiana, Ms. LANDRIEU, out as much to those who have been in- cases. to help craft a compromise that now jured or aggrieved. That is a natural What does that mean? It means the constitutes the bill before us. Because I business reaction. They want to maxi- people who are in the classes will not have worked long and hard to move mize profits. Businesses want to do get their day in court. Justice will be this bill forward, I was very dis- that. But is that the right reaction of delayed and ultimately denied to them, appointed at the turn of events earlier the Senate to ignore the victims in and that is part of the strategy. The today. these lawsuits, to ignore the people strategy is to make it extremely dif- We have two strains going on here who come together because they have ficult to bring a class action lawsuit, that are sort of colliding, and I do not been hurt, damaged, or lost money, and to limit the opportunities for those think they should necessarily collide. to say instead we are going to protect who have been injured, either in body One is the desire of a majority in this these corporations from these law- or in monetary loss, from having their Chamber—62 at last count—on both suits? day in court. sides of the aisle to move the class ac- There are ways of tightening up the This bill has bipartisan sponsorship. tion bill forward, and that desire re- laws when it comes to class actions. I There are 10 or 11 Democrats who sup- mains. That burns brightly in my would support them. I think there are port it. I am sure they will speak on breast. I think we should move this frivolous class actions that should not behalf of it, but from where I am stand- bill. There has been a lot of work put go forward. I think some of these cou- ing, I think this goes far beyond class into it. There have been compromises pon settlements as part of these class action reform. This is an effort to close along the road. It strikes a fair bal- action lawsuits border on the ridicu- the courthouse doors. For some, that is ance, and I will talk more about that lous if not cross the border. fine. They say, fine, don’t let them go in a minute. There is a lot we can do to tighten up to court because it means they will We also have the workings of the the law. But why is it the only thing have lawyers and lawyers will be paid Senate, and that always is grafted on this Senate has been about in its de- fees and we do not want to see that top of whatever legislation we have. We bate over the last several years is lim- sort of situation. all know the majority party is allowed iting the opportunity of an American Time and again, when we tell the sto- to set the agenda, and next week, for citizen to have a day in court? Why is ries of the individuals who have been instance, we are doing a constitutional it that is what is driving the Senate harmed or injured, who are looking for amendment against gay marriage, agenda? someplace to turn, they cannot find a which no one thinks will come close to It is important for us to understand law that has been passed by Congress the two-thirds vote, but it is the ma- that when it comes to the priorities of that gives them a fighting chance, they jority’s right to set that agenda. That this Nation, we need to establish one cannot find an agency of the Govern- is fair. But just as it is the majority’s priority over all, and that is the pri- ment that is going to protect them. right to set the agenda, it is the mi- ority of equal justice under the law. Their only recourse and final recourse nority’s right to offer amendments— If a resident of Nebraska or Illinois is to go to court. The purpose of this some germane, some not—on whatever or New York were injured by a product Class Action Fairness Act of 2004 is to is before us. That is what has always sold in their State by a company li- close the courthouse door to hundreds, kept the balance in this Chamber. The censed to do business in their State, I if not thousands, of Americans who buy majority does not have complete con- believe they should be able to go to defective products, who are exposed to trol of what is on the agenda because of their State court and file a class action dangerous pollution, who are buying our nongermaneness rule. That is what and ask that it be certified. This under- drugs that, frankly, are unsafe and be- distinguishes us more than anything lying bill says they cannot, and I refer lieve the pharmaceutical companies else, at least procedurally, from the to page 15, subsection 2, and I will read should be held accountable. This bill House of Representatives where the it: will close the courthouse door and Rules Committee can block off all The district courts— make it extremely difficult, if not im- amendments, and the majority can Federal courts— possible, for them to pursue their legal have iron-tight control. To me, this fits the Founding Fa- shall have original jurisdiction of any civil course of action. action in which the matter in controversy I think that is the wrong way to go. thers’ basic conception of the Senate as exceeds the sum or value of $5,000,000, exclu- I know the business community and the cooling saucer. When the majority sive of interest and costs, and is a class ac- the special interests behind them think has certain rights, it slow things down, tion in which the fewer lawsuits filed against them there is no question about it. (A) any member of a class of plaintiffs is a the better. I assume if my job in life That delay—delay is the wrong citizen of a State different from any defend- were to maximize profits in these com- word—but that sort of more careful ant. . . . panies, I would think the same thing. rendering of the process often makes If a corporation is incorporated in But that is not our job. Our job is to better legislation. As we know, the Delaware or any other State and does provide equal access under the law to Founding Fathers were afraid that leg- business in your State, this is an auto- all Americans. islation would move too quickly matic pass. This means your class ac- This bill, the class action fairness through the body, and the Senate em- tion lawsuit goes automatically to bill, is going to restrict, reduce, and bodies that. Federal court. deny access to the court system for This morning, I thought the offer of Chief Justice Rehnquist across the Americans who have been injured. the Senator from South Dakota, Mr. street does not give us much advice— Mr. President, I yield the floor. DASCHLE, was extremely reasonable. He separation of powers, two different The PRESIDING OFFICER. The Sen- said let us do four or five nongermane branches of Government—but he has ator from New York. amendments and then proceed to the

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.074 S07PT1 S7718 CONGRESSIONAL RECORD — SENATE July 7, 2004 germane amendments. I do not recall if support on the floor, and I think one of tunity to have their class action heard he said it on the Senate floor—I did not the others is from the Senator from Ar- in court, but it is a Federal court. hear his whole speech—but he has said izona, Mr. MCCAIN. So it is hardly that We worked hard to improve the bill. to all of us on the Democratic side who the nongermane amendments are a The agreement that we have struck on want to move class action reform that Democratic wish list. If there are five, class action lawsuits preserves the we would not take hours and hours and and two are Republican and three Dem- ability of Americans to bring lawsuits days and days on each of the non- ocrat, that seems to be a pretty fair di- in a fair and responsible way, while germane amendments; that the debate vision. doing away with forum shopping and would be done rather quickly. Well, I renew my plea to the majority lead- other abusive tactics. This is why the that is the minority’s right. That is er to accept Senator DASCHLE’s offer, three of us, Senators LANDRIEU, DODD, what it is all about. which I think was fair and reasonable. and myself, were willing to stick our When Senators DODD, LANDRIEU, CAR- If not, we risk having no bill, despite necks out a little bit and work on this PER, KOHL, and I, all of whom have the efforts of many of us. compromise with Senator KOHL, who worked so long and hard on this bill, I want to discuss for a minute why I has been a leader on this issue on the met with the majority leader and oth- support this legislation. I have been Judiciary Committee, and Senator ers, we made it perfectly clear about concerned for some time that lawsuits CARPER, who has championed the pro- the right of the minority to offer a lim- have gotten out of control in America. posal for so long. We want to see the ited number of nongermane amend- I am not one of those who think law- bill move forward. ments, not one but a number. When suits have no use. I think they have The bottom line is that it will not Senator DASCHLE said five, that seemed plenty of use and they are needed. unless the Democratic leader—and I perfectly reasonable to us, and that Often those without power, it is their want to salute the Democratic leader. was rejected by the majority leader. only bit of power to get redress. There He does not like this. This puts us and the whole class action is no question about it. The PRESIDING OFFICER. The Sen- bill at risk. At a time when we are pulling back ator’s time has expired. Make no mistake about it, if we can- from governmental regulation—I would Mr. SCHUMER. I ask unanimous con- not work this out, we will not have a much prefer to see government regu- sent for an additional 3 minutes. bill. Even if we do work it out, it is late, whether it is pollution, health The PRESIDING OFFICER. Without going to be difficult enough to get a care, or other things, than have law- objection, it is so ordered. bill. The kinds of abuses I have worried suits do it. Lawsuits are sort of a hit- Mr. SCHUMER. I salute our Demo- about and why I was willing to step for- or-miss way. But the impetus for law- cratic leader. I know, because he has ward and support this bill as modified suits increases as the impetus for gov- expressed it to me in very clear terms, will be lost. ernment regulation decreases, and ob- how much he dislikes this bill. Instead So the first thing I will do today is viously in this administration it has. of trying to delay, he has come up with make a plea to our majority leader, Having said that, I still believe we a reasonable proposal. who I believe does operate in good need lawsuits, but they should be done As I said, the bill is a bitter pill for faith—I realize he has a fractious cau- fairly. One of my big beefs is that for many to swallow. They have a different cus behind him and there are different some time now too many lawsuits have view on class action lawsuits than I do opinions within that caucus, but I urge been filed in local State courts that or my good friend from California, who the majority leader to reconsider his have no connection to the plaintiff, the just came into the Chamber, but they rejection or objection to Senator defendant, or the conduct at issue. This are willing to do it because they know DASCHLE’s offer, which I thought was allows forum shopping. Forum shop- there is a majority of 61 or 62 who basi- fair and reasonable. I know that my ping is something that undercuts the cally support this proposal. colleague from Connecticut, Senator basic fairness of our justice system. So the bottom line, again, is the Sen- DODD, thinks that because I heard him Certain courts in certain places—and ator from South Dakota has made a speak on the floor earlier today. I people have talked about it earlier reasonable proposal. He is not offering think it would be seen as reasonable as today—have become magnets for all dilatory tactics, and I hope that pro- well, if I am not speaking out of turn, kinds of lawsuits. Some of these law- posal will be accepted. by most of my colleagues on this side suits are meritorious; some are not I have not been a Member of this of the aisle, the 10, 11, or 12 of us who meritorious. In either scenario, my body as long as many of my colleagues, support class action reform. strong belief is that if the case affects but in my 6 years, I have come to ap- So make no mistake about it, if the the Nation as a whole, it should be preciate that the Senate is designed to bill does not move forward, it is be- heard in Federal court. One should not be a deliberative body. Sometimes the cause the majority was unwilling to have a judge in a small county make Senate lives up to this grand tradition allow the Senate to proceed as usual, law for all of America. Maybe that of debate and process very well, but at which is to allow some nongermane judge will make good law, but the odds other times, and that is what it looks amendments. are that parochial concerns will be too like is happening up to now today, we For many on our side of the aisle— strong in that type of decision. fail. We have to let the deliberative not me because I support it—this is a For that reason, I agreed with my process of the Senate take its course if bitter pill to swallow. To then add in- colleagues who support this bill that the Class Action Fairness Act is to be- sult to injury saying no nongermane something needed to be done to rein in come law. amendments are allowed will be the forum shopping and abusive class ac- Mr. President, I yield the remainder straw that breaks the camel’s back. tion litigation tactics. When con- of my time and yield the floor. Even allowing one nongermane amend- sumers allege that a product sold na- The PRESIDING OFFICER (Mr. ment would not be enough. tionwide to consumers in all 50 States SUNUNU). The Senator from California. So, again, I renew my plea to the ma- is defective, it ought to be a Federal Mrs. FEINSTEIN. Mr. President, I jority leader—and I want to under- court to decide that case. Actually, my rise to speak on this bill. score, again, I met with him numerous belief is that probably there should be The PRESIDING OFFICER. The time times on this legislation, and I believe Federal law to decide those kinds of on the minority side has expired. he is functioning in good faith and he cases, and eventually we will probably Mrs. FEINSTEIN. I was going to wants a bill—to reconsider Senator move in that direction, but at the very speak in favor of the bill. DASCHLE’s offer. It will not take much least it ought to be the Federal court. The PRESIDING OFFICER. The time time. My guess is we can consider This bill does not take away anyone’s on the proponent’s side contains 55 those amendments quickly. right to sue or his or her ability to minutes, so the Senator is recognized. Of the five that I have heard about, bring a suit as a class action. I oppose Mrs. FEINSTEIN. I appreciate that. two are Republican amendments. We such legislation. I would not want to Mr. President, I wish to speak in all heard the good Senator from Idaho eliminate class actions. Instead, the favor of the bill, but I also wish to say who seems to want to be able to offer bill ensures that consumers, employ- that I very much hope some accommo- his amendment, an amendment that I ees, and all citizens have an oppor- dation can be reached so this bill can

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.077 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7719 come to a vote. It is an important bill. yers looking to strike it rich in Jefferson merous occasions to testify. I endured the It is a bill that deals with a very real County and I write to you today to tell you whispers and questions of my customers and problem, and I would like to challenge that our legal system is broken and that the neighbors wondering what we did to end up every Member of this august body to Class Action Fairness Act will help fix it. in court so often. And, I spent many sleep- less nights wondering if my business would read this bill. I have read it twice. It is Over the next few days, et cetera, et cetera, we will be debating this legisla- survive the tidal wave of lawsuits cresting easily understood. It is in very plain over it. Today, even though I no longer own English. It essentially provides a guide tion. This is the important part, this is the drugstore, I still get named as a defend- to consumers as to the protocols and what she said in committee, and this is ant time and again. regulations that govern what has been the overarching need to stop forum This lawsuit frenzy has hurt my family and a murky area of class action lawsuits. shopping: my community. Businesses will no longer lo- It is legislation that is long overdue. For thirty years, my husband, Navy Sea- cate in Jefferson County because of fear of I very much appreciate the position man Fourth Class Mitchell Bankston, and I litigation. The county’s reputation has driv- lived our dream, owning and operating en liability insurance rates through the roof. of my leader, Senator DASCHLE, in No small business should have to endure wanting to protect our minority rights, Bankston Drugstore in Fayette, Mississippi. We worked hard and my husband built a the nightmares I have experienced. I’m not a in wanting to have an opportunity to solid reputation as a caring, honest phar- lawyer, but to me, something is wrong with have a debate on bills that Members on macist. our legal system when innocent bystanders this side think are extraordinarily im- But our world and our dreams were shaken are little more than pawns for lawyers seek- portant, as do Members on the other to their foundation in 1999, when Bankston ing to win the ‘‘jackpot’’ in Jefferson Coun- side. In the past, a fair way has been Drugstore was named as a defendant in a na- ty—or any other county in the United States found, so I hope that will be the case. tional class action lawsuit brought in Jeffer- where lawsuits are ‘‘big business.’’ As I said, I believe the way class ac- son County against one of the nation’s larg- This is really the point. I heard the tions are conducted is, in fact, a real est drug companies, the manufacturer of distinguished Senator from Illinois Fen-Phen, an FDA-approved drug for weight make a very important point about the problem. I have spent a considerable loss. amount of time on the issue through different kinds of cases that are in- Judiciary hearings, many personal Here is where it gets difficult, and volved. But what we are talking about meetings with those on both sides of now I am speaking, not quoting Mrs. is forum shopping. It is specifically set- the issues, plaintiffs and defendants, Bankston. Fen-Phen certainly had ting up a class action to be able to get and a lot of time and energy on re- problems. The reason for litigation can that case into a specific place, a friend- search and analysis. I eventually came be very clear. However, the rationale ly county. to the conclusion that the supporters for forum shopping and, more impor- The Bankstons were actually sued of this bill have clearly identified this tantly, how forum shopping is con- more than 100 times for doing nothing problem and have come up with a rea- ducted, is what this letter and what other than filling legal prescriptions. soned solution. Hilda Bankston’s story is all about. The pharmacy had done nothing wrong. More than identifying the problem, Though Mississippi law does not allow for They were the only drugstore in the the supporters of this bill—Senator class action lawsuits, it does allow for con- county, a county that was so plaintiff solidation of lawsuits or mass actions as KOHL, Senator GRASSLEY, Senator CAR- friendly, I am told, that there are actu- long as the case involves a plaintiff or de- ally more plaintiffs than residents. PER, and others—have worked dili- fendant from Mississippi. gently over the course of the last few Because of the arcane and problem- Here it is: years to answer criticisms and con- atic rules now governing class actions cerns, to address real issues, and even Since ours was the only drugstore in Jef- in U.S. courts, the plaintiffs’ lawyers ferson County and had filled a prescription to make significant changes in the shopping for a friendly court just need- for Fen-Phen, a drug whose manufacturer is ed to name a local business in order to original legislation, changes that made headquartered in New Jersey, the plaintiffs’ this bill better at every single turn. attorney named us in their lawsuits so they file their national lawsuit in that coun- The bill before us, then, is the result of could keep the case in a place already known ty. That is all it took. Before they many changes and compromises, both for its lawsuit-friendly environment. They knew it, the Bankstons were defend- in the Judiciary Committee and more could use our records as a virtual database of ants in dozens of essentially frivolous recently changes made after further potential clients. suits against their small pharmacy. negotiations with Senator SCHUMER So not only was she not involved, This was a family torn apart by liti- and others pending floor action. Sim- they just happened to fill a prescrip- gation. I use this case because, of all ply put, the legislation in its current tion and they became a source for liti- the hearings that have been held in the form is more moderate, more reasoned, gation. Judiciary Committee in 12 years, this and will be more effective than past Mitch had always taken the utmost care woman made a profound impression on versions of the bill. and caution with his patients. As the Fen- me as I sat there hour after hour and I thank Senators HATCH, GRASSLEY, Phen case drew more attention, he became listened to the testimony. and KOHL for so diligently working increasingly concerned about what our cus- Let me hasten to say that this abuse with me and others throughout this tomers would think. His integrity, honor, comes from just some class action law- and reputation were on the line. Overnight, process to correct a number of poten- yers—not all of them but some—who our life’s work had gone from serving the forum shop national class action law- tial problems or areas of confusion that public’s health to becoming a means to an were within the original bill. I know end for some trial lawyers to cash in on lu- suits and file them in States and coun- they have many forces pulling on them crative class action lawsuits. ties where they know the court will ap- from all sides, and I appreciate the Three weeks after being named in the law- prove settlements favorable to them time they spent in addressing these suit, Mitch, who was 58 years old and in good without concern for class members. concerns. health, died suddenly of a massive heart at- What does this bill do? The amended Let me talk a little bit about the leg- tack. In the midst of my grief, I was called Class Action Fairness Act goes a long to testify in the first Fen-Phen trial. islation and what it does and how I be- way toward stopping forum shopping I sold the pharmacy in 2000, but have spent by allowing Federal courts to hear na- came involved in it. I will never forget many years since retrieving records for a hearing before the Senate Judiciary plaintiffs and getting dragged into court tional class action lawsuits that in- Committee 2 years ago. At that hear- again and again to testify in hundreds of na- volve plaintiffs and defendants from ing, we heard from a woman by the tional lawsuits brought in Jefferson County different States and which involve name of Hilda Bankston. She owned a against the pharmacy and out-of-state man- more than 5 million in claims. I think small pharmacy with her late husband, ufacturers of other drugs. Class action attor- the original bill was 2 million. We in Mississippi. Since that time, Mrs. neys have caused me to spend countless amended it in committee to make it hours retrieving information for potential Bankston sent a letter to us, and she even bigger so we could be sure as to plaintiffs. I’ve searched record after record the kinds of cases that would be af- summed up her testimony before the and made copy after copy for use against me. committee. I want to read it to you. At times, the bookwork has been so exten- fected. My name is Hilda Bankston and I live in sive that I have lost track of the specific The Framers of the Constitution Fayette, Mississippi. I am a former small cases. I had to hire personnel to watch the wanted Federal courts to settle dis- business owner who was victimized by law- store while I was dragged into court on nu- putes between citizens of different

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.079 S07PT1 S7720 CONGRESSIONAL RECORD — SENATE July 7, 2004 States. They wanted Federal courts to Since I have offered this amendment Now we are talking about the middle settle disputes between different citi- in committee, the so-called diversity third in this diversity. We have a third, zens of different States. The Constitu- amendment, I believe it made it much a third in the middle, a third on the tion itself states that the Federal judi- better, more narrowly tailored. I think end. In the middle third of cases, where cial power ‘‘shall extend . . . to con- my amendment went right to the heart between one-third and two-thirds of troversies between citizens of different of the bill and its purpose. So I would plaintiffs are from the same State as States.’’ like to spend a few minutes to talk the primary defendant, the amendment Historically, this meant that when about these amendments, how it gives the Federal judge discretion to one person sues another person who changed the original bill and the ways accept removal or remand the case lives in another State, or sues a com- in which I believe it is more clear, back to the State based on a number of pany headquartered in another State, more fair, and more workable. factors. In determining whether one of the suit can be moved to Federal court I offered one amendment, cospon- these middle third cases would go to with some limitations. sored by Senators HATCH, KOHL, and Federal or State court, the amendment Class actions involve more citizens in GRASSLEY, that was meant to do two directed the Federal judge to consider more States, more money, and more things. First, it simplifies the diversity these facts: interstate commerce ramifications jurisdiction section of the bill. Second, First, the judge must examine wheth- than any other type of civil litigation. it narrows the scope of the bill by re- er the case represents primarily a It only stands to reason that many of ducing the number of cases that auto- State issue or whether it is of national these cases should be heard in Federal matically go to Federal court. This impact. There are strong arguments to courts. Yet an anomaly in our current will allow Federal courts to focus on be made that State judges should not law has resulted in a disparity wherein the cases that are truly national in be making national law. This provision class actions are treated differently scope rather than cases that really be- is meant to reach into that issue. than regular cases and often stay in long in State courts. Second, the judge must consider State court. The current rules of proce- This amendment only addressed the whether the number of plaintiffs from dure have not kept up with the times, jurisdiction issues. It did nothing to the defendant’s home State is much and the result is a broken system that change the rest of the bill which con- larger than the number of plaintiffs has strayed far from the Framers’ in- tains very important protections for from any other State. In other words, tent. consumers, and it makes the whole set- there may be a case where 40 percent of This bill does a number of things. tlement process much more fair. Let the plaintiffs from California and no First, the bill contains a ‘‘consumer me explain it. other State has more than a couple class action bill of rights’’—and it is The original class action bill essen- percent of the class. California law important, and you will really see it is tially moved all class actions of a cer- would apply. So even though the Cali- understandable—to provide greater in- tain size—I think more than 2 mil- fornia plaintiffs do not make up an ab- formation and greater oversight of set- lion—to Federal court unless ‘‘a sub- solute majority of a class, they would stantial majority of the members of tlements that might unfairly benefit clearly be the predominant portion of the proposed class and the primary de- attorneys at the expense of truly in- the class. If it is a State issue, such a fendants are citizens of the State in jured parties. case would remain in State court. The Let me give you some examples. The which the action was originally filed.’’ The case will be governed primarily Federal judge would also look at bill ensures that judges review the fair- by the laws of that State. whether the case was filed in State ness of proposed settlements if those The original bill says that all class court simply because the plaintiffs are settlements provide only coupons to actions where a substantial majority of trying to game the system, perhaps by the plaintiffs. What is wrong with the members of the class and the de- forum shopping for the best court, even that? Coupons are a real problem. They fendants are citizens of the State when the case would better be tried are a way by which a plaintiff actually would be moved to the Federal court. elsewhere. receives very little or something that We changed that. The standard was Finally, the judge is directed to look is very difficult to recover. vague and it was prone to moving some at whether this is the only class action Second, it bans settlements that ac- truly State class actions into Federal likely to be filed on the same subject— tually impose net costs on class mem- court. this is important—or whether there are bers. I could read letters from individ- My amendment, which was accepted likely to be others with the same facts uals where they actually came out the by the committee, changed the law in at issue. This factor has been even fur- losers in these suits. this section to split the jurisdiction ther refined to provide that a judge Third, it requires that all settle- into thirds. Now there is less ambi- need not consider whether similar class ments be written in plain English so all guity about where a case will end up, actions may be filed but only whether class members can understand their and more cases remain in State court. similar class actions have actually rights. How can anybody fault that? Let me explain that. If more than been filed in the last 3 years. In order Write it so people who read them can two-thirds of the plaintiffs are from to avoid duplication, the judge would understand what they say. the same State as the primary defend- look at whether there were other like The bill also provides that State at- ant, the case automatically stays in actions filed in the last 3 years. torneys general can review settlements State court—it is clear; it is defined in Considering duplicative class actions involving plaintiffs from their States the bill—even if both parties ask for it is important because the Federal so the consumers get an extra level of to be removed to Federal court. It is courts have a system in place to con- protection from someone elected to very different from the original bill. If solidate multidistrict litigation. It serve—not just plaintiffs’ attorneys we have two-thirds of the plaintiffs and may therefore be better to have all du- who may be trying to get the best set- the defendant company in a State, the plicative class action cases move to tlement for their own interests. case stays in the State. Federal court simply to save time and Second, and of greater impact, the If fewer than one-third of the plain- make the process more efficient. If a legislation creates a new set of rules tiffs are from the same State as the case stays in State court it cannot be for when a class action may be ‘‘re- primary defendant, the case may auto- consolidated with similar cases out of moved’’ to Federal court. matically be removed to Federal court. State. Therefore, we might end up with These new rules are diversity re- Remember, this happens if one of the 50 State judges deciding 50 cases in- quirements modified in committee and parties asks for removal. Otherwise, volving exactly the same defendant and again since then make it clear that these cases, too, stay in State court. exactly the same fact pattern. That cases which are truly national in scope This may have escaped a lot of people. does not make much sense. It is some- should be removed to Federal court. So even when there are fewer than one- thing that the judicial conference has But equally important, the rules pre- third of the plaintiffs from the same recommended we fix. And we do. serve truly State actions so those con- State as the primary defendant, the The amendment also raised the min- fined to one State remain in State case remains in State court unless one imum amount of money that needs to courts. of the parties asks to remove it. be at issue before a class action can

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.082 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7721 make it to Federal court. The original return this money to the Government racas, Venezuela, than New Orleans, bill set that amount at $2 million. My of California, this bill would not and New Orleans was always getting amendment raised it to $5 million to change anything. The case would stay the Midwest business. But there was no further limit the number of cases that in California court. reason why we could not bring it to move to Federal court and to assure I know there will probably be several Charleston. that it is only truly big national cases amendments, and I have comments So I went down to Caracas, and to that do. about some of those comments, but I the Ports of Santos and Montevideo, The effect of this amendment, I hope, would like to hold that until the Buenos Aires, Santiago, and we started will be to make the system more trans- amendment is actually presented. building up industry there. parent so that plaintiffs and defendants Let me sum up and then yield the Incidentally, in June of 1960, I made know where a case will go when it is floor. Again, a simple reading of this a trip to Europe, following my friend filed, and it will force truly State cases bill is very demonstrative because it is Luther Hodges of North Carolina. We to stay in State court while allowing easily understood. Unlike most bills, it called on the various Dusseldorf, truly national cases to go to Federal is written in simple English. Probably Frankfurt, Hamburg, and other towns court. the most complicated part is what I in Germany, and the little State of Under current law, an attorney can just went over, the diversity issue. South Carolina now has 126 German in- avoid Federal court simply by making One-third, one-third, one-third, with dustries. sure that at least one plaintiff is from the Federal judge having specific areas We had gone to France in June of the same State as at least one defend- where that judge must make a judg- 1960. I called on Michelin. Michelin ant. This allows for cases to be shopped ment regarding the middle third as to Tire of Paris, France, now has four to whatever forum may have the most whether this is truly a case national in large production facilities and their sympathetic juries, no matter where scope and belongs in Federal court or North American headquarters and the case should truly be heard. Under whether it should remain in State more than 10,000 employees in my this modified bill, this forum shopping court, offers a viable way of settling State. would be eliminated. what has been a process that has been We are proud. We are business Demo- The second amendment I offered in grossly criticized, and that is forum crats. That is my friend JOHN ED- committee, which was also accepted shopping, and I think with some con- WARDS. He is a business Democrat. If and has been only slightly modified, siderable justification. there was one leader in this industrial was designed to deal with a provision A lot of people have worked very development, it would have been the that was added to the original class ac- hard on this bill. I am hopeful we will State of North Carolina with its then- tion bill apparently to specifically tar- be able to pass it. I believe the bill in Governor Luther Hodges. get a California law. That law allows itself provides a remedy to what is Hodges had been the president of the individuals in California to sue on be- wrong with the present class action New York Rotary Club. He had been half of the general public in lieu of the law, and I support it with great pride. the vice president of the Marshall Field attorney general. Other States have or I urge my colleagues to support it as chain before he was Governor. So he are considering similar legislation, but well. knew all of those businesspeople. I had California is on the forefront of this I thank the Chair and yield the floor. to compete with him, follow on board, issue, so it was California law, more Mr. President, I suggest the absence so to speak, and try to get the jobs and than the law of any other State, that of a quorum. develop businesses. was targeted by this provision in the The PRESIDING OFFICER. The One thing we know upfront; that is, original bill. clerk will call the roll. you have to have a sound fiscal policy. The so-called private attorney gen- The journal clerk proceeded to call We raised taxes in South Carolina. And eral actions allow groups such as the the roll. I got the first triple A credit rating. Sierra Club, local district attorneys, Mr. HOLLINGS. Mr. President, I ask So it is nonsense for the Chamber of government officials, or even indi- unanimous consent that the order for Commerce to call JOHN EDWARDS a vidual consumers, to sue large corpora- the quorum call be rescinded. ‘‘wide-eyed liberal’’ and JOHN KERRY a tions on behalf of the people of the The PRESIDING OFFICER. Without ‘‘wide-eyed liberal.’’ State. In California, these suits are objection, it is so ordered. Incidentally, I can tell you when I generally to recover illegally gained Mr. HOLLINGS. Mr. President, I had Gramm-Rudman-Hollings on the profits or to enforce State law against have come to the floor momentarily on floor of the Senate, I was opposed by companies that do business there. account of a headline in the Financial the Democratic leader, who voted These are not true class actions. The Times, on page 3, U.S. business hits a against it; I was opposed by the Demo- original bill essentially deemed these choice of running mate. It quotes Tom cratic whip, who voted against it; I was suits to be class actions and therefore Donohue, the president of the U.S. opposed by the chairman of the Budget would have moved many of them to Chamber of Commerce, in stating that Committee, my late friend Lawton Federal court even if all the plaintiffs he attacked Mr. EDWARDS in an inter- Chiles of Florida. And in spite of that were in California. view in the Wall Street Journal. He opposition, on 14 different votes, up This was a concern to me and to warned if Mr. EDWARDS were chosen, and down, we got the majority of many in California who are concerned the group might abandon its tradi- Democrats to support cutting spending these citizen suits would be so dramati- tional neutrality in Presidential elec- and working for a balanced budget. It cally affected by a bill that was sup- tions and dedicate the best people and was hailed at that time. Everybody posed to be about class actions, not pri- the greatest assets to defeating the talks about President Reagan, and I vate attorney general suits. My amend- Democratic ticket. can talk about him advisedly because ment and subsequent clarifications of This is unfortunate. Since I know a he was outstanding in international that amendment worked out between little bit about the Chamber of Com- trade. But let me stick right to this myself, Senators HATCH, GRASSLEY, merce, and I know even more about my particular point. and SPECTER, simply clarify that in friend Tom Donohue, I want to admon- In order for Gramm-Rudman-Hol- any case in which an individual pur- ish that they not take that course and lings, I had to go to many so-called lib- sues one of these private attorney gen- begin to try to work for ‘‘Main Street’’ eral friends in the Northeast, and I got eral suits on behalf of members of the America rather than ‘‘Main Street’’ Senator CHRIS DODD and Senator JOHN general public, or members of an orga- Shanghai. KERRY, who had just been elected to nization, unless those suits are actu- I speak advisedly of the Chamber of the Senate, to vote for fiscal responsi- ally filed as class actions, the bill does Commerce. As a young Governor, I was bility. Yes, my friend Senator KERRY not apply. I want to make that clear. the first Governor to take a trip to laid his life on the line in Vietnam. He If, for instance, a California con- Latin America to develop economically immediately, when he came to the Sen- sumer sued Enron on behalf of the gen- our little State of South Carolina. I ate, laid his political life on the line. eral public in an attempt to force reasoned the Port of Charleston was 300 I know Tom Donohue well. I used to Enron to disgorge ill-gotten profits and nautical miles closer to the Port of Ca- work very closely with the American

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.085 S07PT1 S7722 CONGRESSIONAL RECORD — SENATE July 7, 2004 Trucking Association, and I was their And the corporate lawyer was lazy. The last case I tried I said, Did you loyal supporter, still am their loyal They didn’t try the cases. So they set- go to so-and-so? He knows this kind of supporter. I, under Tom Donohue, was tled them out of court and they just case better. And I went to another one their man. paid. You see, corporate lawyers are and another one and everything else of I am telling you, I got every financial the most lazy group in the United that kind. And it was an antitrust case. support and every assistance and what States. So I backed up all those claims I had to brief myself, antitrust work. have you. I know Tom Donohue, and he and took them to court all during the Finally I tried that thing. knows trucking all right, but I never month of December and the Christmas But what I am trying to say is, get have seen him go out and develop an holidays and into January. And I won off of this ambulance chasing issue. No industry. Yes, he got on the boards. He my bet with Arthur Williams who was trial lawyer, all the ones that you read went big time, just like joining the president of the electric and gas com- about—Fred Baron, in one of the arti- country club. He immediately started pany. I saved them over $1 million at cles, an eminent attorney, head of the getting on the boards of all these mul- that particular time. American Trial Lawyers Association tinationals and changing the national The only reason I mention this, you from Texas. They work. They know Chamber of Commerce into the inter- don’t brag but you have to talk to the what they are doing. And they take on national, multinational Chamber of record. And what happens is that I all the expenses, the investigations, Commerce. That is my resentment. have been on the side of the corporate the making up of all the models that That is why I take the floor. practice as well as the plaintiffs prac- have to be made, pay the photog- I have worked with the Chamber of tice in punitive damages. I know all raphers who have to take the pictures. Commerce. Go back home to the State about them. I have had a hard experi- In some instances, they pay the med- of South Carolina and you name a ence with them. I have had a hard ex- ical bills going along. They take a risk county or a city that I hadn’t gotten perience with every Chamber of Com- and take that case on as their own. the Chamber of Commerce award. That merce in my State and with the na- Why? Because they don’t get one red is how I met my friend, Robert Ken- tional group. When Tom Donohue cent until they win. They have to win nedy. I was 1 of the 10 men of the year starts this talk about lawyers, if he all the way through, taking the ex- back in 1954, 50 years ago. We met on wants to really save corporate money, the TOYM program. And, yes, bring it penses of all the interrogatories, all right on up to 1992. In 1992, they had a I wish he would go to the corporate the depositions, all the motions, all the fellow named Bob Thompson. He was lawyers. They talk about frivolous delays, all the frivolity of corporate the national president of the U.S. claims. Who in the Lord’s world as a America because that corporate Amer- Chamber of Commerce, and I was his trial lawyer can afford to be frivolous? ican is sitting up there on the 12th or They have rules of court that get you boy. I was the toast of the town and the 25th floor, and the clock is running. out. Tomorrow you can file, if you as- The biggest cancer we have in the got all kind of help because I had held sume all the facts alleged in the com- up labor law reform on eight up-and- law practice is billable hours. This plaint as being true. You still don’t down cloture votes. We defeated that crowd down here on K Street is nothing initiative. We believed in the right to have a cause of action or, if it is a friv- but billable hour boys. They don’t try work and we didn’t need labor law re- olous charge, you can take it up under cases. They fix you and me. And they form. rule XI and have it done up. The courts are the ones who have the unmitigated I only have to harken to the 8 years take care of these things, but the poll- gall to come and talk about frivolous of President Clinton when we had the sters are like used car salesmen and claims. They never go to work. They strongest economy in the history of kill all the lawyers and go after trial take you to a dinner, take you to a the United States, with all the taxes lawyers who have to work for a living. movie, take you to a weekend down to that they are trying to cut. Even with What does the trial lawyer do? The the golf course, take you out to Alaska all those taxes, we had the 8-year trial lawyer says: Poor client, haven’t fishing, take you anywhere you want record of economic outburst and pro- you been offered anything for this par- to go. duction. ticular injury? They said no. Or some- They never try cases, but the trial So what have you. Now comes the times they said yes, but they only said lawyer does. He has to get prepared, Chamber of Commerce being admon- $200 or $2,000 or $20,000, and that is not and he has to work, and he has to not ished by Tom Donohue that we can’t going to take care of my medical ex- only try that case that might take a have this wild, crazy Senator from penses for more than a year. day, might take a week—some cases North Carolina, which is a bellwether We don’t get cases as trial lawyers. take several weeks and months—but as of industrial development. That is Talking about ambulance chasers, I they try that case, they are carrying where he was grown and that is where don’t know how you chase an ambu- those expenses all that time. But the the people who sent him know him lance, to tell you the truth. I have been corporate lawyer is trying to delay it. best. And now we are going to have in practice now for—well, I got in in It pays them because their clock is him depicted by Johnny-come-lately to 1947—over 50-some years. I practiced running. It pays the trial lawyer to get business over at the Chamber of Com- law up here. It is just like making a on with the business of trying the case merce after heading up the trucking jury argument. The only thing about it and bringing it to a conclusion. I know, association for years and totally skew is, you can serve on the jury and you I have been there on both sides. trial lawyers. can vote. I like it better. What do you have to do? He has to You know, I have tried to go quietly, But the point is that we usually get get all 12 jurors—all this about run- and I have stayed off the floor a good the client, once his incident, his acci- away juries. There are some exorbitant bit this year. I have had my time. But dent, his claim has been totally inves- verdicts. I have seen in the headlines. I still struggle. I can’t keep quiet when tigated by corporate America. I know When we get to debating this thing, I hear all of this lawyer talk. I prac- them. I represented them. They have maybe on legal fees, or class actions, or ticed law on both sides of the aisle. I investigators. All you have to do is tell medical malpractice, or whatever it represented the electric and gas com- them, go see this, go see that. When is—if the doctors policed themselves as pany and the bus system. If you want you have investigators to go out and the lawyers, they would not have any to represent a defendant, represent the check the jurors: Go around, by gosh, medical malpractice. local power company buses. I can tell in a particular neighborhood and ask There was a headline down in my you, come November, everybody slips questions. What kind of fellow is John own backyard how nationally they had on a green pea in the aisle; everybody Adams? Is he liberal or conservative? about 100,000 injuries and deaths last gets their arm caught in the door; ev- Has he ever had a law case before? year as a result of medical mal- erybody gets their head bumped or They have all the resources in the practice. It would be 200,000, or 300,000, whatever else it is. And do you know world. But the trial lawyer gets it after or 500,000 if we didn’t have medical what. They bring these little claims. the cake is done and you can’t hardly malpractice. When I say little, in those days they rise it. And it is done falling flat, and What do you think the purpose is of were relatively little—$5,000 claim, the poor client is disconcerted and dis- being able to recover for somebody $10,000 claim. illusioned and finally gets to you. else’s wrongful act? Heavens above, we

VerDate May 21 2004 01:47 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.086 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7723 have to get all 12 jurors. I can tell you ago. I learned a lesson. I called Walter out of the semiconductor business. now, that defendant, all he has to do is and I said: Walter, I see where you are Ronald Reagan was the best of the get one. Just like they had one on a re- doing good and we don’t have a plant of best. He saw that during his 8 years. cent criminal case of some kind. They yours in South Carolina. If you con- And do my colleagues know what held that thing up and held it up, and tinue to do well and you expand, I President Reagan did? He got what that one juror said he just wasn’t con- would like to get your expansion some- they called VRAs, voluntary restraint vinced. where in Columbia, where you still agreements, on semiconductors, auto- The jury system is the fundamental have a home, or somewhere in our mobiles, steel, and machine tools, hand of not only the British but the Amer- State. tools. Ask Andy Grove of Intel. If ican system of jurisprudence. We have He said, Fritz, I don’t produce any- President Reagan had not put protec- many sayings of not only Winston thing in this country. tionism, a voluntary restraint agree- Churchill and Alexander Hamilton, the I said: You don’t? ment, on semiconductors, we would not forefathers about the importance of He said: No, I have my research and have had an Intel. We put that program trial by jury, because when you get a sales here. in SEMATECH. It was assistance to group of your peers together, they will He sells the innards of computeriza- equalize high technology development listen to the facts and make an honest tion and communications, fiberoptic that was about to go out. judgment about it. Sometimes if they stuff. As I see it, we are about to go out not He says: I produce in China. When do go extreme, the trial judge can set only of textiles but semiconductors, you go to China, they will build a bil- it aside, or give them an entire new automobiles, and other products. We lion. You have a year-to-year contract. trial, or just no verdict at all. have to have basic production. That They have a good and capable work- One of the last cases I had, I had over basic production has developed the force. You got a guarantee. You put a $40,000 in costs and expenses—not time, middle class, the strength of America. quality man there; you get a young no. I didn’t have any clock. I never If you want to do away with it, Mr. BYRON DORGAN and say you go to heard of billable hours. Senator, I have Chamber of Commerce, and move ev- Shanghai and oversee this thing— never practiced law for a billable hour. erything to China all for a profit and somebody you can trust who knows the It means if you send the case or dispose no country at all—it is scandalous business. He watches it for you. You sit of the case and everything else like on the Internet and you watch it every what corporate America has been that, you lose. doing, running over to Bermuda, evad- The corporate lawyer wants to keep day as to what they have done. You visit three or four times a year to see ing and avoiding taxes. all the cases going. He has all the I saw one report the other day that in hours. He just goes to the club, and on how it is going. If the national trend goes big, you get an additional con- corporate America, something like the weekend he is off with the chair- tract in China. If it goes bad, you don’t only 20 percent pay taxes. About 80 per- man of the board, and that is all he has have to renew the contract. You have cent of them do not pay taxes at all. to do. They keep delaying things. no obligation to the labor at all. And they talk about high corporate You talk about my friend, JOHN ED- That is what we are competing with. taxes. They have more experts on how WARDS, is a liberal, some kind of nut That is the reality. Yes, the Chamber to evade and avoid and change and can- and some kind of frivolous nonsense of Commerce has to understand why cel out. So it happens. here. He has worked hard, and the their task is to make a profit for the Yes, Senator EDWARDS has worked Chamber of Commerce ought to know stockholders. Our task is to build jobs. not only on the Intelligence Com- that. We are not interested in profit. We are mittee, knowing foreign policy for 6 Let’s talk a minute about trade interested in building the economy, in years now. In one of the stories, they itself. It is the fundamental duty of education, in health care, safety, law said if something happened to JOHN Congress to protect—we take an oath enforcement, yes, and we are interested KERRY, we would have a President with to preserve, protect, and defend, and we in the economic strength of this coun- no experience again. The only thing is, have Social Security to protect us from try. this President, EDWARDS, would be in- the ravages of old age. We have a min- The security of the United States is terested in being President. President imum wage to protect us from slave like a three-legged stool. You have the Bush is only interested in being Can- labor. We have Medicare and Medicaid one leg of our values, our stand for in- didate Bush. He goes out every day to to protect us from ill health. We have dividual freedom, unquestioned the some military or some police or other clean air and clean water to protect us world around; you have the second leg particular situation, gets that 7 o’clock from those environmental poisons. You of the military, unquestioned, the su- news photo, makes his little state- can go right on down the list. We have perpower; the third leg, the economic ments, and he does not keep up with the Army to protect us from within. leg, has been fractured intentionally. any of the legislation. He is not proud The fundamental of us is to protect I say intentionally fracture because of any legislation. We do not have any jobs and the fundamental of us is to after World War II, we had to rebuild leadership from the White House on create jobs. You know what the multi- freedom and capitalism the world getting anything done. We are getting nationals have to do? They have to around us, and we had to more or less little nagging spitballs of class actions move the jobs out because it is cheap- give up the store. We not only had the and—what is that other thing—a con- er. Why? Because of you and me. We Marshall plan, the expertise, the stitutional amendment on marriages. say that before you can open up in money, and the equipment, but we gave One can get a common-law marriage manufacturing, you have to have clean a good part of our own production. in South Carolina. Are we going to put air, clean water, Social Security, Medi- I had a hearing with President Ken- that in the Constitution? Come on, a care, Medicaid, minimum wage, plant nedy in 1961 when he put out his fa- big national problem. He has more closing notice, parental leave, safe mous seven-point program showing funny bunny things to think of and working place, safe machinery—I can that it was injurious to the national bring up and waste our time. It is the go down the list. But you can go to security of the United States for us to worst administration I have ever seen. Shanghai, China, for 58 cents an hour import more than 10 percent of our My point is the Chamber of Com- with none of that. consumption in textiles clothing. I am merce. I called up Walter Allison Dreeny. He looking around and everywhere I look, Mr. REID. Will the distinguished was an executive of Pirelli. We brought I can tell my colleagues that 70 percent Senator yield for a question? him to South Carolina in the Lex- of the clothing is from offshore, im- Mr. HOLLINGS. Yes. ington County area. I helped him get ported into the United States. Yes, 84 The PRESIDING OFFICER. The Sen- connected with water and sewer lines. percent of the shoes on the floor of this ator from Nevada. He made a heck of a success in the Chamber are imported. We are out of Mr. REID. I thank the Chair. fiber glass section of Pirelli. He went the shoe business. We are out of my Mr. President, I want the Senator to out on his own and organized what is textile business. comment on this statement. Here is a called Avanex on the big board, and he Yes, we are going to go out of the good-faith effort to move a bill—I do was doing good. This was about 5 years computer business, and we are going not like the bill. OK, I do not like the

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.089 S07PT1 S7724 CONGRESSIONAL RECORD — SENATE July 7, 2004 bill, but we have a few Democrats who from the presidency is not something we rel- protective measures,’’ it quoted Mr. Gao as like it, so we decided not to stand in ish,’’ said Michael Baroody, executive vice- saying. China has long been among the fierc- the way of this legislation. president. est critics of U.S. and Eruopean anti-dump- I have a letter from Jerry Jasinowski The NAM tracks the votes of senators on ing actions, saying they discrimate against issues deemed important for manufacturing its exports. However, its use of such meas- who is the president of the National companies, and in the current Congress Mr. ures has increased since joining the WATO. Association of Manufacturers. Here is Edwards has supported the NAM on only one Last year, it initiated 22 anti-dumping in- what he said yesterday, and I want my of 16 votes, the same as Mr. Kerry. ‘‘It’s not vestigations, more than any WTO member friend, the distinguished Senator from auspicious,’’ said Mr. Baroody. except India and the US. Though lower than Wisconsin, who supports this legisla- While U.S. trial lawyers have long been an the 30 cases brought the previous year, the tion and others to hear what this plan important source of funding for the Demo- figure was sharply higher than the six China has been. This is not something that cratic party, Mr. Edwards’ ties are unusually opened in 2000. close. He made his own fortune as a plain- Anti-dumping investigations can lead to came up this morning. tiffs’ lawyer in North Carolina before run- steep duties being imposed on imports that He writes on this card to one of the ning for the Senate and trial lawyers are by are found to have been sold below cost and to Members: far the largest contributors to his political have harmed producers in the importing I urge you to vote in favor of cloture. career. Of his top 25 career patrons, 22 are countries. Many trade experts criticise the There was never any intention of this fellow trial lawyers, according to the Center methodology used to determine dumping, being a fair deal out here; will the Sen- for Public Integrity, which tracks political saying it is opaque and open to official ma- contributions. nipulation. ator agree with that? The American Tort Reform Association, Beijing recently caused concern in Wash- Mr. HOLLINGS. That is right. They which represent companies opposed to class- ington by imposing preliminary anti-dump- know their scheme. I tell you, our Re- action suits, yesterday accused Mr. Edwards ing duties of as much as 48 per cent on opti- publican colleagues know what they of favouring ‘‘a prolitigation, anti-civil jus- cal fibre imports from the US, Japan and are doing when it comes to running tice reform agenda that puts his wealthy South Korea. campaigns. We know how to run the of- personal injury lawyer patrons ahead of the The China Daily quoted Wang Qinhua of fice once we get in, but they know how American people’’. the commerce ministry’s bureau of industry U.S. companies are also worried about Mr. injury investigation as saying that govern- to run for the office. We saw President Edwards’ stance on trade liberalisation. In ment officials were watching closely ‘‘to see Bush was already in Raleigh, NC, and his run for the Democratic nomination, he if some of the industries are hurt by unfair they called for, of all things, class ac- was an outspoken opponent of the North foreign competitors’’. tions so they can lambaste our Vice American Free Trade Agreement with Mex- The newspaper said the government was Presidential choice. That is what is ico, and helped make the ‘‘outsourcing’’ of also seeking to shield Chinese exporters from going on. The campaign is going on on U.S. jobs overseas into a key issue for the foreign anti-dumping actions by providing the floor, and I am joining in on the Democrats. North Carolina is among the advice and information on international campaign. I have tried to stay out of it, states hit hardest by the loss of manufac- prices. turing jobs. But he has also cast several According to the WTO, other countries but I am happy to join it because when votes in the Senate in favour of trade opened 45 investigations into imports from we get about protectionism—and this liberalisation. China last year. The total number of anti- is what this article says, we are going The president of a business group rep- dumping cases brought worldwide fell last to lose out on everything and regres- resenting U.S. multinational companies, who year to 210 from 311 in 2002 after a peak of 366 sive—what are all those funny words asked not to be named, said that while Mr. the previous year. they use? Edwards’ rhetoric on trade during the Demo- Although industrialised countries were for Here is yesterday’s Financial Times: cratic primary was not encouraging, ‘‘he has a long time the most active users of anti- dumping measures, developing nations have ‘‘China vows to use anti-dumping and not been by any means one of the worst on the Democratic side’’. accounted for most of the investigations trade measures to protect its mar- He said Richard Gephardt, the former since the mid-1990s. kets.’’ Democratic House leader who has voted Mr. HOLLINGS. Mr. President, the I ask unanimous consent to print the against all the main trade agreements of the reason I had the China article printed Tom Donohue article and this article past decade, would have been a much worse in the RECORD is because China is fol- about China in the RECORD. choice in terms of future trade lowing Japan. We have yet, in 50 years, There being no objection, the mate- liberalisation. to get into the downtown market, Main rial was ordered to be printed in the [From the Financial Times, July 6, 2004] Street, Tokyo. We cannot sell in Tokyo RECORD, as follows: CHINA VOWS TO USE ANTI-DUMPING AND what we sell in the United States. No. [From the Financial Times, July 6, 2004] TRADE MEASURES TO PROTECT ITS MARKETS They have total protection. They not U.S. BUSINESS HITS AT CHOICE OF RUNNING (By Mure Dickie in Beijing and Guy de only have MITI with the financing and MATE Jonquie`res in London) the refinancing and keeping even bank- (By Edward Alden and Alex Halperin) China plans to step up its use of anti- rupt entities going, but they control The choice of John Edwards as the Demo- dumping and other trade measures to protect that market so they go for market cratic running mate has triggered an unusu- its market, saying its economy and indus- share. They are not worried about prof- ally harsh reaction from U.S. business, tries need to be able to adjust to tougher its the way the government runs which fears his selection will tilt the Demo- competition since it joined the World Trade things. We have antitrust, they have cratic ticket sharply against tort reform and Organisation in 2001. pro-trust. trade liberalisation. China has been the biggest target of anti- Tom Donohue, president of the U.S. Cham- dumping actions by other countries. As well That Lexus I have sells for, let’s say, ber of Commerce, the country’s largest busi- as signalling more awareness of the potential $35,000. It will sell for $45,000 in down- ness group, attacked Mr. Edwards in an for using such measures, the decision is a town Tokyo. They pay at the local interview with the Wall Street Journal be- pointed reminder to trade partners that the market way more for that camera, way fore John Kerry made his announcement yes- country is now the world’s fourth biggest im- more for that television set, way more terday. He warned that if Mr. Edwards were porter. for that automobile because we are chosen, the group might abandon its tradi- The shift in policy also coincides with in- talking about profit, and they keep on tional neutrality in presidential elections tensive, but so far unsuccessful, efforts by getting more and more market share. and dedicate ‘‘the best people and the great- Beijing to persuade the US and European est assets’’ to defeating the Democratic tick- Union to grant it ‘‘market economy status’’. So we have to understand not only et. That would make it easier for Chinese ex- the thrust of their competition, but Mr. Donohue said the issue of curbing cost- porters to defend themselves against anti- that they are competing. They are as ly lawsuits was ‘‘so fundamental to what we dumping cases. protectionist as can be on anti- do here at the chamber that we can’t walk The official China Daily newspaper yester- dumping. We get into WTO and say: away from it’’. He was lobbying the Senate day quoted Gao Hucheng, vice-minister of Oh, no, it is WTO violative; you cannot yesterday for passage of a bill to restrict commerce, as calling for ‘‘concerted efforts’’ enforce any antidumping statutes in such lawsuits. by industrial associations and legal agencies the United States. That is why we have The National Association of Manufactur- to help Chinese companies compete with for- ers, which is leading a coalition of compa- eign rivals. ‘‘It is an imperative task for gov- that funny tax bill over there that they nies fighting what it says is ruinous asbestos ernments at all levels to resort to legal loaded with all these extra tax cuts for litigation, was equally harsh. ‘‘The prospect means that are enshrined in the WTO pact, corporate America. It is a disgrace. Ev- of having a trial attorney a heartbeat away such as anti-dumping, anti-subsidy and other erybody has written about that.

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.091 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7725 Warren Buffett, two days ago, said I yield the floor. certain counties in Florida or through- that tax bill is a disgrace. But the rea- The PRESIDING OFFICER. The Sen- out most of Mississippi will succeed re- son we got the tax bill started was to ator from Wisconsin. gardless of the merits of the case and try to equalize the situation where we Mr. DORGAN. Mr. President, will the regardless of how poorly any truly in- have been taking care of our particular Senator from Wisconsin yield for a jured consumers make out in the set- businesses and industries, and if we are unanimous consent request? tlement. going to have the U.S. Chamber of The PRESIDING OFFICER. The Sen- Our bill stems the abuses in the class Commerce join the other side, this is ator from North Dakota. action system. While we change the lo- like joining Saddam in Iraq. Mr. DORGAN. My understanding is cation where some lawsuits are heard, If my colleagues want to see a busi- the Senator from Wisconsin is going to the bill recognizes the essential role ness-oriented State, come to North speak for about 5 minutes. I ask con- class action cases play in our legal sys- Carolina where JOHN EDWARDS is a Sen- sent to be recognized following his tem. We can say without reservation ator. I can say right now, they talk presentation. that not a single merited case will be now about the two most liberals. That The PRESIDING OFFICER. Without deprived of its day in court under this is the biggest bunch of nonsense I have objection, it is so ordered. bill. ever heard. I resent it, particularly re- The Senator from Wisconsin is recog- We stop the coupon cases that are far spected entities like the National nized. too prevalent. We ask the State attor- Chamber of Commerce taking business Mr. KOHL. Mr. President, I rise neys general to review the settlements away from America. Tom Donohue is today in support of the Class Action that affect their constituents in an ef- just adamant on doing that. He has Fairness Act of 2004. Class action law- fort to add another layer of protection been taken over by the multinationals. suits serve an important role in our for consumers. Finally, we move some His main membership is the Business court system. They permit consumers cases to Federal court where the judges Roundtable. They are not for your to address their injuries collectively have more resources and expertise to stores, they are not for the Main Street and hold the wrongdoers accountable, devote to these complex cases. merchants anymore. often when a lawsuit would have been We look forward to debating this bill That is why the Chamber of Com- too costly for any one individual to and all of the amendments that prom- merce—by the way, I was a member of bring it alone. ise to be offered to in the coming days. the oldest Chamber of Commerce in the Most of these cases proceed exactly We have worked on this bill for many United States, so I speak with some au- as we would hope. Injured parties, rep- years, crafting significant changes in thority. I have seniority in something. resented by strong advocates, get their response to constructive criticism. In- I have been around here for so long, I day in court or reach a positive settle- deed, today we can say proudly that a have been looking for it wherever I ment that is good for the parties and strong bipartisan coalition supports could find it. handled well by their attorney. this legislation. In any event, what we have to do is Unfortunately, this is not how it al- This project that we started with sober up. The business leadership has ways works. Rather, some are taking Senator GRASSLEY several years ago to quit this race to China, quit this tax advantage of the system and con- has matured through numerous com- race avoidance to Bermuda, quit this sumers are getting the short end of the mittee hearings, multiple markups, Chamber of Commerce nonsense about stick, recovering coupons or pocket countless favorable editorials, and a who is liberal and who is conservative, change, while the real reward is going general educational campaign that has and understand that our jobs are here to others. The Washington Post put it taught Members that the class action to build up this market so they can sell clearly, ‘‘no portion of the American device is in dire need of repair. We have what they sell here, not dump. If we do civil justice system is more of a mess garnered broad support through re- not have any jobs, they cannot buy, than the world of class actions.’’ peated compromise and negotiation they cannot sell. This legislation addresses the mount- We have the richest market in the and have now reached a point where a ing problems in class action litigation world, but we are vastly developing large majority of the Senate supports in a fair and balanced way. The bill is into the poorest market. That is why I this bill. not a panacea, but it will stop many of I would particularly like to thank have my job. I see some other Mem- the unfair and abusive class action set- Senator GRASSLEY with whom I have bers. But they talk about a wonderful tlements that plague our court system economy, we have 5 percent growth. worked for many years on this bill as Baloney. I have 56,800 manufacturing and short-change consumers. well as Senators HATCH and CARPER for Let me provide just a couple of exam- jobs lost since President Bush took of- all of their diligent efforts in support ples of these abuses. In a large class ac- fice, and they have not come back as of of class action reform in the last cou- last night. This is from the Bureau of tion suit against Blockbuster video, ple of years. Labor Statistics. That is manufac- consumer plaintiffs received coupons The changes that we have made to turing. Do not tell me about growth, for $1 off their next rental as their only the bill responded to the criticism that growth, growth. I am not getting all of compensation for a successful settle- we moved too many cases to Federal this growth. ment to their legitimate claims. Their court and that local cases should re- We have a lot of Government jobs. lawyers received $9.25 million. main in State court. We addressed that The Government is growing, the law Or consider Martha Preston of first in a major compromise with Sen- practice is growing, health care is Baraboo, WI, who was a member of the ator FEINSTEIN during the committee growing, but business is not growing. Bank of Boston case. It was Mrs. Pres- markup last year. We addressed that Production is not growing in America. ton’s experience that demonstrated for the other concerns at the end of last The middle class is diminishing. many of us that we needed to take a se- session with a second compromise with It is shrinking. We have to worry rious look at changing the class action Senators DODD, SCHUMER, and about that. We cannot go along with system. When her class action suit was LANDRIEU. these labels about, we have the Cham- over, Mrs. Preston had technically won The changes we made to the bill were ber of Commerce now which has al- the case, but ended up owing $91 to her good ones that did a better job of tai- ready said he is the most liberal. He lawyers and defending a lawsuit that loring our bill to address only the sort could not be a Senator—he could not her own lawyers filed against her in of cases that are the worst abuses. have won any election in the State of State court. Cases that belong in State court will North Carolina if he had that char- Studies show that these are not iso- stay there under this bill. Cases of na- acter. lated examples. Rather, certain State tional importance will be heard in the I say to my colleagues, he believes in and county courts welcome the sort of Federal system. hard work, he believes in justice, he be- unfair class action suits that lead to We have told the Republican leader- lieves in trying his case, and 12 jurors the embarrassing settlements that we ship repeatedly that there must be a and the presiding judge and the appel- are trying to end. Anyone who follows reasonable amount of time for amend- late court all agreed with JOHN ED- this problem can say that class action ments to be offered to this bill and WARDS. Tell Tom Donohue to bug off. cases brought in Madison County, IL or voted upon. We understand that the

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.092 S07PT1 S7726 CONGRESSIONAL RECORD — SENATE July 7, 2004 minority leader offered a maximum of ufacturing base itself in this country. about safe workplaces, so that workers 5 non-germane amendments and 10 ger- He also spoke of the Chamber of Com- can expect to go into a factory that is mane amendments to the bill this merce that was critical of our col- safe, and so we have laws dealing with morning. This would certainly quality league, Senator EDWARDS. safe workplaces. There are issues about as reasonable under any definition. We That was one of the things I was fair wages, so we have minimum wages know that many of us, both Repub- going to talk about today. The head of in this country. licans and Democrats, want to offer the Chamber of Commerce, in a speech There are issues about the right to amendments, both related, and unre- just within recent days, said people organize. People died on the streets in lated to this bill. There must be an op- who are affected by off-shoring should this country for the right to organize portunity to do that. Unfortunately, so ‘‘stop whining.’’ Again, the head of the as workers, and so we have labor far we have not had that chance. Chamber of Commerce says those peo- unions with the right for people to or- We are eager to see the Senate work ple who are affected by outsourcing, by ganize. its will and pass this bill. That would the movement of jobs overseas, by In one fell swoop, a company wishing be an important step designed to pro- offshoring, ought to ‘‘stop whining.’’ to pole-vault over all of those issues tect consumers injured by these abu- I don’t know of the head of a corpora- can simply decide it wants to be an sive class action settlements. tion who has had his or her job moved American company for purposes of in- I yield the floor. overseas. I don’t know of a Member of corporation, but it would like to be a The PRESIDING OFFICER. Under the House or Senate, I don’t know of a foreign company for purposes of pro- the previous order, the Senator from politician who has had his or her job duction. Whether it is a Huffy bicycle North Dakota is recognized. moved overseas. I don’t know of one or a little red wagon, the Radio Flier Mr. DORGAN. Mr. President, I was journalist who has had his or her job wagon which for 100 years was made in inspired by my colleague from South moved overseas. But there are plenty this country and now is gone, they can Carolina. Senator HOLLINGS comes to of folks who work in manufacturing in decide to move the production of those the floor to speak, among other things, this country who have been the victims products somewhere in the world where about international trade issues and of offshoring, outsourcing, moving jobs they don’t have to worry about child does it in a way that is not only right overseas. labor laws, environmental laws, about on point but also very colorful. I would I have pointed this out on numerous a labor union, because they can move like to follow on that a bit and talk occasions, but it is worthwhile to do it it to a place where labor unions are not about a couple of other subjects. again, just because it is, I think, such permitted, workers are not permitted I know we have the class action re- a good illustration of what is hap- to organize, where there are no require- form bill on the floor of the Senate, but pening in our economy. ments with respect to fair wages. that bill apparently is going nowhere This is a bicycle I have spoken of What is happening, as we know, is at this moment. My understanding is often in the Senate, a Huffy bicycle. more and more companies are engaged the majority leader has ‘‘filled the Most Americans know of a Huffy bicy- in outsourcing. It is not just bicycles tree,’’ which is a fancy way of saying cle. It has 20 percent of the American and little red wagons, the Radio Fliers; he is blocking everything. He puts a market. Many Americans have ridden a it is not just that. It is now white col- bill down, blocks everything, and cre- Huffy bicycle. lar jobs as well, where there is ates a little gate in the majority lead- This used to be made in Ohio, by the outsourcing into Indonesia and China er’s office saying: Show me your way, by one plant with over 900 proud and elsewhere. And they are told stop amendment. If I like it, you can offer employees who made Huffy bicycles whining. By whom? By people who it; if I don’t, you can’t. That is where and did a good job by all accounts. have never lost their jobs and are not we are. Because of that action, I as- They came to work one day and discov- about to. They are not going to lose sume very little is going to happen at ered they were all fired. Why were they their jobs to outsourcing. To them, the moment. fired? Because they made $11 an hour this is all theory. While I think that class action re- plus benefits and that was too costly. By describing all of this, I am not form is an important issue and we The manufacturing plant in which suggesting we build a wall around this should get to the amendments to the these bicycles were produced was country because I don’t believe we bill, there are other things we also moved to China. It was moved to China should or could. I believe in expanded need to be doing. There is a lot of un- because they could hire somebody for trade and I believe in expanding oppor- finished business in this Chamber. We 33 cents an hour in China and work tunities for Americans through trade. are doing very little on any of it, re- them 12 or 14 hours a day, 7 days a But I do not believe in the kind of grettably. week. So that is why Huffy bicycles are trade agreements that have been On appropriations, we had some sub- not made in this country any longer. brought to this Senate for approval. committee markups scheduled this Those who say to those 900-plus I don’t intend to support the Aus- week that have been canceled. We need workers who lost their jobs, ‘‘stop tralian-United States Free Trade to get the appropriations done. whining,’’ apparently don’t understand Agreement, which will come to the Writing a new highway bill, we were the anguish of being told, in this coun- floor of the Senate soon, because it, supposed to have written the highway try, that making $11 an hour is too again, in my judgment, undercuts the bill last year, and it is not done this much money. You can’t compete with a interests of this country. year. Now they are talking about ex- Chinese worker who makes 33 cents an I am perfectly willing to support tending it until next year. There is no hour. trade agreements that are fair to this better job generator for those who are The American people don’t need to be country, fair to America’s workers and concerned about new jobs in this coun- told that. We can’t compete with 33 require us to engage in competitive and try than having a highway bill because cents an hour. We can’t compete with fair trade. If we can’t win in fair trade, that puts people to work right now someone in Indonesia who is making then that is our tough luck. That is our with contractors and workers all shoes for 16 cents an hour. We under- fault. But let me give some examples of across this country. Yet the highway stand we can’t compete with that. Nor what our trade negotiators have done, bill was supposed to have been rewrit- should we be required to. time after time after time. If there are ten last year. It wasn’t. It was sup- This country, for one century, has people who want to defend this, I wish posed to have been rewritten this year. fought over the issues that are impor- they would come to the floor of the It isn’t. So there is a lot to do in this tant to a good life in this country, Senate. None have and none will. I will Congress that is regrettably not get- issues of abolishing child labor, in give just one example and then go on ting done. There is a lot of unfinished which we were sending kids into fac- to several others. business. tories and down into mines. So we have About 2 years ago, we did a bilateral My colleague from South Carolina child labor laws. There are issues about trade agreement with the country of talked about trade, the trade deficit, plants that dump effluents and poisons China. In that agreement our trade ne- the shrinking employment base in into the air and water, and so we have gotiators said this to China: You manufacturing and the shrinking man- environmental laws. We have issues produce automobiles and ship them to

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.011 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7727 the United States. We will charge a $48.3 billion in a single month. Up and this? No. We talk a lot about the fiscal tariff of 2.5 percent on any automobiles up and up goes this trade deficit, with policies and budget deficits, and we that you ship into the United States. American jobs leaving, outsourcing, have a reckless fiscal policy that is out But we agree that any U.S. auto- offshoring. That is not a way, in my of control. No question about that. But mobiles, any automobiles produced in judgment, to strengthen our country this trade policy is something nobody the U.S. that we would ship to China, and strengthen our economy. No coun- talks about, and these trade policy you can charge a 25-percent tariff. In try will long remain a world economic deficits are way out of control. They other words, our negotiators said: I power without a strong, vibrant, grow- are affecting our economic base, our will tell you what we will do. You have ing manufacturing base, and our manu- manufacturing base, and our produc- a very large trade surplus with us, facturing base is being decimated tive capacity in this country. We will China. We have a $130 billion trade def- month after month. These are not cir- pay a heavy price for that unless we de- icit with you. But I will tell you what cumstances of fair trade. We ought to cide at some point that our trading we will do. We will set up an agreement be debating them on the floor of the partners are required to engage with us with respect to automobile trade, and Senate with respect to legislation. But in fair, competitive, and open trade. you can charge a tariff on U.S. auto- we will not. Instead, we will debate the My colleague talked a little bit about mobiles going to China that is 10 times United States-Australia Free Trade the effort through the WTO and the al- higher than any tariff we would impose Agreement, and will be unable to offer legation by some that we must remove on Chinese automobiles going to the a single amendment because of fast our antidumping provisions that exist U.S. track rules. in law. Antidumping provisions are I would like to find the softheaded While I talk about some of the cir- provisions that protect a country negotiator who decided that this is cumstances of trade, one of the prob- against another country that would try something that is fair to America, fair lems, of course, is that U.S. companies to dump into that marketplace at a to America’s workers or fair to Amer- are setting up foreign subsidiaries—not price well below the price of production ica’s producers. for the purpose of producing in a for- and injure or demolish an industry in I don’t come from an automobile eign country for sale in another foreign your country. The trade ambassador State. I will give you one more exam- country, but for the purpose of pro- said those are on the table for negotia- ple of automobile trade—that is, auto- ducing in a foreign country for the sale tion. We are willing to negotiate and mobile trade with Korea. into the U.S. marketplace. And in fact, we will negotiate in the WTO negotia- We have a circumstance with Korea another reason they are setting up for- tions our antidumping provisions and where we ship about 2,800 automobiles eign subsidiaries is to avoid paying get rid of them potentially. So we will every year to be sold in Korea. That is taxes to the U.S. Government. get rid of the only protection that ex- how many automobiles we get into Here is an interesting statistic. In a ists for producers and workers in this Korea. What does Korea ship to the recent year, of the 100 largest publicly country against unfair competition. I United States? Somewhere over six traded companies that do business with don’t understand that. Is there some hundred thousand vehicles come into the Federal Government—I am talking notion that we shouldn’t stand up for our marketplace, and 2,800 we get into about Federal contractors, the biggest this country’s interests? Korea. You know why? Because our companies that build things, airplanes, I come from a State that must find a marketplace is wide open and the Ko- tanks and all of the things they sell to foreign home for a substantial amount rean Government doesn’t want U.S. the Federal Government—59 of them of its agricultural production, and I am cars in Korea, so they set up dozens of had created subsidiaries in tax-haven the last person in the world to want a impediments to our shipment of U.S. countries. Why? Because they want to trade war or to shut down opportuni- cars to the Korean marketplace. move production plants to tax-saving ties for fair trade. But I will give you The list goes on and on and on. If you countries? No. Because they don’t want some examples of things that bother are an American rancher and believe to pay taxes. us. you ought to get beef into Japan—after Halliburton Corporation, the subject We produce a great deal of wheat in all, we have a deficit with Japan of $50 of a couple of hearings I have had, had my State. So we do a bilateral trade billion to $60 billion every year, year 17 subsidiaries, 13 in the Cayman Is- agreement with China. The Chinese after year, so the Japanese market lands. This is all about running a cor- say: Well, under this agreement we will ought to be open to U.S. beef—you find poration through a mailbox, not for the set a tariff rate quota of 8.5 million that years after the United States- purpose of producing anything but for metric tons. I didn’t believe that, but I Japan beef agreement, there still re- the purpose of trying to avoid paying especially didn’t believe it when I saw mains a 50-percent tariff on every sin- taxes. the South Asia Post one day and the gle pound of beef that is sent from this What you have is companies that de- Agriculture Minister from China was country into Japan. Unfair? You bet cide they want to be American citizens, traveling down there speaking in an your life it is. Anybody care about it? they want to do business in this coun- interview in the South Asia Post. He No. Our trade negotiators are off busy try, they want to sell into our market- said to the Chinese: This 8.5 million negotiating new agreements with place and contract with the Federal metric tons of wheat, that is just the- Singapore, Australia, Morocco, Hon- Government, but they do not want to ory. That is just theory. That doesn’t duras, Costa Rica—all of these new pay taxes. Second, to the extent they mean we are going to buy it. And sure agreements that create new unfairness can, the production which they want to enough, they didn’t buy it. Now, fi- in trade law—before they will even talk contract to the Federal government nally, they have made some modest to you about the old trade laws that they want to move offshore. Why? Be- purchases. But we didn’t have any sub- aren’t working. cause it is cheaper to produce offshore. stantial quantity of wheat going into We have the largest trade deficit in Once again, anytime someone gives a China for years after the agreement be- history—not just our history but in the speech, as my colleague from South cause they didn’t have any intention of history of the world. Someday it will Carolina did or as I do from time to making those purchases. Our farmers have to be repaid. It will regrettably be time, about trade and requiring and de- deserve the opportunity to compete in paid with a lower standard of living in manding fair trade rules, the institu- these markets and yet were denied that this country, and nobody seems to care tional press and others will say this is opportunity. about it. just uninformed nonsense from a bunch Probably the most obvious hood or- Let me talk about that trade deficit of xenophobic, isolationist stooges who nament on foolishness here in Congress for a moment. On May 13, we see head- can’t see over the horizon. in terms of public policy and in the lines that the U.S. trade deficit grows You can’t have a thoughtful debate White House is our attempt to sell unchecked—a $46 billion trade gap in about trade. We have now a $48 billion goods into Cuba. Talk about a political March—1 month, a $46 billion trade def- monthly trade deficit. Nobody wants to odd couple. John Ashcroft and I, when icit. How about the next month, June talk about it. Nobody will talk about he was a Senator, actually got legisla- 15, when we learn that the U.S. trade it. Will there be anything brought to tion passed which is now law, and it deficit sets another record in April— the floor of the Senate to deal with opens just a bit the embargo with Cuba

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.095 S07PT1 S7728 CONGRESSIONAL RECORD — SENATE July 7, 2004 so that we could sell agricultural com- did not know it wasn’t legal. She had a and who will work in a plant that will modities into Cuba. After 40 years of an good time, a 76-year-old grandmother put poisons into the air and the water, embargo, we finally, because of the bi- bicycling to Cuba. They tracked her and who will work in a plant where partisan work here in the Congress, down right quick and slapped a big fine there are no child labor laws. passed a law that opened that market on her. It was all a mistake because That is a hard thing for people to do, just a bit so we can sell some agricul- she was not even home when they sent to go home and tell their families. It is tural products into Cuba. Cuba has to her the first letter. She was gone be- not whining. These Americans deserve pay cash. They have to run the trans- cause her son was dying of a brain better than that. This country was action through a European bank, a tumor. She was not there, did not get built by people who take showers after bank that is not in this country. But, the letter, so they slapped her with a work. This country was built by people nonetheless, we have been selling agri- bigger fine. After she paid part of that who work hard, do their best, expect a cultural products to Cuba. But the fine, they tried to attach part of her fair deal, expect there is some connec- State Department and the administra- Social Security check. tion between effort and reward in this tion are doing everything they can, These are people who are supposed to country. And regrettably, these days, every conceivable thing they can to be tracking terrorists, but they are when we see this avalanche of shut down even that small amount of going after people distributing free Bi- outsourcing and offshoring and deci- export of agricultural commodities to bles in Cuba, retired grandmothers who sions that this is not about workers Cuba. are taking bicycle trips, and a young being part of the country, workers are I don’t understand this effort to in- fellow trying to bury his dead father’s like a pair of pliers or tools; when you jure ourselves. Public policy that hurts ashes. are done with them, get rid of them. our country, that is believed to be It is embarrassing what is happening That attitude on the part of business is sound and good policy, whether it is at in this administration dealing with wrong. the White House or by some in Con- this issue of the travel ban. We have, I visited with a CEO of a corporation gress, is something that makes no on repeated occasions, on a bipartisan recently. He said, I am one of the few sense to me at all. basis, with Republican support and companies in my industry that has not On a related subject but somewhat Democrat support in the Senate, voted offshored or outsourced a portion of off of trade, in addition, with respect to to lift that ban. Yet, somehow, in the the servicing of my customers. He said, Cuba, we have a travel ban. That travel end, the White House always wins. Everyone else has done it and I have ban, incidentally, is an attempt to slap That ban is in place and we are using not. It costs me more and it makes me around Fidel Castro, someone for precious resources that are supposed to a little less competitive because I have whom I have no use at all, a Com- be tracking terrorists who are now not done it, but I have resisted it be- munist dictator that Cuba does not de- tracking American citizens accused of cause I have not wanted to lay off serve. In an attempt to punish Fidel taking vacations in Cuba and slapping workers in the United States and to Castro, our Government has decided we them with $10,000 fines. outsource that to China or India. shall prohibit Americans from trav- I digress. That was not the point of I applaud him. But there are precious eling to Cuba, so we have a travel ban. raising the Cuba issue. The Cuba issue few companies which have that atti- We do not ban people from traveling to is about trade and the foolishness of tude. Communist China. We do not ban peo- what we are doing to inhibit our family In short, we need trade laws that ple from traveling to Communist Viet- farmers from fully exploring the oppor- stand up for this country’s interests. nam. But they cannot go to Cuba. tunities of trade in Cuba. We have a Why is it embarrassing for someone to At a time when we are beset by ter- natural advantage over Canadian and say, I support this country’s interests? rorist threats in this country, we have European farmers with respect to that Why has that become something no one a little organization down in the U.S. marketplace. will talk about? I am not talking about Department of Treasury that ought to Incidentally, they are required to pay advantage; I am talking about fair hang its head these days. They have, I cash for the food they buy in these trade. Why is it not fair for us to say understand, 20 people in an organiza- trades and yet the administration is we stand for requirements of com- tion called OFAC, Office of Foreign As- making it more and more difficult for pensation that are fair? Yes, with sets Control. Their job is to track fi- our farmers to access those market- China, with Japan, with Korea, with nancial movements of money to the places. Europe. terrorist organizations. I started by saying the Senator from Why do we allow Korea to have a 300- Twenty of them are tracking Ameri- South Carolina was talking about the percent tariff on potato flakes from our cans traveling to Cuba. They are accus- Chamber of Commerce and, as I said, country? Why do we allow the Koreans ing them of trying to take a vacation. the President of the Chamber of Com- to decide they will keep out our Amer- A woman named Joan Scott went to merce said people should stop whining ican automobiles to the extent they Cuba. Joan Scott went to Cuba to dis- if they are affected by offshoring or can, or keep out American pickup tribute free Bibles on the streets in offsourcing or moving jobs overseas. trucks to the extent they can, while Cuba with a missionary zeal and a reli- I don’t think people who have been boats pull up at our docks with Korean gious sense of making a difference. She hurt by this should stop speaking up at cars? went to Cuba to distribute free Bibles. all. I don’t think they are whining. But I say to Korea, that is fine, bring Guess what. Boy, the Treasury Depart- you could certainly see the anguish on your cars to our marketplace. Our con- ment got hold of her recently and is the faces of people who are proud to go sumers want the opportunity to shop going to fine her $10,000. to work in the morning and make a for them. But there is a condition for There is a fellow from near Seattle, good product, only to discover their that. Then your market must be open WA. His dad died and was cremated. employer felt $11 an hour was excessive to American vehicles. It must. We His dad’s last wish was to be buried on and they would sooner get that product ought to have the strength and the as- the church grounds where he min- made by Chinese workers at 33 cents an sertiveness to say that to all of our istered in Cuba. This young fellow took hour. You can certainly see the an- trading partners. his dad’s ashes to Cuba. They tracked guish in the faces of those people who This country needs to get a back- him down, the people who are tracking had to go home some night and tell bone. This country needs to have a down terrorists. They tracked down a their loved ones: Honey, I lost my job. spine that says, look, we believe in young man taking his dad’s ashes to It was not my fault. I worked here for trade and it should be mutually bene- Cuba. 15 years. I lost my job today because I ficial. We also are not going to apolo- Or Joan Slote. They are supposed to make $11 an hour and my employer gize for standing up for this country’s track terrorists; they tracked Joan wants to go offshore and find somebody interests. This country has interest in Slote down. Joan Slote is a 76-year-old who will do it for 33 cents an hour, and a growing economy and expanding grandmother who rides a bicycle all who will be prevented from joining a economy and jobs. There is no essential over the world. She joined a Canadian labor union, and who will work at a program we will vote on in this Con- bicycle club and bicycled to Cuba. She plant that may not necessarily be safe, gress that is as important as a good job

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.097 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7729 that pays well with good benefits. human destruction unfolding in the find the full text of his decree concerning There is no social program that is any Darfur region of Sudan. The stakes in this matter. more important than that. Darfur are extremely high and the In regards to the Antonov bombers that It is time, it seems to me, to turn to you mention attacking water wells, this is death toll could exceed the number not the case and is in fact part of a smear important things in the Senate. First killed in Rwanda 10 years ago. campaign against Sudan. This Russian air- and foremost, perhaps the majority Both Secretary of State Powell and craft does not even possess the technical ca- leader should come to the Senate and U.N. Secretary-General Kofi Annan pability of undertaking such a task. I would stop blocking amendments so we can have visited Sudan in recent days. like to assure you that in the end the Gov- finish the class action bill. If we do not Their attempts to promote an end to ernment of Sudan is determined to resolve finish the class action bill, it will be the killing in Darfur are admirable. this conflict as quickly as possible. We hope because of one reason, and that is be- The Sudanese Government has agreed that the U.S. Congress will help. Sincerely, cause the majority leader decided to to contain the janjaweed militias and block amendments. Ambassador, KHIDIR HAROUN AHMED, allow human rights monitors into Head of Mission. If he wanted to offer amendments, I Darfur. Yet it is not at all clear that assume our side could have offered a Mr. MCCAIN. I think this letter may the Government of Sudan is serious. give my colleagues an idea of how Or- number of the amendments we were The Sudanese Foreign Minister con- prepared to offer today, work through wellian the situation is because the tinues to blame the militias alone for Ambassador basically denies that any tonight, tomorrow, tomorrow night, the violence in Darfur, and before Kofi and finish the class action bill. In my human rights abuses are going on. Annan’s visit, local authorities cleared The fact is, the Sudanese Govern- judgment, in all the discussions I have the squatter camp he visited. been in, and I am part of the leadership ment has teamed with the janjaweed to Now, I have been around for a fair slaughter civilians in a systematic, on our side, there was no desire to number of years. I have never heard of block class action. There was an ac- scorched-earth campaign designed to a situation where the Secretary-Gen- ethnically cleanse Darfur of black Afri- knowledgment and an understanding eral of the United Nations was going to that this bill was going to get done— cans. The Government and its militias visit a refugee camp—actually it was a have bombed villages, engaged in wide- until this morning when the majority squatter camp—and the government leader came to the Senate and used an spread rape, looted civilian property, comes in the night before and evacu- and deliberately destroyed homes and unprecedented maneuver to block all ates the whole place. I can imagine amendments except those with which water sources. The Government does how insulting that is to the Secretary- not oppose the militias, as they sug- he would agree. General of the United Nations. And it The first thing we ought to do is gest; the Government and the certainly may give us some insight unhinge that problem, move forward on janjaweed are on the same team. into the seriousness or lack of serious- class action, and then deal with a How do we know that the Govern- ness on the part of the Sudanese Gov- range of other issues we know are im- ment is lying about its role and the ernment. portant for this Congress. It is sur- scale of the crisis? Numerous press re- Government officials have said that prising to me how little this Congress ports, victim accounts, and other evi- reports of humanitarian catastrophe has accomplished and how much it dence paints a tragic picture. The num- are overblown, and Sudan’s Ambas- should be required to accomplish. bers are shocking: at least 1.1 million The highway bill, which is so impor- sador to the United States says that people driven from their homes and up tant, as I indicated earlier, is last despite widespread reports that the to 30,000 already dead. And 320,000—I re- year’s business. It was not done last Government is using Antonov bombers peat, 320,000—people may die by the year and now apparently will not be to attack villages and water wells, that end of this year, and a death toll far done this year. this is false and ‘‘part of a smear cam- higher is easily within reach. What are we doing? Standing around paign against Sudan.’’ But numbers do not tell the whole here in the Senate. We will not vote Mr. President, I received a letter story. The National Geospatial-Intel- today, apparently, and probably will from the Ambassador of Sudan that I ligence Agency has produced a number not vote tomorrow, I don’t know why. ask unanimous consent be printed in of satellite images that depict what is Why? Because we have these unusual the RECORD. going on in the Sudan. procedures of blocking amendments be- There being no objection, the mate- This map I have in the chamber of cause someone is concerned, appar- rial was ordered to be printed in the western Sudan and eastern Chad shows ently, that someone else is going to RECORD, as follows: the large number of damaged and de- offer an amendment that somebody REPUBLIC OF SUDAN, stroyed villages across the Darfur re- else does not like. THE AMBASSADOR, gion. Each orange fire with a black I do not understand. We probably Washington, DC, June 23, 2004. center, as shown on the map, rep- should be required to retreat someplace Hon. JOHN MCCAIN, resents a village that has been com- Senate Russell Office Building, Washington, in a room and read Senator BYRD’s his- DC. pletely destroyed—each one of these tory of the U.S. Senate. Maybe that DEAR SENATOR MCCAIN: In reference to areas shown in orange with the black would be helpful, and we can read your article today, Wednesday, June 23, 2004 in it. about some of the great debates in this in the op-ed section of the Washington Post, At least 400 separate villages, most of Congress—tough debates, sharp de- concerning the situation in Darfur, a west- which were stable black-African farm- bates. But they went on and they had ern region of Sudan. First of all, I would like ing communities, have been partly or votes and they resolved them and got to express my respect and appreciation for completely burned by military forces. through them. your sincere concerns about the plight and This number reflects only those vil- Mr. President, with that, I yield the suffering of my fellow citizens who are af- lages where there was a clear intent to fected by the rebellion that began in Feb- floor and suggest the absence of a ruary 2003. This rebellion began in response damage or destroy these villages. The quorum. to an erroneous assumption that the peace total number of damaged and destroyed The PRESIDING OFFICER. The between the northern and southern parts of villages could be considerably higher. clerk will call the roll. Sudan would come at the expense of other Also, on this map, you will see pink The legislative clerk proceeded to regions in the country. triangles that represent U.N. refugee call the roll. Militias affiliated with the two rebel camps inside Chad. Mr. MCCAIN. Mr. President, I ask groups in Darfur, the Sudan Liberation Now, this is very widespread. Re- unanimous consent that the order for Movement and the Justice and Equality member, this country of Sudan is very the quorum call be rescinded. Movement, are numerous. These rebels call large, about the size of the State of The PRESIDING OFFICER (Mr. themselves Tora Pora after a place in Af- ghanistan and Pushmanga in Kurdistan. The Texas. CORNYN). Without objection, it is so or- Tora Pora, the Pushmanga and the pro-Arab Where have the people living in these dered. Janajweed are all outlaws and bandits that villages gone? SUDAN burn, rape, and loot. President Al-Bashir is The pink triangles on this map show Mr. MCCAIN. Mr. President, I come working to disarm all of them and bring U.N. refugee camps located 50 kilo- to the floor today to discuss the mass these criminals to justice. Attached you will meters inside the Chad border. Yet

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.099 S07PT1 S7730 CONGRESSIONAL RECORD — SENATE July 7, 2004 some are still unsafe because the mili- scarring on his face—he still cannot we quoted a survivor of the Rwandan tias are launching cross-border at- eat solid food. His brother, who was genocide named Dancilla. She said, ‘‘If tacks. Those who are not in camps also shot in the attack, discovered Hus- people forget what happened when the have settled in dry riverbeds, and the sein still alive when he returned to the U.N. left us, they will not learn. It rainy season is approaching. These peo- village to bury the dead. might then happen again—maybe to ple will soon be unreachable. This second photo shows a shelter set someone else.’’ All Americans should The next picture shows the village of up under a tree along the Chad border. realize one terrible fact: It is hap- Karraro, a farming community de- The woman who lives here lost her hus- pening again. stroyed within the past few months. band and sons when they were mur- I yield the floor. The village consisted of approximately dered by the janjaweed. As the region The PRESIDING OFFICER. The Sen- 250 huts. By May, they were all gone. enters the rainy season, many of the ator from Ohio. This image shows healthy vegetation refugees are forced to live like this, Mr. DEWINE. Mr. President, let me in red. There is very little left, and this without adequate protection from the first congratulate and thank my col- was a farming village. The blues and flooding and storms. league from Arizona for his very elo- grays show areas that have been de- It is hard to adequately express my quent statement and also his great stroyed. disgust at this photograph. This 35- leadership in regard to Darfur. Not It is remarkable. year-old woman is pregnant with the only his comments but those unbeliev- This slide shows El Geneina, the cap- baby of one of the 20 janjaweed raiders able pictures really tell the story about ital of Western Darfur State. The town who murdered her husband and then what is going on in this very tragic re- is under the control of the Sudanese gang-raped her. Now she lives in gion of the world. The world is begin- Government—I repeat, is under the Bamina, a remote border village where ning finally to wake up and pay atten- control of the Sudanese Government— aid agencies have been unable to pro- tion to what is going on. and has not been attacked by militia vide any help. During the Fourth of July recess, the forces. The current situation in Darfur is crisis in Darfur, Sudan, made headlines In the upper right-hand corner of the orphaning many children. This photo with the visit of Secretary of State slide, you can see a government air- shows two children whose parents, Powell and U.N. Secretary Kofi Annan. field, one of three in the Darfur region. uncle and older brother are all dead or I applaud them for going there and for Sitting on the ground are M–24 HIND missing. The girl, Nijah, is 4 years old, taking the spotlight of that office that attack helicopters, as shown right and she is carrying her malnourished 1- their office commands—the bully pul- here. According to eyewitness ac- year-old brother. Many orphans, such pit, as Theodore Roosevelt would say— and bringing the world’s attention to counts, the Government has used these as these two, are alone and face starva- that region. I applaud them for bring- attack helicopters to target the civil- tion. ing this much needed attention to the ian population. It is not a matter of I could go on, but I think the picture genocide, the humanitarian crisis in counterinsurgency techniques; the is clear. The world cannot let the situ- Darfur. Government is deliberately attacking ation in Darfur continue. The inter- Our colleague Senator SAM civilians and their villages. national community is getting the BROWNBACK and Representative FRANK The Government of Sudan may argue message, and the administration has WOLF also visited Darfur over the that the ethnic cleansing is being car- taken some needed steps. But we must Fourth of July break. I had the oppor- ried out only by militias over whom do more, and we must do it imme- tunity to talk to Congressman WOLF the Government has no control. But diately. about this visit, and Congressman look at this image: These white arrows, The United Nations Security Council WOLF is someone who, along with Sen- right here, point to craters which the should issue a demand to the Sudanese ator BROWNBACK, has traveled to re- government: stop immediately all vio- imagery analysts conclude are con- gions of the world before. He has seen lence against civilians, disarm and dis- sistent with aerial bombing. grave humanitarian crises before, so This is the Forchana Rufugee Camp. band its militias, allow full humani- nothing really shocks him. But when I As I mentioned earlier, there are up- tarian access, and let displaced persons talked to him on the phone the other wards of one million internally dis- return home. The test of the govern- day, he told me that what he saw in placed persons in Darfur today. In addi- ment’s commitment must be what hap- Darfur really defies imagination. He tion, over 100,000 Sudanese have sought pens on the ground. If we do not see said: I am just so upset, so pessimistic. refuge in camps inside eastern Chad. tangible evidence that the government Of course, the pictures that Senator and militias are meeting these de- The U.N. has erected eight camps in MCCAIN showed us make us understand. Chad, and they continue to grow. This mands, the leadership of both should Mr. MCCAIN. Will the Senator yield image shows the Forchana refugee face targeted multilateral sanctions for a question? camp in Chad and they continue to and visa bans. Mr. DEWINE. I certainly will. grow. Since this image was acquired in Peacekeeping troops should deploy to Mr. MCCAIN. I thank Senator mid-April, this camp has increased to Darfur to protect civilians and expedite DEWINE for his involvement in this ef- over 10,000 residents. Many residents the delivery of humanitarian aid, and fort and his commitment to trying to fled when their homes and crops were we should encourage African, Euro- see some rapid addressing of an unfold- burned. You can see approximately pean, and Arab countries to contribute ing tragedy. 1,700 tents, and it had a population of to these forces. The African Union has My question to Senator DEWINE is, 7,000 on 19 April and is now well over announced that it will send 300 peace- Did you happen to see that the Sec- 10,000. keepers, but this is just a start. The retary General of the United Nations These satellite images together paint United States should help provide fi- travels to Darfur and is scheduled to go an appalling picture—a picture of eth- nancial and logistical support to coun- to what they call a squatters camp, nic cleansing of the worst sort, of mass tries willing to provide peacekeeping which is where displaced persons are, killing and untold human suffering. To forces. We should also initiate our own understanding from news reports that bring this picture into even sharper re- targeted sanctions against both the there is kind of a show camp where the lief, I would like to share some photos janjaweed and government leaders, and Sudanese Government takes their reg- taken on the ground. consider other ways to pressure the ular visitors to cycle through. The I would like to thank Nicholas government. staff of the Secretary General of the Kristof of the New York Times for his Some Americans, understandably U.N. visited this camp. It is in deplor- permission to reprint and use the fol- preoccupied with events in Iraq, Af- able condition the day before. The Sec- lowing four slides. ghanistan, and elsewhere, may think retary General of the United Nations This photo is of a 19-year old named that these steps are too difficult or too shows up the next day, and it is empty. Hussein. Hussein was in a group of men expensive. Dealing with ethnic strife is The Sudanese Government has evacu- attacked by the janjaweed, and he suf- never easy, and it is tempting to turn ated every living soul. I can’t recall fered gunshot wounds to the neck and our heads. In a recent Washington Post anything quite as insulting to the Sec- mouth. In this image you can see the op-ed by Senator DEWINE and myself, retary General of the United Nations.

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.101 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7731 I wonder if Senator DEWINE had a We need to send peacekeepers in for counting on slipping back into the Su- comment on that. Sara, and for the tens of thousands like danese military or back into the vil- Mr. DEWINE. If I may respond to my her who have been killed because they lages after all this is done. colleague, it shows the arrogance of were Black. That is why they were The only future for those guilty of this government. We have seen what killed—because they were Black. These war crimes should be the inside of a they have done to these individuals. people have no reason to trust a gov- courtroom and then the inside of a jail The other thing it indicates to me is ernment that has done this to them, cell. that, even now, when the world is pay- and neither do we. I would trust Afri- Sixth, we will need peace talks in ing attention, they still are thumbing can Union monitors and peacekeepers. order to address the deep roots of this their nose at the world, thumbing their We need to help them with logistical conflict. This is not just about skin nose at the Secretary General, thumb- planning and support, and I hope we color; this is about a systematic policy ing their nose at the Secretary of will help them as they prepare their of the Government of Sudan to deprive State. They really will not let people troops. We have been calling for this outlying regions the resources they in to see what the circumstances are. for a number of months, and maybe need to develop. There are other re- So when we hear some people say: now people will start to realize it is the gions of Sudan that are also suffering Senator DEWINE, they promised they only step. The wolf cannot be expected from neglect, and unless the Govern- were going to take care of these people to guard the sheep, and the Sudanese ment of Sudan changes its attitude and and they promised they were not going military, which includes former militia starts to treat its people with respect, to encourage the continuation of this members, cannot be expected to guard it will face more insurgencies in the fu- genocide; why don’t you believe them? and help the people of Darfur. ture. The Government of Sudan needs The answer is because of what my col- Furthermore, 300 peacekeepers is just to understand that. league pointed out. It is that type of a start. There are too many camps, too Finally, I close with a word about the attitude. many people, all in a region the size of humanitarian situation in Darfur now. I think we know that if this was oc- Texas, for 300 people to be the answer; According to the World Health Organi- zation, 10,000 people will die this month curring in other parts of the world, 300 is only the first step. I expect other in Darfur if nothing is done. Today, it such as in Europe, let’s be candid, the countries to follow the African Union’s is projected that 100 to 200 people will world would have paid attention a lot lead. die. By the end of the week, an addi- earlier. That is the truth. The world Second, we need to classify what is tional 1,000 people will die, not just would have paid attention. Something going on in Darfur as genocide. I know from disease but from inaction. The would have been done about it earlier. with the use of that term comes a legal crisis will require more than just con- Finally, now, the world is paying at- obligation under the Convention on the tributing money, although money is tention. Prevention of Punishment of the crime important. According to the World The imperative to act in Sudan is of genocide, but we should not refrain Health Organization, military logistics clear. As my colleague from Arizona from using the term simply to avoid acting. If it is genocide—and it is—we are needed immediately to distribute pointed out, there are steps that must the aid. According to the United Na- should call it that. It is my under- be taken; steps such as sending in a tions, at least 50 camps are currently standing that the litmus test for using U.N.-authorized peacekeeping force and receiving no aid at all. That is only the term ‘‘genocide’’ is a matter of in- planning tribunals that punish the going to get worse as the rainy season tent. Is there intent to commit geno- guilty are steps Senator MCCAIN and I intensifies, washing out all of the cide? Let me tell you, when men on have called for in the past. I think the roads. first time I talked about them was horseback and camel kill men, women, We know the Government of Sudan back in May. Yet we are still waiting and children, and then go 50 miles to likes to deny that this is a crisis, as Chad to complete the task when they for the international community to Senator MCCAIN pointed out, but we all act. This delay, let no one make any fail, I don’t know what other term to know this is the worst humanitarian mistake, is costing lives. use. It is genocide and we should call it crisis in the world today. People are The U.S. Government and the Senate that. counting on us, counting on our action. have taken other steps several weeks Third, we need to name names. This Tens of thousands of lives hang in the ago, such as providing more humani- is a list of 7 of those responsible for or- balance. tarian aid funding. I thank my col- chestrating the atrocities within the I encourage my colleagues to join the leagues for that vote. The House did militias of Sudan. We should share this growing chorus of voices demanding ac- the same. Yet much more needs to be information and publicly identify these tion in Darfur. I thank all those who done. people so the world knows that those have supported our efforts so far. We Let me go through, if I could, a list who aid in genocide will not be able to cannot rest upon our past laurels, but of what needs to be done. First, the hide in the shadows. instead we must continue to move for- U.N. should authorize peacekeeping Fourth, we should impose targeted ward, pushing the international com- forces and monitors to guard the re- sanctions on Government of Sudan offi- munity to do more. After Rwanda, gion of Darfur, and particularly the cials who are responsible for aiding the when we said never again, we meant it. displaced persons camp. Again, as we militias. It is not enough to target the I thank the Chair. I yield the floor, discussed, I know the Sudanese Gov- militia members who are little more and I suggest the absence of a quorum. ernment already promised to protect than thugs on camels; we need to tar- The PRESIDING OFFICER. The the people of Darfur. They have made get sanctions at government officials, clerk will call the roll. the same promises for months. including travel bans. It is not enough The bill clerk proceeded to call the I want to show this picture of Darfur to say we are going to do travel bans roll. and show why the Government of against these militias. They are not Mr. SESSIONS. Mr. President, I ask Sudan has been stalling. Satellite going anywhere. We need to get the unanimous consent that the order for photos that are available from USAID people to whom it will really matter, the quorum call be rescinded. confirm the destruction of nearly 400 and that is the people in the govern- The PRESIDING OFFICER. Without villages and 56,000 houses. Here is a pic- ment. We need to go after their assets objection, it is so ordered. ture from the ground. Here is what it and deny them the freedom and rights Mr. SESSIONS. Mr. President, I rise looks like after they are done. Here is they have denied to those in Darfur. today to talk about the critical need what is left of the village. The stories Fifth, we need to prosecute the war for class action reform. The class ac- are terrible. A villager described it crimes in competent international tri- tion fairness bill that is before us, S. best. She said: bunals. Dog and pony show trials are 2062, seeks to guarantee that plaintiffs no substitute for justice, and a lasting in a class action, the people who have The Janjawid arrived and asked me to leave the place. They beat women and small peace in Darfur and in the rest of actually been harmed and who have a children. They killed a little girl, Sara. She Sudan will require that justice is right to be compensated, are the actual was two years old. She was knifed in her served. This is particularly important beneficiaries of class action and not back. for the militia members who were only attorneys.

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.102 S07PT1 S7732 CONGRESSIONAL RECORD — SENATE July 7, 2004 The Class Action Fairness Act pro- being obstructed and being blocked they are suing, big fees to be paid to vides, one, the ability to remove ac- from even having an up-or-down vote the lawyers, millions of dollars, and tions to Federal court in cases where by a device that does not give any lim- then acquire only token benefits for the aggregate amount in question ex- its on the amount of debate. That is the members of the class. That is not ceeds $5 million and the home State very unfortunate. It is not the right good, and I will talk later about some plaintiffs are no more than two-thirds thing to do. As I indicated, it is a de- of the cases where this has happened. of the class. In other words, class ac- vice that allows a group of Senators to Lawyers in such cases have lost their tions that are essentially State court block the passage of the bill even if perspective and have not handled the matters will remain in State court, but they say they are for it. But if we try interest of their clients with integrity. matters that involve major amounts of to cut off and limit debate and have a This bill would crack down on that. money and large numbers of plaintiffs definite time for a vote, they say, no, It would give more power to the judge in multi-State regions, which fre- they will not support that; I am for the to make sure those kinds of abuses do quently occurs, ought to be in Federal bill, I just will not give this time limit; not happen. court. Why should a single county in a I will not agree to how many amend- Sometimes these class action cases single State, a State judge, decide a ments we can put on. are being used as judicial blackmail, matter that affects all 50 States and The majority leader goes to it, we forcing defendants to settle cases that perhaps hundreds of thousands of indi- spend a week to 10 days on it and we are basically unjustified, even frivo- viduals? still have not passed it. Then what can lous, rather than spend millions of dol- It will provide special scrutiny for he do? So he cannot move to a bill lars in litigation and the risk of loss of the abused coupon settlements. That is under those circumstances. We need to a whole customer base maybe because something we have heard a lot about have an agreement. of bad publicity. So the defendants are and is not right; that the victims get I hope Senators will reevaluate those compelled to pay even if they are real- coupons for the product and the law- circumstances so we can reach an ly at fault, and sometimes they will yers get paid millions of dollars. It pro- agreement and move forward with this pay the lawyers more than they will vides protections against unwarranted legislation that is very important. If pay the people who have been victim- higher awards for certain class mem- not, everybody needs to know it was ized. bers based on geographic location. blocked again, obstructed from being Other examples of class action prob- The bill is responsible, it is re- able to be brought up, debated, and lems include what has been referred to strained, it will curb class action amendments offered to it. as ‘‘drive-by’’ class actions where the abuses, and produce a more productive I know the Presiding Officer served class is certified even before the de- class action system. on the Texas Supreme Court and also fendant has notice. There are ‘‘copy- As I understand the situation today, as attorney general of Texas. He under- cat’’ class actions where the actions the majority leader wants to proceed stands the legal issues perhaps better are filed in multiple jurisdictions to to this bill, and I hope we can do that than any other Member of this body. I see which court will certify the class in short order. The bill passed out of think we would agree, and most law- first, or they are filed by another law- the Judiciary Committee, of which I yers would agree, class actions are not yer to try and steal what appears to be am a member, in June of 2003 by a 12 to evil in themselves. In fact, they are a lucrative claim from the person who 7 strong bipartisan support. Since pass- good tools to deal with litigation in filed the first class action; get in a race ing out of committee, the bill has been which there is a single type of cause to the courthouse. through two major substantive periods that injured a whole host of people, This is a matter of significance. Law- of negotiation, each one bringing on yers are supposed to have fidelity to more Senators in support of the legis- where perhaps hundreds of thousands their clients. In some cases, the fidel- lation. Currently, 62 Senators have ei- of people were injured or wronged by ity to their clients leads them to do ther voted for cloture on the previous the same act or series of acts. So as the things that are lawful and proper under version of the bill or have publicly ex- matter of proof gets to be unjustifiable, the law but are really abusive. This is pressed their support for this version. if the amount of loss is $100 or $200, It is time to proceed to the bill, to 100,000 people in America have to hire a one of those examples. Class action debate the substance of the bill, and lawyer to file 100,000 lawsuits, so a per- lawyers are known to forum shop by have an up-or-down vote on class ac- son can file a class action and a lawyer naming irrelevant parties in class ac- tion reform. But I am concerned, I can represent the whole class to deter- tions in order to destroy diversity and must say, that many of the people who mine how much that group of people to agree to settlements that pay boun- say they are for it, my Democratic col- were damaged and get them checks, ties for someone discovering a class ac- leagues who in the past have been re- pay them and get them recompensed. I tion, awarding the original plaintiff luctant to sign on, but they studied it think that is a good procedure, and I more than any other member of the more and said they are for it, that they am all for that. It is a real good proce- class. may not really want to move to this dure. It is something we ought not to It is hard to criticize a lawyer for bill. One way we can do that—and all believe is bad in and of itself. forum shopping. If he looks all over the Members of this body understand how State courts are being overwhelmed United States of America, he has a it works: Add amendment after amend- by these actions. I saw the numbers complaint that involves everybody, ment to legislation, and they draw out from 1988 to 1998. The number of class maybe it is a MasterCard that in every the debate on issues nonrelated, non- actions pending in State courts in- county in America somebody has one, germane to the legislation and, in ef- creased by 1,042 percent while the num- and there is a complaint about that, he fect, they can kill legislation through a ber in Federal courts increased only 338 can pick the best jurisdiction in Amer- filibuster by amendment. percent during that period. ica, the best county. Maybe he knows The majority leader has a lot of State courts have often been unable the judge who is very favorable to his things we need to do. We need to pass to give class actions the attention they theories. He can file it in any county in this bill. We have strong bipartisan need, and abuses have occurred too the United States that he chooses. support for it, but he has a lot of other often under those circumstances. It has There are some counties in Alabama legislation that needs to be done. The hurt class members sometimes to the that are known for this. He gets total majority leader has propounded a se- benefit of attorneys. Make no mistake choice of where to file the case. I can- ries of proposals that would provide an about it, an attorney in a class action not say that is morally bad for the law- opportunity for Members on the other is in a delicate position. That attor- yer to do that, but those of us who set side to offer minimum wage amend- ney’s interest, when the settlement ne- the laws, who set the policy for class ments and other amendments, unlim- gotiations come around, can be in con- actions, we ought to review that. We ited germane amendments, amend- flict with the interest of the people he ought to create laws that make it more ments related to this bill, unlimited, represents. difficult for a lawyer to be able to pick and they have been rejected. So what happens sometimes in these the single most favorable jurisdiction So what that suggests is there is not negotiations is that lawyers demand in the whole United States in which to a serious commitment, that this bill is from the big companies, or whoever file an action.

VerDate May 21 2004 02:10 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.105 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7733 Let me talk about this situation in their account far exceeded the $9 ben- the world and bring some containment the Toshiba case. A class action suit efit they received from the class ac- to the abuses in litigation. was filed in Texas, complaining of an tion. I believe in litigation. I believe in the entirely theoretical defect in the flop- For example, Dexter J. Kamowitz, of court system of America. I believe py disk controllers of Toshiba laptops. Maine, a case which a Chicago attorney many of these lawyers are not im- There were no allegations that the as- filed in Mobile, AL, and the plaintiff, proper or immoral; they are just using serted defect had resulted in injury to who is supposed to be winning a ver- the existing legal system in every way any user, and not one customer had dict, who lives in Maine, who did not they can to maximize the benefit they ever reported a problem attributable to initiate the class action against the can obtain for their client. So what the defendant. However, Toshiba faced Bank of Boston—he just happened to be happens then? It is up to us to deal potential liability of $10 billion, and declared a member of the class—but he with it. they decided to try to settle the claim. received a credit of $2.19 on the settle- A lot of people have talked about this The class members received between ment. At the same time, the class ac- question of federalism, States’ rights, $200 and $400 in a coupon off the pur- tion attorney debited his account for how we ought to handle this and why should the Federal Government involve chase price of Toshiba products. The $91 in legal fees, producing a net loss of itself in class actions or why are we two named plaintiffs received $25,000, $87.81. Such results, as might be ex- dealing with it. Over the last 30 years, and the attorneys received $147 million. pected, produced outrage from class we have had a host of pieces of legisla- The class members in this case only members in other States affected by tion that poured through this body, the action. benefitted from the lawsuit if they pur- many of them driven by our friends on Judge Frank Easterbrook, circuit chased additional products from To- the other side of the aisle, that impact judge of the seventh circuit, asked: shiba and used the coupons. This is not States’ rights. Now all of a sudden they the way the legal system is supposed to What right does Alabama have to instruct are claiming States’ rights will be vio- financial institutions in Florida to debit the work. lated by class action reform. Let me Class action reform is also needed so account of citizens in Maine and other just say a few things about that ques- that people who are not injured do not States? tion because it is very important. It is receive compensation. If members of a So we need to be careful about these one we should think about and analyze class are unable to demonstrate dam- matters. We need to be careful that these cases are handled fairly. This bill honestly. age, they ought not to be paid. First, there is no doubt whatsoever takes steps forward in that regard. Lawyers are supposed to represent that the kind of cases we are talking That is why it received strong support real clients with real problems. They about ought to be or can be handled in throughout the Nation, and that is why are ethically bound to represent the in- Federal court. That is perfectly con- terests of their client foremost beyond so many Senators have committed to stitutional. The Constitution provides their own interest. supporting it, Republicans and Demo- for the litigation between citizens of Class action lawsuits are designed to crats. different States to be in Federal court be available when lawyers realize that S. 2062, offered by Senator GRASSLEY to begin with. It is only through the and passed out of the Judiciary Com- an entire class of people has been device of undermining diversity by harmed in the same way his client had mittee last summer, will help elimi- suing a local defendant that Federal ju- been harmed. Class action should not nate many of these abuses. I think I risdiction has been avoided in many of become a way for creative lawyers to have noted those. I will just note it these cases. The intention of the Fram- gain excessive fees. It should not be a will eliminate forum shopping, keeping ers of the Constitution was, in these situation where good advocates figure State judges of a case of less than one- interstate lawsuits, jurisdiction should out a way, by adding unrelated defend- third of the member class who are be in Federal court. So it is not uncon- ants or otherwise, to file actions in members of that State from dictating stitutional for these cases to be tried friendly circuits or to use other meth- the fate of plaintiff members in 49 in Federal court. I don’t think there is ods that maximize the benefit to their States. a single Senator in this body who clients while ignoring the rest of the I hope we will have a healthy debate would argue that making these a Fed- class members. on this process and that we can move eral case somehow violates the State’s Another case touched on my home forward and get this bill before us and rights because they are interstate State of Alabama, the famous, or infa- confront a problem that is jeopardizing cases. They involve plaintiffs from mous, Bank of Boston case. In this America. We have a lot of members more than one State. That really was case, a class action was filed by a Chi- here who say: We believe in jobs, we always thought to be appropriately cago attorney in the circuit court of want to see the economy grow, they handled in Federal court. I know that. Mobile, AL. The case alleged that the are not creating enough jobs in Amer- The next question is: Should we do bank did not properly post interest to ica. But when you have huge, multi- it? Is it proper that we put more of its clients’ real estate escrow accounts. million dollar, sometimes virtually ex- these cases in Federal court? I think The class settlements limited the max- tortionate lawsuits filed against busi- so. I believe it is proper because we are imum recovery to individual class nesses on a regular basis—they go up seeing abuses of state court jurisdic- members at $9 each. That $9 was the more than 1,000 percent in State court tion and because Federal courts have a maximum amount anybody could re- in 10 years, 300-something percent in better ability to handle multi-state cover. Federal court in 10 years; these law- litigation issues. Let’s take this prac- After the State approved the settle- suits are gaining momentum all over tical example. Let’s say there is a law- ment, the bank disbursed more than $8 the country—it does impact our pro- suit—I think there was one filed a million to the class action attorneys in ductivity as a Nation. number of years ago involving the con- legal fees and credited most of the ac- No nation carries the kind of litiga- struction of seatbelts for automobiles. counts of the victims with sums of less tion cost that the United States does. It was filed on behalf of the class of ev- than $9. The legal fees which were When we export a product outside our erybody in America who had auto- automatically debited from the class country, the total value and cost of mobiles, and virtually every county in members’ bank accounts total 5.3 per- producing that product, which has to America had one of those automobiles cent of the balance of each account. It be competitive in prices in the world and so they go to a certain county in was bad enough that a lot of these peo- market, that cost is created and added the Midwest where thousands of these ple did not even know they had been in to by litigation costs. Much of that is class action lawsuits are being filed a class action or that they owed an at- just insurance premiums. The more and they filed it there, the result of torneys’ fee for the $9 recovery that these cases are filed, the higher insur- which could be an order and financial had been won for them, the worst part ance premiums go. judgment that would impact the way is that many accounts were debited for So it is a real problem for us. It has seatbelts are handled throughout amounts that exceeded the credit they hurt our job creation, it has hurt our America. obtained from the settlement, meaning economic growth. It is time for this If you appealed any verdict from that that the attorney fee that came out of Nation to get in sync with the rest of county, where would it go? It would go

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.107 S07PT1 S7734 CONGRESSIONAL RECORD — SENATE July 7, 2004 to the supreme court of the State that over ‘‘controversies between citizens of this body can have some impact on the handled it. But it is going to affect ev- different states.’’ When you have a cost of the government. erybody in America. So if you file this bank in Miami, a lawyer in Chicago, I say to those here today, that spend- lawsuit in Alabama or Texas or Illi- victims in Maine and Alabama and ing is getting out of hand. Since 1977, nois, and you get a verdict that im- other places, that is a controversy be- the earliest Americans have paid off pacts the whole United States and you tween citizens of different States. It is their cost of government was June 28. appeal it, a single State gets to decide only through the reinterpretation of Now it is July 7. The United States whether it was properly tried and the diversity rule that these cases have prides itself in being a frontrunner in whether the order was appropriate. But many times been able to be kept in the human and civil rights protections. We if it is tried in Federal court, the ap- State court system rather than to be come together under the values of life, peal would be to the U.S. Supreme allowed to go through the Federal liberty, and the pursuit of happiness, Court, which handles the jurisdiction courts. I think this is right way for us those values that the Founders de- of the whole United States of America, to go. I think this is a logical, fair, re- clared to be the basis of this great Na- where it ought to be if the verdict is strained, professional response to a tion. going to impact a multitude of States. problem of the abuse of class actions in But there is a dragon in the midst, a So I think that is perfectly logical and America. burglar in the basement, sucking a good policy reason for us to do it in It is important for our economy. It is Americans dry of their hard-earned that way. important for our business in America. money. The perpetrators are right here We are seeing a problem in which I believe we need to pass it. I hope our among us. Our government is being litigation is impacting adversely our colleagues who are holding up this bill burdened with cumbersome and unnec- ability to create economic growth and today will reevaluate and reach an essary legislation and regulation for impacting adversely our ability to cre- agreement with majority leader Bill which the American citizens also pay ate jobs. It adds to the cost of products Frist to have some amendments or all the bill. In this season of budget and that we want to export around the the amendments that are relevant to appropriations bills, we need to think world. It adds to the cost of products the bill they want but not an unlimited about who we are representing and the produced here and sold in America number of amendments on any subject sacrifices they are making for each bill making them less competitive against they want to offer amendments on. we pass. imports that come into this country. If That won’t work. That is not right. Let We are not celebrating Cost of Gov- we can reduce the cost of litigation on us move this bill forward. Let us pass ernment Day, a day 189 days into the businesses in America, they will be it. Let us do what at least 60 Senators year. I am here to celebrate America. more effective about their business. in this Senate believe is proper. The strength and vitality of this Na- We do not want to deny people who I thank the Chair. I suggest the ab- tion is its belief and its investment in are wronged fundamental rights. In no sence of a quorum. individual American citizens, entre- way does this legislation do that. It The PRESIDING OFFICER (Ms. COL- preneurs, people working hard, giving says the litigation ought to be tried in LINS). The clerk will call the roll. their very best every day. They do not Federal court if it involves these kinds The assistant legislative clerk pro- mind paying a reasonable amount in of situations and it contains some pro- ceeded to call the roll. taxes. But we need to fight every day. visions to limit abuses. Mr. SESSIONS. Madam President, I We need to analyze the situation with Frankly, let me say this: I was a Fed- ask unanimous consent that the order every bill and ask ourselves: How much eral prosecutor in Mobile, AL, for 15 for the quorum call be dispensed with. more can we expect the American peo- years, and 12 years as U.S. attorney. I The PRESIDING OFFICER. Without ple to pay? How much burden can we have tried cases in State court and in objection, it is so ordered. expect them to carry? How can they Federal court. I know the Presiding Of- COST OF GOVERNMENT DAY carry a dynamic and growing economy ficer knows that by and large Federal Mr. SESSIONS. Madam President, I that creates jobs and allows higher judges have a lot fewer cases than would like to talk today briefly about pay, where people work and save and State judges. The fact is, in our State, an important matter. invest and do well economically with Federal judges probably carry on their As many of you may know, today is these burdens? dockets one-fourth or less the number Cost of Government Day. Not that we We do better, slightly better, some- of cases in State court, or maybe one- need to celebrate it, but it is an impor- what better than the Europeans. Their tenth the number of cases. State court tant day. taxes are going through the roof. I no- judges have thousands of cases. Fre- What is Cost of Government Day, you tice that the leadership in Germany quently, State court judges have fewer ask? It is the day on which the average cited the U.S. tax cuts that have law clerks—sometimes no law clerk— American worker has earned enough spurred our economic growth in recent when the Federal judges usually have money to cover his or her share of the months, something we are definitely one or two law clerks to help them do Federal, State, and local government. celebrating. They are discussing their work. That means that our government is so whether they need to do that. The Eu- Where would a big, complex multi- large and spends so much money that ropeans, though, are further down the state, multimillion-dollar lawsuit be we must work our poor citizens 189 road in social welfare, in burdens eco- better filed? Which court is best able to days a year before they can break even nomically, than even we are. handle these cases? Which ones were with spending. We need to watch what we are spend- designed by the original founders to Think about it like this. Say you go ing. We need to indelibly imprint in handle interstate cases to begin with? out and buy a house and the monthly our mind that the cost of Federal, It is clear to me that it is in Federal mortgage you have to pay for your State, and local government is the court. That is where these cases ought house is one-half of your monthly sal- work of American citizens for 189 days to go. ary. That is a huge amount. One-half of this year, 51.6 percent of the income Frankly, I could see taking more the money you earn—one-half of your earned. That is more than we need to class action cases than this legislation salary—has to go to pay your house allow. We do not need to see those provides for in Federal courts. I think mortgage. Say every month you get numbers increase. They need to start it would be justified. your paycheck and about half of it is going down. It is something we ought But because of the objections of some written off to the bank to cover your to work on. of my colleagues, we negotiated and mortgage. We must remember every day there worked out concerns that some lawyers That is the same way our govern- is a limit to the burden that the Amer- had, these negotiations will keep more ment works. The cost of government ican citizens can carry if we expect cases in state court than the bill origi- consumes 51.6 percent of our national them to be competitive in the world nally intended, but I am willing to live income. It is taking more than the hy- market. with that. pothetical mortgage payment of half I yield the floor. Article III of the Constitution vests your salary. I cannot help what some- The PRESIDING OFFICER. The Sen- the Federal courts with jurisdiction one’s mortgage payment is but we in ator from Ohio.

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.109 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7735 Mr. VOINOVICH. Madam President, I the Supreme Court of Ohio in a politi- to a 5-percent wage tax. That is a 13.3- rise today to speak on behalf of the cally motivated 4-to-3 decision struck percent jump from the year before—a Class Action Fairness Act, a bill to down the Ohio civil justice reform law, year when we experienced a 14.4-per- stop unfair and abusive class action even though the only plaintiff in the cent increase, which was the largest lawsuits that ignore the best interest case was the Ohio Academy of Trial percentage increase since 1986. These of injured plaintiffs. This legislation is Lawyers, the personal injury bar’s lawsuits cost billions of dollars and are sorely needed to help people under- trade group. putting a crimp in the budgets of every stand their rights in class action law- Their reason for challenging the American. suits and protect them from unfair set- law—this is incredible—they claimed Now, some of my colleagues have ar- tlements. It is needed to reform the their association would lose members gued that this bill sends most State class action process which has been so and lose money due to the civil justice class actions into Federal court and de- manipulated in recent years that U.S. reform laws that were enacted. prives State courts of the power to ad- companies are being driven into bank- The bias of the case was so great that judicate cases involving their own ruptcy to escape the rising tide of friv- one of the dissenters, Justice J. laws. They argue that the bill, there- olous lawsuits that have resulted in Lundberg Stratton, had this to say: fore, infringes upon a States’ sov- the loss of thousands of jobs, especially This case should never have been accepted ereignty. However, there is no evidence in the manufacturing sector. for review on the merits. The majority’s ac- for this assertion, and, in fact, it is the Unfortunately, not enough Ameri- ceptance of this case means that we have present system that infringes upon cans realize we are in a global market- created a whole new arena of jurisdiction— State sovereignty rights by promoting place and businesses now have choices ‘‘advisory opinions on the constitutionality a ‘‘false federalism’’ whereby some as to where they manufacture their of the statute challenged by a special inter- State courts are able to impose their est group.’’ products. Many of our businesses are decisions on citizens of other States re- leaving our country because of the liti- From this, it is obvious to me the gardless of their own laws. gation tornado that is cutting through way we currently administer class ac- Another argument against the bill is the economy and destroying their com- tions is just not working. that it will unduly expand Federal di- petitiveness. The Senate must start While we were frustrated at the State versity jurisdiction at a time when taking into consideration the impact of level, I am proud to have continued our courts are overcrowded. However, its decisions on this Nation’s competi- fight in the Senate, a fight for fair, State courts have experienced a much tive decisions in the global market- strong, civil justice. more dramatic increase in class action place. Too often, we think about things To this end, I worked with the Amer- filings and have not proven to be any in the United States for Americans and ican Tort Reform Association to more efficient in processing complex forget the fact that we are in a global produce a study entitled ‘‘Lawsuit cases. In addition, Federal courts have marketplace. Today, manufacturers Abuse and Ohio’’ that captured the im- greater resources to handle most com- and consumers worldwide have many pact of this rampant litigation on plex interstate class action litigation choices about where to do business. Ohio’s economy, with the goal of edu- and are insulated from the local preju- I believe for the system to work we cating the public on this issue and dice problems so prevalent under cur- must strike a delicate balance between sparking change. rent rules. the rights of aggrieved parties to bring Can you imagine what this study We all know that so many of these lawsuits and the rights of society to be found? In 2002 in Ohio, the litigation class action lawsuits are filed in juris- protected against frivolous lawsuits crisis cost every Ohioan $636 per year. dictions—two or three of them—be- and outrageous judgments that are dis- For every Ohio family of four, the cost cause they know the results of those proportionate to compensating the in- was $2,544. These are alarming num- cases if they file them in certain juris- jured and made at the expense of soci- bers. This study was released August 8, dictions. We have a certain jurisdiction ety as a whole. I believe this is what 2002. Imagine how high these numbers in Illinois. We have another in Mis- this legislation does. I am proud to be have risen since that time. sissippi. As a result, there is no fair- a cosponsor of it. In tough economic times, families ness to the defendants. Since my days as Governor of Ohio, I cannot afford to pay over $2,500 to I emphasize to my colleagues that have been very concerned with what I cover other people’s litigation costs. this is not a bill to end all class action refer to as a ‘‘litigation tornado’’ that Something needs to be done. Passage of lawsuits. We will have plenty more has been sweeping through the econ- this bill will help. class action lawsuits. Rather, it is a omy of Ohio, as well as the Nation. The This legislation is intended to amend bill to identify those lawsuits with Ohio civil justice system is in a state the Federal judicial code to streamline merit—with merit—and to ensure that of crisis. Ohio doctors are leaving the and curb abuse of class action lawsuits, the plaintiffs in legitimate lawsuits are State and too many have stopped deliv- a procedural device through which peo- treated fairly throughout the litigation ering babies because they cannot afford ple with identical claims are permitted process. It is a bill to protect class the liability insurance. to merge them and be heard at one members from settlements that give From 2001 to 2002, Ohio physicians time in court. their lawyers millions while they see faced medical liability insurance in- In particular, this legislation con- only pennies. It is a bill to rectify the creases ranging from 28 to 60 percent. tains safeguards that provide for judi- fact that over the past decade, State Ohio ranked among the top five States cial scrutiny of the terms of the class court class action filings increased for premium increases. General sur- action settlements in order to elimi- over 1,000 percent. It is a bill to fix a geons pay as much as $75,000 and OB/ nate unfair and discriminatory dis- broken judicial system. GYNs pay as much as $152,000. Com- tribution of awards for damages and Madam President, I am a strong sup- paratively, Indiana general surgeons prevent class members from suffering a porter of this bill and I urge my col- pay between $14,000 and $30,000 and OB/ net loss as a result of a court victory. leagues to do the same. I hope that the GYNs pay between $20,000 and $40,000. The bill is designed to improve the Holy Spirit enlightens us so we can Further, Ohio businesses are going handling of massive U.S. class action have a vote on this legislation which is bankrupt as a result of runaway asbes- lawsuits while preserving the rights of so important to the future of America’s tos litigation. Today, one of my fellow citizens to bring such actions. Class ac- economy. Ohioans can be a plaintiff in a class ac- tion lawsuits have spiraled out of con- The PRESIDING OFFICER. The Sen- tion lawsuit that she does not know trol, with the threat of large, over- ator from Connecticut. about, taking place in a State that she reaching verdicts holding corporations Mr. DODD. Madam President, before has never even visited. hostage for years and years. he leaves the Senate floor, I commend In 1996, as Governor of Ohio, I was In total, America’s civil justice sys- my colleague from Ohio for his excel- proud to sign H.B. 350, strong tort re- tem had a direct cost to taxpayers in lent statement. form legislation into law—for a while. 2002 of $233.4 billion. That is 2.23 per- I agree with him that this is an im- It might have helped today’s liability cent of our gross domestic product. portant piece of legislation. I have crisis but it never got a chance. In 1999, That is $809 per citizen and equivalent spent a good part of a year, along with

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.112 S07PT1 S7736 CONGRESSIONAL RECORD — SENATE July 7, 2004 my good friend and colleague from I will be the first to admit it, but I day. We have about 30 legislative days Delaware, and others—the Senator think an overwhelming majority of our left around here to consider all matters from California, Mrs. FEINSTEIN, the colleagues are either cosponsoring or before the elections of the fall. If my Senator from Wisconsin, Mr. KOHL, and supporting that legislation. Even in colleagues sense some frustration in the Senator from New York, Mr. SCHU- the other areas, we have had a limited this Senator’s voice, it is because I am MER—working to try to put together a amount of time to bring up some of frustrated. responsible bill on class action reform. these issues. I regret having spent as much time We have done that with this proposal. But I believe we can get time agree- on the bill only to find out in the end I regret the fact that nearly eight ments on some of these amendments if we can’t even get amendments to be months after we forged a compromise we stay in today, if we stay in tomor- brought up to debate. Instead, we have on class action reform, we have just row, if we stay in Friday, if we work to agree ahead of time what amend- begun to deal with this issue. I had longer hours, and if we come back on ments are going to be brought up. hoped the legislation would have come Monday or Tuesday. I believe we could Those rules exist in the House of Rep- up earlier in the year when there would adopt this important legislation, and resentatives. The rules of the Senate have been more time available to con- we would either accept or reject a num- are very different. This body is the an- sider it. ber of these other nongermane amend- tithesis of the House of Representa- I was pointing out to my colleagues ments. But to go through now the sec- tives, and for good reason. That has earlier, as someone who managed and ond day with nothing being done on a been the way this institution has func- wrote the securities litigation reform bill that many would argue is one of tioned for two centuries. bill, that we spent almost 3 weeks on the most important pieces of legisla- On important legislation such as the floor of the Senate debating that tion from the business community per- this, to invoke House rules to apply in bill. At the time, Bob Dole was the ma- spective is inexcusable. I want the the Senate is unfortunate. As impor- jority leader of the Senate. We had business community to know what is tant as this bill is, how this institution countless amendments that were of- happening here because I am sure the functions, in my view, is far more im- fered, both relevant and nonrelevant allegations are going to be made that portant. Senators have the right to be amendments. Never once was cloture somehow the minority is trying to stop heard. Because one day, not too distant invoked. Never once did someone fill this legislation. That is anything but in the future, the very Senator who up the amendment tree so as to limit the case. today is trying to stop a debate may be who could offer what amendments. You We probably could have dealt with the one seeking one. And so be careful didn’t have to get permission, in effect, five, six, or seven amendments on the what you wish for when you set prece- to offer your amendment. It was a con- floor of the Senate today. I am told dents or establish procedures that may tentious debate from time to time, but there are only 13 filed amendments on be repeated at times when you may ultimately the will of the Senate pre- this bill. In effect, we probably could find yourself on the other side of the vailed. The legislation was adopted. have almost concluded action on this political equation. But I also point out, interestingly, legislation instead of stonewalling to For all of those reasons, I am frus- the securities litigation reform was the make sure some amendments are not trated that this important bill many of only bill that President Clinton vetoed going to be debated and heard. We stop us have spent a lot of time on may be that was ultimately overridden by both everything from happening so a good close to death. We may not be able to the House and the Senate. It became piece of legislation that a lot of people enact it. That is unfortunate that we the law of land. have worked long and hard on to get are getting to that point with this bill, It was a lengthy process, but it was a right may be denied an opportunity to despite all the efforts that have been good process. I think the debate was be heard. That is wrong, Madam Presi- made, where we may not get a chance healthy. It was complicated, but none- dent. to even debate it, much less act on it. theless I believe the legislation ulti- Now, again, I know voting on non- I hope the leadership will listen to mately proved to be worthwhile. germane amendments is not something those who want to bring up some I cite that example because here we we are terribly excited about here. It is amendments, and see if we can’t work are now in a situation where before any the U.S. Senate though. In the U.S. out some time agreements and move amendments were offered—and we went Senate, we allow nongermane amend- forward. If that is not the case, the on this bill almost 24 hours ago—we ments—absent a unanimous consent idea that somehow the Senate as an in- were told last night by the majority agreement or filing cloture—to be con- stitution would have to take a back there would be no votes last evening. sidered by this body. So even before a seat to some procedural hurdles the We have been in session since about 9 single amendment is debated here, the majority would want to impose on the o’clock this morning. There have been majority is now invoking rules and minority is not worth giving up. As im- no amendments offered one way or the procedures that limit the ability of portant as this bill is, how the Senate other because we have an amendment this institution to be heard. I regret operates is more important to this Sen- tree that is filled up, and you must get that deeply. ator. I will be most reluctant, but permission to bring up an amendment. I was fearful this would happen. I am nonetheless I want my colleagues to Madam President, this is the U.S. sort of mystified as to why it is hap- know if it comes down to making a de- Senate. I have served here for a quarter pening. The majority, at least among cision about supporting a bill I have of a century and I have rarely seen this their members, are more supportive of helped write or abandoning procedures kind of procedural tactic being used on the class action reform bill. in the Senate, I will protect this insti- a bill that enjoys a strong majority of There are a number of Members on tution over this bill, as much as I support. I believe we have at least this side who are supporting this legis- would like to see this bill enacted. some 62 supporters of this bill. The idea lation, but the bulk of the support I am not going to sit here and sup- that we are not going to allow amend- comes from the majority side. I am port a set of procedures which deny my ments to be brought up unless ap- mystified as to why the majority would colleagues an opportunity to be heard. proved by the majority runs counter to not be pushing us to bring up our I wouldn’t support an unlimited right everything this institution stands for. amendments, agree to time limits, and that goes on for days with endless Now I know that some of these non- then vote on the amendments one way amendments. I know when I am being germane amendments are uncomfort- or the other and move the bill forward. gamed. I know when I am being taken able. There are people who are against But that is not the case. advantage of. That is not the case at them, although in several instances So we find ourselves now at the close this point at all, not even close to they have strong bipartisan support. of business on this day. We voted on being the case. For example, the legislation dealing one judge yesterday, and that is it. My hope is wiser heads will prevail, with immigration reform has been of- Now we are about to go into Thursday. that voices who care about this legisla- fered by Senator CRAIG of Idaho and We will be leaving, I presume, some- tion would be heard, and that we could Senator KENNEDY of Massachusetts. time around noon on Friday and prob- move to consideration of this legisla- Also the reimportation issue on drugs. ably won’t come back until next Tues- tion in the normal course of business,

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.114 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7737 on how we normally function when was this class action lawsuit. She ap- doesn’t want to see offered as an matters such as this emerge, where parently got named as a plaintiff be- amendment to this bill, it is not ger- there is a division of thought and there cause she had shopped there, and she mane to this bill, but it might be ger- are differences of opinion. was included in the lawsuit. mane to another freestanding bill that There are those who feel strongly In the end, the agreement that was would be offered later, let’s go ahead about not adopting this legislation. I worked out enables her to get—I will and make a commitment to offering understand that. But there are also paraphrase: Out of this, maybe I am that nongermane amendment, not on those in the majority who would like going to get a couple of coupons for this bill but at a later point in time to to see it adopted. To suggest somehow rentals, for two videos. And I will get a another bill. we are going to prohibit those who dollar-off coupon. I could do as well So the proponents of that measure would disagree with the bill an oppor- clipping coupons from the newspaper would know for sure that they are tunity to be heard on other matters on from Blockbuster. She was not pleased, going to have a chance to debate their this legislation is a wrong set of proce- particularly when she mentioned how issue and get a vote on it in the Sen- dures to be followed. much the attorneys were going to get ate. I am not discouraged. Somebody Despite the fact my name is on this in the litigation. asked me earlier—and it may have bill and I am proud of the fact it is—I The point I am trying to make is, been the Presiding Officer—if we were think it is a good bill and we did a good they were the really interesting people going to make any progress this week job writing this compromise—and as who spoke at our press conference. on this bill. I think we are. I am en- much as I would like to see S. 2062 be- What they had to say reinforced my be- couraged. If our leaders will sit down come the law of the land, I am not lief that we are trying to do the right and talk it through between the two of about to turn my back on an institu- thing. them, they can work this out. It is im- tion that allows Members to be heard Again, I realize it is not something portant they do that. Nobody on our and their ideas to be debated. As im- everybody agrees upon. We are trying side wants to be seen as obstructionist. portant as this bill is, it is not as im- to find some balance in this legislation A number of us have worked very hard portant as maintaining the integrity of which says when people have a legiti- on this proposal. Most of the folks on the Senate. mate beef, they have been harmed by a the other side are acting in good faith I yield the floor. product or service or been taken advan- on this bill, too. Whether you happen The PRESIDING OFFICER. The Sen- tage of, even people who don’t have a to be a company out there that wants ator from Delaware. lot of power, the little people, they to just get a fair shake when you are Mr. CARPER. Madam President, be- would have an opportunity through a taken to court, or if you are a con- fore the Senator from Connecticut class action to join together and to sumer who wants to make sure you are leaves the floor, I want to say how hold accountable the big companies not being ripped off by some company, much I have enjoyed working with him that have harmed them or at least there is a way to meet the legitimate on this issue. I appreciate the wisdom treated them unfairly. concerns of both interests. The more I learn about this bill and and experience he brings to the matter. I had hoped we would have a chance the more I hear about the germane We had a press conference today today by this time to have debated and amendments that will be offered, around noon, those of us Democrats voted on a couple of germane amend- frankly, the more I am pleased with and Republicans who support this com- ments, maybe a nongermane amend- the work that has been done. I think promise on class action. The real stars ment or two, and even work into the Senator BINGAMAN has a germane of the press conference were three night. From what I am told, we may be amendment or two he would like to guests: A woman from near Charlotte, wrapping up here fairly soon. It is not offer. I think Senator BREAUX has a NC; another from Wisconsin; and a even 6 p.m. I hate to see us waste the germane amendment. I think maybe third lady who, along with her hus- day. Senator PRYOR has an amendment to band, for many years ran a pharmacy We had some exchange earlier today offer that is germane. Maybe Senator down in Mississippi. They shared with between our leaders where Senator KENNEDY has a germane amendment to us how they had been involved in class DASCHLE had suggested maybe an ap- offer, too. There may be germane proach where we agree to offer five action legislation. amendments on the other side. They In the case of the Mississippi lady nongermane amendments to the bill are thoughtful amendments. Each of whose pharmacy down there in this lit- and maybe 10 germane amendments. them bring some concern. They, frank- tle county had been named in over 100 RIST Senator F countered with the abil- ly, need to be debated on the floor and lawsuits, not because they had done ity for either side maybe to offer 1 non- we need to have a chance to vote. anything wrong but because it was a germane amendment and maybe 10 or Mr. REID. Will my friend yield for a way to be able to try to get a class ac- more unlimited germane amendments. question? tion certified in that particular county If you look at the numbers between one Mr. CARPER. I am happy to yield for of Mississippi, really the defendants and five in terms of nongermane a question. were the big pharmaceutical company. amendments, there is a number be- Mr. REID. I want the record to re- Another lady talked about being a tween one and five that is probably flect that I know how deeply the Sen- plaintiff in a class action involving the more than two, maybe five, maybe ator from Delaware feels about this Bank of Boston and the issue was es- four, but there is probably a number issue. There are not many issues where crow accounts. Apparently somebody there we could agree on. the Senator from Delaware and I dis- took umbrage at the way the Bank of Our side is not going to go along with agree. This is one of them. I know how Boston was handling escrow accounts the idea of the Republicans telling us strongly he feels. Also, I know how and money going in and out of escrow what nongermane amendments we can strongly the Senator from Delaware accounts, and they filed a class action offer. But I am encouraged that if the feels about other issues. For example, lawsuit. In the end, the folks on whose two leaders will take some time later even though the Senator from Dela- behalf the class action had been filed today, maybe as early as this evening, ware feels extremely strong about this ended up losing moneys. Their ac- and sit down, they can hopefully work bill, when there came a time a few counts were actually debited in order out among themselves how many non- weeks ago when the majority leader to be able to help pay the attorneys’ germane amendments and maybe even made a tentative decision to move off fees which were rather substantial. work out the ones that would be of- the very important Defense authoriza- The other lady was a lady from Char- fered. tion bill, I called my friend from Dela- lotte, NC. She talked about late fees by There are a couple of amendments ware and I said: Don’t you agree that Blockbuster. She didn’t like the fact the Republican leader indicated he we should finish the Defense bill before that they had a late fee that was un- would not want to see offered as non- we move to class action? Without any fair. Over the course of time, because germane. And to the extent that is a hesitation, the Senator, being a vet- of the family and this sort of thing, concern he has, I respect that concern. eran himself, who has hundreds of they paid a fair number of late fees, I had hoped maybe he would change his hours in an airplane for our country, and she didn’t appreciate it, so there mind. But if there is something he said yes.

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.115 S07PT1 S7738 CONGRESSIONAL RECORD — SENATE July 7, 2004 As a result of that, Senator DASCHLE the past months, for us to end up on the House and Senate have convened and I gave the Senator from Delaware the floor today with a motion to in- hearings on class action abuse and the our word that we would do everything voke cloture and to limit amendments need for reform. Are we hearing there we could, as soon as the Defense bill to one nongermane amendment and a have never been hearings held? On was completed, to move to this bill. In number of germanes. what planet are those Senators living? fact, we made a unanimous consent That was the wrong way to get start- The House has passed similar agreement that the minute we finished ed. We need to get back on the right versions of the Class Action Fairness the Defense bill we would move to the track. We can do that. The people who Act since the 105th Congress and have class action bill. can get us back on the right track are done it, by the way, with very strong I am disappointed, but not that the the majority leader and the minority bipartisan support. bill is not going to go anywhere be- leader. While the minority leader is not In the Senate in the 105th Congress— cause I don’t like the bill; I am dis- a proponent of the bill, he has been fair this is the 108th Congress. We can go appointed in the way the bill was dis- in terms of making sure those who are back to the 107th, the 106th, and the posed of. This is like having a football proponents can have our day in court 105th Congresses when there was work game and the football field is only 90 on the floor and not be obstructionist. done on this legislation. At that time, yards long. It is not fair to either side. I am grateful for that. I hope that I held hearings on class action abuse in I want the record to be spread with the maybe even while we are speaking, or the Judiciary Committee’s Administra- fact that the Senator from Delaware shortly thereafter, the two leaders will tive Oversight and Court Sub- has been fair in all his dealings in the get together and have the kind of dis- committee. In the 106th Congress, my Senate. The example I just made was cussion in private that they need to subcommittee held another hearing on the Defense authorization bill. That have, and maybe later in public on the class actions, and the Judiciary Com- was a prelude to the question. I am ter- floor, so we can have a day that is mittee marked up and reported the ribly disappointed because it appears more productive tomorrow than today Class Action Fairness Act, two Con- to me that this has been in the minds was. gresses ago. of the majority for some time, at least I yield the floor. In the last Congress, the 107th, the in the minds of the majority yesterday, The PRESIDING OFFICER. The Sen- Judiciary Committee held a hearing on July 6. We have a card that was sent to ator from Iowa is recognized. class action abuse. And in the 108th one Senator from the National Associa- Mr. GRASSLEY. Madam President, I Congress, the Judiciary Committee tion of Manufacturers, dated yester- wish to take an opportunity to make a marked up the bill. day, July 6. Today is July 7. few comments and respond to some of Any Senator who says we have not Dear Senator: On behalf of the 14,000 mem- the statements that have been made by had hearings on this legislation has not ber companies in the National Association of individuals on the other side of the been in the Senate very long or they do Manufacturers, including more than 10,000 aisle who are opposed to this bill. I not have very good staff helping them small and medium-size manufacturers, I urge know a lot of people on the other side or they are not doing anything them- you to vote in favor of cloture on this bill. of the aisle favor this bill and that is selves. This was planned yesterday. So I am why we have been able to get to the The bill we are considering is also disappointed because we are playing on place where this legislation is coming compromise legislation that we worked a football field that is not quite long up again. So my remarks are made to- out in a bipartisan way, a continuation enough. That is too bad, not for the end ward and in response to those who op- of the bipartisan spirit of this legisla- result that I see, but I believe, as the pose this legislation, not those who tion that is exemplified by the work of Senator from Connecticut so well de- have been helping us move it along. Senator KOHL now for over four Con- scribed, in this institution. Having For instance, I heard there were gresses. We did this with Senators served in the Congress of the United claims that the Class Action Fairness SCHUMER, DODD, and LANDRIEU since States for 22 years, as I have, I believe Act has never been considered before, the cloture vote failed last October. in the institutional integrity of these that there have not been any hearings While the bill numbers may have bodies. When you see something such or markups on this legislation. Clearly, changed for the Class Action Fairness as this, it means there is not a fair these Members have not been talking Act, we have been working on it now hand being dealt. He is someone who to the Senator from Wisconsin, Mr. for the fourth Congress. If people think believes strongly in legislation. KOHL, who has worked hard with me just because we change the title of a Frankly, I think people have taken since the 105th Congress. Clearly, crit- bill we ought to have another hearing, advantage of the Senator from Dela- ics didn’t pay any attention to what I that is just an excuse for stalling. If ware. He is a very hard person to take had to say last night in my opening they do not like the bill, vote against advantage of because he has a lot of ex- statement or, for that matter, many of it. But let’s move something along that perience in government. This has not the statements made by my colleagues needs to be moved along, and there is a been fair. It is not good for this body on the long history of this legislation. consensus in this body that it ought to and it is not good for individual Sen- To the contrary, Congress has been be done. ators. considering this Class Action Fairness I heard this morning claims that the I thank the Senator for yielding. I Act for several years. Small Class Action Fairness Act would deny was supposed to ask you a question, businesspeople who are paying for this people the ability to file class action but I didn’t do that. I hope the Senator irresponsible tort system we have in lawsuits. That is just plain not true. understands. I wanted to make sure he America would tell you they have been We do not take away claimants’ ability was on the floor. paying dearly too long and that this to file in State court. All we do is mod- Mr. CARPER. Madam President, Sen- legislation is long overdue. One might ify the rules to allow removal to Fed- ator REID and I came to the House to- even find some big companies saying eral court for class actions that fit cer- gether in 1982. We worked on a lot of that. But there is no free lunch in tain criteria within this bill, and most issues together. He is a straight shoot- America. Somebody is paying when often that is when there is a national er and a real good leader on our side. I there are frivolous lawsuits. Somebody implication of the class action suit, or appreciate his words. is paying when lawyers are getting it is not limited to a single State. It is Let me close with this: I have said paid too much and when consumers are in no way mandatory in our legislation any number of times to my Republican getting too little. It is a cost to the that these cases need to proceed to the friends, when we are talking about how economy, and we ought to do some- Federal court. to bring this bill to the floor, the one thing about irresponsible costs to our Moreover, the claims that we have sure way to kill it is to not permit the economy. heard this morning and this afternoon minority to have a reasonable oppor- My colleagues may remember—or that the Federal courts do not certify tunity to offer amendments, germane they may not remember or we would class actions are not true either. The and nongermane. I was troubled this not have heard these comments today Federal courts certify class action morning, after having tried to drive about this legislation—as I indicated in cases all the time, and the claimants that message home again and again in my opening statement last night, both win their suits in the Federal courts

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.117 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7739 and it is often seen as a forum of pref- last fall working with Senators on the this bill does little to reform the tort erence. other side of the aisle to get above that system and does much more to benefit A recent Federal Judiciary Center 60. the special interests who are sup- study found that it was more likely for So if there is a situation where one porting it. a class action to be certified in Federal Senator is still not satisfied, do we Supporters of this legislation have court than in State court. There sim- shut down the whole Senate, or where claimed that they are making the sys- ply is no foundation, then, for the alle- we maybe even have 10 Senators not tem fairer and that they have improved gation that Federal courts are less ca- satisfied? What more do we have to do on the original bill. But creating a sys- pable of deciding these kinds of cases to get over that customary rule in the tem which moves virtually all class ac- than State courts. Simply, that does Senate of 60 votes to stop debate to get tion cases to federal court is not fair to not meet the commonsense test. to finality? consumers, workers and victims of dis- It also is not true that it will take For sure, if we get to a cloture of 60 crimination, who stand to benefit from longer for Federal courts to decide votes and end up with 70 votes or 75 strong State laws on consumer and en- class actions. The Federal courts have votes, are not the people trying to stall vironmental protection, civil rights more resources to decide these cases this legislation somewhat embarrassed protections and labor rights. than State courts. In fact, we have the by wanting to shut down the whole leg- In our federalist system, these indi- same Federal Judicial Center study in- islative process? So we have worked to viduals look to their State courts and dicating that State courts are much get over that magic hurdle, and when State judges for justice and this bill more likely than Federal courts to sit we get over that we will have plenty of would undermine those rights. on class action lawsuits. votes. This bill will also cause many of Also, I want to restate that we have Remember the vote we had through these cases to be dismissed once they made significant changes to the bill to April and May on what we call the reach Federal court. It is a bait and ensure that truly local class actions FSC/ETI bill, or the JOBS bill, the bill switch game. Get the cases out of State stay in State court. This is the local I called creating jobs in manufac- court and into Federal court where controversy exception that was worked turing? We took 15 days over about 2 there are more hurdles for a class to be out to bring on other Democratic Sen- months to get that legislation passed. certified and then the case is thrown ators who did not like certain aspects It passed 92 to 5. out. That is not fair either. of the bill but wanted the bill to pass There were all sorts of games being Finally, this legislation means delay and said they would help us get it played with it on matters totally unre- and denial for injured consumers. Our passed. Those Senators who wanted lated to the underlying legislation, all Federal courts are already overbur- that local class action exemption, that in the interest of preserving minority dened. Adding a significant number of the class action stay in State courts, rights. Well, I think this bill has met cases to their dockets will only create were Senators SCHUMER, DODD, and that test, and we ought to move on. We further delay, both for the cases that LANDRIEU. still have a few people who do not want this bill removes to those courts and Earlier, some of my colleagues indi- to move on, and that is a sad com- for the cases that are already there. cated that local issues, such as the mentary, because when one plays by Judges will have more complex cases, PCP leak made famous in the Erin the rules of the game, it seems to me with no additional resources, and Brockovich case, or suits brought by that people who do not get their way plaintiffs will wait longer and longer nursing home residents would be re- have to quit crying in their beer and for relief, if they get relief at all. Fed- quired to be heard in Federal court. suck it in, suck it up and move on. eral judges have even said that they Again, this is not true because of the That is what I am asking my col- don’t want all these cases sent to compromise that we crafted with these leagues on the other side to do, suck it them. other Senators and included in the bill up and move on. Instead, it is the special interests that is now before us. Let the Senate work. It has worked. who will benefit. They will be able to So it is not true that if you have This legislation is proof that it is take cases out of State courts where your case heard in Federal court, you working. they belong, even if most of the plain- will get no justice. That is an out- I yield the floor. tiffs live in the State and the issue in- rageous statement and, quite frankly, Ms. MIKULSKI. Mr. President, today volved purely matters of State law. an insult to the Federal judiciary. The I rise to oppose the Class Action Fair- Corporations will be able to move these Class Action Fairness Act does not ness Act. cases to Federal court where it is hard- close the courtroom door to anyone. This bill is anything but fair to the er to certify a class, where courts often Congress has studied this issue, and millions of consumers who will have won’t certify a multi-State action, and Congress has found that there are the courthouse doors slammed on where business interests have an ad- many problems that need to be consid- them. vantage over the little guy. That puts ered. That is why we have been work- Class action lawsuits are the only special interests above the interests of ing on this steadily for so many Con- way a large number of people can get working Americans. gresses. justice for a harm done to them by a Supporters of this bill claim that A number of studies have come out consumer product, a corporate practice consumers will benefit from the provi- indicating there are serious abuses of or an environmental harm. It is often sions they have added to the bill. They the class action system. There have not possible or practical for an ordi- say that the bill will safeguard con- been numerous editorials and articles nary individual to go to court against sumer rights and make sure that the that support this bill. It is a bipartisan powerful corporations when they have lawyers don’t get all the money. But bill. So I think we ought to move on. only have a small amount of damage what this bill really safeguards is a The Senate is functioning as the Sen- from a dangerous product. These cases good outcome for corporations, for ate ought to function. As I said last help Americans, who can not bring a drug companies, and the tobacco indus- night, nothing gets done in the Senate lawsuit on their own behalf, get their try, by changing the case to a forum that is not bipartisan, and when it day in court. We cannot close the known to be better for business and, comes to an issue of partisanship, if 41 courthouse door on them. once its there, not even guaranteeing Senators stand against it—and that is I do believe that there are problems that the Federal court will allow it to quite a minority in this Senate—noth- in the tort system that we need to ad- proceed. That means State and Federal ing gets done. dress, and I have supported reform ef- courthouse doors all over our Nation We had that vote last October, 59 forts to do that. But this bill goes too will be slammed on those seeking to votes, 1 short of the supermajority to far. It throws the baby out with the hold business accountable for harmful move on, but enough to bring a halt to bath water, removing virtually every practices. That is not fair and that’s the consideration of this legislation, State class action to Federal court. not what our legal system is all about. because nothing happens in this body Yesterday’s New York Times called As I travel through my State, I hear unless there is strong bipartisan sup- this bill ‘‘A mischievous bill about problems with the legal system. port. After that cloture vote, we spent masquerading as . . . reform.’’ In fact, Most often people are concerned about

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.124 S07PT1 S7740 CONGRESSIONAL RECORD — SENATE July 7, 2004 policies that restrict access to the ica Act—and then provides the kind of their punishments, but Congress is not courts and not with abuses of the tort tax breaks that it does in the Senate considering changes that benefit all of system. Yet I know that there are bill for $39 billion worth for outsourc- them. problems out there, and I have been on ing American jobs and expanding busi- This present judicial system is not the record saying let’s fix the prob- nesses and their subsidiaries in other perfect—nothing ever is—but it works lems. countries, it is hard for me to see how better than most systems in our coun- But this bill doesn’t do it. This bill we are the sole culprits in wanting to try. In fact, it may be the last place does not deal directly with the prob- add measures to this bill. the people without money have a fair lems. This bill is a one-size-fits-all so- I believe there are members of the chance against people who do. People lution to a complicated legal problem. other caucus who also desire to add without money cannot afford to hire a Instead, let’s look directly at the prob- measures to this bill because there are full-time lobbyist to influence Con- lems that are impacting consumers, not many bills that are likely going to gress or State legislators or Federal workers and communities and where be passed and confereed and signed into and State administrations. They do not there are abuses in legal fees or trial law. We have our genuine interests in make big campaign contributions or awards they should be fixed. Many seeing that some of these important hold fancy receptions at party conven- States have led the way, fixing their measures receive at least an up-or- tions. Many Americans cannot even af- own systems to prevent some of the down vote in the Senate, and then ei- ford to hire a lawyer to assert their abuses that proponents of this bill talk ther proceed or not accordingly. rights in a court of law. They do not about. More work needs to be done and The Senator said we devoted 15 days have the hundreds or thousands of dol- the Senate should be looking at doing to that corporate tax bill. I do not lars needed to pay for the preparation that instead of supporting this know why there is this rush to close of complex cases and all the time re- overbroad bill. the door on this legislation which is be- quired to go through the judicial proc- But I believe in fixing the problems. fore us now. I do not support this bill, ess. They cannot afford the special con- That is why I supported Senator but I do support dealing with it and sultants that many legal defense teams BREAUX’s alternative the last time we having an up-or-down vote on it, but use to select the juries that are most debated this bill and why I will vote to only after all of us on both sides of the sympathetic to them. Thus, many support his and Senator BINGAMAN’s aisle have had the opportunity to bring Americans have to join together with amendments if they are able to offer forward our amendments and have other alleged victims in order to be them this time around. That is why I them acted upon. That is the tradition able to afford all together to seek jus- was optimistic when members of the of the Senate. That is the spirit of the tice, to have their day in court. They Judiciary Committee were debating Senate. Those are the rules of the Sen- might win; they might lose, but at this issue, and I wish that we had given ate. I do not see anybody on this side least they have their day in court. them more time to conduct hearings to who is trying to be an obstructionist. I They do lose, many times, in State get the root of the concerns and pro- see people on this side who thought courts as well as in Federal courts. But vide a specific solution. that was our understanding and agree- of course we don’t hear any complaints Yet today we find ourselves faced ment and want to proceed on that from the Chamber about those juries. with a bill that goes too far. I came to basis. The only ‘‘abuses’’ are when the people the Senate to fight for the little guy I do rise to oppose this underlying win, and the moneyed interests lose. So when his or her rights were trampled. legislation, which is truly a wolf in the moneyed interests have come to This legislation threatens those rights, sheep’s clothing. Its proponents claim, the Congress to get the special favors and I urge my colleagues to reject it. as a top U.S. Chamber of Commerce of- they want in order to have the world We should go back to the drawing ficial is quoted in yesterday’s Wash- their way. board and come up with a proposal that ington Post, that it is strictly process, Tragically for this country, it is like- gets at the heart of the abuses but that it does not affect anyone’s sub- ly, it appears, that Congress is going to doesn’t undermine the rights of con- stantive rights. give the powerful, moneyed special in- sumers and others looking for a fair That is nonsense. If that were true, terests what they want at the expense day in court. we would not be debating this bill on of everyone else in America. Hundreds The PRESIDING OFFICER (Mr. AL- the Senate floor yet again and it would or thousands of the people we are sup- EXANDER). The Senator from Min- not be the third time that this issue posed to represent will be hurt by this nesota. has been brought before the Senate in legislation. Most of them do not realize Mr. DAYTON. Mr. President, I ar- this session. That same Chamber of yet that they are in the process of rived to hear the final comments of my Commerce official also said: There are being harmed; they are too busy work- very respected colleague from the a number of juries on the State level ing, raising their families, going about neighboring State of Iowa. With all due where a lot of abuses are going on. their lives, until something bad hap- respect, I am surprised, at least as I What are those abuses that we hear pens to them and they need to seek jus- heard it, that my colleagues and I on about over and over by the proponents tice. this side of the aisle are being vilified of this legislation to justify the actions This legislation would hurt their for the status of this legislation. I was that it would take? Well, the people chances to get that justice. This bill curious because the Senator, of course, who are pushing this legislation are would move many of their cases to knows, as chairman of the Senate Fi- unhappy with the decisions that juries Federal courts where the delays are nance Committee, about the fate of the are making. Too often the U.S. Cham- greater, where the waits for justice are legislation that he saw through in his ber of Commerce and other proponents much longer, and where, evidently, the own committee to which he just re- claim juries are deciding for the plain- rich and the powerful win more often. ferred, the FSC/ETI bill. tiffs, for the groups of people who have That is why this bill’s proponents want From my understanding of that legis- claimed that they have been wronged, us to pass it. To me, that is exactly lation, what happened to that after it and against the defendants, which are why we should reject it. left the Finance Committee, to the usually large and wealthy corpora- There are other reasons to reject this point where it reached the Senate tions. bill. The Chief Justice of the United floor, and not always with the chair- So that is the abuse: Juries, com- States has asked Congress not to shift man’s concurrence, what was added to prised of qualifying citizens agreed to cases from State courts to Federal it as part of the process and what has by the attorneys for both sides, are de- courts. In 1998 he said: been done to it over in the House, if we ciding too many cases for the people In my annual report last year I criticized want to talk about legislation that has who have been harmed and then are the Senate for moving too slowly in the fill- had measures added to it where there is awarding financial settlements more ing of vacancies on the Federal bench. no connection to the public interest— costly than the convicted defendants That was back in 1998. and I see no connection to the bill at would like. Well, our country’s judicial I also criticized Congress and the President all which is called the JOBS Act; in the system has a long roster of defendants for their propensity to enact more and more House it was called the Jobs in Amer- who are unhappy with the verdicts and legislation which brings more and more

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.127 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7741 cases into the Federal court system. If Con- receive coupons of little or dubious suade investment. Or, worse yet, busi- gress enacts and the President signs new value. nesses will converge on a few select laws allowing more cases to be brought into A serious need for this legislation has States, whose laws are most favorable the Federal courts, just filling the vacancies also resulted from the actions of a few to corporate interests—not only clog- will not be enough. rogue State courts. Diversity jurisdic- ging the dockets and slowing down jus- More recently, the Judicial Con- tion was established to facilitate com- tice in those courts, but providing busi- ference of the United States, the pol- merce by ensuring that claims brought ness opportunities in only a few select icymaking body for the entire Federal against interstate businesses would be areas. This is not good for anyone. judiciary, wrote Chairman HATCH on heard in Federal court, so as to avoid Under the Class Action Fairness Act, March 6, 2003, of their opposition: local biases. The Framers foresaw the the exact type of cases that should be . . . based on concerns that the revisions potential chilling effect that could heard in Federal court—cases involving would add substantially to the workload of occur on commerce if out-of-State issues of national importance—will be the Federal courts and are inconsistent with businesses were forced to defend them- the principles of federalism. heard in Federal court. While, a case selves in front of State court judges, between two citizens from different So this bill ignores the advice of the who have a greater potential to ‘‘play states, with no national significance, Federal judiciary and the Chief Justice favorites.’’ will be left to the State courts. For of the United States, and it ignores the The Framers realized this in 1787. these reasons, I encourage my col- best interests of most Americans in Today, we live in an advanced techno- leagues to support this important leg- order to further advantage the rich and logical age, where interstate business islation. the powerful. Proponents say the judi- occurs at the click of a button, 24 Finally we have a bipartisan bill on cial system is broken and needs to be hours a day, 7 days a week. Certainly, fixed. I say what needs to be fixed is the floor of the Senate and it is ready the Framers’ efforts to ensure the fair- to be debated, ready to receive amend- this legislative system, whereby the ness of claims brought against out-of- rich and the powerful get special legis- ments, ready to be voted on. It is excit- State defendants is no less important ing when work of this kind reaches lation passed that helps them and today; and, at the very least, com- hurts everyone else. I have seen it tried that, if you will, supermajority status merce still deserves the amount of pro- that finds both Democrats and Repub- time after time in my 31⁄2 years here. I tection our Constitution already pro- licans in support of it. There are some have seen the rich and the powerful vides. win most of those times, and the people 60 cosponsors, I understand, of this However, under current law, a class critical legislation. who are not rich and powerful aban- action involving thousands of residents Much has been said about it this doned. It looks like that will happen from all 50 States and millions of dol- afternoon, both pro and con, but the re- again. What a tragedy for the Senate. lars does not qualify for access to Fed- ality is we have a system that has been What a tragedy for America. eral court. The Class Action Fairness largely abused and misused and clearly I urge my colleagues to reject this Act resolves this problem by ensuring one our Founding Fathers put within legislation. that truly local disputes will be liti- the construct of our judicial system to I yield the floor. gated in State courts, while interstate provide a fairness element to all of The PRESIDING OFFICER. The Sen- class actions, involving national issues, those in the broad context that class ator from Idaho. will be heard in Federal court. Mr. CRAIG. Mr. President, I come to S. 2064 will go a long way toward en- action addresses, not to be victimized the floor this late afternoon to stand in suring the intent behind the establish- by the system but to be served by the support of the Class Action Fairness ment of class actions is followed. S. system. I hope we can find ourselves a Act of 2004. I thank my colleagues, es- 2064 will do this by reforming the diver- way, through the course and process of pecially CHUCK GRASSLEY, chairman of sity rule applicable to class actions in the Senate rules, to allow an amend- the Finance Committee, and a Senator order to provide greater protections for ment, amendments, and ultimately who has been a champion of the reform consumers by curbing class action law- final passage on this important legisla- of this particular provision of law in suit abuses, which are enriching law- tion. our country for a good number of yers at the expense of consumers. I was on the floor earlier this morn- years. S. 2064 is in line with our idea of jus- ing when our majority leader was at- When working properly, class action tice and fairness. As set forth in Arti- tempting to work out a satisfactory lawsuits are an important part of our cle III of the Constitution, the Framers process by which we could debate and civil judicial system. The whole idea established diversity jurisdiction to en- bring resolution to this important leg- behind class actions is to promote the sure impartiality for all parties in liti- islative agenda. But I was one of those efficient, effective administration of gation involving persons from multiple who had an amendment on the floor, justice by allowing for the consolida- jurisdictions, particularly cases in ready to go, that was not specifically tion of numerous, but identical claims which defendants from one State are germane to class action. Strangely brought against one defendant. When sued in the local courts of another enough, it is in itself a bipartisan piece working properly, these lawsuits pro- State. Interstate class actions—which of legislation, having now garnered the vide relief to a large number of people often involve millions of parties from support of some 63 Members of this who have been victimized—when work- numerous States—present the exact Senate. It deals with some element of ing properly. But our current class ac- concerns diversity jurisdiction was de- immigration reform, specifically in the tion system is not working properly. signed to prevent: the potential for area of agriculture, dealing with sub- The class action system is uniquely local prejudice by the court against stantial reform in the H–2A designated ripe for abuse. In normal litigation, out-of-State defendants or a judicial immigrant, or I should say worker, as plaintiffs who have been injured seek failure to recognize the interests of it relates to agriculture. out an attorney to redress their griev- other States in the litigation. Here we have two pieces of legisla- ances. In class action litigation, this This act is not about protecting ‘‘big tion worked on for many years by our process is reversed—lawyers are ap- business,’’ as some critics claim. Rath- colleagues here in the Senate, one the pointing themselves as counsel to a er, it is about protecting the rights of class action legislation with 60-plus co- group of people who may or may not workers and consumers. I come from sponsors, my agriculture jobs legisla- feel victimized. This designated victim the great State of Idaho, where the tion with over 63 cosponsors, and some- may not only be unaware he or she is need to attract new industries is im- how we can’t seem to get the process even part of a lawsuit, this person portant to our largely rural economy. working in a way that would allow us might be perfectly satisfied with the If a business cannot be sure of the li- to vote on these up or down. product or service that is the subject of ability it might face in the event of I was certainly willing to offer my the litigation. Even when a large group litigation, it will be more reluctant to amendment and to seek a time limit of has suffered an injury, the lawyers are leave its State of incorporation. And, 4 or 5 hours to debate it, to allow Mem- often the real winners, as they are able when litigation costs become too un- bers to come to the floor and possibly to secure large fees while their clients predictable, the effect will be to dis- amend it or to offer amendments and

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.129 S07PT1 S7742 CONGRESSIONAL RECORD — SENATE July 7, 2004 withstand the judgment of their col- they are contemplating—and some I suggest we can. I suggest it is ready leagues as to whether those amend- have already made the decision—to go to be solved now and that many of us ments were worthy in shaping or re- out of business. have worked to accomplish that. shaping or transforming legislation Where does that production go? Off- I hope our leadership can work with that 62 other colleagues and I wanted shore, out of the country to Chile or the other side and work out our dif- on the floor for the purpose of debate Peru or someplace like that instead of ferences and get a unanimous consent and consideration. happening in the valleys and in the agreement that shapes the time and That is also true of the class action farm fields of America. moves this legislation forward. We legislation. We have heard a great deal Why can’t we solve this problem? ought not have lawyers working the today about the pros and cons of the Some say it is too political. I suggest it legal system to simply benefit their legislation, S. 2062, that is before us. is not political at all. It is time that we pockets while the citizens who may The great tragedy we are now facing is lead, that we solve it, that we address have been harmed get little or nothing the process and/or the procedure may the issues, that we create a system but a meaningless coupon of dubious disallow an up-or-down vote on class that allows people to come to our coun- value. That is not the appropriate way action. There is a strong effort on the try to do certain kinds of work and to for our legal system to work in this part of my leadership to block my ef- go home—to do it in a legal, open, country. And that is why Senators fort in coming to the floor with a transparent way while we can effec- GRASSLEY, CARPER, CHAFEE, DODD, strongly developed bipartisan piece of tively control our borders as we should HATCH, KOHL, LANDRIEU, LUGAR, MIL- legislation to address that also. as a great nation, and at the same time LER, SCHUMER, SPECTER, and a good Does the public become confused by for those who are illegal we ought to be many others believe that S. 2062 ought this effort? I suspect they might, and able to apprehend them and remove to become the law of this land. I hope by tomorrow we will have re- that is difficult as we attempt to work them from our country. But to do the solved this important situation in a out the differences and allow these first or the last without something in way that allows us to move forward in kinds of issues to come to the floor. I the middle that creates an effective, a timely fashion and allow the Amer- am prepared to vote on class action. I responsible avenue and workforce is ican people to see where we stand on am prepared to support the legislation, simply irresponsible. these critical issues. the underlying bill that is now on the That, in essence, is what we have cre- I suggest the absence of a quorum. floor. ated. The PRESIDING OFFICER. The I also hope my colleagues will seri- What happened after 9/11? We redis- clerk will call the roll. ously consider that a time is necessary covered all of this vast array of immi- The assistant legislative clerk pro- to deal with an immigration reform gration law in our country that doesn’t ceeded to call the roll. policy. Although it is not a whole cup, work. Mr. FRIST. Mr. President, I ask although it does not address the uni- We have between 8 and 12 million un- unanimous consent that the order for verse of undocumented foreign immi- documented people in our country. I the quorum call be rescinded. grants in this country, it deals with a say shame on us for having allowed The PRESIDING OFFICER (Mr. EN- very critical part of America, Amer- that to happen. You solve the problem, SIGN). Without objection, it is so or- ican agriculture, that now finds it you control the border. Great nations dered. must seek its workforce in a way that maintain their integrity by controlling Mr. FRIST. Mr. President, I want to allows it to become nearly 80 percent their borders. Great nations maintain update everybody as to where we are undocumented because the law is so re- their integrity by creating a civil proc- with respect to the Class Action Fair- strictive and prohibitive and cum- ess on the inside that effectively ness Act. From the many statements bersome and bureaucratic that the av- works. Great nations maintain their over the course of today and last night, erage agricultural producer simply integrity by apprehending those who it is clear that this bill is important to cannot identify with it in an appro- are violators of the law and treating the American people, and it is impor- priate timeline to harvest his or her them accordingly. In this instance, and tant to the economy. It is a bill about crops. in those examples or situations, we are equity and it is a bill about fairness. They seek employment from people not doing either. Earlier today, I attempted to reach who want to come here and work. Not I proposed—and 62 of my colleagues an agreement that would allow an or- American citizens. American citizens agree—a piece of legislation that is derly process to consider the bill. The don’t do that kind of work anymore. most critical to our country and to a agreement respected Members’ rights They are, if you will, an economic cut segment of our economy. I brought it to offer amendments, but also rep- resented a commitment to focus on the above it. Or they have a social program to the floor this morning willing to issue—class action reform—and eventu- that simply allows them a sustenance stand it alongside this important piece ally proceed toward a final agreement or a lifestyle in which they don’t need of legislation, willing to limit the de- with the House through the regular to seek that kind of employment. bate on it so that we can facilitate the conference process. That is all we But there are now about 1.5 million process and move this through. And I asked with no restrictions as long as undocumented workers in this country surely thought the underlying bill with we stayed on the bill, amendments on who are employed by American agri- 60-plus cosponsors, and my amendment the bill, and once we passed it in the with 63, ought to be something that culture, who harvest our crops, who Senate, it would go to a conference bring them into the process, and who can come together. Apparently it can’t, with the House. ultimately help get them to the super- or it won’t. The important point is at the end of market shelf. Yet we cannot in a re- I am here this evening to tell my col- the day—and this is where we stand to- sponsible, legal fashion deal with them. leagues we ought to be debating and night—by the end of this week we need That is why I spent the last 5 years voting on this important piece of class to pass this bill and do what is right working with a vast array of people, action reform legislation, and we ought for the American people to create a both House and Senate, to fashion this to be voting on agricultural jobs. We public law. legislation. That is why it now has 63 ought not simply put it off. Those who Unfortunately, we were unable to get sponsors. It is why it now has over 400 are the critics of it, who have no alter- this agreement. There was an offer groups nationwide, from the National native, simply want us to, as we have from the other side which did not nec- Farm Bureau to the United Farm done for two decades, turn our backs, essarily allow completion of this meas- Workers Union to the AFL/CIO to the look over our shoulders, say, Oops, ure, and that offer included five non- National Nurseries Association, that there is a problem, while in many in- germane amendments, the subject mat- say it is critical this legislation pass. stances these human beings are treated ter of these amendments simply being We have producers, agricultural pro- inhumanely, while over 350 of them unknown. These nongermane amend- ducers in our country today who are died at the United States-Mexican bor- ments are totally unrelated to class ac- finding it so difficult to gain the nec- der this past year, while we simply say, tion reform. They could be controver- essary employees to do the work in the Oh, well, it is so complicated we cannot sial in nature, and I can tell my col- field or in the processing sheds that solve it. leagues, sharing with my colleagues

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.131 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7743 which amendments they might be, in- ited unwavering courage, dutiful serv- egories to current hate crimes law, deed they are very controversial in na- ice to his country, and above all else, sending a signal that violence of any ture and would require extended de- honor. In the way he lived his life—and kind is unacceptable in our society. bate. That is not the way to complete how we remember him—Russell re- On October 14, 1995, a 9-year-old boy action on this bill. minds each of us how good we can be. named Steven Wilson was found bru- With that said, I am prepared to file A resident of Dagsboro, Russell’s tally raped, beaten, and drowned in a cloture this evening on the bill. I do so passing has deeply affected the commu- muddy ditch one mile from his house. continuing to hope we can consider rel- nity. A graduate of Indian River High Around the town, little Steven was evant amendments to the bill while the School, Russell was the son of Gregg known as a kid who liked to play with motion ripens. If colleagues do have and Tricia White. Friends, family, and dolls. Other kids teased him and called relevant class action amendments they school officials recalled Russell as a him ‘‘fag.’’ Nonetheless, Lamont want considered, I encourage them to proud young man who made a sacrifice Harden, a 15-year-old neighbor of Wil- come forward and discuss them with for their freedom, even if his death did son, confessed to this horrific murder the managers and let us work out a not come during combat. As a senior at on the basis that he was trying to process to dispose of them. Indian River High School in rural ‘‘humble the fag’’ that allegedly got CLOTURE MOTION Frankford, Russell spent his days in into a scuffle with his brother. Mr. FRIST. Mr. President, I now send classrooms overlooking soybean fields, I believe that Government’s first a cloture motion to the desk. and his spare time at home hunting duty is to defend its citizens, to defend The PRESIDING OFFICER. The clo- duck along tranquil Vines Creek. In his them against the harms that come out ture motion having been presented senior year, he tried out for and made of hate. The Local Law Enforcement under rule XXII, the Chair directs the the football team at Indian River. He Enhancement Act is a symbol that can clerk to read the motion. became a starter and, at a mere 165 become substance. I believe that by The assistant legislative clerk read pounds, played nose guard, out passing this legislation and changing as follows: hustling opposing lineman who current law, we can change hearts and weighed 50 to 100 pounds more than he minds as well. CLOTURE MOTION did. f We the undersigned Senators, in accord- But Russell had a desire to be part of INTERIOR ALASKA WILDFIRES ance with the provisions of Rule XII of the something bigger. He wanted to be Standing Rules of the Senate, do hereby among the troops sent to hunt Osama Ms. MURKOWSKI. Mr. President, 10 move to bring to a close debate on Calendar years ago, on July 6, 1994, fourteen No. 430, S. 2062, a bill to amend the proce- bin Laden in the mountainous terrain dures that apply to consideration of inter- of Afghanistan, so he joined the Ma- wildland firefighters lost their lives state class actions to assure fairer outcomes rines early last year. fighting the deadly South Canyon Fire for class members and defendants, and for Russell had been stationed in Af- near Glenwood Springs, CO. Nine of the other purposes. ghanistan for about a month prior to 13 who perished were members of a sin- Bill Frist, Orrin Hatch, Charles Grassley, his death and was part of the mission gle crew—a hotshot crew based in the Peter Fitzgerald, Craig Thomas, Mitch to root out bin Laden and other mem- small high desert town of Prineville in McConnell, Ted Stevens, Robert F. bers of al-Qaida. He was assigned to the central Oregon. The ‘‘Prineville Nine,’’ Bennett, Jim Talent, George Allen, Jon as they have come to be called, were all Kyl, Rick Santorum, Jeff Sessions, 3rd Battalion, 6th Marine Regiment, Pete Domenici, Susan Collins, Lamar whose home base is at Camp Lejeune, in their 20s. Alexander, John Cornyn. NC. The events of July 6, 1994 were as sig- nificant to the wildland fire commu- Mr. FRIST. Mr. President, I ask Russell was remembered by his fellow nity as the events of September 11, 2001 unanimous consent that the manda- marines as a young man who had a were to the New York City Fire De- tory quorum under rule XXII be kind spirit and a zest for life with an partment, and the brave young men waived. outlook that sometimes got him into a and women who perished in the South The PRESIDING OFFICER. Without little trouble, especially in the 13 Canyon Fire were every bit as heroic as objection, it is so ordered. grueling weeks of boot camp. When those who perished at the World Trade Mr. FRIST. Mr. President, for the in- drill sergeants would bark orders, Rus- sell would often crack a smile, unlike Center. formation of my colleagues, this vote The anniversary of the South Canyon will occur on Friday unless it is viti- others who might shed tears in their bunks at night. ‘‘They couldn’t crack Fire brings home to all who live in the ated by some other agreement, and we West how dearly we hold the brave will remain in discussion and willing to him,’’ Russell’s father, Gregg, said. While Russell may have found some of young men and women, clad in their vitiate it if agreement can be reached. fire resistant yellow shirts, green pants We will be on the bill throughout to- his early training a little amusing, he was absolutely serious about his duties and helmets, who fight the fires that morrow’s session. Again, I hope we will sweep through our backyards. be able to dispose of class action in Afghanistan. Russell was a remarkable and well- On Monday, July 5, I had the privi- amendments during that period. respected young soldier. His friends lege to visit a fire camp near Fair- f and family remember him as an honor- banks, AK. The young men and women MORNING BUSINESS able man. He enjoyed playing football, based at the camp were fighting the hunting, skiing and being out on the Boundary Fire, which is burning to the Mr. FRIST. Mr. President, I ask water. He had hoped to return to Sus- North of Fairbanks, under the experi- unanimous consent that there now be a sex County to help run his father’s enced leadership of Steve Hart and his period for the transaction of morning home-building business. Sadly, that Type I Incident Management Team, business, with Senators permitted to dream will not be fulfilled. drawn from the Rocky Mountain re- speak for up to 10 minutes each. I rise today to commemorate Russell, gion of our Nation. The PRESIDING OFFICER. Without to celebrate his life, and to offer his In the course of my visit, I had the objection, it is so ordered. family our support and our deepest opportunity to meet with each of the f sympathy on their tragic loss. leaders on the Incident Command Team and received detailed briefings HONORING OUR ARMED FORCES f on how the fire was being managed. LANCE CORPORAL RUSSELL WHITE LOCAL LAW ENFORCEMENT ACT One of those briefings was delivered Mr. CARPER. Mr. President, I would OF 2003 by the Incident Safety Officer, who em- like to set aside a few moments today Mr. SMITH. Mr. President, I rise phasized the acronym L-C-E-S, which to reflect on the life of LCpl Russell P. today to speak about the need for hate stands for lookouts, communications, White. Russell epitomized the best of crimes legislation. On May 1, 2003, Sen- escape routes, and safety zones. our country’s brave men and women ator KENNEDY and I introduced the Wildland firefighters are taught to who are fighting to secure a new de- Local Law Enforcement Enhancement keep safety in their forefront of their mocracy in the Middle East. He exhib- Act, a bill that would add new cat- minds, constantly focusing on L-C-E-S.

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.135 S07PT1 S7744 CONGRESSIONAL RECORD — SENATE July 7, 2004 On the Boundary Fire, the singular City in the Yukon Territory. The safe- his judicial nominees to be confirmed focus on safety is evident throughout ty of these communities, as well as all year and blocked all of his circuit the camp. It is clear that the lessons of Bettles, Chicken, Evansville, Fort court nominees from being confirmed. the South Canyon Fire have not been Yukon, Stevens Village and Tok are on This year, the Senate has confirmed 29 lost to history. our minds today. of President Bush’s judicial nominees, Today there are 73 wildland fires The proximity of wildfires to the out- including five circuit court nominees. burning in the State of Alaska and skirts of our urban areas reminds us all Democrats have acted with biparti- some 1,544 wildland firefighters from 26 to be firewise. Building defensible sanship toward the judicial nomination states and one province of Canada are space around structures not only in- process and supported the confirmation on the ground tirelessly addressing creases the likelihood that a building of this historic number of judicial these fires. Since the beginning of this will survive a fire; it also increases nominees of this Republican president. year’s fire season, approximately 2 mil- resident and firefighter safety. Alas- During the 17 months of Democratic lion acres have burned in Alaska. Most kans are also being encouraged this control of the Senate, 100 of President of these acres have burned in seven week to store their firewood away from Bush’s judicial nominees were con- large fires and ‘‘fire complexes’’ which structures and to use metal or fire re- firmed. Republicans had blocked the occurred in the last few weeks. sistant roofing materials in construc- confirmation of more than 60 of Presi- As of the last report that I received, tion. I support these important safety dent Clinton’s judicial nominees, in- the Boundary Fire is 27 percent con- initiatives. cluding nearly two dozen to the circuit tained. Two other incidents are five I also continue to support the impor- courts. percent contained and the remaining tant fuels reduction provisions of the The situation in North Carolina illus- four are zero percent contained. New President’s Healthy Forest Initiative, trates this history of Republican ob- fires can start on a moment’s notice and will continue to work to ensure struction and the Bush administra- from a strike of lightening and, de- that adequate resources are made tion’s determination to try to pack the pending on the fuel; wind shifts can available by Congress to our Nation’s courts. During the Clinton administra- move existing fires at rates of over 2 fire fighting crews. tion, four nominees from North Caro- miles per hour. Fairbanks is known as the ‘‘Golden lina to the Fourth Circuit were blocked In fact, a new fire was just reported Heart City,’’ so let me say that our by Republican Senators, and they yesterday, near the villages of Bettles golden hearts go out to the thirty never got a hearing or a vote. U.S. Dis- and Evansville. At 5:00 PM, when the seven Alaska Native firefighting crews trict Court Judge James Beaty would fire was reported, it had burned one that are protecting Fairbanks as well have become the Fourth Circuit’s first acre, one hour later it was reported at as our villages, the Alaska firefighters African-American jurist. According to 500 acres and at 10:00 PM it was re- on mutual aid assignments to fight the The Charlotte Observer of March 8, ported at 1500 acres. wildfires, and members of the national 1996: Last week was an exceptionally dif- wildland fire community who have He is an excellent judge, partly because of ficult one for the people of Interior been dispatched to Alaska to help us admirable qualities that make him an ideal Alaska. In Fairbanks, a dark, smoky get through this difficult fire season. I candidate for judging others. He rose from haze hung over the community. The am deeply grateful to all in the humble circumstances and eventually grad- Boundary Fire was burning about 30 wildland firefighter community for uate from the UNC-Chapel Hill School of miles to the north of Fairbanks be- their tremendous sacrifices and com- Law. Admirers say he is an ideal judge and tween the Steese and Elliott Highways, mitment to making all of our commu- citizen: even-tempered, hard-working, fair, serious, intelligent and unfailingly polite. while the Wolf Creek Fire was burning nities safe. Judge Beaty never got a hearing or a to the east, near Chena Hot Springs f Road. vote from Republicans in 1995, 1996, These fires caused the evacuation of JUDICIAL NOMINATIONS 1997, or 1998. U.S. Bankruptcy Judge J. more than 280 households and countless Mr. LEAHY. Mr. President, today Richard Leonard also never got a hear- animals, including household pets, sled President Bush is holding a private ing or a vote in 1995 or 1996 on his nom- dogs, cows, pigs and llamas. While vol- fundraiser in North Carolina and com- ination to the Fourth Circuit, nor did unteers from the Tanana Valley Chap- plaining about the few judicial nomi- Republicans give him a vote in 1999 or ter of the American Red Cross were of- nees who have not been given hearings 2000 in his nomination to the District fering shelter, food and respite from by the Republican-led Senate, when he Court in North Carolina. North Caro- the smoke to the people of Fairbanks, should be commending the Senate for lina Court of Appeals Judge James officers from the Fairbanks North Star confirming nearly 200 of his judicial Wynn never got a hearing or a vote on Borough’s Division of Animal Control nominees. One-hundred-ninety-eight of his nomination in 1999, 2000, or 2001. and numerous volunteers were making his judicial nominees have been con- Had Judge Wynn been confirmed he sure that the displaced animals were firmed. This number of confirmations would have been the first African being well cared for. is higher than the number of judicial American to sit on the Fourth Circuit. Miraculously, only seven structures, nominees confirmed during President Law Professor Elizabeth Gibson also to date, have been lost in the spate of Reagan’s first term, during the Presi- did not get a hearing or a vote. these wildfires with no loss of life. dent’s father’s Presidency, and during During Republican control of the Thanks to the hard work of firefighters the final term of President Clinton. Senate, no nominee from North Caro- through the Independence Day week- With these confirmations, there are lina to the Fourth Circuit was allowed end, the people uprooted by the Bound- only 26 vacant seats in the entire Fed- to be confirmed during the entire Clin- ary Fire are returning home today. eral judiciary, which is the lowest level ton administration. It is ironic that Although the Boundary and Wolf since the Reagan administration. Sen- Republicans now claim that Judge Creek fires were the subject of atten- ate Republicans more than doubled cir- Boyle must be confirmed because the tion in the national media because of cuit court vacancies and raised overall seat is considered a judicial emergency their proximity to urban areas, we federal court vacancies to more than by the Administrative Office of the must not forget that the fires are also 100 from 1995 through early 2001. Vacan- U.S. Courts, when the North Carolina threatening bush villages in rural Alas- cies have been greatly reduced with vacancies on the Fourth Circuit were ka. The Pingo Fire has burned to with- Democratic cooperation during the last considered judicial emergencies years in one and one half miles of the town of 4 years. Vacancies have been cut by ago when Republicans blocked Clinton Venetie and wildfires continue to more than 75 percent and judicial nominee after Clinton nominee. During threaten habitat that is important to emergency vacancies have been cut by the Clinton administration, Repub- the subsistence lifestyle practiced in more than 60 percent from what they licans argued that these vacancies did the village. were. not need to be filled because the The people of Eagle on the Canadian During the 1996 session, when Presi- Fourth Circuit had the fastest docket border have been challenged by two dent Clinton was seeking a second time to disposition in the country, a fires, one burning west from Dawson term, Republicans allowed only 17 of distinction it still holds. After three

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.136 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7745 confirmations for Bush nominees to reduce the sentence of a convicted and the disabled but leaves 44 million that court, including Judge Duncan, cross burner, as President Bush did other uninsured Americans without the Fourth Circuit has fewer vacancies over the holiday celebrating the birth coverage for their medications. The today—three—than it did when Repub- of Dr. Martin Luther King. Senator ED- new program Pfizer is undertaking will licans claimed no more judges were WARDS opposed other Bush judicial offer assistance to those Americans needed—5 vacancies. nominees whose record demonstrate in- who are not eligible for help under the Republicans used every argument sensitivity or hostility toward the civil Medicare plan. Pfizer’s effort is truly a they could muster to stop Democratic rights and the blessings of liberty guar- model of corporate responsibility, and I nominees from being confirmed to the anteed to all Americans. Just yester- applaud the company for its example. I Fourth Circuit, particularly in North day, President Bush nominated Keith am particularly proud that Pfizer has a Carolina, and now they flip flop to Starrett to the vacancy created by strong commitment to my State of claim that Republican nominees must Judge Pickering’s recess appointment New Jersey, with over 3,700 employees be confirmed. and by his resignation from the district there. When Senator JOHN EDWARDS was court. This nomination shows again We can especially appreciate that elected, he sought out the middle the President’s insensitivity to the this new program covers a range of cir- ground on judicial nominations, after wishes of so many in the South Dis- cumstances. It is widely acknowledged years of North Carolina nominees being trict of Mississippi by passing over that expanded access to prescription blocked by Republicans. For example, qualified African-American candidates drugs is integral to improving the he should be commended for working for that powerful district court seat. In health and quality of life for millions with the President on the nomination act, this President has chosen narrow of Americans. By offering substantial of Judge Allyson Duncan, an African- ideological purity over diversity by discounts on its entire drug inventory, American women who had served as nominating more people involved with including the widely used Lipitor, the President of the North Carolina the Federalist Society than African Celebrex and Zoloft, Pfizer is taking an Bar Association, for a seat on the Americans, Hispanics and Asian Ameri- innovative and proactive approach to Fourth Circuit. Senator EDWARDS fully cans combined. providing relief to the many Americans supported her confirmation. She was a The biggest problem in the judicial who would have gone without these Republican who had testified in favor nominations process is not with the vital medicines because they could not of Clarence Thomas’ confirmation, but Senate but with the White House. The afford them. she had a reputation of fairness. With judicial nominations process begins In addition, there are 27 advocacy Senator EDWARDS’ support, Judge Dun- with the President, and President Bush groups that have joined in support of can was confirmed. He broke through has chosen to divide the Senate and the the Pfizer initiative. This kind of col- the Republican logjam in this circuit. American people with his judicial laboration between industry and com- Senator EDWARDS also acted with bi- nominations, instead of to unite us. munity-based organizations represents partisanship in supporting the con- The administration is intent on under- public-private partnerships of the best firmation of two Bush nominees to the mining the independence of the Federal kind. I am pleased to join with so many district court, Judge Brent McKnight judiciary and on making it a clone of others in commending Pfizer’s and Judge Louise Flanagan. the Republican Party. The President groundbreaking announcement, and Senator EDWARDS has sought out and his aides have shown the same look forward to working with all my compromise with his fellow North unilateralism and arrogance to the colleagues in Congress on efforts to Carolina Senators on judicial nomina- Senate in their handling of judicial provide quality, affordable prescription tions, but they have, by and large, re- nominations that they have shown in drug coverage to all Americans. fused to help find a middle ground. He so many other important policy areas. has supported the proposal of the I commend Senator EDWARDS for f North Carolina Bar Association that breaking through the Republican log- USS ‘‘RONALD REAGAN’’ the State establish a bipartisan merit jam on appointments from North Caro- selection commission to propose nomi- lina to the Court of Appeals for the Mrs. BOXER. Mr. President, last nees to the President, Republican or Fourth Circuit. He has sought out the month California bid farewell to Presi- Democratic, to create a long-term so- middle ground while also standing firm dent Ronald Reagan. This month, on a lution to impasses that are created by in his efforts to protect the right of the happier note, we are greeting a great any Senator’s insistence on his choice people to fair judges in our Federal new ship named in his honor. On July alone, with no compromise, for these courts. The American people deserve 23, 2004, the people of California will lifetime seats of trust on the Federal an independent judiciary with fair welcome the USS Ronald Reagan, CVN bench. Unlike President Bush, Senator judges who will enforce their rights 76, to her new homeport in San Diego. EDWARDS understands what it means in and uphold the law. As the Navy’s newest and most tech- nologically sophisticated aircraft car- reality to be a uniter and not a divider. f He comes from a part of the country rier, the Reagan will project tactical that understands deeply how important DRUG PRICING DISCOUNTS airpower over the sea and inland while it is that leaders seek to unite people Mr. CORZINE. Mr. President, I rise providing critical sea-based air defense across racial, economic and political today to commend Pfizer, Inc., for its and antisubmarine warfare capabili- lines rather than to divide them. new initiative to provide discounts of ties. Senator EDWARDS has stood up to ef- between 15 and 50 percent off retail It is proper and fitting that the new forts by this President to pack the prices of its drug inventory to any un- carrier be based in our State: Ronald courts with people whose records do insured American, regardless of age or Reagan was one of California’s own. not demonstrate that they will be fair income. We have been grappling with Though he traveled the world and judges to all who come before them, the issue of quality, affordable served two terms in the White House, rich or poor, Democrats or Repub- healthcare and accessibility to pre- he always called California his home. licans, or any race or background. He scription drugs for some time. I think The Reagan crew will find a warm has expressed concerns about Bush all of us in Congress believe this is one welcome in San Diego, a beautiful and nominees Judge Boyle as well as James of our most critical challenges. A lot of vibrant city that is proud to be a navy Dever, a 40-year-old Federalist Society thoughtful work has gone in to trying town. San Diego is a cornerstone of member and Republican Party activist. to address this, but from my perspec- America’s national defense, and the President Bush has repeatedly claimed tive, we have had only limited success Navy is a cornerstone of San Diego. that he is opposed to judicial activism to date. As an industry leader, Pfizer On behalf of the people of California, while he has simultaneously nominated has really stepped up to the plate to I want to welcome the USS Ronald activists for judicial positions. fill in some of the gaps that we all ac- Reagan and her crew to your new He would not support the confirma- knowledge still exist. homeport. We are pleased and proud to tion or recess appointment of a judicial The recently passed Medicare reform have you with us, and we will do all we nominee who violated judicial ethics to bill gives limited assistance to seniors can to make you feel at home.

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.020 S07PT1 S7746 CONGRESSIONAL RECORD — SENATE July 7, 2004 CAPE VERDE NATIONAL with direct and ancestral ties to Cape makes in the life of a person with se- INDEPENDENCE Verde a happy Independence Day. vere disabilities. The organization Mr. REED. Mr. President, I rise f gives individuals long-term work expe- rience, marketable job skills, independ- today with my colleagues, my fellow ADDITIONAL STATEMENTS Rhode Islanders, and our Cape Verdean ence, and increased self-esteem. Those community in celebration of Cape benefits are the very least that they Verde Independence Day. TRIBUTE TO THAYAS RAY BRAY provide. However, Opportunity Village’s ac- Every country is rich with its own ∑ Mr. LOTT. Mr. President, on July 20, complishments have not been made history and unique story of how it 2004, the city of Moss Point, MS will single-handedly. In Las Vegas, there achieved democracy, and Cape Verde is take time out to honor and pay tribute are many wonderful partnerships be- no exception. In 1462, Portuguese set- to one of its own, Mr. Thayas Ray tween Opportunity Village and commu- tlers arrived at Santiago and founded Bray. In fact, his accomplishments are nity businesses and agencies. Among the first permanent European settle- so numerous and his dedication to his ment city in the tropics. In 1951, Por- community so strong, Moss Point offi- them are America Nevada Corporation, tugal changed Cape Verde’s status from cials have designated this Saturday as ATC-Vancom, the U.S. Air Force, the a colony to an overseas province in an ‘‘Thayas Ray Bray Day.’’ Along with U.S. Bureau of Reclamation, the U.S. attempt to blunt growing nationalism. his wife, Joyce Bray, and two sons, Department of Energy, the U.S. De- Five years later, a group of Cape Jerry and Keith, and their families, I partment of Veterans Affairs, the U.S. Verdeans, led by Amilcar Cabral, and a want to take this opportunity to join General Services Administration, the group from neighboring Guinea-Bissau the City of Moss Point in congratu- Las Vegas Convention and Visitors Au- organized the clandestine African lating Mr. Bray on all of his hard work. thority, the Las Vegas Valley Water Party for the Independence of Guinea- Mr. Bray’s service to his local com- District, Bellagio, Harrah’s, Station Bissau and Cape Verde, PAIGC, de- munity and fellow citizens has taken Casinos, the U.S. Department of Agri- manding improvements in economic, on many different forms over the culture, Bank of Nevada, Bechtel, Boyd social, and political conditions in Cape years. He has served as president of Gaming, the City of Henderson, the Verde and Portuguese Guinea. This im- YMBC, MPAC, Exchange Club, and JC. Clark County Health Department, portant action formed the basis of the He has owned Moss Point Sonic since Desert Automotive Group, GES, the In- 2 nations’ independence movements. 1976, as well as Lucedale Sonic, and has ternal Revenue Service, KNPR, Krispy By 1972, the PAIGC controlled much co-owned Jackson County Funeral Kreme Doughnuts, McCarran Inter- of Portuguese Guinea despite the pres- Home. I understand he was the original national Airport, New York-New York ence of the Portuguese troops, but did organizer of Moss Point Impact, and a Hotel and Casino, Southwest Gas Corp., not disrupt Portuguese control in Cape member of the Mississippi Restaurant Wells Fargo, and Wynn Resorts. I ap- Verde. It was not until the April 1974 Association. All the while, he has re- plaud all of Opportunity Village’s part- revolution in Portugal that the PAIGC mained an active member of First Bap- ners for their vision and their commit- and Portugal signed an agreement pro- tist Church of Moss Point. ment to providing opportunity for so viding for a transitional government By giving back so generously to the many individuals. composed of Portuguese and Cape community through volunteer time, he I had the chance to see one of the Op- Verdeans. On June 30, 1975, Cape has truly made a difference in the lives portunity Village partnerships in ac- Verdeans elected a national assembly, of others. Leading youth in Boy Scouts tion and it was then that I truly under- which received the instruments of inde- and Little League baseball are prime stood the tremendous impact they pendence from Portugal on July 5, 1975, examples of his dedication. He has sup- make each and every day. Opportunity making it the official national day of ported local activities such as the high Village clients serve more than 60,000 independence. school band and football, Gulfport Spe- meals per month at the Nellis Air For its first 15 years of independence, cial Olympics, and YMBC Golf Tour- Force Base (AFB) dining facility and Cape Verde was ruled by one party. naments. He also has been an active also operate the postal service center Then in 1990, opposition groups came supporter of the fight against Muscular at the base. On one of my visits to the together to form the Movement for De- Dystrophy, and has supported both the base, Senator REID and I joined Oppor- mocracy. Working together they ended American Cancer Society and Amer- tunity Village workers in serving lunch the 1-party state and the first multi- ican Heart Association. in the mess hall. party elections were held in January As you can see, his contributions to It was incredible to see individuals 1991. the City of Moss Point are far-reaching with disabilities working and inter- Cape Verde enjoys a stable demo- and have benefited the community in acting with our military. Not only cratic system where 4 parties share many different ways. So again I want were they serving food and smiles, but seats in the National Assembly. It is an to thank Mr. Bray for his contributions they were contributing to our Nation example to other nations as to what to his community, and I want to join and the Air Force with their work. can be accomplished. These democratic my friends and neighbors in applauding Their accomplishments and contribu- changes meant better global integra- and commemorating his service.∑ tions are quite remarkable given the hurdles they have faced all their lives. tion as the government has pursued f market-oriented economic policies and Eddie was diagnosed a mentally re- welcomed foreign investors. OPPORTUNITY VILLAGE’S 50TH tarded child in the first grade. Those Today there are close to 350,000 Cape BIRTHDAY who know him say he has a genuine Verdean-Americans living in the ∑ Mr. ENSIGN. Mr. President, I wish to and caring personality, a child-like United States, almost equal to the pop- honor and celebrate an organization shyness, and the focus of a genius. ulation of Cape Verde itself. These that has made an unbelievable impact Eddie began working with Opportunity Americans hold a special right since on my home State of Nevada. Village in 1986 where his specialty was the Cape Verdean Constitution for- Today marks 50 years since Oppor- packaging and product assembly. Fol- mally considers all Cape Verdeans at tunity Village became part of the Las lowing his mastery of that program, home and abroad as citizens and vot- Vegas landscape. In 1954, a group of Eddie moved on to janitorial services ers. Thus, July 5th is a day of inde- families joined together to support the in the work center. Later, he moved to pendence for all Cape Verdean-Ameri- needs of children with mental retarda- another promotion as a room attend- cans as well as those in Cape Verde. tion. In the 50 years that followed, Op- ant in a hotel. Finally, he was pro- Recently we celebrated the independ- portunity Village grew to become the moted to mess attendant at Nellis AFB ence of our own country, reflecting on largest private provider of vocational where the results of his hard work are the personal sacrifices many have training, employment, advocacy, and easily seen in the respect he has earned made to ensure our own freedom and recreation for people with disabilities from his coworkers and supervisors. democracy. It is fitting we do the same in Nevada. Jamie was diagnosed with mild men- with Cape Verde and I urge my col- Words cannot adequately describe tal retardation when he was a child. He leagues to join me in wishing all those the difference that Opportunity Village refused to let the diagnosis slow him

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.023 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7747 down and began working with Oppor- is to the continued success of Oppor- There is so much to be said about tunity Village in 1998. Jamie started in tunity Village. Chuck Vest—his intelligence, his ap- the Work Center where he assembled Today, we look back on the last half pealing personality, his modesty about buckets for $5 an hour. He moved on to century with heartfelt gratitude for his own high accomplishments, and his become a part of the janitorial crew in those local families who, in 1954, de- tireless pursuit of excellence in every- the work center. Then he joined the cided that their loved ones with dis- thing he does. All of us who know him American Nevada Enclave cleaning abilities deserved more. They planted wish him well in the years ahead, con- parking lots. Today, Jamie has proved the seed that has been nurtured and fident that we will continue to think to be a valuable member of his work cared for by their extended family of and act boldly about the role of science team at Nellis AFB where he washes Las Vegans. Today, families of disabled and scientific education in our chang- dishes, performs janitorial services, individuals proudly see their loved ing world and its fundamental impor- and busses tables. Jamie will proudly ones—who 50 years ago would not have tance to the future of our Nation and tell you the $8.27 an hour he earns now had an opportunity—gain self esteem its best ideals.∑ and achieve things once not thought helps to pay his mom’s mortgage. f Paul was diagnosed a moderately possible. With Opportunity Village’s mentally challenged adult and has a continued strong leadership, business MESSAGE FROM THE HOUSE history of seizures. Despite all of the partners, and community support, the At 11:23 a.m., a message from the obstacles placed in his way, Paul con- next 50 years will bring opportunity House of Representatives, delivered by tinues to persevere. Beginning his ca- and optimism to future generations of Ms. Niland, one of its reading clerks, reer with Opportunity Village in Au- intellectually disabled individuals.∑ announced that the House has passed gust of 1999, Paul focused on produc- f the following bill, without amendment: tion assembly. Quickly mastering the TRIBUTE TO CHUCK VEST S. 103. An act for the relief of Lindita Idrizi techniques necessary, Paul was pro- Heath. ∑ Mr. KENNEDY. Mr. President, Chuck moted to room attendant. Then he Vest will soon end his distinguished 14- The message also announced that the moved to a position cleaning at the year tenure as President of the Massa- house passed the following bills in American Nevada Enclave parking lot. chusetts Institute of Technology. He which it requests the concurrence of Now, Paul is also a mess attendant at has been an excellent leader for this the Senate: Nellis AFB. Paul proudly calls himself outstanding institution in our State. H.R. 530. An act for the relief of Tanya An- a ‘‘team player.’’ He has attracted and retained a world drea Goudeau. While the accomplishments of Eddie, class faculty, including Nobel Prize H.R. 712. An act for the relief of Richi Jamie, Paul, and all of Opportunity James Lesley. winners. He has maintained an impres- Village’s clients are inspiring, the ben- H.R. 867. An act for the relief of sive balance between consistency and efits to our community are not just Durreshahwar Durreshahwar, Nida Hasan, change to meet the changing needs of emotional. Employment generated Asna Hasan, Anum Hasan, and Iqra Hasan. the university in the modern high-tech H.R. 2121. An act to amend the Eisenhower through Opportunity Village contracts world. And has developed the research Exchange Fellowship Act of 1990 to authorize helps to reduce dependence on Govern- capacity of the institution far beyond additional appropriations for the Eisenhower ment benefits and increases tax reve- its abilities when he took the helm. Exchange Fellowship Program Trust fund, nues. Individuals with severe disabil- His commitment to diversity has also and for other purposes. ities are paid wages that reduce their been impressive. In 1990, the under- H.R. 3340. An act to redesignate the facili- need for other Government benefits. ties of the United States Postal Service lo- graduate student body was 34 percent cated at 7715 and 7748 S. Cottage Grove Ave- Earning wages allows them to become women and 14 percent underrep- productive members of society and to nue in Chicago, Illinois, as the ‘‘James E. resented minorities; today the student Worsham Post Office’’ and the ‘‘James E. join the ranks of the taxpayers of Ne- body is 42 percent women and 20 per- Worsham Carrier Annex Building’’, respec- vada. Economic studies show that since cent underrepresented minorities—the tively, and for other purposes. its inception 50 years ago, Opportunity result of a conscientious effort by H.R. 3247. An act to designate the facility Village has saved Nevada taxpayers al- President Vest and the community he of the United States Postal Service located most $1 billion. cared so much about. at 73 South Euclid Avenue in Montauk, New I mentioned earlier that Opportunity His leadership was marked by many York, as the ‘‘Perry B. Duryea, Jr. Post Of- fice’’. Village receives vital support from innovative reforms. He decided to pub- business partners in reaching its goals. lish all course material online, so that The message further announced that The other two essential elements to it is freely available to anyone in the the House has agreed to the following the success of Opportunity Village are world. He brought the unequal treat- concurrent resolutions, in which is re- its leadership and the contributions of ment of senior female faculty to the at- quests the concurrence of the Senate. the Las Vegas community. tention of the community and held an H. Con. Res. 257. Concurrent resolution ex- Year after year, Opportunity Village open dialogue on how to correct the pressing the sense of Congress that the is named by Las Vegas residents as situation. He offered health benefits to President should posthumously award the their favorite charity. Las Vegans of same-sex partners. His leadership on fi- Presidential Medal of Freedom to Harry W. Colmery. all ages look forward to the yearly nancial aid methodologies laid the Magical Forest fundraising event as H. Con. Res. 410. Concurrent resolution rec- groundwork for the provisions that are ognizing the 25th anniversary of the adop- well as many other Opportunity Vil- now part of the Higher Education Act. tion of the Constitution of the Republic of lage programs. From world-renowned Chuck has worked skillfully as well the Marshall Islands and recognizing the entertainers to local celebrities to area to obtain increased support for sci- Marshall Islands as a staunch ally of the children to Las Vegas businesses, entific research—especially in the United States, committed to principles of de- southern Nevadans continue to under- physical sciences—and he was a famil- mocracy and freedom for the Pacific region stand the importance of Opportunity iar figure in corporate boardrooms and and throughout the world. Village’s mission and fully support the to many of us in Congress. His coopera- f 100 percent local organization. tive work with Lincoln Labs, with Har- MEASURES REFERRED And at the helm of Opportunity Vil- vard and with the Broad Foundation lage is a man whose vision and dedica- and his commitment to the Cambridge The following bills were read the first tion has made it possible to serve more and Boston Public Schools are impor- and the second times by unanimous than 600 disabled workers every day. tant parts of all he has brought to MIT. consent, and referred as indicated: Opportunity Village Executive Direc- When he was named in February to the H.R. 530. An act for the relief of Tanya An- tor Ed Guthrie has proven to be a tire- President’s Commission on the Intel- drea Goudeau; to the Committee on the Judi- less advocate for individuals with dis- ligence Capabilities of the United ciary. H.R. 712. An act for the relief of Richi abilities and a true friend to the dis- States Regarding Weapons of Mass De- James Lesley; to the Committee on the Judi- abled community. I have had the pleas- struction, he said, ‘‘I will concentrate ciary. ure of working with him on many on two priorities, MIT and the Com- H.R. 867. An act for the relief of projects, and I know how committed he mission.’’ Durreshahwar Durreshahwar Nida Hasan,

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\CR\FM\G07JY6.138 S07PT1 S7748 CONGRESSIONAL RECORD — SENATE July 7, 2004 Asna Hasan, Anum Hasan, and Iqra Hasan; to EC–8262. A communication from the Dep- Department of Defense, transmitting, pursu- the Committee on the Judiciary. uty Associate Administrator, Environmental ant to law, the report of a violation of the H.R. 2121. An act to amend the Eisenhower Protection Agency, transmitting, pursuant Antideficiency Act, case number 02–06, rel- Exchange Fellowship Act of 1990 to authorize to law, the report of a rule entitled ‘‘C8, C10, ative to the fiscal years 1996 through 1998 Op- additional appropriations for the Eisenhower and C12 Straight-Chain Fatty Acid eration and Maintenance, Navy appropria- Exchange Fellowship Program Trust Fund, Monoesters of Glycerol and Proylene Glycol; tion funds used by the Administrative Sup- and for other purposes; to the Committee on Exemption from the Requirement of a Toler- port Unit, Southwest Asia, Bahrain; to the Foreign Relations. ance’’ (FRL#7352–6) received on July 6, 2004; Committee on Appropriations. H.R. 3340. An act to redesignate the facili- to the Committee on Agriculture, Nutrition, EC–8273. A communication from the Direc- ties of the United States Postal Service lo- and Forestry. tor, Defense Procurement and Acquisition cated at 7715 and 7748 S. Cottage Grove Ave- EC–8263. A communication from the Dep- Policy, Department of Defense, transmit- nue in Chicago, Illinois, as the ‘‘James E. uty Associate Administrator, Environmental ting, pursuant to law, the report of a rule en- Worsham Post Office’’ and the ‘‘James E. Protection Agency, transmitting, pursuant titled ‘‘Multiyear Procurement Authority Worsham Carrier Annex Building’’, respec- to law, the report of a rule entitled ‘‘Lactic for Environmental Services for Military In- tively, and for the other purposes; to the Acid, n-proply ester, (S); Exemption from the stallations’’ (DFARS Case 2003–D004) re- Committee on Governmental Affairs. Requirement of a Tolerance’’ (FRL#7362–3) ceived on June 25, 2004; to the Committee on H.R. 4327. An act to designate the facility received on July 6, 2004; to the Committee on Armed Services. of the United States Postal Service located Agriculture, Nutrition, and Forestry. EC–8274. A communication from the Direc- at 7450 Natural Bridge Road in St. Louis, EC–8264. A communication from the Ad- tor, Defense Procurement and Acquisition Missouri, as the ‘‘Vitilas ‘Veto’ Reid Post Of- ministrator, Agricultural Marketing Serv- Policy, Department of Defense, transmit- fice Building’’; to the Committee on Govern- ice, Department of Agriculture, transmit- ting, pursuant to law, the report of a rule en- mental Affairs. ting, pursuant to law, the report of a rule en- titled ‘‘Berry Amendment Changes’’ (DFARS H.R. 4427. An act to designate the facility titled ‘‘Tart Cherries Grown in the States of Case 2003–D099) received on June 25, 2004; to of the United States Postal Service located Michigan; et al.; Revision of Current Proce- the Committee on Armed Services. at 73 South Euclid Avenue in Montauk, New dures for Handlers to Receive Exempt Use/ EC–8275. A communication from the Prin- York, as the ‘‘Perry B. Duryea, Jr. Post Of- Diversion Credit for New and New Market cipal Deputy, Office of the Under Secretary fice’’; to the Committee on Governmental Development Activities’’ received on July 6, of Defense for Personnel and Readiness, Affairs. 2004; to the Committee on Agriculture, Nu- transmitting, pursuant to law, the report of trition, and Forestry. the approval to wear the insignia of lieuten- The following concurrent resolutions EC–8265. A communication from the Ad- ant general; to the Committee on Armed were read, and referred as indicated: ministrator, Agricultural Marketing Serv- Services. H. Con. Res. 257. Concurrent resolution ex- ice, Department of Agriculture, transmit- EC–8276. A communication from the Prin- pressing the sense of Congress that the ting, pursuant to law, the report of a rule en- cipal Deputy, Office of the Under Secretary President should posthumously award the titled ‘‘Milk in the Pacific Northwest Mar- of Defense for Personnel and Readiness, Presidential Medal of Freedom to Harry W. keting Area—Final Order’’ (Doc. No. DA–01– transmitting, pursuant to law, the report of Colmery; to the Committee on the Judiciary. 06) received on July 6, 2004; to the Committee the approval to wear the insignia of lieuten- H. Con. Res. 410. Concurrent resolution rec- on Agriculture, Nutrition, and Forestry. ant general; to the Committee on Armed ognizing the 25th anniversary of the adop- EC–8266. A communication from the Ad- Services. tion of the Constitution of the Republic of ministrator, Agricultural Marketing Serv- EC–8277. A communication from the Prin- the Marshall Islands and recognizing the ice, Department of Agriculture, transmit- cipal Deputy, Office of the Under Secretary Marshall Islands as a staunch ally of the ting, pursuant to law, the report of a rule en- of Defense for Personnel and Readiness, United States, committed to principles of de- titled ‘‘Milk in the Mideast Marketing transmitting, pursuant to law, the report of mocracy and freedom for the Pacific region Area—Final Order’’ (Doc. No. DA–01–04) re- the approval to wear the insignia of lieuten- and throughout the world; to the Committee ceived on July 6, 2004; to the Committee on ant general; to the Committee on Armed on Foreign Relations. Agriculture, Nutrition, and Forestry. Services. EC–8267. A communication from the Ad- EC–8278. A communication from the Prin- f ministrator, Agricultural Marketing Serv- cipal Deputy, Office of the Under Secretary MEASURES READ THE FIRST TIME ice, Department of Agriculture, transmit- of Defense for Personnel and Readiness, ting, pursuant to law, the report of a rule en- transmitting, pursuant to law, the report of The following joint resolution was titled ‘‘Revision of User Fees for 2004 Crop the approval to wear the insignia of lieuten- read the first time: Cotton Classification Services to Growers’’ ant general; to the Committee on Armed S.J. Res. 40. Joint resolution proposing an (RIN0591–AC34) received on July 6, 2004; to Services. amendment to the Constitution of the the Committee on Agriculture, Nutrition, EC–8279. A communication from the Prin- United States relating to marriage. and Forestry. cipal Deputy, Office of the Under Secretary EC–8268. A communication from the Sec- of Defense for Personnel and Readiness, f retary of Transportation, transmitting, pur- transmitting, pursuant to law, the report of EXECUTIVE AND OTHER suant to law, the report of a violation of the the approval to wear the insignia of lieuten- Antideficiency Act relative to transactions ant general; to the Committee on Armed COMMUNICATIONS in the Federal Aviation Administration Services. The following communications were Aviation Insurance Revolving Fund; to the EC–8280. A communication from the Prin- laid before the Senate, together with Committee on Appropriations. cipal Deputy, Office of the Under Secretary accompanying papers, reports, and doc- EC–8269. A communication from the Acting of Defense for Personnel and Readiness, uments, and were referred as indicated: Under Secretary of Defense, Comptroller, transmitting, pursuant to law, the report of Department of Defense, transmitting, pursu- the approval to wear the insignia of lieuten- EC–8259. A communication from the Dep- ant to law, the report of a violation of the ant general; to the Committee on Armed uty Associate Administrator, Environmental Antideficiency Act, case number 04–03, rel- Services. Protection Agency, transmitting, pursuant ative to funds for the purchase of Santa EC–8281. A communication from the Prin- to law, the report of a rule entitled ‘‘Office of Claus suits and hats at the Yongsan Army cipal Deputy, Office of the Under Secretary Pesticide Programs Address Changes’’ Garrison, Seoul, Republic of Korea; to the of Defense for Personnel and Readiness, (FRL#7368–4) received on July 6, 2004; to the Committee on Appropriations. transmitting, pursuant to law, the report of Committee on Agriculture, Nutrition, and EC–8270. A communication from the Acting the approval to wear the insignia of lieuten- Forestry. Under Secretary of Defense, Comptroller, ant general; to the Committee on Armed EC–8260. A communication from the Dep- Department of Defense, transmitting, pursu- Services. uty Associate Administrator, Environmental ant to law, the report of a violation of the EC–8282. A communication from the Prin- Protection Agency, transmitting, pursuant Antideficiency Act, case number 04–04, rel- cipal Deputy, Office of the Under Secretary to law, the report of a rule entitled ative to the purchase of an information sys- of Defense for Personnel and Readiness, ‘‘Proppxycarbozone-sodium; Pesticide Toler- tem at the United States Property and Fis- transmitting, pursuant to law, the report of ance’’ (FRL#7365–7) received on July 6, 2004; cal Office for Maryland; to the Committee on the approval to wear the insignia of vice ad- to the Committee on Agriculture, Nutrition, Appropriations. miral; to the Committee on Armed Services. and Forestry. EC–8271. A communication from the Acting EC–8283. A communication from the Prin- EC–8261. A communication from the Dep- Under Secretary of Defense, Comptroller, cipal Deputy, Office of the Under Secretary uty Associate Administrator, Environmental Department of Defense, transmitting, pursu- of Defense for Personnel and Readiness, Protection Agency, transmitting, pursuant ant to law, the report of a violation of the transmitting, pursuant to law, the report of to law, the report of a rule entitled ‘‘Asper- Antideficiency Act, case number 03–03, rel- the approval to wear the insignia of vice ad- gillus flavus NRRL 21882; Exemption from ative to FY 2000 Operation and Maintenance miral; to the Committee on Armed Services. the Requirement of a Tolerance’’ (FRL#7364– Funds; to the Committee on Appropriations. EC–8284. A communication from the Prin- 2) received on July 6, 2004; to the Committee EC–8272. A communication from the Acting cipal Deputy, Office of the Under Secretary on Agriculture, Nutrition, and Forestry. Under Secretary of Defense, Comptroller, of Defense for Personnel and Readiness,

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.026 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7749 transmitting, pursuant to law, the report of 22, 2004; to the Committee on Banking, Hous- Department of Labor, transmitting, pursu- the approval to wear the insignia of vice ad- ing, and Urban Affairs. ant to law, the report of a rule entitled miral; to the Committee on Armed Services. EC–8296. A communication from the Acting ‘‘Final Rules Relating to Health Care Con- EC–8285. A communication from the Prin- General Counsel, Federal Emergency Man- tinuation Coverage, Technical Corrections’’ cipal Deputy, Office of the Under Secretary agement Agency, Department of Homeland (RIN1210–AA60) received on June 24, 2004; to of Defense for Personnel and Readiness, Security, transmitting, pursuant to law, the the Committee on Health, Education, Labor, transmitting, pursuant to law, the report of report of a rule entitled ‘‘Disaster Assistance and Pensions. the approval to wear the insignia of general; Definitions; Statutory Change’’ (RIN1660–19) f to the Committee on Armed Services. received on June 22, 2004; to the Committee EC–8286. A communication from the Prin- on Banking, Housing, and Urban Affairs. REPORTS OF COMMITTEES cipal Deputy, Office of the Under Secretary EC–8297. A communication from the Direc- The following reports of committees of Defense for Personnel and Readiness, tor, OSHA Standards and Guidance, Depart- transmitting, pursuant to law, the report of ment of Labor, transmitting, pursuant to were submitted: the approval to wear the insignia of general; law, the report of a rule entitled ‘‘Mechan- By Mr. DOMENICI, from the Committee on to the Committee on Armed Services. ical Power—Transmission Apparatus; Me- Energy and Natural Resources, with an EC–8287. A communication from the Prin- chanical Power Presses; Telecommuni- amendment in the nature of a substitute: cipal Deputy, Office of the Under Secretary cations; Hydrogen (correction)’’ received on S. 180. A bill to establish the National of Defense for Personnel and Readiness, June 22, 2004; to the Committee on Health, Aviation Heritage Area, and for other pur- transmitting, pursuant to law, the report of Education, Labor, and Pensions. poses (Rept. No. 108–292). the approval of a list of officers to wear the EC–8298. A communication from the Sec- By Mr. DOMENICI, from the Committee on next insignia; to the Committee on Armed retary of Health and Human Services, trans- Energy and Natural Resources, without Services. mitting, pursuant to law, a report relative to amendment: EC–8288. A communication from the Attor- the Native Hawaiian Revolving Loan Fund; S. 211. A bill to establish the Northern Rio ney-Advisor, Office of the General Counsel, to the Committee on Health, Education, Grande National Heritage Area in the State Selective Service System, transmitting, pur- Labor, and Pensions. of New Mexico, and for other purposes (Rept. suant to law, the report of the designation of EC–8299. A communication from the Direc- No. 108–293). an acting officer, change in previously sub- tor, Regulations Policy and Management By Mr. DOMENICI, from the Committee on mitted reported information, and discontinu- Staff, Food and Drug Administration, trans- Energy and Natural Resources, with an ation of service in acting role for the posi- mitting, pursuant to law, the report of a rule amendment in the nature of a substitute: tion of Director, Selective Service System, entitled ‘‘Requirements for Liquid Medicated S. 323. A bill to establish the Atchafalaya received on July 1, 2004; to the Committee on Animal Feed and Free-Choice Medicated National Heritage Area, Louisiana (Rept. No. Armed Services. Animal Feed’’ (Doc. No. 1993P–0174) received 108–294). EC–8289. A communication from the Direc- on June 22, 2004; to the Committee on S. 1241. A bill to establish the Kate tor of Defense Research and Engineering, De- Health, Education, Labor, and Pensions. Mullany National Historic Site in the State partment of Defense, transmitting, pursuant EC–8300. A communication from the Sec- of New York, and for other purposes (Rept. to law, the Annual Report of the Strategic retary of Education, transmitting, pursuant No. 108–295). Environmental Research and Development to law, a report relative to the Department S. 1727. A bill to authorize additional ap- Program; to the Committee on Armed Serv- of Education’s competitive sourcing efforts; propriations for the Reclamation Safety of ices. to the Committee on Health, Education, Dams Act of 1978 (Rept. No. 108–296). EC–8290. A communication from the Dep- Labor, and Pensions. S. 1957. A bill to authorize the Secretary of uty Secretary of the Treasury, transmitting, EC–8301. A communication from the Direc- the Interior to cooperate with the States on pursuant to law, a six-month periodic report tor, Regulations Policy and Management the border with Mexico and other appro- on the national emergency with respect to Staff, Food and Drug Administration, trans- priate entities in conducting a hydrogeologic the Development Fund for Iraq that was de- mitting, pursuant to law, the report of a rule characterization, mapping, and modeling clared in Executive Order 13303 of May 22, entitled ‘‘Food Additives Permitted for Di- program for priority transboundary aquifers, 2003; to the Committee on Banking, Housing, rect Addition to Food for Human Consump- and for other purposes (Rept. No. 108–297). and Urban Affairs. tion; Olestra’’ (Doc. No. 1999F–0719) received S. 2046. A bill to authorize the exchange of EC–8291. A communication from the Dep- on June 22, 2004; to the Committee on certain land in Everglades National Park uty Secretary of the Treasury, transmitting, Health, Education, Labor, and Pensions. (Rept. No. 108–298). pursuant to law, a six-month periodic report EC–8302. A communication from the Direc- S. 2319. A bill to authorize and facilitate on the national emergency with respect to tor, Regulations Policy and Management hydroelectric power licensing of the Tapoco Burma that was declared in Executive Order Staff, Food and Drug Administration, trans- Project (Rept. No. 108–299). 13047 of May 20, 1997; to the Committee on mitting, pursuant to law, the report of a rule By Ms. COLLINS, from the Committee on Banking, Housing, and Urban Affairs. entitled ‘‘Registration of Food Facilities Governmental Affairs, without amendment: EC–8292. A communication from the Dep- Under the Public Health Security and Bio- H.R. 1303. A bill to amend the E-Govern- uty Secretary of the Treasury, transmitting, terrorism Preparedness and Response Act of ment Act of 2002 with respect to rulemaking pursuant to law, a six-month periodic report 2002; Technical Amendment’’ (RIN0910–AC40) authority of the Judicial Conference. on the national emergency with respect to received on June 22, 2004; to the Committee f the risk of nuclear proliferation created by on Health, Education, Labor, and Pensions. the accumulation of weapons-usable fissile EC–8303. A communication from the Direc- INTRODUCTION OF BILLS AND material in the territory of the Russian Fed- tor, Regulations Policy and Management JOINT RESOLUTIONS eration that was declared in Executive Order Staff, Food and Drug Administration, trans- The following bills and joint resolu- 13159 of June 21, 2000; to the Committee on mitting, pursuant to law, the report of a rule tions were introduced, read the first Banking, Housing, and Urban Affairs. entitled ‘‘Revision of Requirements for and second times by unanimous con- EC–8293. A communication from the Sec- Spore-Forming Microorganisms; Confirma- retary of Housing and Urban Development, tion of Effective Date’’ (Doc. No. 2003N–0528) sent, and referred as indicated: transmitting, pursuant to law, the Depart- received on June 22, 2004; to the Committee By Mrs. BOXER (for herself, Mr. SMITH, ment of Housing and Urban Development’s on Health, Education, Labor, and Pensions. Mr. CHAFEE, and Mr. FEINGOLD): Annual Performance Plan for Fiscal Year EC–8304. A communication from the Chair- S. 2611. A bill to amend the Foreign Assist- 2005; to the Committee on Banking, Housing, man, National Endowment for the Human- ance Act of 1961 to provide assistance for or- and Urban Affairs. ities, transmitting, pursuant to law, a report phans and other vulnerable children in devel- EC–8294. A communication from the Acting relative to the Endowment’s competitive oping countries; to the Committee on For- General Counsel, Federal Emergency Man- sourcing efforts; to the Committee on eign Relations. agement Agency, Department of Homeland Health, Education, Labor, and Pensions. By Ms. MIKULSKI (for herself and Mr. Security, transmitting, pursuant to law, the EC–8305. A communication from the Regu- SARBANES): report of a rule entitled ‘‘Suspension of Com- lations Coordinator, Department of Health S. 2612. A bill to amend the Law Enforce- munity Eligibility; 69 FR 23659’’ (Doc. No. and Human Services, transmitting, pursuant ment Pay Equity Act of 2000 to permit cer- FEMA–7829) received on June 22, 2004; to the to law, the report of a rule entitled ‘‘Medi- tain annuitants of the retirement programs Committee on Banking, Housing, and Urban care and Medicaid Programs; Physicians Re- of the United States Park Police and United Affairs. ferrals to Health Care Entities with Which States Secret Service Uniformed Division to EC–8295. A communication from the Acting They Have Financial Relationships; Exten- receive the adjustments in pension benefits General Counsel, Federal Emergency Man- sion of Partial Delay of Effective Date’’ to which such annuitants would otherwise be agement Agency, Department of Homeland (RIN0938–AM99) received on June 25, 2004; to entitled as a result of the conversion of Security, transmitting, pursuant to law, the the Committee on Health, Education, Labor, members of the United States Park Police report of a rule entitled ‘‘National Flood In- and Pensions. and United States Secret Service Uniformed surance Program; Assistance to Private Sec- EC–8306. A communication from the Dep- Division to a new salary schedule under the tor Property Insurers; Extension of Term of uty Assistant Secretary for Policy, Em- amendments made by such Act; to the Com- Arrangement’’ (RIN1660–29) received on June ployee Benefits Security Administration, mittee on Governmental Affairs.

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.029 S07PT1 S7750 CONGRESSIONAL RECORD — SENATE July 7, 2004 By Mr. HAGEL (for himself and Mr. By Mr. CRAIG (for himself and Mr. as cosponsors of S. 2158, a bill to amend DURBIN): BAUCUS): the Public Health Service Act to in- S. 2613. A bill to amend the Public Health S. Res. 400. A resolution recognizing the crease the supply of pancreatic islet Service Act to establish a scholarship and 2004 Congressional Awards Gold Medal Re- cells for research, and to provide for loan repayment program for public health cipients; to the Committee on Governmental preparedness workforce development to Affairs. better coordination of Federal efforts eliminate critical public health preparedness and information on islet cell transplan- f workforce shortages in Federal, State, and tation. local public health agencies; to the Com- ADDITIONAL COSPONSORS S. 2199 mittee on Health, Education, Labor, and S. 59 At the request of Mrs. FEINSTEIN, the Pensions. name of the Senator from Illinois (Mr. By Mr. CONRAD (for himself and Mr. At the request of Mr. INOUYE, the SANTORUM): name of the Senator from Nebraska DURBIN) was added as a cosponsor of S. S. 2614. A bill to amend title XVIII of the (Mr. HAGEL) was added as a cosponsor 2199, a bill to authorize the Attorney Social Security Act to improve the benefits of S. 59, a bill to amend title 10, United General to make grants to improve the under the medicare program for beneficiaries States Code, to permit former members ability of State and local governments with kidney disease, and for other purposes; of the Armed Forces who have a serv- to prevent the abduction of children by to the Committee on Finance. family members, and for other pur- By Mr. HARKIN: ice-connected disability rated as total S. 2615. A bill to amend the Tariff Act of to travel on military aircraft in the poses. 1930 to eliminate the consumptive demand same manner and to the same extent as S. 2268 exception relating to the importation of retired members of the Armed Forces At the request of Mr. BUNNING, the goods made with forced labor; to the Com- are entitled to travel on such aircraft. name of the Senator from Alabama mittee on Finance. S. 540 (Mr. SESSIONS) was added as a cospon- By Mr. COLEMAN: sor of S. 2268, a bill to provide for re- S. 2616. A bill to increase the availability At the request of Mr. INHOFE, the of H–2B nonimmigrant visas during fiscal names of the Senator from Montana cruiting, training, and deputizing per- year 2004 for rural border areas, and for other (Mr. BURNS), the Senator from Oregon sons for the Federal flight deck officer purposes; to the Committee on the Judici- (Mr. WYDEN) and the Senator from program. ary. Massachusetts (Mr. KERRY) were added S. 2321 By Mr. KENNEDY: as cosponsors of S. 540, a bill to author- At the request of Mr. BYRD, the name S. 2617. A bill making supplemental appro- of the Senator from Montana (Mr. priation for the Department of Education for ize the presentation of gold medals on the fiscal year ending September 30, 2004, and behalf of Congress to Native Americans BURNS) was added as a cosponsor of S. for other purposes; to the Committee on Ap- who served as Code Talkers during for- 2321, a bill to amend title 32, United propriations. eign conflicts in which the United States Code, to rename the National By Mr. GRASSLEY (for himself, Mr. States was involved during the 20th Guard Challenge Program and to in- BAUCUS, Mr. SMITH, and Mr. BINGA- Century in recognition of the service of crease the maximum Federal share of MAN): those Native Americans to the United the costs of State programs under that S. 2618. A bill to amend title XIX of the So- program, and for other purposes. cial Security Act to extend medicare cost- States. sharing for the medicare part B premium for S. 568 S. 2363 qualifying individuals through September At the request of Mr. ENSIGN, the At the request of Mr. HATCH, the 2005; to the Committee on Finance. name of the Senator from Louisiana name of the Senator from Hawaii (Mr. By Mr. ALLARD (for himself, Mr. (Ms. LANDRIEU) was added as a cospon- INOUYE) was added as a cosponsor of S. BROWNBACK, Mr. COCHRAN, Mr. ENZI, sor of S. 568, a bill to amend title XVIII 2363, a bill to revise and extend the Mr. FITZGERALD, Mr. FRIST, Mr. of the Social Security Act to make a Boys and Girls Clubs of America. HATCH, Mrs. HUTCHISON, Mr. INHOFE, Mr. KYL, Mr. LOTT, Mr. MCCONNELL, technical correction in the definition S. 2389 Mr. MILLER, Mr. SANTORUM, Mr. SES- of outpatient speech-language pathol- At the request of Mr. ENSIGN, the SIONS, Mr. SHELBY, and Mr. TALENT): ogy services. name of the Senator from Idaho (Mr. S.J. Res. 40. A joint resolution proposing S. 1704 CRAPO) was added as a cosponsor of S. an amendment to the Constitution of the At the request of Ms. COLLINS, the 2389, a bill to require the withholding United States relating to marriage; read the of United States contributions to the first time. names of the Senator from Alabama By Mr. CAMPBELL (for himself, Mr. (Mr. SESSIONS) and the Senator from United Nations until the President cer- INOUYE, Ms. CANTWELL, Mr. DASCHLE, New Jersey (Mr. LAUTENBERG) were tifies that the United Nations is co- Ms. MURKOWSKI, Mrs. CLINTON, Mr. added as cosponsors of S. 1704, a bill to operating in the investigation of the LIEBERMAN, Mr. AKAKA, Ms. amend the Public Health Service Act United Nations Oil-for-Food Program. STABENOW, Mr. WYDEN, Ms. MIKULSKI, to establish a State family support S. 2399 Mr. INHOFE, Mr. LAUTENBERG, Mr. grant program to end the practice of At the request of Mr. FITZGERALD, BINGAMAN, Mrs. BOXER, Mr. DODD, parents giving legal custody of their the name of the Senator from Illinois Mr. SMITH, Mr. DOMENICI, Mr. JOHN- SON, Mrs. MURRAY, Mr. SCHUMER, Mr. seriously emotionally disturbed chil- (Mr. DURBIN) was added as a cosponsor FITZGERALD, Mr. MCCAIN, Mr. dren to State agencies for the purpose of S. 2399, a bill to provide for the im- CONRAD, Mr. LEAHY, Mr. CHAFEE, Mr. of obtaining mental health services for provement of physical activity and nu- THOMAS, Mr. BURNS, Mrs. DOLE, Mr. those children. trition and the prevention of obesity NELSON of Nebraska, Mr. HATCH, and S. 1717 for all Americans. Mr. BROWNBACK): S. 2432 S.J. Res. 41. A joint resolution commemo- At the request of Mr. HATCH, the rating the opening of the National Museum name of the Senator from Missouri At the request of Mr. TALENT, the of the American Indian; to the Committee on (Mr. TALENT) was added as a cosponsor name of the Senator from Missouri Indian Affairs. of S. 1717, a bill to amend the Public (Mr. BOND) was added as a cosponsor of f Health Service Act to establish a Na- S. 2432, a bill to expand the boundaries tional Cord Blood Stem Cell Bank Net- of Wilson’s Creek Battlefield National SUBMISSION OF CONCURRENT AND work to prepare, store, and distribute Park, and for other purposes. SENATE RESOLUTIONS human umbilical cord blood stem cells S. 2450 The following concurrent resolutions for the treatment of patients and to At the request of Mr. CAMPBELL, the and Senate resolutions were read, and support peer-reviewed research using name of the Senator from New York referred (or acted upon), as indicated: such cells. (Mrs. CLINTON) was added as a cospon- By Mr. CRAIG (for himself and Mr. S. 2158 sor of S. 2450, a bill to amend title 10, CRAPO): At the request of Ms. COLLINS, the United States Code, to revise the re- S. Res. 399. A resolution designating the week of July 11 through July 17, 2004, as names of the Senator from Connecticut quirements for award of the Combat In- ‘‘Oinkari Basque Dancers Week’’, and for (Mr. DODD), the Senator from Cali- fantryman Badge and the Combat Med- other purposes; to the Committee on the Ju- fornia (Mrs. BOXER) and the Senator ical Badge with respect to service in diciary. from Kansas (Mr. ROBERTS) were added Korea after July 28, 1953.

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.033 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7751 S. 2490 at helping the 110 million orphans in ment of these children in order to promote At the request of Mr. INOUYE, the the world. This legislation is a com- healthy development and normal growth. name of the Senator from Hawaii (Mr. panion measure to Congresswoman Your bill also builds in monitoring and evaluation criteria and improved coordina- AKAKA) was added as a cosponsor of S. LEE’s bill that unanimously passed the tion, including a new office of orphans and 2490, a bill to amend the Nonindigenous House of Representatives last month. vulnerable children, to ensure that funds for Aquatic Nuisance Prevention and Con- Current estimates suggest that by orphans will be used most effectively. As we trol Act of 1990 to establish vessel bal- 2010, there will be more than 25 million ramp up our response to the orphans’ crisis, last water management requirements, orphans worldwide as the result of the new structures to ensure effective coordina- and for other purposes. HIV–AIDS pandemic. We must do more tion are essential to meeting the needs of these orphans. S. 2522 to provide hope for these children. This legislation is an important step for- We welcome the Boxer-Chafee legislation At the request of Mr. CORZINE, the as an essential companion to the comprehen- name of the Senator from New York ward. Our bill would authorize the Presi- sive legislation that has already passed the (Mrs. CLINTON) was added as a cospon- House of Representatives. dent to provide assistance to orphans sor of S. 2522, a bill to amend title 38, Global Action for Children—Leadership United States Code, to increase the and other vulnerable children in devel- Council oping countries. Specific authorization maximum amount of home loan guar- AFXB. anty available under the home loan is provided in the areas of basic care, Center for Health and Gender Equity guaranty program of the Department HIV–AIDS treatment, school food pro- (CHANGE). of Veterans Affairs, and for other pur- grams, protection of inheritance Episcopal Church, USA. poses. rights, and education and employment Global Justice. training assistance. Keep A Child Alive. S. 2526 The legislation also calls on the Progressive National Baptist Convention. At the request of Mr. BOND, the President to use U.S. foreign assistance RESULTS. names of the Senator from Missouri Student Campaign for Child Survival. to support programs that eliminate American Jewish World Service. (Mr. TALENT) and the Senator from school fees. Throughout the world, church World Service. Delaware (Mr. BIDEN) were added as co- many orphans are prevented from at- Global AIDS Alliance. sponsors of S. 2526, a bill to reauthorize tending school because they cannot af- Hope for African Children Initiative. the Children’s Hospitals Graduate Med- ford to pay for school or are forced to Pan-African Children’s Fund. ical Education Program. financially support their families or Religions Action Center of Reform Juda- ism. S. 2533 care for sick relatives. Student Global AIDS Campaign. At the request of Ms. MIKULSKI, the Finally, the bill would establish an United Methodist Church, General Board of name of the Senator from Vermont Office for Orphans and Other Vulner- Church and Society. (Mr. JEFFORDS) was added as a cospon- able Children within USAID and a sor of S. 2533, a bill to amend the Pub- monitoring system that will ensure By Ms. MIKULSKI (for herself lic Health Service Act to fund break- that U.S. assistance is effective. Right and Mr. SARBANES): throughs in Alzheimer’s disease re- now, there is no office or individual S. 2612. A bill to amend the Law En- search while providing more help to within the Agency with responsibility forcement Pay Equity Act of 2000 to caregivers and increasing public edu- for the overall oversight or implemen- permit certain annuitants of the retire- cation about prevention. tation of programs for orphans and vul- ment programs of the United States S. 2560 nerable children. Park Police and United States Secret At the request of Mr. LEAHY, the I look forward to working with Con- Service Uniformed Division to receive name of the Senator from New York gresswoman LEE and the Chairman of the adjustments in pension benefits to (Mrs. CLINTON) was added as a cospon- the Foreign Relations Committee, Sen- which such annuitants would otherwise sor of S. 2560, a bill to amend chapter ator LUGAR, in passing legislation to be entitled as a result of the conversion 5 of title 17, United States Code, relat- address the tragic issue of AIDS or- of members of the United States Park ing to inducement of copyright in- phans throughout the world. Police and United States Secret Serv- fringement, and for other purposes. I ask unanimous consent that a let- ice Uniformed Division to a new salary ter in support of this bill signed by the schedule under the amendments made S. RES. 202 Global Action for Children be printed by such Act; to the Committee on Gov- At the request of Mr. CAMPBELL, the in the RECORD. ernmental Affairs. name of the Senator from Oklahoma There being no objection, the letter Ms. MIKULSKI. Mr. President, I rise (Mr. INHOFE) was added as a cosponsor was ordered to be printed in the today to introduce the Federal Law of S. Res. 202, a resolution expressing RECORD, as follows: Enforcement Pay Adjustment Equity the sense of the Senate regarding the GLOBAL ACTION FOR CHILDREN Act. This legislation amends the Law genocidal Ukraine Famine of 1932–33. DEAR SENATORS BOXER AND CHAFEE: We Enforcement Pay Equity Act of 2000 to S. RES. 269 welcome your leadership on the issue of or- allow retired police officers of the At the request of Mr. LEVIN, the phans and vulnerable children. As of 2001, an United States Secret Service Uni- name of the Senator from Illinois (Mr. estimated 100 million children were orphans formed Division and the United States DURBIN) was added as a cosponsor of S. throughout Sub-Saharan Africa, Asia, Latin Park Police to receive the same Cost of America and the Caribbean. The AIDS epi- Res. 269, a resolution urging the Gov- Living Adjustment as active officers. ernment of Canada to end the commer- demic is rapidly accelerating the orphan cri- sis and leaving a generation of children with- For almost 80 years, Secret Service cial seal hunt that opened on Novem- out hope. As millions of parents are dying and Park Police retirees were assured ber 15, 2003. from AIDS, the children they leave behind an increase in their pensions whenever f are often left without any adult to look after their active counterparts received an their basic needs and survival. increase by the ‘‘equalization clause’’ STATEMENTS ON INTRODUCED Your bill expands the capacity of commu- in the District of Columbia Police and BILLS AND JOINT RESOLUTIONS nities to take care of the basic needs of or- phans and dramatically expands educational Firearms Salary Act of 1958. When the By Mrs. BOXER (for herself, Mr. opportunities for orphans. The bill creates a Law Enforcement Pay Equity Act SMITH, Mr. CHAFEE, and Mr. mechanism to eliminate the school fees that passed in 2000, the automatic link that FEINGOLD): prevent so many orphans from ever going to ensured retirees of getting the same S. 2611. A bill to amend the Foreign school. School fees also discourage families COLA as active officers was severed. Assistance Act of 1961 to provide assist- from adopting orphans because of the major This bill would restore that link, guar- ance for orphans and other vulnerable financial burden posed by such fees. anteeing that the pension for these re- children in developing countries; to the The legislation you are introducing also tired Federal police officers keeps up provides new hope to orphans and vulnerable Committee on Foreign Relations. children living with HIV and AIDS. Each with the cost of living. Mrs. BOXER. Mr. President, today I year, 700,000 babies are infected with HIV and The Law Enforcement Pay Equity join Senators SMITH, CHAFEE and FEIN- most of these children will become orphans. Act created a sharp inequality in re- GOLD in introducing legislation aimed The legislation provides a focus on treat- tirement benefits for a small number of

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.034 S07PT1 S7752 CONGRESSIONAL RECORD — SENATE July 7, 2004 retirees—600 Secret Service retirees agencies throughout the United States. The loan repayment program is de- and 470 Park Police retirees, roughly This bill, known as the Public Health signed to help pay for education loans eleven hundred in total. They gave Preparedness Workforce Development incurred by individuals currently em- years of loyal service, often in difficult Act of 2004, provides financial help to ployed or about to be employed in a and life-threatening situations. They both full and part-time students who Federal, State or local public health are the only Federal retirees who had are interested in pursuing a career in agency. existing retirement benefits scaled public health at Federal, State and The grants for the loan repayment back. local public health agencies. program to political jurisdictions at Providing for government retirees Our Nation faces myriad public the State and local level will provide and their families has always been an health threats and challenges, ranging funds to the appropriate agencies to important function of the Federal Gov- from emerging diseases such as West operate the loan repayment program. ernment. There is no reason why the Nile virus and SARS to the special The bill is supported by the Associa- government should go back on its word needs of an aging population, from bio- tion of State and Territorial Health Of- to provide this small group of valuable terrorism to obesity, tobacco use and ficials, the National Association of employees with secure retirement ben- environmental hazards. The ability of City and County Health Officials, the efits. Restoring the COLA to the pen- the public health system to prevent, American Public Health Association, and the Council of State and Terri- sions of 1,100 Federal retirees will have respond to, and recover from these challenges depends on adequate num- torial Epidemiologists. a minimal impact on the Federal budg- I urge my colleagues to join me in et, but a major impact on the quality bers of well-trained public health pro- fessionals in Federal, State, and local this effort to strengthen the capacity of life of the people involved. of our Nation to respond to public When it comes to Federal employees, public health departments. However, our public health system health threats now and in the years to I believe that promises made should be has an aging staff nearing retirement come. The Public Health Preparedness promises kept. These former Secret and there are not enough students Workforce Development Act of 2004 Service and Park Police officers graduating with training in public will help provide the public with the planned for their retirement with the health disciplines to provide a con- educated and well-trained public understanding that their pension would sistent source of skilled employees to health workforce to meet the health be enough to live on, even as the cost fill the void. The average age of the challenges of the future. of living increased. They deserve the public health workforce is 47, 7 years retirement benefits they were promised older than the average age of the Na- By Mr. CONRAD (for himself and when they signed up for service. tion’s workforce. The ratio of public Mr. SANTORUM): S. 2614. A bill to amend title XVIII of I urge my colleagues to join me in ex- health workers to overall population the Social Security Act to improve the pressing support for this bill to restore has dropped from 219/100,000 in 1980 to benefits under the medicare program promised retirement benefits to retired 158/100,000 in 2000. There are already for beneficiaries with kidney disease, officers of the United States Secret shortages of public health nurses, epi- and for other purposes; to the Com- Service Uniformed Division and the demiologists, environmental health mittee on Finance. United States Park Police. I ask unani- workers, health educators and other mous consent that the text of the bill Mr. CONRAD. Mr. President, I rise public health professionals at Federal, today to introduce the End Stage be printed in the RECORD. State and local public health agencies. There being no objection, the bill was Renal Disease Modernization Act, de- In my home State of Illinois, the Illi- signed to improve the quality of care ordered to be printed in the RECORD, as nois Department of Public Health esti- follows: and quality of life for the more than mates that they are in need of at least 300,000 Americans with end stage renal S. 2612 15 epidemiologists and are having trou- disease (ESRD). Be it enacted by the Senate and House of Rep- ble filling those positions. To avoid death, patients with ESRD resentatives of the United States of America in Further evidence suggests that as Congress assembled, must receive a kidney transplant or much as 50 percent of the current pub- undergo dialysis. As you know, the SECTION 1. SHORT TITLE. lic health workforce at the State level This Act may be cited as the ‘‘Federal Law shortage of organs makes transplan- will be retiring in the next 5 years. tation a limited option for the vast ma- Enforcement Pension Adjustment Equity Losing so many experienced public Act of 2004’’. jority of patients. Therefore, most rely health workers at a time when the pub- SEC. 2. PERMITTING ADJUSTMENT IN PENSION upon 3–4 hour dialysis treatments three BENEFITS FOR UNITED STATES lic health workforce should be expand- times a week to save their lives. PARK POLICE AND UNITED STATES ing to meet increased needs presents a Congress must honor its commitment SECRET SERVICE UNIFORMED DIVI- clear argument in favor of encouraging to Americans with ESRD by bringing SION ANNUITANTS. more students to enter the many aca- the Medicare ESRD program into the (a) IN GENERAL.—Section 905 of the Law demic fields related to public health 21st Century. As we recognized in other Enforcement Pay Equity Act of 2000 (sec. 5– such as epidemiology, health edu- 561.02, D.C. Official Code) is amended by areas of health care, education serves striking subsection (f). cation, nursing and environmental as a valuable tool in the fight of any (b) EFFECTIVE DATE.—The amendment health. chronic disease. ESRD is no exception. made by subsection (a) shall take effect as if To continue to improve the health of This bill would establish educational included in the enactment of the Law En- our people, we must have a well- programs to teach individuals about forcement Pay Equity Act of 2000. trained and dedicated public health the factors that lead to chronic kidney workforce. But developing and main- disease, the precursor to kidney fail- By Mr. HAGEL (for himself and taining the necessary human capital is ure, and how to prevent it, treat it, and Mr. DURBIN): already a challenge and promises to avoid kidney failure. It would also sup- S. 2613. A bill to amend the Public continue to be a challenge in the fu- port programs for patients once they Health Service Act to establish a schol- ture. Our bill would help alleviate this have kidney failure to assist them in arship and loan repayment program for dangerous shortfall of public health developing self-management skills that public health preparedness workforce professionals by providing scholarships could dramatically improve their qual- development to eliminate critical pub- or loan repayments for full and part- ity of life. lic health preparedness workforce time students in public health and for Another important factor that influ- shortages in Federal, State, and local workers with previous public health ences patients’ quality of life is the public health agencies; to the Com- training who agree to serve at the Fed- method of dialysis they select. Al- mittee on Health, Education, Labor, eral, State and local level. though most patients must receive in- and Pensions. The scholarship program will provide center hemodialysis, some can benefit Mr. DURBIN. Mr. President, today I scholarships to eligible graduate, un- from home dialysis. In rural commu- am introducing, along with my col- dergraduate and community college nities, like so many in North Dakota, league Senator HAGEL, legislation that students to pursue a course of study to home dialysis proves an important op- will help to address the severe work- prepare to serve in the public health tion for patients who do not have di- force shortages within public health workforce. alysis facilities near their homes. In

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.035 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7753 this measure, we would require HHS to lation to this end, and I would not pre- Relief for Rural Borderlands Act. This determine how to provide incentives sume to improve upon their proposals. legislation is admittedly less ambi- for home dialysis. My legislation represents, instead, a tious than Senator HATCH’s legislation, The bill also incorporates provisions commitment to the needs of a unique or Senator KENNEDY’s bill. My legisla- to provide for an annual update mecha- geographical situation—rural border- tion would simply observe the unique nism from legislation that my col- lands. circumstances facing rural areas— league Senator SANTORUM and I intro- In my State of Minnesota, and indeed which are challenged economically al- duced at the beginning of this Con- across the country, rural areas con- ready—as well as the realities of the gress. As we have discussed many tinue to be challenged economically. It labor pool for companies located near times in this Chamber, the ESRD Pro- would be safe to say that there is a cri- our borders. My legislation would re- gram is the only major Medicare reim- sis in rural America today. To address lieve these rural borderlands from the bursement system that does not have the challenges faced by rural commu- visa cap for this year only. Moreover, an annual update mechanism to adjust nities, I introduced the Rural Renais- my legislation would only give relief to the payment rates for changes in input sance Act, and others in the Senate those companies who can demonstrate prices and inflation. have also introduced legislation that is that they have relied on the program Since the inception of the Medicare directed towards rural America. What in the past, by limiting eligibility to ESRD program, we have made enor- the Rural Renaissance Act would do is only those companies which have made mous strides in extending the lives and help rural, small towns develop the in- use of H2–B workers in at least 2 of the the quality of life of patients with kid- frastructure needed to expand commu- last 5 years. ney failure. If we are to continue that nities and create jobs. It takes a long- My legislation is not a permanent course, we must allow the program to term view of what is needed in rural fix, nor is it a comprehensive fix. I keep pace with advances and changes America. But at the same time, there know that there are deserving compa- in the delivery of services. We must is another, temporary crisis for those nies that are not going to be able to also ensure that patients receive the in rural America who can’t get the H2– qualify under my legislation. My legis- best information possible so they can B visa laborers they rely on. This kind lation is only applicable this year, and make informed choices and provide in- of labor shortage is the last thing rural I am sure we will need to revisit this centives that promote the highest America needs. issue again next year. quality of care. The End Stage Renal Rural communities located near the But if we in the Congress cannot Disease Modernization Act is a com- border have a special set of challenges, reach agreement on a comprehensive prehensive bill that moves the program which go beyond even what the rest of solution for this visa shortage, perhaps in that direction. Thus, I urge my col- rural America is dealing with. Compa- the time has come to look at a more leagues to join with me in sponsoring nies who are recruiting workers natu- limited approach. Rural America has this important legislation. rally target the cities and towns clos- unique labor requirements, and border- est to them. But when a company is lo- lands have challenging recruitment By Mr. COLEMAN: cated near an international border, the conditions. If we begin by looking at S. 2616. A bill to increase the avail- pool of U.S. workers in close proximity the needs of areas that are both rural ability of H–2B nonimmigrant visas is smaller than for companies located and close to the border, we can help the during fiscal year 2004 for rural border more centrally. economies that stand to be hurt the areas, and for other purposes; to the For example, take Warroad, MN, in most by the shortage in H2–B visas this Committee on the Judiciary. Roseau County. Roseau, like many year. Mr. COLEMAN. Mr. President, today rural counties in Minnesota, is dealing I urge my colleagues to support this I have introduced the Emergency Re- with a number of challenges—from out- legislation. lief for Rural Borderlands Act. migration of younger people leaving I ask unanimous consent that the This act deals with a problem which behind an aging population, to eco- text of the bill be printed in the is probably well known to many of my nomic sluggishness, to inadequate in- RECORD. colleagues—the insufficient number of frastructure and even flooding issues. There being no objection, the bill was H2–B visas available for temporary sea- The town of Warroad, population 1,722, ordered to be printed in the RECORD, as sonal employment this year. is located about 6 miles from the U.S.- follows: U.S. laws governing labor-based im- Canada border. The largest company in S. 2616 migration have always maintained Warroad is a first-class window manu- that employers must give priority to facturer, Marvin Windows. Be it enacted by the Senate and House of Rep- American workers. I support this phi- Because of its relationship to con- resentatives of the United States of America in Congress assembled, losophy, as I am sure the rest of my struction, the window industry has a colleagues do as well. seasonal element to it. During the SECTION 1. SHORT TITLE. I also acknowledge the reality that This Act may be cited as the ‘‘Emergency summer, Marvin hires hundreds of Relief for Rural Borderlands Act’’. sometimes there are jobs that, for a va- American college students to work at SEC. 2. FINDINGS. riety of reasons, cannot be filled by its factory in Warroad. But when these Congress makes the following findings: American workers. This is a fact of students go back to school, there are (1) The laws of the United States that gov- life. We can see it on our farms, in our short-term positions which need to be ern labor-based immigration require employ- restaurants, and on our construction filled through December. For the last 8 ers to give United States workers priority sites. years, Marvin Windows has relied on for employment over foreign workers. My legislation deals with one small Canadian workers to fill these critical (2) Many employers have found themselves sub-set of these foreign workers, tem- positions. This year, because of the unable to hire United States citizens for cer- porary seasonal laborers under the H2– early date when the cap on H2–B visas tain positions, particularly for temporary, B visa program. H2–B guest workers was reached, Marvin Windows is look- seasonal employment. may work in the United States for no (3) Due to the historic availability of H–2B ing at a big gap in their employment— visas, many employers have developed busi- more than 6 months, at the end of which not only could hurt their reve- ness models based on an assumption that which they must return to their coun- nues this year, but also threatens to businesses will be able to hire temporary tries of origin. They fill critical gaps in undercut their long-term reputation as seasonal workers who are aliens. the labor market, which in turn helps a reliable supplier of windows. (4) During fiscal year 2004, the date on American companies to prosper year- I am aware that my colleague Sen- which no more H–2B visas could be issued be- round. They work at summer camps ator HATCH has introduced legislation cause the maximum number of such visas and resorts, for fisheries and for to remedy the H2–B visa shortage. I available for such fiscal year had been issued landscapers, and in many other non-ag- was earlier than the date such maximum support this legislation. But as we have number had been reached during any prior ricultural pursuits. seen, there is not yet consensus on it. fiscal year. My legislation does not propose to fix Companies like Marvin Windows can- (5) As a result of the maximum of H–2B the H2–B crisis across the board. Some not afford to wait much longer. That’s visas being issued prior to the end of fiscal of my colleagues have introduced legis- why I have proposed the Emergency year 2004, many employers face an urgent

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.064 S07PT1 S7754 CONGRESSIONAL RECORD — SENATE July 7, 2004 shortage of workers that threatens to seri- without the resources needed to imple- agency under subpart 2 of part A of title I of ously erode the current and future revenues ment them cannot succeed. Since the the Elementary and Secondary Education of the employers’ businesses. law was enacted in 2002, the Bush ad- Act of 1965 (20 U.S.C. 6331 et seq.) for fiscal (6) It is particularly difficult for employers ministration has consistently withheld year 2004, the Secretary of Education shall located in rural areas to attract workers and make a payment in an amount determined such employers have often relied on foreign the resources needed to fulfill the basic under subsection (c) to each local edu- workers. promises of the Act. The Administra- cational agency that receives a lesser (7) An employer located near an inter- tion’s budget for the coming fiscal year amount of funds for fiscal year 2004 under national border has a smaller radius for re- leaves 4.6 million children behind. It such subpart than the agency received for cruiting United States workers than an em- underfunds the President’s school re- fiscal year 2003. ployer located more centrally, which can form law by over $9.4 billion. (c) DETERMINATION OF AMOUNT.—The create difficulties in finding United States Even worse, because of the adminis- amount of a payment to a local educational agency under this Act shall be equal to the workers to fill vacant positions. tration’s low priority for education, (8) Large employers located in rural areas amount of the difference between— over 7,500 school districts received no- (1) the amount the agency would otherwise are invaluable to the communities in which tice last week that their Federal funds such employees are located, and a disruption receive for fiscal year 2004 under subpart 2 of in the business of such employers is dev- under the No Child Left Behind Act part A of title I of the Elementary and Sec- astating for such communities facing chal- will be cut back this fall. As a result, ondary Education Act of 1965 (20 U.S.C. 6331 lenging economic conditions. thousands of school districts across the et seq.); and SEC. 3. ADDITIONAL H–2B VISA ENTRANTS FOR nation won’t even be able to maintain (2) the amount the agency received for fis- FISCAL YEAR 2004. their current quality of education, let cal year 2003 under such subpart. (d) DEFINITION.—In this Act, the term (a) IN GENERAL.—During fiscal year 2004, alone improve it. Schools that serve ‘‘local educational agency’’ has the meaning an alien who is issued a visa under section the neediest children will be hurt the 101(a)(15)(H)(ii)(b) of the Immigration and given to that term in section 9101 of the Ele- most. mentary and Secondary Education Act of Nationality Act (8 U.S.C. 101(a)(15)(H)(ii)(b)) Every school district in Massachu- may not be counted toward the numerical 1965 (20 U.S.C. 7801). setts faces a cut in Federal education limitation set out in section 214(g)(1)(B) of By Mr. GRASSLEY (for himself, such Act (8 U.S.C. 1184(g)(1)(B)) if such alien funding this fall. The city of Lawrence is providing temporary service or labor in has a 27 percent poverty rate, and it Mr. BAUCUS, Mr. SMITH, and Mr. the United States— faces a $1.2 million cut in school aid. It BINGAMAN): (1) at a work site that is located— can’t afford the loss of 20 teachers. The S. 2618. A bill to amend title XIX of (A) in a rural area; and city of Springfield has a 28 percent pov- the Social Security Act to extend (B) not more than 50 miles from an inter- erty rate. It faces a cut of $1.4 million, medicare cost-sharing for the medicare national border; and which means that over 1,000 needy chil- part B premium for qualifying individ- (2) for an employer that has hired aliens dren won’t get the supplemental serv- uals through September 2005; to the who received visas under such section ices they’re counting on. We cannot in Committee on Finance. 101(a)(15)(H)(ii)(b) during not less than 2 of Mr. GRASSLEY. Mr. President, Sen- the fiscal years between fiscal years 1999 and good conscience allow these cuts to go ator BAUCUS and I are pleased to an- 2003. forward. (b) EXPEDITED VISA PROCESSING.—During Today, Congressman GEORGE MILLER nounce the introduction of legislation fiscal year 2004, a petition for a non- in the House of Representatives and I to extend cost-sharing assistance to immigrant visa submitted by an alien who are introducing ‘‘The No Child Left Be- qualifying individuals for the Medicare intends to provide temporary service or hind Appropriations Support Act of Part B premium through September labor that meets the requirements of para- 2004’’ to provide $237 million in emer- 2005. Qualified Individuals are a vulner- graphs (1) and (2) of subsection (a) shall be gency resources needed this fall to stop able population with income between processed not more than 30 days after the 120 percent and 135 percent of the fed- date of the submission of such petition. the cuts called for by the Administra- tion in funds for school reform. Over 70 eral poverty level and limited assets. It SEC. 4. RURAL AREA DEFINED. is estimated the monthly Medicare In this Act, the term ‘‘rural area’’ has the Members of Congress have now joined meaning given that term in section 343(a) of our letter to the Appropriations Com- Part B premium will be around $75 in the Consolidated Farm and Rural Develop- mittees requesting that emergency fiscal year 2005. Let me put this into ment Act (7 U.S.C. 1991(a)). funds be provided. With deep and wide- real numbers, this extension will pro- SEC. 5. EFFECTIVE DATE. spread cuts in local education funds, it vide over $900 dollars of annual assist- Section 3(a) of this Act shall take effect as will be much more difficult to achieve ance to Medicare beneficiaries who if enacted on September 30, 2003. the school reforms that are so urgently earn less than $12,600 per year. In the Medicare discount drug card needed in communities across the By Mr. KENNEDY: program, Congress has targeted this S. 2617. A bill making supplemental country. Clearly, Congress needs to act. I urge same population with the transitional appropriation for the Department of assistance program. These same sen- my colleagues on both sides of the aisle Education for the fiscal year ending iors are eligible to receive $600 in as- to join in seeing that these critically September 30, 2004, and for other pur- sistance on their Medicare-approved needed resources are made available to poses; to the Committee on Appropria- drug card both this year and next. We our schools. tions. need to extend this program, and the Mr. KENNEDY. Mr. President, the bi- I ask unanimous consent that the text of this bill be printed in the President agrees. An extension is part partisan No Child Left Behind Act en- of his fiscal year 2005 budget. It does RECORD. acted two years ago contains the right not seem right for us to assist these set of education reforms for America’s There being no objection, the bill was ordered to be printed in the RECORD, as Medicare beneficiaries with some of public schools. It raises academic their health care costs and relinquish standards and calls for better teachers follows: S. 2617 our assistance in other areas. This pro- and smaller classes. It supports peri- gram has been in existence since 1997 odic testing for all children, so that Be it enacted by the Senate and House of Rep- resentatives of the United States of America in and has been extended every year teachers can assess learning needs Congress assembled, thereafter because it targets help to early, before major problems develop. SECTION 1. SHORT TITLE. low-income Medicare beneficiaries. I It also calls for supplemental services This Act may be cited as the ‘‘No Child urge Congress to act on this important and after-school programs for children Left Behind Appropriations Support Act of legislation. who are lagging behind academically. 2004’’. Mr. BAUCUS. Mr. President, I rise It focuses schools on the hardest-to- SEC. 2. SUPPLEMENTAL APPROPRIATION. with my colleague and friend Chairman teach children, and holds schools ac- (a) APPROPRIATION.—To carry out this Act, CHUCK GRASSLEY to introduce The countable for the performance of all out of any money in the Treasury not other- Qualifying Individuals’ Program Ex- children, whatever their race or back- wise appropriated, there is appropriated tension Act. This bill would extend $237,000,000, to remain available until ex- ground. pended, for the Department of Education for avery important program that provides These basic principles in the No Child the fiscal year ending September 30, 2004. assistance to low-income Medicare Left Behind Act have broad bipartisan (b) PAYMENTS.—In addition to amounts beneficiaries. The so-called QI–1 pro- support. But as we all know, reforms otherwise provided to a local educational gram, which will expire at the end of

VerDate May 21 2004 03:45 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.040 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7755 this fiscal year, currently pays Part B quire that marriage or the legal incidents There being no objection, the joint premiums for Medicare beneficiaries thereof be conferred upon any union other resolution was ordered to be printed in earning less than $12,570 this year. than the union of a man and a woman.’’. the RECORD, as follows: That’s about $1,050 a month. Medicare By Mr. CAMPBELL (for himself, S.J. RES. 41 Part B premiums are expected to in- Mr. INOUYE, Ms. CANTWELL, Mr. Whereas the National Museum of the crease to $75 next year. That’s a sub- DASCHLE, Ms. MURKOWSKI, Mrs. American Indian Act (20 U.S.C. 808 et seq.) stantial sum for beneficiaries living on established within the Smithsonian Institu- CLINTON, Mr. LIEBERMAN, Mr. a fixed income of $1,000 a month. 7.5 tion the National Museum of the American AKAKA, Ms. STABENOW, Mr. percent of their total income, in fact, Indian, and authorized the construction of a WYDEN, Ms. MIKULSKI, Mr. and that’s just for premiums for one facility to house the National Museum of the INHOFFE, Mr. LAUTTENBURG, Mr. American Indian on the National Mall in the part of the Medicare program—they BINGAMAN, Mrs. BOXER, Mr. District of Columbia; must still pay coinsurance and the de- DODD, Mr. SMITH, Mr. DOMENICI, Whereas the National Museum of the ductible for Parts A and B. Mr. JOHNSON, Mrs. MURRAY, Mr. American Indian officially opens on Sep- In enacting the Medicare prescrip- SCHUMER, Mr. FITZGERALD, Mr. tember 21, 2004; tion drug benefit last year, Congress Whereas the National Museum of the CCCAIN, Mr. CONRAD, Mr. acknowledged that seniors with in- American Indian will be the only national LEAHY, Mr. CHAFEE, Mr. THOM- comes up to 150 percent of the Federal museum devoted exclusively to the history AS, Mr. BURNS, Mrs. DOLE, Mr. Poverty Line—in 2004, that’s about and art of cultures indigenous to the Amer- NELSON of Nebraska, Mr. icas, and will give all Americans the oppor- $14,000 a year, or $17,000 per couple— HATCH, and Mr. BROWNBACK): tunity to learn of the cultural legacy, his- need some additional help in paying S.J. Res. 41. A joint resolution com- toric grandeur, and contemporary culture of their drug bills. I viewed the low-in- memorating the opening of the Na- Native Americans: Now, therefore, be it come drug assistance provisions as one tional Museum of the American Indian; Resolved by the Senate and House of Rep- of the great successes of the prescrip- to the Committee on Indian Affairs. resentatives of the United States of America in tion drug bill. We should not give with Mr. CAMPBELL. Mr. President, it is Congress assembled, one hand and take away with another SECTION 1. NATIONAL MUSEUM OF THE AMER- my pleasure and distinct honor to in- ICAN INDIAN. by allowing the QI–1 program to ex- troduce, on behalf of myself and 31 Congress— pire—hurting the very same people other Senators, a joint resolution com- (1) recognizes the important and unique that we tried to help in the Medicare memorating the opening of the Na- contribution of Native Americans to the cul- prescription drug bill. tional Museum of the American Indian. tural legacy of the United States, both in the The QI–1 bill is a truly bipartisan ef- This Museum was many years in the past and currently; fort. Democrats, particularly my col- making. It’s been 15 years since the bill (2) honors the cultural achievements of all league Senator BINGAMAN from New authorizing the construction of the Native Americans; Mexico, have long championed the QI– museum was signed into law, and that (3) celebrates the official opening of the National Museum of the American Indian; 1 program. And the Administration’s was only the beginning of a long, dif- and budget for Fiscal Year 2005 includes an ficult path. (4) encourages all Americans to take ad- extension for QI–1s. I urge my col- There are many people who deserve vantage of the resources of the National Mu- leagues to support this important pro- praise and gratitude for their seum of the American Indian to learn about gram and work with me to get it unstinting efforts in realizing this the history and culture of Native Americans. passed as quickly as possible. dream—far too many for me to name f them all here. I would, however, like to SUBMITTED RESOLUTIONS By Mr. ALLARD (for himself, Mr. honor two people in particular for their BROWNBACK, Mr. COCHRAN, Mr. dedication and perseverance in seeing ENZI, Mr. FITZGERALD, Mr. this task through to completion: my SEANTE RESOLUTION 399—DESIG- FRIST, Mr. HATCH, Mrs. friend, colleague and vice chairman of NATING THE WEEK OF JULY 11 HUTCHISON, Mr. INHOFE, Mr. the Committee on Indian Affairs, DAN- THROUGH JULY 17, 2004, AS KYL, Mr. LOTT, Mr. MCCONNELL, IEL K. INOUYE; and, Rick West, director ‘‘OINKARI BASQUE DANCERS Mr. MILLER, Mr. SANTORUM, Mr. of the National Museum of the Amer- WEEK’’, AND FOR OTHER PUR- SESSIONS, Mr. SHELBY, and Mr. ican Indian, and my Southern Chey- POSES TALENT): enne brother. Mr. CRAIG (for himself and Mr. S.J. Res. 40. A joint resolution pro- I consider myself fortunate that I CRAPO) submitted the following resolu- posing an amendment to the Constitu- was there at the beginning, serving in tion; which was referred to the Com- tion of the United States relating to the House of Representatives when the mittee on the Judiciary: marriage; read the first time. museum was authorized, and I will be S. RES. 399 Mr. ALLARD. Mr. President, I ask there on September 21, 2004, when the unanimous consent that the text of the National Museum of the American In- Whereas the Basques have a long, proud joint resolution be printed in the history in the State of Idaho and across the dian first opens its doors to the public. United States; RECORD. I consider the American people fortu- Whereas Basque Americans have become There being no objection, the joint nate in that they now possess a re- an integral part of Idaho’s unique identity; resolution was ordered to be printed in markable resource for learning learn- Whereas the Oinkari Basque Dancers have the RECORD, as follows: ing about Indian cultures and civiliza- dedicated over 40 years to the preservation S.J. RES. 40 tions. and performance of the unique folk dances of Resolved by the Senate and House of Rep- I also consider American Indians for- their Basque heritage; resentatives of the United States of America in tunate that, finally, there is a national Whereas these dedicated young people have Congress assembled (two-thirds of each House facility dedicated to and worthy of traveled nationally and internationally to concurring therein), That the following article their cultures. History has not always perform their dances and act as good will is proposed as an amendment to the Con- ambassadors of the American West; been kind to Native Americans, neither Whereas the Oinkari Basque Dancers have stitution of the United States, which shall be the events that occurred nor the words valid to all intents and purposes as part of performed for countless charities, hospitals, the Constitution when ratified by the legis- recorded about them, and the United nursing homes, and centers for the disabled latures of three-fourths of the several States: States has not always accorded honor to share their culture and talents with other; Whereas the Oinkari Basque Dancers have ‘‘ARTICLE — where honor was due the Indians. The National Museum of the American In- shown continued dedication to promote cul- ‘‘SECTION 1. SHORT TITLE. ture, dance, music, and education; and ‘‘This Article may be cited as the ‘Federal dian is an important step in rectifying this omission and continuing the rec- Whereas the Oinkari Basque Dancers will Marriage Amendment’. be sharing their unique culture and music ‘‘SECTION 2. MARRIAGE AMENDMENT. onciliation between a great nation and with visitors of Washington, D.C., as part of ‘‘Marriage in the United States shall con- its first peoples. the ‘‘Homegrown 2004: The Music of Amer- sist only of the union of a man and a woman. I ask unanimous consent that the ica’’ concert series, presented by the Library Neither this Constitution, nor the constitu- text of the joint resolution be printed of Congress American Folklife Center: Now, tion of any State, shall be construed to re- in the RECORD. therefore, be it

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.043 S07PT1 S7756 CONGRESSIONAL RECORD — SENATE July 7, 2004 Resolved, That the Senate— SENATE RESOLUTION 400—RECOG- Neder, Matthew Neder, Patrick Novak, Ri- (1) designates the week of July 11 through NIZING THE 2004 CONGRESSIONAL cardo Nunez, Maria Fatima Olvera-Santana, July 17, 2004, as ‘‘Oinkari Basque Dancers AWARDS GOLD MEDAL RECIPI- Sona Or, Lauren Pace, Colby Patchin, Emily Week’’; and ENTS C. Patchin, Jamin Patel, Elizabeth Philbin, (2) requests that the President issue a Daniel R. Philbrick, Lauren Priori, Christy proclamation calling upon the people of the Mr. CRAIG (for himself and Mr. BAU- Pugh, Hannah Qualls, Sarah Raymond, Brett United States to observe the week with ap- CUS) submitted the following resolu- Rendina, Kristen N. Richter, Margarete propriate ceremonies and activities. tion; which was referred to the Com- Rosenkranz, Erin Rosen-Watson, Julie Mr. CRAIG. Mr. President. It is with mittee on Governmental Affairs: Rothfarb, Sarah Ann Rudoff, Maggie Salter, Stacia Scattolon, Jessinah Schaefer, Rachel great pleasure that I rise today to rec- S. RES. 400 ognize the Oinkari Basque Dancers for Lyn Schmidt, Lindsay Schroeder, Megan Whereas today’s youth are vital to the Schroeder, Loni L. Schumacher, Magan their dedication to the arts and culture preservation of our country and will be the Lindsey Scott, Mallory J. Selzer, Jessica of their great heritage. future bearers of the bright torch of democ- Seppi, Anupriya Singhal, Elyssa Starr Sisko, The Basques have a long, proud his- racy; Geoffrey Morgan Smith, Kayla Smith, Mi- tory in the State of Idaho, which is Whereas youth need positive direction as chael Smyth, Eric Snyder, Karin Marie Spin- home to the largest concentrated popu- they transition into adulthood; dler, Georgia Stegall, Charles Strong, Jared Whereas the United States needs increased lation of Basques outside of their na- Cameron Sullivan, Danielle Sutter, numbers of community volunteers acting as Creighton Lee Taylor, Matthew M. Thies, tive country. The first Basques began positive influences on the Nation’s youth; Sarah Tipton, Erick Todd, Elaine Trahan, arriving in Idaho around 1890, the same Whereas the Congressional Awards pro- Landon Trost, Christine Truesdell, Georgette year Idaho achieved statehood. Since gram is committed to recognizing our Na- Tzatzalos, Staff Sergeant Cornelio Umali, then, the Basques have become an inte- tion’s most valuable asset, our youth, by en- Lacey VanderBoegh, Katherine Warner, couraging them to set and accomplish goals gral part of Idaho’s unique identity. Emily J. Warren, Kate V. Warren, Brian in the areas of volunteer public service, per- While citizens of Basque decent exist in Washakowski, Crystal-Mae Waugh, Elyse sonal development, physical fitness, and ex- each of our 50 States, the presence of Weissman, Joanna Whitten, Brent Wright, pedition/exploring; the Basque culture is perhaps most evi- Chantelle Wright, Trevor John Wright, Whereas more than 14,000 young people Christopher Zaehringer, Brian Zobel, Chris- dent in Boise, ID, a hub of Basque cul- have been involved in the Congressional topher Zobel, Matthew Zobel and tural activities and home to the Awards program this year; Basque Center, the Cenarrusa Center Whereas through the efforts of dedicated (2) requests that the President issue a for Basque Studies, and the Basque Mu- advisors across the country this year one proclamation calling upon the people of the United States and interested groups to pro- seum and Culture Center. Boise also hundred seventy-six students earned the Congressional Award Gold Medal; mote awareness of and volunteer involve- hosts the Jaialdi Basque festival, ment in the Congressional Awards program. which attracts visitors from around Whereas increased awareness of the pro- the world. One of the most notable ac- gram’s existence will encourage youth f throughout the nation to become involved tivities for young Idaho Basques is the with the Congressional Awards: Now, there- AMENDMENTS SUBMITTED AND preservation of their unique music and fore, be it PROPOSED dance. The Oinkari Basque Dancers are Resolved, That the Senate— an excellent example of this dedication (1) Recognizes the 2004 Congressional SA 3547. Mr. AKAKA submitted an amend- to dance, music and education. Award Gold Medal recipients Kori Agin-Bat- ment intended to be proposed by him to the bill S. 2062, to amend the procedures that This group of young Basque Ameri- ten, Elsbeth Allen, Noah Anderson, Geoffrey Patrick Arai, Kristyn Amour, Stephen apply to consideration of interstate class ac- cans was founded over 40 years ago to tions to assure fairer outcomes for class preserve and perform the unique folk Asker, Benjamin Jacob Ulrich Banwart, Eliz- abeth Barker, Robert G. Barnett, Chris- members and defendants, and for other pur- dances of their Basque heritage. Their topher Belcher, Regina Bennis-Hartman, poses; which was ordered to lie on the table. traditional dances have been taught to Samuel B. Blumberg, Christopher Bosch, SA 3548. Mr. FRIST proposed an amend- hundreds of young Basques over the Barrett Brandon, Blair Brandon, Brooke ment to the bill S. 2062, supra. years. These dedicated young people Brandon, Lindsey Buscemi, Adam M. Cain, SA 3549. Mr. FRIST proposed an amend- have traveled nationally, including Daniel Campis, Tina Cannon, Kent Cheung, ment to amendment SA 3548 proposed by Mr. here in our Nation’s capital, and inter- Alexander Chun, Madeleine Clark, Sarah FRIST to the bill S. 2062, supra. Clark, Michael Clontz, Michelle Coxe, Jer- SA 3550. Mr. FRIST proposed an amend- nationally to perform their dances and ment to the bill S. 2062, supra. act as good will ambassadors of the emy Crump, Kimberly Dahl, Dung Dam, Quoc Dam, Tri Dam, Kaitlin Davis, Deanna SA 3551. Mr. FRIST proposed an amend- American West. Their travels have in- M. DeGregorio, Erin J. DeGroot, Katherine ment to amendment SA 3550 proposed by Mr. cluded trips to the Basque country D. DeGroot, John Daniel DeJarnette, Clifton FRIST to the bill S. 2062, supra. where they performed alongside native Michael Der Bing, Joshua W. Detherage, SA 3552. Mr. CRAIG submitted an amend- Basque dancing groups. The Oinkaris Christina Dodson, Matthew Doumar, Lindsay ment intended to be proposed by him to the also perform for local charities, hos- Madison Elgart, Marisa Enrico, Elizabeth bill S. 2062, supra; which was ordered to lie pitals, nursing homes and centers for Erratt, Julia Evans, Dewan Kazi Farhana, on the table. Amanda Feldman, Sarah Finch, Justin SA 3553. Mr. GRAHAM, of South Carolina the disabled to share their culture and (for himself and Mr. PRYOR) submitted an talents with others. They have enter- Floyd, Amanda Flynn, Richard Zachary Freed, Rigoberto Garcia, Yaneth Garcia- amendment intended to be proposed by him tained people from the State Fair to Lopez, Amanda Gersch, Cory Gibson, Anna to the bill S. 2062, supra; which was ordered the World’s Fair and never failed to im- Gorin, Arielle Gorin, Gina Marie Gormley, to lie on the table. press an audience. Daniel Grad, Tabitha Grad, Rebecca Marie SA 3554. Mr. LAUTENBERG (for himself There are many talented individuals Green, Megan Hanson, Nicole Hanson, Ryan and Mr. KENNEDY) submitted an amendment responsible for the Oinkaris’ many ac- Headley, John Baron Hoff, Jessica Honan, intended to be proposed by him to the bill S. complishments, but I believe there is Laura Honan, Lindsey Howard, Harry Kline 2062, supra; which was ordered to lie on the table. one who deserves special recognition. Howell III, Dermot Sean Hoyne, Daniel The dancers are led by the music of Hults, Manuel Ibarra, Angeles Jacobo, Jen- f Jim Jausoro, a founding member of the nifer Anne Jasper, Sarah Jennings, Tabitha Jennings, Tyler Jussel, Atul Kapila, Nikolas TEXT OF AMENDMENTS Oinkaris. ‘‘Jimmy’’ Jausoro has re- Kappy, Megan Kavanagh, Cristina Kavendek, ceived numerous cultural honors, in- Abbie Klinghoffer, Alexander J. Knihnicky, cluding the National Heritage Award Ross Kozarsky, Jeffrey David Lambin, An- SA 3547. Mr. AKAKA submitted an from National Endowment for the Arts. drew Langfield, Heather R. Leung-Van amendment intended to be proposed by Under his tireless leadership, the Hassel, Grace Lichlyter, Zachary Myles him to the bill S. 2062, to amend the Oinkaris have grown and developed Lindsay, Jessica M. Link, Katherine Victoria procedures that apply to consideration into an elite dance group who represent Lugar, Ryan MacCluen, Raul Magdaleno, of interstate class actions to assure their ancestry in the true spirit of Raymond Malapero, Jonathan R. Mason, Re- fairer outcomes for class members and becca N. Massicotte, Kelly McCormick, Ben- defendants, and for other purposes; dance and music. jamin McDonough, Alyssa McIntyre, For their dedication to arts, I am Richelle Milburn, Sri Hari Miskin, Sarath which was ordered to lie on the table; pleased to call Idaho the home of the Mom, Eric Moulton, Kathleen Mullins, Sarah as follows: Oinkari Basque Dancers, and pleased to Mullins, Carolina Munoz, Christine Murray, On page 26 strike line 24 and insert the fol- honor them today. Kathleen Murray, Samuel Nassie, Douglas lowing of this act:

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.048 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7757 TITLE ll—NATIVE HAWAIIAN occurred with the active participation of (C) has delegated broad authority to the GOVERNMENT agents and citizens of the United States and State of Hawaii to administer some of the SEC. ll01. SHORT TITLE. further acknowledges that the Native Hawai- United States’ responsibilities as they relate This title may be cited as the ‘‘Native Ha- ian people never directly relinquished to the to the Native Hawaiian people and their waiian Government Reorganization Act of United States their claims to their inherent lands; 2004’’. sovereignty as a people over their national (21) the United States has recognized and SEC. ll02. FINDINGS. lands, either through the Kingdom of Hawaii reaffirmed the special political and legal re- Congress finds that— or through a plebiscite or referendum; lationship with the Native Hawaiian people (1) the Constitution vests Congress with (14) the Apology Resolution expresses the through the enactment of the Act entitled, the authority to address the conditions of commitment of Congress and the President— ‘‘An Act to provide for the admission of the the indigenous, native people of the United (A) to acknowledge the ramifications of State of Hawaii into the Union’’, approved States; the overthrow of the Kingdom of Hawaii; March 18, 1959 (Public Law 86–3; 73 Stat. 4), (2) Native Hawaiians, the native people of (B) to support reconciliation efforts be- by— the Hawaiian archipelago that is now part of tween the United States and Native Hawai- (A) ceding to the State of Hawaii title to the United States, are indigenous, native ians; and the public lands formerly held by the United people of the United States; (C) to consult with Native Hawaiians on States, and mandating that those lands be (3) the United States has a special political the reconciliation process as called for in the held as a public trust for 5 purposes, 1 of and legal responsibility to promote the wel- Apology Resolution; which is for the betterment of the conditions fare of the native people of the United (15) despite the overthrow of the govern- of Native Hawaiians; and States, including Native Hawaiians; ment of the Kingdom of Hawaii, Native Ha- (B) transferring the United States’ respon- (4) under the treaty making power of the waiians have continued to maintain their sibility for the administration of the Hawai- United States, Congress exercised its con- separate identity as a distinct native com- ian Home Lands to the State of Hawaii, but stitutional authority to confirm treaties be- munity through cultural, social, and polit- retaining the authority to enforce the trust, tween the United States and the Kingdom of ical institutions, and to give expression to including the exclusive right of the United Hawaii, and from 1826 until 1893, the United their rights as native people to self-deter- States to consent to any actions affecting States— mination, self-governance, and economic the lands that comprise the corpus of the (A) recognized the sovereignty of the King- self-sufficiency; trust and any amendments to the Hawaiian dom of Hawaii; (16) Native Hawaiians have also given ex- Homes Commission Act, 1920 (42 Stat. 108, (B) accorded full diplomatic recognition to pression to their rights as native people to chapter 42) that are enacted by the legisla- the Kingdom of Hawaii; and self-determination, self-governance, and eco- ture of the State of Hawaii affecting the (C) entered into treaties and conventions nomic self-sufficiency— beneficiaries under the Act; with the Kingdom of Hawaii to govern com- (A) through the provision of governmental (22) the United States has continually rec- merce and navigation in 1826, 1842, 1849, 1875, services to Native Hawaiians, including the ognized and reaffirmed that— and 1887; provision of— (A) Native Hawaiians have a cultural, his- (5) pursuant to the Hawaiian Homes Com- (i) health care services; toric, and land-based link to the aboriginal, mission Act, 1920 (42 Stat. 108, chapter 42), (ii) educational programs; indigenous, native people who exercised sov- the United States set aside approximately (iii) employment and training programs; ereignty over the Hawaiian Islands; 203,500 acres of land to address the conditions (iv) economic development assistance pro- (B) Native Hawaiians have never relin- of Native Hawaiians in the Federal territory grams; quished their claims to sovereignty or their that later became the State of Hawaii; (v) children’s services; sovereign lands; (6) by setting aside 203,500 acres of land for (vi) conservation programs; (C) the United States extends services to Native Hawaiian homesteads and farms, the (vii) fish and wildlife protection; Native Hawaiians because of their unique Hawaiian Homes Commission Act assists the (viii) agricultural programs; status as the indigenous, native people of a members of the Native Hawaiian community (ix) native language immersion programs; once-sovereign nation with whom the United in maintaining distinct native settlements (x) native language immersion schools States has a political and legal relationship; throughout the State of Hawaii; from kindergarten through high school; and (7) approximately 6,800 Native Hawaiian (xi) college and master’s degree programs (D) the special trust relationship of Amer- families reside on the Hawaiian Home Lands in native language immersion instruction; ican Indians, Alaska Natives, and Native Ha- and approximately 18,000 Native Hawaiians (xii) traditional justice programs, and waiians to the United States arises out of who are eligible to reside on the Hawaiian (B) by continuing their efforts to enhance their status as aboriginal, indigenous, native Home Lands are on a waiting list to receive Native Hawaiian self-determination and people of the United States; and assignments of Hawaiian Home Lands; local control; (23) the State of Hawaii supports the reaf- (8)(A) in 1959, as part of the compact with (17) Native Hawaiians are actively engaged firmation of the political and legal relation- the United States admitting Hawaii into the in Native Hawaiian cultural practices, tradi- ship between the Native Hawaiian governing Union, Congress established a public trust tional agricultural methods, fishing and sub- entity and the United States as evidenced by (commonly known as the ‘‘ceded lands sistence practices, maintenance of cultural 2 unanimous resolutions enacted by the Ha- trust’’), for 5 purposes, 1 of which is the bet- use areas and sacred sites, protection of bur- waii State Legislature in the 2000 and 2001 terment of the conditions of Native Hawai- ial sites, and the exercise of their traditional sessions of the Legislature and by the testi- ians; rights to gather medicinal plants and herbs, mony of the Governor of the State of Hawaii (B) the public trust consists of lands, in- and food sources; before the Committee on Indian Affairs of cluding submerged lands, natural resources, (18) the Native Hawaiian people wish to the Senate on February 25, 2003. and the revenues derived from the lands; and preserve, develop, and transmit to future SEC. ll03. DEFINITIONS. (C) the assets of this public trust have generations of Native Hawaiians their lands In this title: never been completely inventoried or seg- and Native Hawaiian political and cultural (1) ABORIGINAL, INDIGENOUS, NATIVE PEO- regated; identity in accordance with their traditions, PLE.—The term ‘‘aboriginal, indigenous, na- (9) Native Hawaiians have continuously beliefs, customs and practices, language, and tive people’’ means people whom Congress sought access to the ceded lands in order to social and political institutions, to control has recognized as the original inhabitants of establish and maintain native settlements and manage their own lands, including ceded the lands that later became part of the and distinct native communities throughout lands, and to achieve greater self-determina- United States and who exercised sovereignty the State; tion over their own affairs; in the areas that later became part of the (10) the Hawaiian Home Lands and other (19) this title provides a process within the United States. ceded lands provide an important foundation framework of Federal law for the Native Ha- (2) ADULT MEMBER.—The term ‘‘adult mem- for the ability of the Native Hawaiian com- waiian people to exercise their inherent ber’’ means a Native Hawaiian who has at- munity to maintain the practice of Native rights as a distinct, indigenous, native com- tained the age of 18 and who elects to par- Hawaiian culture, language, and traditions, munity to reorganize a Native Hawaiian gov- ticipate in the reorganization of the Native and for the survival and economic self-suffi- erning entity for the purpose of giving ex- Hawaiian governing entity. ciency of the Native Hawaiian people; pression to their rights as native people to (3) APOLOGY RESOLUTION.—The term ‘‘Apol- (11) Native Hawaiians continue to main- self-determination and self-governance; ogy Resolution’’ means Public Law 103–150, tain other distinctly native areas in Hawaii; (20) Congress— (107 Stat. 1510), a Joint Resolution extending (12) on November 23, 1993, Public Law 103– (A) has declared that the United States has an apology to Native Hawaiians on behalf of 150 (107 Stat. 1510) (commonly known as the a special responsibility for the welfare of the the United States for the participation of ‘‘Apology Resolution’’) was enacted into law, native peoples of the United States, includ- agents of the United States in the January extending an apology on behalf of the United ing Native Hawaiians; 17, 1893 overthrow of the Kingdom of Hawaii. States to the native people of Hawaii for the (B) has identified Native Hawaiians as a (4) COMMISSION.—The term ‘‘commission’’ United States’ role in the overthrow of the distinct group of indigenous, native people of means the Commission established under Kingdom of Hawaii; the United States within the scope of its au- section ll07(b) to provide for the certifi- (13) the Apology Resolution acknowledges thority under the Constitution, and has en- cation that those adult members of the Na- that the overthrow of the Kingdom of Hawaii acted scores of statutes on their behalf; and tive Hawaiian community listed on the roll

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meet the definition of Native Hawaiian set (b) PURPOSE.—The purpose of this title is Government that may significantly or forth in section ll03(8). to provide a process for the reorganization of uniquely affect Native Hawaiian resources, (5) COUNCIL.—The term ‘‘council’’ means the Native Hawaiian governing entity and rights, or lands; the Native Hawaiian Interim Governing the reaffirmation of the political and legal (2) ensure that each Federal agency devel- Council established under section relationship between the United States and ops a policy on consultation with the Native ll07(c)(2). the Native Hawaiian governing entity for Hawaiian people, and upon the reaffirmation (6) INDIGENOUS, NATIVE PEOPLE.—The term purposes of continuing a government-to-gov- of the political and legal relationship be- ‘‘indigenous, native people’’ means the lineal ernment relationship. tween the Native Hawaiian governing entity descendants of the aboriginal, indigenous, SEC. ll05. UNITED STATES OFFICE FOR NATIVE and the United States, consultation with the native people of the United States. HAWAIIAN RELATIONS. Native Hawaiian governing entity; and (7) INTERAGENCY COORDINATING GROUP.—The (a) ESTABLISHMENT.—There is established (3) ensure the participation of each Federal term ‘‘Interagency Coordinating Group’’ within the Office of the Secretary of the agency in the development of the report to means the Native Hawaiian Interagency Co- United States Office for Native Hawaiian Re- Congress authorized in section ll05(b)(5). ordinating Group established under section lations. SEC. ll07. PROCESS FOR THE REORGANIZATION ll06. (b) DUTIES.—The Office shall— OF THE NATIVE HAWAIIAN GOV- (8) NATIVE HAWAIIAN.—For the purpose of (1) continue the process of reconciliation ERNING ENTITY AND THE REAFFIR- establishing the roll authorized under sec- with the Native Hawaiian people in further- MATION OF THE POLITICAL AND tion ll07(c)(1) and before the reaffirmation LEGAL RELATIONSHIP BETWEEN ance of the Apology Resolution; THE UNITED STATES AND THE NA- of the political and legal relationship be- (2) upon the reaffirmation of the political tween the United States and the Native Ha- TIVE HAWAIIAN GOVERNING ENTITY. and legal relationship between the Native (a) RECOGNITION OF THE NATIVE HAWAIIAN waiian governing entity, the term ‘‘Native Hawaiian governing entity and the United Hawaiian’’ means— GOVERNING ENTITY.—The right of the Native States, effectuate and coordinate the special Hawaiian people to reorganize the Native (A) an individual who is one of the indige- political and legal relationship between the nous, native people of Hawaii and who is a Hawaiian governing entity to provide for Native Hawaiian governing entity and the their common welfare and to adopt appro- direct lineal descendant of the aboriginal, in- United States through the Secretary, and digenous, native people who— priate organic governing documents is recog- with all other Federal agencies; (i) resided in the islands that now comprise nized by the United States. (3) fully integrate the principle and prac- the State of Hawaii on or before January 1, (b) COMMISSION.— tice of meaningful, regular, and appropriate 1893; and (1) IN GENERAL.—There is authorized to be consultation with the Native Hawaiian gov- (ii) occupied and exercised sovereignty in established a Commission to be composed of erning entity by providing timely notice to, the Hawaiian archipelago, including the area nine members for the purposes of— and consulting with, the Native Hawaiian that now constitutes the State of Hawaii; or (A) preparing and maintaining a roll of the people and the Native Hawaiian governing (B) an individual who is one of the indige- adult members of the Native Hawaiian com- entity before taking any actions that may nous, native people of Hawaii and who was munity who elect to participate in the reor- have the potential to significantly affect Na- eligible in 1921 for the programs authorized ganization of the Native Hawaiian governing by the Hawaiian Homes Commission Act (42 tive Hawaiian resources, rights, or lands; entity; and Stat. 108, chapter 42) or a direct lineal de- (4) consult with the Interagency Coordi- (B) certifying that the adult members of scendant of that individual. nating Group, other Federal agencies, the the Native Hawaiian community proposed Governor of the State of Hawaii and relevant (9) NATIVE HAWAIIAN GOVERNING ENTITY.— for inclusion on the roll meet the definition The term ‘‘Native Hawaiian Governing Enti- agencies of the State of Hawaii on policies, of Native Hawaiian in section ll03(8). ty’’ means the governing entity organized by practices, and proposed actions affecting Na- (2) MEMBERSHIP.— the Native Hawaiian people pursuant to this tive Hawaiian resources, rights, or lands; and (A) APPOINTMENT.—Within 180 days of the title. (5) prepare and submit to the Committee date of enactment of this Act, the Secretary (10) OFFICE.—The term ‘‘Office’’ means the on Indian Affairs and the Committee on En- shall appoint the members of the Commis- United States Office for Native Hawaiian Re- ergy and Natural Resources of the Senate, sion in accordance with subclause (B). Any lations established under section ll05(a). the Committee on Resources of the House of vacancy on the Commission shall not affect (11) SECRETARY.—The term ‘‘Secretary’’ Representatives, an annual report detailing its powers and shall be filled in the same means the Secretary of the Department of the activities of the Interagency Coordi- manner as the original appointment. the Interior. nating Group that are undertaken with re- (B) REQUIREMENTS.—The members of the SEC. ll04. UNITED STATES POLICY AND PUR- spect to the continuing process of reconcili- Commission shall be Native Hawaiian, as de- POSE. ation and to effect meaningful consultation fined in section ll03(8), and shall have ex- (a) POLICY.—The United States reaffirms with the Native Hawaiian governing entity pertise in the determination of Native Ha- that— and providing recommendations for any nec- waiian ancestry and lineal descendancy. (1) Native Hawaiians are a unique and dis- essary changes to Federal law or regulations (3) EXPENSES.—Each member of the Com- tinct, indigenous, native people with whom promulgated under the authority of Federal mission shall be allowed travel expenses, in- the United States has a special political and law. cluding per diem in lieu of subsistence, at legal relationship; SEC. ll06. NATIVE HAWAIIAN INTERAGENCY CO- rates authorized for employees of agencies (2) the United States has a special political ORDINATING GROUP. under subchapter I of chapter 57 of title 5, and legal relationship with the Native Ha- (a) ESTABLISHMENT.—In recognition that United States Code, while away from their waiian people which includes promoting the Federal programs authorized to address the homes or regular places of business in the welfare of Native Hawaiians; conditions of Native Hawaiians are largely performance of services for the Commission. (3) Congress possesses the authority under administered by Federal agencies other than (4) DUTIES.—The Commission shall— the Constitution, including but not limited the Department of the Interior, there is es- (A) prepare and maintain a roll of the to Article I, section 8, clause 3, to enact leg- tablished an interagency coordinating group adult members of the Native Hawaiian com- islation to address the conditions of Native to be known as the ‘‘Native Hawaiian Inter- munity who elect to participate in the reor- Hawaiians and has exercised this authority agency Coordinating Group’’. ganization of the Native Hawaiian governing through the enactment of— (b) COMPOSITION.—The Interagency Coordi- entity; and (A) the Hawaiian Homes Commission Act, nating Group shall be composed of officials, (B) certify that each of the adult members 1920 (42 Stat. 108, chapter 42); to be designated by the President, from— of the Native Hawaiian community proposed (B) the Act entitled ‘‘An Act to provide for (1) each Federal agency that administers for inclusion on the roll meet the definition the admission of the State of Hawaii into the Native Hawaiian programs, establishes or of Native Hawaiian in section ll03(8). Union’’, approved March 18, 1959 (Public Law implements policies that affect Native Ha- (5) STAFF.— 86–3, 73 Stat. 4); and waiians, or whose actions may significantly (A) IN GENERAL.—The Commission may, (C) more than 150 other Federal laws ad- or uniquely impact Native Hawaiian re- without regard to the civil service laws (in- dressing the conditions of Native Hawaiians; sources, rights, or lands; and cluding regulations), appoint and terminate (4) Native Hawaiians have— (2) the Office. an executive director and such other addi- (A) an inherent right to autonomy in their (c) LEAD AGENCY.— tional personnel as are necessary to enable internal affairs; (1) IN GENERAL.—The Department of the In- the Commission to perform the duties of the (B) an inherent right of self-determination terior shall serve as the lead agency of the Commission. and self-governance; Interagency Coordinating Group. (B) COMPENSATION.— (C) the right to reorganize a Native Hawai- (2) MEETINGS.—The Secretary shall con- (i) IN GENERAL.—Except as provided in ian governing entity; and vene meetings of the Interagency Coordi- clause (ii), the Commission may fix the com- (D) the right to become economically self- nating Group. pensation of the executive director and other sufficient; and (d) DUTIES.—The Interagency Coordinating personnel without regard to the provisions of (5) the United States shall continue to en- Group shall— chapter 51 and subchapter III of chapter 53 of gage in a process of reconciliation and polit- (1) coordinate Federal programs and poli- title 5, United States Code, relating to clas- ical relations with the Native Hawaiian peo- cies that affect Native Hawaiians or actions sification of positions and General Schedule ple. by any agency or agencies of the Federal pay rates.

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(ii) MAXIMUM RATE OF PAY.—The rate of tive Hawaiian in section ll03(8), the Sec- Council may develop proposed organic gov- pay for the executive director and other per- retary shall publish the roll in the Federal erning documents for the Native Hawaiian sonnel shall not exceed the rate payable for Register. governing entity. level V of the Executive Schedule under sec- (G) APPEAL.—The Secretary may establish (III) DISTRIBUTION.—The Council may dis- tion 5316 of title 5, United States Code. a mechanism for an appeal for any person tribute to all adult members of the Native (6) DETAIL OF FEDERAL GOVERNMENT EM- whose name is excluded from the roll who Hawaiian community listed on the roll pub- PLOYEES.— claims to meet the definition of Native Ha- lished under this subsection— (A) IN GENERAL.—An employee of the Fed- waiian in section ll03(8) and to be 18 years (aa) a copy of the proposed organic gov- eral Government may be detailed to the of age or older. erning documents, as drafted by the Council; Commission without reimbursement. (H) PUBLICATION; UPDATE.—The Secretary and (B) CIVIL SERVICE STATUS.—The detail of shall— (bb) a brief impartial description of the the employee shall be without interruption (i) publish the roll regardless of whether proposed organic governing documents; or loss of civil service status or privilege. appeals are pending; (IV) ELECTIONS.—The Council may hold (7) PROCUREMENT OF TEMPORARY AND INTER- (ii) update the roll and the publication of elections for the purpose of ratifying the pro- MITTENT SERVICES.—The Commission may the roll on the final disposition of any ap- posed organic governing documents, and on procure temporary and intermittent services peal; certification of the organic governing docu- in accordance with section 3109(b) of title 5, (iii) update the roll to include any Native ments by the Secretary in accordance with United States Code, at rates for individuals Hawaiian who has attained the age of 18 and paragraph (4), hold elections of the officers that do not exceed the daily equivalent of who has been certified by the Commission as of the Native Hawaiian governing entity pur- the annual rate of basic pay prescribed for meeting the definition of Native Hawaiian in suant to paragraph (5). level V of the Executive Schedule under sec- section ll03(8) after the initial publication (3) SUBMITTAL OF ORGANIC GOVERNING DOCU- tion 5316 of that title. of the roll or after any subsequent publica- MENTS.—Following the reorganization of the (8) EXPIRATION.—The Secretary shall dis- tions of the roll. Native Hawaiian governing entity and the solve the Commission upon the reaffirmation (I) FAILURE TO ACT.—If the Secretary fails adoption of organic governing documents, of the political and legal relationship be- to publish the roll, not later than 90 days tween the Native Hawaiian governing entity after the date on which the roll is submitted the Council shall submit the organic gov- and the United States. to the Secretary, the Commission shall pub- erning documents of the Native Hawaiian (c) PROCESS FOR THE REORGANIZATION OF lish the roll notwithstanding any order or di- governing entity to the Secretary. THE NATIVE HAWAIIAN GOVERNING ENTITY.— rective issued by the Secretary or any other (4) CERTIFICATIONS.— (1) ROLL.— official of the Department of the Interior to (A) IN GENERAL.—Within the context of the (A) CONTENTS.—The roll shall include the the contrary. future negotiations to be conducted under names of the adult members of the Native (J) EFFECT OF PUBLICATION.—The publica- the authority of section ll08(b)(1), and the Hawaiian community who elect to partici- tion of the initial and updated roll shall subsequent actions by the Congress and the pate in the reorganization of the Native Ha- serve as the basis for the eligibility of adult State of Hawaii to enact legislation to im- waiian governing entity and are certified to members of the Native Hawaiian community plement the agreements of the three govern- be Native Hawaiian as defined in section whose names are listed on those rolls to par- ments, not later than 90 days after the date ll03(8) by the Commission. ticipate in the reorganization of the Native on which the Council submits the organic (B) FORMATION OF ROLL.—Each adult mem- Hawaiian governing entity. governing documents to the Secretary, the ber of the Native Hawaiian community who (2) ORGANIZATION OF THE NATIVE HAWAIIAN Secretary shall certify that the organic gov- elects to participate in the reorganization of INTERIM GOVERNING COUNCIL.— erning documents— the Native Hawaiian governing entity shall (A) ORGANIZATION.—The adult members of (i) establish the criteria for citizenship in submit to the Commission documentation in the Native Hawaiian community listed on the Native Hawaiian governing entity; the form established by the Commission that the roll published under this section may— (ii) were adopted by a majority vote of the is sufficient to enable the Commission to de- (i) develop criteria for candidates to be adult members of the Native Hawaiian com- termine whether the individual meets the elected to serve on the Native Hawaiian In- munity whose names are listed on the roll definition of Native Hawaiian in section terim Governing Council; published by the Secretary; ll03(8). (ii) determine the structure of the Council; (iii) provide authority for the Native Ha- (C) DOCUMENTATION.—The Commission and waiian governing entity to negotiate with shall— (iii) elect members from individuals listed Federal, State, and local governments, and (i) identify the types of documentation on the roll published under this subsection other entities; that may be submitted to the Commission to the Council. (iv) provide for the exercise of govern- that would enable the Commission to deter- (B) POWERS.— mental authorities by the Native Hawaiian mine whether an individual meets the defini- (i) IN GENERAL.—The Council— governing entity, including any authorities tion of Native Hawaiian in section ll03(8); (I) may represent those listed on the roll that may be delegated to the Native Hawai- (ii) establish a standard format for the sub- published under this section in the imple- ian governing entity by the United States mission of documentation; and mentation of this title; and and the State of Hawaii following negotia- (iii) publish information related to sub- (II) shall have no powers other than powers tions authorized in section ll08(b)(1) and clauses (i) and (ii) in the Federal Register; given to the Council under this title. the enactment of legislation to implement (D) CONSULTATION.—In making determina- (ii) FUNDING.—The Council may enter into the agreements of the three governments; tions that each of the adult members of the a contract with, or obtain a grant from, any (v) prevent the sale, disposition, lease, or Native Hawaiian community proposed for in- Federal or State agency to carry out clause encumbrance of lands, interests in lands, or clusion on the roll meets the definition of (iii). other assets of the Native Hawaiian gov- Native Hawaiian in section ll03(8), the (iii) ACTIVITIES.— erning entity without the consent of the Na- Commission may consult with Native Hawai- (I) IN GENERAL.—The Council may conduct tive Hawaiian governing entity; ian organizations, agencies of the State of a referendum among the adult members of (vi) provide for the protection of the civil Hawaii including but not limited to the De- the Native Hawaiian community listed on rights of the citizens of the Native Hawaiian partment of Hawaiian Home Lands, the Of- the roll published under this subsection for governing entity and all persons affected by fice of Hawaiian Affairs, and the State De- the purpose of determining the proposed ele- the exercise of governmental powers and au- partment of Health, and other entities with ments of the organic governing documents of thorities by the Native Hawaiian governing expertise and experience in the determina- the Native Hawaiian governing entity, in- entity; and tion of Native Hawaiian ancestry and lineal cluding but not limited to— (vii) are consistent with applicable Federal descendancy. (aa) the proposed criteria for citizenship of law and the special political and legal rela- (E) CERTIFICATION AND SUBMITTAL OF ROLL the Native Hawaiian governing entity; tionship between the United States and the TO SECRETARY.—The Commission shall— (bb) the proposed powers and authorities to indigenous, native people of the United (i) submit the roll containing the names of be exercised by the Native Hawaiian gov- States; provided that the provisions of Pub- the adult members of the Native Hawaiian erning entity, as well as the proposed privi- lic Law 103–454, 25 U.S.C. 479a, shall not community who meet the definition of Na- leges and immunities of the Native Hawaiian apply. tive Hawaiian in section ll03(8) to the Sec- governing entity; (B) RESUBMISSION IN CASE OF NONCOMPLI- retary within two years from the date on (cc) the proposed civil rights and protec- ANCE WITH THE REQUIREMENTS OF SUBPARA- which the Commission is fully composed; and tion of the rights of the citizens of the Na- GRAPH (A).— (ii) certify to the Secretary that each of tive Hawaiian governing entity and all per- (i) RESUBMISSION BY THE SECRETARY.—If the the adult members of the Native Hawaiian sons affected by the exercise of govern- Secretary determines that the organic gov- community proposed for inclusion on the roll mental powers and authorities of the Native erning documents, or any part of the docu- meets the definition of Native Hawaiian in Hawaiian governing entity; and ments, do not meet all of the requirements section ll03(8). (dd) other issues determined appropriate set forth in subparagraph (A), the Secretary (F) PUBLICATION.—Upon certification by by the Council. shall resubmit the organic governing docu- the Commission to the Secretary that those (II) DEVELOPMENT OF ORGANIC GOVERNING ments to the Council, along with a justifica- listed on the roll meet the definition of Na- DOCUMENTS.—Based on the referendum, the tion for each of the Secretary’s findings as to

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.049 S07PT1 S7760 CONGRESSIONAL RECORD — SENATE July 7, 2004 why the provisions are not in full compli- enable the implementation of agreements days after or any day thereafter the date of ance. reached between the three governments. enactment of this act. (ii) AMENDMENT AND RESUBMISSION OF OR- (c) CLAIMS.— GANIC GOVERNING DOCUMENTS.—If the organic (1) IN GENERAL.—Nothing in this title SA 3551. Mr. FRIST proposed an governing documents are resubmitted to the serves as a settlement of any claim against amendment to amendment SA 3550 pro- Council by the Secretary under clause (i), the United States. posed by Mr. FRIST to the bill S. 2062, the Council shall— (2) STATUTE OF LIMITATIONS.—Any claim to amend the procedures that apply to (I) amend the organic governing documents against the United States arising under Fed- consideration of interstate class ac- to ensure that the documents meet all the eral law that— requirements set forth in subparagraph (A); (A) is in existence on the date of enact- tions to assure fairer outcomes for and ment of this Act; class members and defendants, and for (II) resubmit the amended organic gov- (B) is asserted by the Native Hawaiian gov- other purposes; as follows: erning documents to the Secretary for cer- erning entity on behalf of the Native Hawai- Online 3 of the amendment, strike ‘‘three’’ tification in accordance with this paragraph. ian people; and and insert ‘‘four’’. (C) CERTIFICATIONS DEEMED MADE.—The (C) relates to the legal and political rela- certifications under paragraph (4) shall be tionship between the United States and the SA 3552. Mr. CRAIG submitted an deemed to have been made if the Secretary Native Hawaiian people; amendment intended to be proposed by has not acted within 90 days after the date shall be brought in the court of jurisdiction him to the bill S. 2062, to amend the on which the Council has submitted the or- over such claims not later than 20 years procedures that apply to consideration ganic governing documents of the Native Ha- after the date on which Federal recognition waiian governing entity to the Secretary. of interstate class actions to assure is extended to the Native Hawaiian gov- (5) ELECTIONS.—On completion of the cer- fairer outcomes for class members and erning entity under section ll07(c)(6). tifications by the Secretary under paragraph defendants, and for other purposes; (4), the Council may hold elections of the of- SEC. ll09. APPLICABILITY OF CERTAIN FED- ERAL LAWS. which was ordered to lie on the table; ficers of the Native Hawaiian governing enti- (a) INDIAN GAMING REGULATORY ACT.— as follows: ty. Nothing in this title shall be construed to At the end, add the following: (6) REAFFIRMATION.—Notwithstanding any authorize the Native Hawaiian governing en- other provision of law, upon the certifi- TITLE II—IMMIGRATION tity to conduct gaming activities under the cations required under paragraph (4) and the SEC. 201. SHORT TITLE; TABLE OF CONTENTS. authority of the Indian Gaming Regulatory election of the officers of the Native Hawai- Act (25 U.S.C. 2701 et seq.). (a) SHORT TITLE.—This title may be cited ian governing entity, the political and legal (b) BUREAU OF INDIAN AFFAIRS.—Nothing as the ‘‘Agricultural Job Opportunity, Bene- relationship between the United States and contained in this title provides an authoriza- fits, and Security Act of 2004’’. the Native Hawaiian governing entity is tion for eligibility to participate in any pro- (b) TABLE OF CONTENTS.—The table of con- hereby reaffirmed and the United States ex- grams and services provided by the Bureau of tents for this title is as follows: tends Federal recognition to the Native Ha- Indian Affairs for any persons not otherwise Sec. 201. Short title; table of contents. waiian governing entity as the representa- eligible for the programs or services. Sec. 202. Definitions. tive governing body of the Native Hawaiian SEC. ll10. SEVERABILITY. SUBTITLE A—ADJUSTMENT TO LAWFUL STATUS people. If any section or provision of this title is Sec. 211. Agricultural workers. SEC. ll08. REAFFIRMATION OF DELEGATION OF held invalid, it is the intent of Congress that FEDERAL AUTHORITY; NEGOTIA- Sec. 212. Correction of Social Security TIONS; CLAIMS. the remaining sections or provisions shall records. (a) REAFFIRMATION.—The delegation by the continue in full force and effect. SUBTITLE B—REFORM OF H–2A WORKER United States of authority to the State of SEC. ll11. AUTHORIZATION OF APPROPRIA- PROGRAM TIONS. Hawaii to address the conditions of the in- Sec. 221. Amendment to the Immigration There are authorized to be appropriated digenous, native people of Hawaii contained and Nationality Act. in the Act entitled ‘‘An Act to provide for such sums as are necessary to carry out this SUBTITLE C—MISCELLANEOUS PROVISIONS the admission of the State of Hawaii into the title. Union’’ approved March 18, 1959 (Public Law Sec. 231. Determination and use of user fees. 86–3, 73 Stat. 5), is reaffirmed. SA 3548. Mr. FRIST proposed an Sec. 232. Regulations. (b) NEGOTIATIONS.— amendment to the bill S. 2062, to Sec. 233. Effective date. (1) IN GENERAL.—Upon the reaffirmation of amend the procedures that apply to SEC. 202. DEFINITIONS. the political and legal relationship between consideration of interstate class ac- In this title: the United States and the Native Hawaiian tions to assure fairer outcomes for (1) AGRICULTURAL EMPLOYMENT.—The term governing entity, the United States and the ‘‘agricultural employment’’ means any serv- State of Hawaii may enter into negotiations class members and defendants, and for ice or activity that is considered to be agri- with the Native Hawaiian governing entity other purposes; as follows: cultural under section 3(f) of the Fair Labor designed to lead to an agreement addressing At the end, add the following: Standards Act of 1938 (29 U.S.C. 203(f)) or ag- such matters as— SEC. 10. FURTHER EFFECTIVE DATE. ricultural labor under section 3121(g) of the (A) the transfer of lands, natural resources, The amendments made by this act shall Internal Revenue Code of 1986 (26 U.S.C. and other assets, and the protection of exist- apply to any civil action commenced one day 3121(g)). For purposes of this paragraph, agri- ing rights related to such lands or resources; after or any day thereafter the date of enact- cultural employment includes employment (B) the exercise of governmental authority ment of this act. under section 101(a)(15)(H)(ii)(a) of the Immi- over any transferred lands, natural re- gration and Nationality Act (8 U.S.C. sources, and other assets, including land use; SA 3549. Mr. FRIST proposed an 1101(a)(15)(H)(ii)(a)). (C) the exercise of civil and criminal juris- amendment to amendment SA 3548 pro- (2) EMPLOYER.—The term ‘‘employer’’ diction; posed by Mr. FRIST to the bill S. 2062, means any person or entity, including any (D) the delegation of governmental powers to amend the procedures that apply to farm labor contractor and any agricultural and authorities to the Native Hawaiian gov- consideration of interstate class ac- association, that employs workers in agri- erning entity by the United States and the cultural employment. tions to assure fairer outcomes for State of Hawaii; and (3) JOB OPPORTUNITY.—The term ‘‘job op- (E) any residual responsibilities of the class members and defendants, and for portunity’’ means a job opening for tem- United States and the State of Hawaii. other purposes; as follows: porary full-time employment at a place in (2) AMENDMENTS TO EXISTING LAWS.—Upon On line 3 of the amendment, strike ‘‘one the United States to which United States agreement on any matter or matters nego- day’’ and insert: workers can be referred. tiated with the United States, the State of ‘‘Two days’’. (4) SECRETARY.—The term ‘‘Secretary’’ Hawaii, and the Native Hawaiian governing means the Secretary of Homeland Security. entity, the parties shall submit— SA 3550. Mr. FRIST proposed an (5) TEMPORARY.—A worker is employed on (A) to the Committee on Indian Affairs of amendment to the bill S. 2062, to a ‘‘temporary’’ basis where the employment the Senate, the Committee on Energy and amend the procedures that apply to is intended not to exceed 10 months. Natural Resources of the Senate, and the consideration of interstate class ac- (6) UNITED STATES WORKER.—The term Committee on Resources of the House of tions to assure fairer outcomes for ‘‘United States worker’’ means any worker, Representatives, recommendations for pro- class members and defendants, and for whether a United States citizen or national, posed amendments to Federal law that will a lawfully admitted permanent resident enable the implementation of agreements other purposes; as follows: alien, or any other alien, who is authorized reached between the three governments; and At the end of the bill add: to work in the job opportunity within the (B) to the Governor and the legislature of SEC. 10. FURTHER EFFECTIVE DATE. United States, except an alien admitted or the State of Hawaii, recommendations for The amendments made by this act shall otherwise provided status under section proposed amendments to State law that will apply to any civil action commenced three 101(a)(15)(H)(ii)(a) of the Immigration and

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Nationality Act (8 U.S.C. section (a) as described in paragraph (1) shall (v) TREATMENT OF ATTORNEY’S FEES.—The 1101(a)(15)(H)(ii)(a)). not be eligible for any Federal means-tested parties shall bear the cost of their own attor- (7) WORK DAY.—The term ‘‘work day’’ public benefit by reason of the acquisition of ney’s fees involved in the litigation of the means any day in which the individual is em- such status until 5 years after the date on complaint. ployed 1 or more hours in agriculture con- which the Secretary confers such status (vi) NONEXCLUSIVE REMEDY.—The com- sistent with the definition of ‘‘man-day’’ upon that alien under such subsection. plaint process provided for in this subpara- under section 3(u) of the Fair Labor Stand- (B) FEDERAL MEANS-TESTED PUBLIC BENEFIT graph is in addition to any other rights an ards Act of 1938 (29 U.S.C. 203(u)). DEFINED.—In this paragraph, the term ‘‘Fed- employee may have in accordance with ap- Subtitle A—Adjustment to Lawful Status eral means-tested public benefit’’ means a plicable law. (vii) EFFECT ON OTHER ACTIONS OR PRO- SEC. 211. AGRICULTURAL WORKERS. form of assistance or benefit covered by sec- CEEDINGS.—Any finding of fact or law, judg- (a) TEMPORARY RESIDENT STATUS.— tion 403(a) of the Personal Responsibility and ment, conclusion, or final order made by an (1) IN GENERAL.—Notwithstanding any Work Opportunity Reconciliation Act of 1996 arbitrator in the proceeding before the Sec- other provision of law, the Secretary shall (8 U.S.C. 1613(a)). retary shall not be conclusive or binding in confer upon an alien who qualifies under this (3) TERMS OF EMPLOYMENT RESPECTING any separate or subsequent action or pro- subsection the status of an alien lawfully ad- ALIENS ADMITTED UNDER THIS SECTION.— ceeding between the employee and the em- mitted for temporary residence if the Sec- (A) PROHIBITION.—No alien granted status ployee’s current or prior employer brought retary determines that the following require- under subsection (a) may be terminated from before an arbitrator, administrative agency, ments are satisfied with respect to the alien: employment by any employer during the pe- court, or judge of any State or the United riod of temporary resident status except for (A) PERFORMANCE OF AGRICULTURAL EM- States, regardless of whether the prior ac- just cause. PLOYMENT IN THE UNITED STATES.—The alien tion was between the same or related parties (B) TREATMENT OF COMPLAINTS.— must establish that the alien entered the or involved the same facts, except that the (i) ESTABLISHMENT OF PROCESS.—The Sec- United States at least two years prior to the arbitrator’s specific finding of the number of retary shall establish a process for the re- date of enactment of this Act and has per- days or hours of work lost by the employee ceipt, initial review, and disposition in ac- formed agricultural employment in the as a result of the employment termination cordance with this subparagraph of com- United States for at least 575 hours or 100 may be referred to the Secretary pursuant to work days, whichever is less, during any 12 plaints by aliens granted temporary resident clause (iv). status under subsection (a) who allege that consecutive months during the 18-month pe- (C) CIVIL PENALTIES.— they have been terminated without just riod ending on August 31, 2003. (i) IN GENERAL.—If the Secretary finds, (B) APPLICATION PERIOD.—The alien must cause. No proceeding shall be conducted after notice and opportunity for a hearing, apply for such status during the 18-month under this subparagraph with respect to a that an employer of an alien granted tem- application period beginning on the 1st day termination unless the Secretary determines porary resident status under subsection (a) of the 7th month that begins after the date that the complaint was filed not later than 6 has failed to provide the record of employ- of enactment of this title. months after the date of the termination. ment required under subsection (a)(5) or has (C) ADMISSIBLE AS IMMIGRANT.—The alien (ii) INITIATION OF ARBITRATION.—If the Sec- provided a false statement of material fact must establish that the alien is otherwise retary finds that a complaint has been filed in such a record, the employer shall be sub- admissible to the United States under sec- in accordance with clause (i) and there is ject to a civil money penalty in an amount tion 212 of the Immigration and Nationality reasonable cause to believe that the com- not to exceed $1,000 per violation. Act (8 U.S.C. 1182), except as otherwise pro- plainant was terminated without just cause, (ii) LIMITATION.—The penalty applicable vided under subsection (e)(2). the Secretary shall initiate binding arbitra- under clause (i) for failure to provide records (2) AUTHORIZED TRAVEL.—During the period tion proceedings by requesting the Federal shall not apply unless the alien has provided an alien is in lawful temporary resident sta- Mediation and Conciliation Service to ap- the employer with evidence of employment tus granted under this subsection, the alien point a mutually agreeable arbitrator from authorization granted under this section. has the right to travel abroad (including the roster of arbitrators maintained by such (c) ADJUSTMENT TO PERMANENT RESI- commutation from a residence abroad) in the Service for the geographical area in which DENCE.— same manner as an alien lawfully admitted the employer is located. The procedures and (1) AGRICULTURAL WORKERS.— for permanent residence. rules of such Service shall be applicable to (A) IN GENERAL.—Except as provided in (3) AUTHORIZED EMPLOYMENT.—During the the selection of such arbitrator and to such subparagraph (B), the Secretary shall adjust period an alien is in lawful temporary resi- arbitration proceedings. The Secretary shall the status of an alien granted lawful tem- dent status granted under this subsection, pay the fee and expenses of the arbitrator, porary resident status under subsection (a) the alien shall be provided an ‘‘employment subject to the availability of appropriations to that of an alien lawfully admitted for per- authorized’’ endorsement or other appro- for such purpose. manent residence if the Secretary deter- priate work permit, in the same manner as (iii) ARBITRATION PROCEEDINGS.—The arbi- mines that the following requirements are an alien lawfully admitted for permanent trator shall conduct the proceeding in ac- satisfied: residence. cordance with the policies and procedures (i) QUALIFYING EMPLOYMENT.—The alien (4) TERMINATION OF TEMPORARY RESIDENT promulgated by the American Arbitration has performed at least 360 work days or 2,060 STATUS.—During the period of temporary Association applicable to private arbitration hours, but in no case less than 2,060 hours, of resident status granted an alien under this of employment disputes. The arbitrator shall agricultural employment in the United subsection, the Secretary may terminate make findings respecting whether the termi- States, during the period beginning on Sep- such status only upon a determination under nation was for just cause. The arbitrator tember 1, 2003, and ending on August 31, 2009. this title that the alien is deportable. may not find that the termination was for (ii) QUALIFYING YEARS.—The alien has per- (5) RECORD OF EMPLOYMENT.— just cause unless the employer so dem- formed at least 75 work days or 430 hours, (A) IN GENERAL.—Each employer of a work- onstrates by a preponderance of the evi- but in no case less than 430 hours, of agricul- er granted status under this subsection shall dence. If the arbitrator finds that the termi- tural employment in the United States in at annually— nation was not for just cause, the arbitrator least 3 nonoverlapping periods of 12 consecu- (i) provide a written record of employment shall make a specific finding of the number tive months during the period beginning on to the alien; and of days or hours of work lost by the em- September 1, 2003, and ending on August 31, (ii) provide a copy of such record to the ployee as a result of the termination. The ar- 2009. Qualifying periods under this clause Secretary. bitrator shall have no authority to order any may include nonconsecutive 12-month peri- (B) SUNSET.—The obligation under sub- other remedy, including, but not limited to, ods. paragraph (A) terminates on August 31, 2009. reinstatement, back pay, or front pay to the (iii) QUALIFYING WORK IN FIRST 3 YEARS.— (b) RIGHTS OF ALIENS GRANTED TEMPORARY affected employee. Within 30 days from the The alien has performed at least 240 work RESIDENT STATUS.— conclusion of the arbitration proceeding, the days or 1,380 hours, but in no case less than (1) IN GENERAL.—Except as otherwise pro- arbitrator shall transmit the findings in the 1,380 hours, of agricultural employment dur- vided in this subsection, an alien who ac- form of a written opinion to the parties to ing the period beginning on September 1, quires the status of an alien lawfully admit- the arbitration and the Secretary. Such find- 2003, and ending on August 31, 2006. ted for temporary residence under subsection ings shall be final and conclusive, and no of- (iv) APPLICATION PERIOD.—The alien applies (a), such status not having changed, shall be ficial or court of the United States shall for adjustment of status not later than Au- considered to be an alien lawfully admitted have the power or jurisdiction to review any gust 31, 2010. for permanent residence for purposes of any such findings. (v) PROOF.—In meeting the requirements of law other than any provision of the Immi- (iv) EFFECT OF ARBITRATION FINDINGS.—If clauses (i), (ii), and (iii), an alien may submit gration and Nationality Act (8 U.S.C. 1101 et the Secretary receives a finding of an arbi- the record of employment described in sub- seq.). trator that an employer has terminated an section (a)(5) or such documentation as may (2) ELIGIBILITY FOR FEDERAL MEANS-TESTED alien granted temporary resident status be submitted under subsection (d)(3). PUBLIC BENEFITS.— under subsection (a) without just cause, the (vi) DISABILITY.—In determining whether (A) DELAYED ELIGIBILITY.—An alien who Secretary shall credit the alien for the num- an alien has met the requirements of clauses acquires the status of an alien lawfully ad- ber of days or hours of work lost for purposes (i), (ii), and (iii), the Secretary shall credit mitted for temporary residence under sub- of the requirement of subsection (c)(1). the alien with any work days lost because

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.051 S07PT1 S7762 CONGRESSIONAL RECORD — SENATE July 7, 2004 the alien was unable to work in agricultural (ii) applications for adjustment of status adequate records respecting such employ- employment due to injury or disease arising under subsection (c) shall be filed directly ment, the alien’s burden of proof under out of and in the course of the alien’s agri- with the Secretary. clause (i) may be met by securing timely cultural employment, if the alien can estab- (B) OUTSIDE THE UNITED STATES.—The Sec- production of those records under regula- lish such disabling injury or disease through retary, in cooperation with the Secretary of tions to be promulgated by the Secretary. medical records. State, shall establish a procedure whereby (iii) An alien can meet such burden of proof (B) GROUNDS FOR DENIAL OF ADJUSTMENT OF an alien may apply for temporary resident if the alien establishes that the alien has in STATUS.—The Secretary may deny an alien status under subsection (a) at an appropriate fact performed the work described in sub- adjustment to permanent resident status, consular office outside the United States. section (a)(1)(A) or subsection (c)(1)(A) by and provide for termination of the tem- (C) PRELIMINARY APPLICATIONS.— producing sufficient evidence to show the ex- porary resident status granted such alien (i) IN GENERAL.—During the application pe- tent of that employment as a matter of just under subsection (a), if— riod described in subsection (a)(1)(B), the and reasonable inference. (i) the Secretary finds by a preponderance Secretary may grant admission to the (4) TREATMENT OF APPLICATIONS BY QUALI- of the evidence that the adjustment to tem- United States as a temporary resident and FIED DESIGNATED ENTITIES.—Each qualified porary resident status was the result of fraud provide an ‘‘employment authorized’’ en- designated entity must agree to forward to or willful misrepresentation, as described in dorsement or other appropriate work permit the Secretary applications filed with it in section 212(a)(6)(C)(i) of the Immigration and to any alien who presents a preliminary ap- accordance with paragraph (1)(A)(i)(II) but Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or plication for such status under subsection (a) not to forward to the Secretary applications (ii) the alien— at a designated port of entry on the southern filed with it unless the applicant has con- (I) commits an act that makes the alien in- land border of the United States. An alien sented to such forwarding. No such entity admissible to the United States under sec- who does not enter through a port of entry is may make a determination required by this tion 212 of the Immigration and Nationality subject to deportation and removal as other- section to be made by the Secretary. Upon Act (8 U.S.C. 1182), except as provided under wise provided in this title. the request of the alien, a qualified des- subsection (e)(2); or (ii) DEFINITION.—For purposes of clause (i), ignated entity shall assist the alien in ob- (II) is convicted of a felony or 3 or more the term ‘‘preliminary application’’ means a taining documentation of the work history misdemeanors committed in the United fully completed and signed application which of the alien. States; or contains specific information concerning the (5) LIMITATION ON ACCESS TO INFORMATION.— (III) is convicted of a single misdemeanor performance of qualifying employment in Files and records prepared for purposes of for which the actual sentence served was 6 the United States, together with the pay- this subsection by qualified designated enti- months or more. ment of the appropriate fee and the submis- ties operating under this subsection are con- (C) GROUNDS FOR REMOVAL.—Any alien sion of photographs and the documentary fidential and the Secretary shall not have granted temporary resident status under evidence which the applicant intends to sub- access to such files or records relating to an subsection (a) who does not apply for adjust- mit as proof of such employment. alien without the consent of the alien, ex- ment of status under this subsection before (iii) ELIGIBILITY.—An applicant under cept as allowed by a court order issued pur- the expiration of the application period de- clause (i) must be otherwise admissible to suant to paragraph (6). scribed in subparagraph (A)(iv), or who fails the United States under subsection (e)(2) and (6) CONFIDENTIALITY OF INFORMATION.— to meet the other requirements of subpara- must establish to the satisfaction of the ex- (A) IN GENERAL.—Except as otherwise pro- graph (A) by the end of the applicable period, amining officer during an interview that the vided in this subsection, neither the Sec- is deportable and may be removed under sec- applicant’s claim to eligibility for temporary retary, nor any other official or employee of tion 240 of the Immigration and Nationality resident status is credible. the Department of Homeland Security, or Act (8 U.S.C. 1229a). The Secretary shall (D) TRAVEL DOCUMENTATION.—The Sec- bureau or agency thereof, may— issue regulations establishing grounds to retary shall provide each alien granted sta- (i) use the information furnished by the ap- waive subparagraph (A)(iii) with respect to tus under this section with a counterfeit-re- plicant pursuant to an application filed an alien who has completed at least 200 days sistant document of authorization to enter under this section, the information provided of the work requirement specified in such or reenter the United States that meets the subparagraph in the event of a natural dis- requirements established by the Secretary. to the applicant by a person designated under paragraph (2)(A), or any information aster which substantially limits the avail- (2) DESIGNATION OF ENTITIES TO RECEIVE AP- provided by an employer or former employer, ability of agricultural employment or a per- PLICATIONS.— for any purpose other than to make a deter- sonal emergency that prevents compliance (A) IN GENERAL.—For purposes of receiving with such subparagraph. applications under subsection (a), the Sec- mination on the application, or for enforce- (2) SPOUSES AND MINOR CHILDREN.— retary— ment of paragraph (7); (A) IN GENERAL.—Notwithstanding any (i) shall designate qualified farm labor or- (ii) make any publication whereby the in- other provision of law, the Secretary shall ganizations and associations of employers; formation furnished by any particular indi- confer the status of lawful permanent resi- and vidual can be identified; or dent on the spouse and minor child of an (ii) may designate such other persons as (iii) permit anyone other than the sworn alien granted status under paragraph (1), in- the Secretary determines are qualified and officers and employees of the Department of cluding any individual who was a minor have substantial experience, demonstrate Homeland Security, or bureau or agency child on the date such alien was granted competence, and have traditional long-term thereof, or, with respect to applications filed temporary resident status, if the spouse or involvement in the preparation and sub- with a qualified designated entity, that minor child applies for such status, or if the mittal of applications for adjustment of sta- qualified designated entity, to examine indi- principal alien includes the spouse or minor tus under section 209, 210, or 245 of the Immi- vidual applications. child in an application for adjustment of sta- gration and Nationality Act, Public Law 89– (B) CRIME.—Whoever knowingly uses, pub- tus to that of a lawful permanent resident. 732, Public Law 95–145, or the Immigration lishes, or permits information to be exam- (B) TREATMENT OF SPOUSES AND MINOR CHIL- Reform and Control Act of 1986. ined in violation of this paragraph shall be DREN PRIOR TO ADJUSTMENT OF STATUS.—A (B) REFERENCES.—Organizations, associa- fined not more than $10,000. spouse and minor child of an alien granted tions, and persons designated under subpara- (7) PENALTIES FOR FALSE STATEMENTS IN AP- temporary resident status under subsection graph (A) are referred to in this title as PLICATIONS.— (a) may not be— ‘‘qualified designated entities’’. (A) CRIMINAL PENALTY.—Whoever— (i) removed while such alien maintains (3) PROOF OF ELIGIBILITY.— (i) files an application for status under sub- such status; and (A) IN GENERAL.—An alien may establish section (a) or (c) and knowingly and willfully (ii) granted authorization to engage in em- that the alien meets the requirement of sub- falsifies, conceals, or covers up a material ployment in the United States or be provided section (a)(1)(A) or subsection (c)(1)(A) fact or makes any false, fictitious, or fraudu- an ‘‘employment authorized’’ endorsement through government employment records or lent statements or representations, or makes or other work permit, unless such employ- records supplied by employers or collective or uses any false writing or document know- ment authorization is granted under another bargaining organizations, and other reliable ing the same to contain any false, fictitious, provision of law. documentation as the alien may provide. The or fraudulent statement or entry; or (d) APPLICATIONS.— Secretary shall establish special procedures (ii) creates or supplies a false writing or (1) TO WHOM MAY BE MADE.— to properly credit work in cases in which an document for use in making such an applica- (A) WITHIN THE UNITED STATES.—The Sec- alien was employed under an assumed name. tion; retary shall provide that— (B) DOCUMENTATION OF WORK HISTORY.—(i) shall be fined in accordance with title 18, (i) applications for temporary resident sta- An alien applying for status under sub- United States Code, or imprisoned not more tus under subsection (a) may be filed— section (a)(1) or subsection (c)(1) has the bur- than 5 years, or both. (I) with the Secretary, but only if the ap- den of proving by a preponderance of the evi- (B) INADMISSIBILITY.—An alien who is con- plicant is represented by an attorney; or dence that the alien has worked the requisite victed of a crime under subparagraph (A) (II) with a qualified designated entity (des- number of hours or days (as required under shall be considered to be inadmissible to the ignated under paragraph (2)), but only if the subsection (a)(1)(A) or subsection (c)(1)(A)). United States on the ground described in sec- applicant consents to the forwarding of the (ii) If an employer or farm labor contractor tion 212(a)(6)(C)(i) of the Immigration and application to the Secretary; and employing such an alien has kept proper and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

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(8) ELIGIBILITY FOR LEGAL SERVICES.—Sec- Act (8 U.S.C. 1182(a)(4)) if the alien dem- respecting the benefits that aliens may re- tion 504(a)(11) of Public Law 104–134 (110 Stat. onstrates a history of employment in the ceive under this section and the require- 1321–53 et seq.) shall not be construed to pre- United States evidencing self-support with- ments to be satisfied to obtain such benefits. vent a recipient of funds under the Legal out reliance on public cash assistance. (i) REGULATIONS.—The Secretary shall Services Corporation Act (42 U.S.C. 2996 et (f) TEMPORARY STAY OF REMOVAL AND issue regulations to implement this section seq.) from providing legal assistance directly WORK AUTHORIZATION FOR CERTAIN APPLI- not later than the 1st day of the 7th month related to an application for adjustment of CANTS.— that begins after the date of enactment of status under this section. (1) BEFORE APPLICATION PERIOD.—Effective this Act. (9) APPLICATION FEES.— on the date of enactment of this title, the (j) EFFECTIVE DATE.—This section shall (A) FEE SCHEDULE.—The Secretary shall Secretary shall provide that, in the case of take effect on the date that regulations are provide for a schedule of fees that— an alien who is apprehended before the be- issued implementing this section on an in- (i) shall be charged for the filing of appli- ginning of the application period described terim or other basis. cations for status under subsections (a) and in subsection (a)(1)(B) and who can establish (k) AUTHORIZATION OF APPROPRIATIONS.— (c); and a nonfrivolous case of eligibility for tem- There is hereby authorized to be appro- (ii) may be charged by qualified designated porary resident status under subsection (a) priated to the Secretary to carry out this entities to help defray the costs of services (but for the fact that the alien may not section $40,000,000 for each of fiscal years 2005 provided to such applicants. apply for such status until the beginning of through 2008. (B) PROHIBITION ON EXCESS FEES BY QUALI- such period), until the alien has had the op- SEC. 212. CORRECTION OF SOCIAL SECURITY FIED DESIGNATED ENTITIES.—A qualified des- portunity during the first 30 days of the ap- RECORDS. ignated entity may not charge any fee in ex- plication period to complete the filing of an (a) IN GENERAL.—Section 208(d)(1) of the cess of, or in addition to, the fees authorized application for temporary resident status, Social Security Act (42 U.S.C. 408(d)(1)) is under subparagraph (A)(ii) for services pro- the alien— amended— vided to applicants. (A) may not be removed; and (1) in subparagraph (B)(ii), by striking ‘‘or’’ (C) DISPOSITION OF FEES.— (B) shall be granted authorization to en- at the end; (i) IN GENERAL.—There is established in the gage in employment in the United States (2) in subparagraph (C), by inserting ‘‘or’’ general fund of the Treasury a separate ac- and be provided an ‘‘employment author- at the end; count, which shall be known as the ‘‘Agricul- ized’’ endorsement or other appropriate work (3) by inserting after subparagraph (C) the tural Worker Immigration Status Adjust- permit for such purpose. following: ment Account’’. Notwithstanding any other (2) DURING APPLICATION PERIOD.—The Sec- ‘‘(D) who is granted status as a lawful tem- provision of law, there shall be deposited as retary shall provide that, in the case of an porary resident under the Agricultural Job offsetting receipts into the account all fees alien who presents a nonfrivolous applica- Opportunity, Benefits, and Security Act of collected under subparagraph (A)(i). tion for temporary resident status under 2004,’’; and (ii) USE OF FEES FOR APPLICATION PROC- subsection (a) during the application period (4) by striking ‘‘1990.’’ and inserting ‘‘1990, ESSING.—Amounts deposited in the ‘‘Agricul- described in subsection (a)(1)(B), including or in the case of an alien described in sub- tural Worker Immigration Status Adjust- an alien who files such an application within paragraph (D), if such conduct is alleged to ment Account’’ shall remain available to the 30 days of the alien’s apprehension, and until have occurred prior to the date on which the Secretary until expended for processing ap- a final determination on the application has alien was granted lawful temporary resident plications for status under subsections (a) been made in accordance with this section, status.’’. and (c). the alien— (b) EFFECTIVE DATE.—The amendments (e) WAIVER OF NUMERICAL LIMITATIONS AND (A) may not be removed; and made by subsection (a) shall take effect on CERTAIN GROUNDS FOR INADMISSIBILITY.— (B) shall be granted authorization to en- the 1st day of the 7th month that begins (1) NUMERICAL LIMITATIONS DO NOT APPLY.— gage in employment in the United States after the date of enactment of this Act. The numerical limitations of sections 201 and be provided an ‘‘employment author- Subtitle B—Reform of H–2A Worker Program and 202 of the Immigration and Nationality ized’’ endorsement or other appropriate work Act (8 U.S.C. 1151 and 1152) shall not apply to SEC. 221. AMENDMENT TO THE IMMIGRATION permit for such purpose. AND NATIONALITY ACT. the adjustment of aliens to lawful permanent (g) ADMINISTRATIVE AND JUDICIAL RE- (a) IN GENERAL.—The Immigration and Na- resident status under this section. VIEW.— tionality Act is amended by striking section (2) WAIVER OF CERTAIN GROUNDS OF INADMIS- (1) IN GENERAL.—There shall be no adminis- 218 (8 U.S.C. 1188) and inserting the fol- SIBILITY.—In the determination of an alien’s trative or judicial review of a determination lowing: eligibility for status under subsection respecting an application for status under (a)(1)(C) or an alien’s eligibility for adjust- subsection (a) or (c) except in accordance ‘‘H–2A EMPLOYER APPLICATIONS ment of status under subsection with this subsection. ‘‘SEC. 218. (a) APPLICATIONS TO THE SEC- (c)(1)(B)(ii)(I), the following rules shall (2) ADMINISTRATIVE REVIEW.— RETARY OF LABOR.— apply: (A) SINGLE LEVEL OF ADMINISTRATIVE AP- ‘‘(1) IN GENERAL.—No alien may be admit- (A) GROUNDS OF EXCLUSION NOT APPLICA- PELLATE REVIEW.—The Secretary shall estab- ted to the United States as an H–2A worker, BLE.—The provisions of paragraphs (5), lish an appellate authority to provide for a or otherwise provided status as an H–2A (6)(A), (7)(A), and (9)(B) of section 212(a) of single level of administrative appellate re- worker, unless the employer has filed with the Immigration and Nationality Act (8 view of such a determination. the Secretary of Labor an application con- U.S.C. 1182(a)) shall not apply. (B) STANDARD FOR REVIEW.—Such adminis- taining— (B) WAIVER OF OTHER GROUNDS.— trative appellate review shall be based solely ‘‘(A) the assurances described in subsection (i) IN GENERAL.—Except as provided in upon the administrative record established (b); clause (ii), the Secretary may waive any at the time of the determination on the ap- ‘‘(B) a description of the nature and loca- other provision of such section 212(a) in the plication and upon such additional or newly tion of the work to be performed; case of individual aliens for humanitarian discovered evidence as may not have been ‘‘(C) the anticipated period (expected be- purposes, to ensure family unity, or when it available at the time of the determination. ginning and ending dates) for which the is otherwise in the public interest. (3) JUDICIAL REVIEW.— workers will be needed; and (ii) GROUNDS THAT MAY NOT BE WAIVED.— (A) LIMITATION TO REVIEW OF REMOVAL.— ‘‘(D) the number of job opportunities in The following provisions of such section There shall be judicial review of such a de- which the employer seeks to employ the 212(a) may not be waived by the Secretary termination only in the judicial review of an workers. under clause (i): order of removal under section 242 of the Im- ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap- (I) Subparagraphs (A) and (B) of paragraph migration and Nationality Act (8 U.S.C. plication filed under paragraph (1) shall be (2) (relating to criminals). 1252). accompanied by a copy of the job offer de- (II) Paragraph (4) (relating to aliens likely (B) STANDARD FOR JUDICIAL REVIEW.—Such scribing the wages and other terms and con- to become public charges). judicial review shall be based solely upon the ditions of employment and the bona fide oc- (III) Paragraph (2)(C) (relating to drug of- administrative record established at the cupational qualifications that must be pos- fenses). time of the review by the appellate authority sessed by a worker to be employed in the job (IV) Paragraph (3) (relating to security and and the findings of fact and determinations opportunity in question. related grounds). contained in such record shall be conclusive ‘‘(b) ASSURANCES FOR INCLUSION IN APPLI- (iii) CONSTRUCTION.—Nothing in this sub- unless the applicant can establish abuse of CATIONS.—The assurances referred to in sub- paragraph shall be construed as affecting the discretion or that the findings are directly section (a)(1) are the following: authority of the Secretary other than under contrary to clear and convincing facts con- ‘‘(1) JOB OPPORTUNITIES COVERED BY COLLEC- this subparagraph to waive provisions of tained in the record considered as a whole. TIVE BARGAINING AGREEMENTS.—With respect such section 212(a). (h) DISSEMINATION OF INFORMATION ON AD- to a job opportunity that is covered under a (C) SPECIAL RULE FOR DETERMINATION OF JUSTMENT PROGRAM.—Beginning not later collective bargaining agreement: PUBLIC CHARGE.—An alien is not ineligible for than the 1st day of the application period de- ‘‘(A) UNION CONTRACT DESCRIBED.—The job status under this section by reason of a scribed in subsection (a)(1)(B), the Secretary, opportunity is covered by a union contract ground of inadmissibility under section in cooperation with qualified designated en- which was negotiated at arm’s length be- 212(a)(4) of the Immigration and Nationality tities, shall broadly disseminate information tween a bona fide union and the employer.

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‘‘(B) STRIKE OR LOCKOUT.—The specific job ‘‘(F) STATEMENT OF LIABILITY.—The appli- on the date on which the foreign worker de- opportunity for which the employer is re- cation form shall include a clear statement parts for the employer’s place of employ- questing an H–2A worker is not vacant be- explaining the liability under subparagraph ment and ending on the date on which 50 per- cause the former occupant is on strike or (E) of an employer if the other employer de- cent of the period of employment for which being locked out in the course of a labor dis- scribed in such subparagraph displaces a the foreign worker who is in the job was pute. United States worker as described in such hired has elapsed, subject to the following ‘‘(C) NOTIFICATION OF BARGAINING REP- subparagraph. requirements: RESENTATIVES.—The employer, at the time of ‘‘(G) PROVISION OF INSURANCE.—If the job ‘‘(I) PROHIBITION.—No person or entity filing the application, has provided notice of opportunity is not covered by the State shall willfully and knowingly withhold the filing under this paragraph to the bar- workers’ compensation law, the employer United States workers prior to the arrival of gaining representative of the employer’s em- will provide, at no cost to the worker, insur- H–2A workers in order to force the hiring of ployees in the occupational classification at ance covering injury and disease arising out United States workers under this clause. the place or places of employment for which of and in the course of the worker’s employ- ‘‘(II) COMPLAINTS.—Upon receipt of a com- aliens are sought. ment which will provide benefits at least plaint by an employer that a violation of ‘‘(D) TEMPORARY OR SEASONAL JOB OPPOR- equal to those provided under the State’s subclause (I) has occurred, the Secretary of TUNITIES.—The job opportunity is temporary workers’ compensation law for comparable Labor shall immediately investigate. The or seasonal. employment. Secretary of Labor shall, within 36 hours of ‘‘(E) OFFERS TO UNITED STATES WORKERS.— ‘‘(H) EMPLOYMENT OF UNITED STATES WORK- the receipt of the complaint, issue findings The employer has offered or will offer the job ERS.— concerning the alleged violation. If the Sec- to any eligible United States worker who ap- ‘‘(i) RECRUITMENT.—The employer has retary of Labor finds that a violation has oc- plies and is equally or better qualified for taken or will take the following steps to re- curred, the Secretary of Labor shall imme- the job for which the nonimmigrant is, or cruit United States workers for the job op- diately suspend the application of this clause the nonimmigrants are, sought and who will portunities for which the H–2A non- with respect to that certification for that be available at the time and place of need. immigrant is, or H–2A nonimmigrants are, date of need. ‘‘(F) PROVISION OF INSURANCE.—If the job sought: ‘‘(III) PLACEMENT OF UNITED STATES WORK- opportunity is not covered by the State ‘‘(I) CONTACTING FORMER WORKERS.—The ERS.—Prior to referring a United States workers’ compensation law, the employer employer shall make reasonable efforts worker to an employer during the period de- will provide, at no cost to the worker, insur- through the sending of a letter by United scribed in the matter preceding subclause (I), ance covering injury and disease arising out States Postal Service mail, or otherwise, to the Secretary of Labor shall make all rea- of, and in the course of, the worker’s employ- contact any United States worker the em- sonable efforts to place the United States ment which will provide benefits at least ployer employed during the previous season worker in an open job acceptable to the equal to those provided under the State’s in the occupation at the place of intended worker, if there are other job offers pending workers’ compensation law for comparable employment for which the employer is ap- with the job service that offer similar job op- employment. plying for workers and has made the avail- portunities in the area of intended employ- ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY ability of the employer’s job opportunities in ment. COLLECTIVE BARGAINING AGREEMENTS.—With the occupation at the place of intended em- ‘‘(iv) STATUTORY CONSTRUCTION.—Nothing respect to a job opportunity that is not cov- ployment known to such previous workers, in this subparagraph shall be construed to ered under a collective bargaining agree- unless the worker was terminated from em- prohibit an employer from using such legiti- ment: ployment by the employer for a lawful job- mate selection criteria relevant to the type ‘‘(A) STRIKE OR LOCKOUT.—The specific job related reason or abandoned the job before of job that are normal or customary to the opportunity for which the employer is re- the worker completed the period of employ- type of job involved so long as such criteria questing an H–2A worker is not vacant be- ment of the job opportunity for which the are not applied in a discriminatory manner. cause the former occupant is on strike or worker was hired. ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BE- being locked out in the course of a labor dis- ‘‘(II) FILING A JOB OFFER WITH THE LOCAL HALF OF EMPLOYER MEMBERS.— pute. OFFICE OF THE STATE EMPLOYMENT SECURITY ‘‘(1) IN GENERAL.—An agricultural associa- ‘‘(B) TEMPORARY OR SEASONAL JOB OPPORTU- AGENCY.—Not later than 28 days prior to the tion may file an application under sub- NITIES.—The job opportunity is temporary or date on which the employer desires to em- section (a) on behalf of 1 or more of its em- seasonal. ploy an H–2A worker in a temporary or sea- ployer members that the association cer- ‘‘(C) BENEFIT, WAGE, AND WORKING CONDI- sonal agricultural job opportunity, the em- tifies in its application has or have agreed in TIONS.—The employer will provide, at a min- ployer shall submit a copy of the job offer writing to comply with the requirements of imum, the benefits, wages, and working con- described in subsection (a)(2) to the local of- this section and sections 218A through 218C. ditions required by section 218A to all work- fice of the State employment security agen- ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS ers employed in the job opportunities for cy which serves the area of intended employ- EMPLOYERS.—If an association filing an ap- which the employer has applied under sub- ment and authorize the posting of the job op- plication under paragraph (1) is a joint or section (a) and to all other workers in the portunity on ‘America’s Job Bank’ or other sole employer of the temporary or seasonal same occupation at the place of employ- electronic job registry, except that nothing agricultural workers requested on the appli- ment. in this subclause shall require the employer cation, the certifications granted under sub- ‘‘(D) NONDISPLACEMENT OF UNITED STATES to file an interstate job order under section section (e)(2)(B) to the association may be WORKERS.—The employer did not displace 653 of title 20, Code of Federal Regulations. used for the certified job opportunities of and will not displace a United States worker ‘‘(III) ADVERTISING OF JOB OPPORTUNITIES.— any of its producer members named on the employed by the employer during the period Not later than 14 days prior to the date on application, and such workers may be trans- of employment and for a period of 30 days which the employer desires to employ an H– ferred among such producer members to per- preceding the period of employment in the 2A worker in a temporary or seasonal agri- form the agricultural services of a tem- occupation at the place of employment for cultural job opportunity, the employer shall porary or seasonal nature for which the cer- which the employer seeks approval to em- advertise the availability of the job opportu- tifications were granted. ploy H–2A workers. nities for which the employer is seeking ‘‘(d) WITHDRAWAL OF APPLICATIONS.— ‘‘(E) REQUIREMENTS FOR PLACEMENT OF NON- workers in a publication in the local labor ‘‘(1) IN GENERAL.—An employer may with- IMMIGRANT WITH OTHER EMPLOYERS.—The em- market that is likely to be patronized by po- draw an application filed pursuant to sub- ployer will not place the nonimmigrant with tential farm workers. section (a), except that if the employer is an another employer unless— ‘‘(IV) EMERGENCY PROCEDURES.—The Sec- agricultural association, the association ‘‘(i) the nonimmigrant performs duties in retary of Labor shall, by regulation, provide may withdraw an application filed pursuant whole or in part at 1 or more work sites a procedure for acceptance and approval of to subsection (a) with respect to 1 or more of owned, operated, or controlled by such other applications in which the employer has not its members. To withdraw an application, employer; complied with the provisions of this subpara- the employer or association shall notify the ‘‘(ii) there are indicia of an employment graph because the employer’s need for H–2A Secretary of Labor in writing, and the Sec- relationship between the nonimmigrant and workers could not reasonably have been fore- retary of Labor shall acknowledge in writing such other employer; and seen. the receipt of such withdrawal notice. An ‘‘(iii) the employer has inquired of the ‘‘(ii) JOB OFFERS.—The employer has of- employer who withdraws an application other employer as to whether, and has no ac- fered or will offer the job to any eligible under subsection (a), or on whose behalf an tual knowledge or notice that, during the pe- United States worker who applies and is application is withdrawn, is relieved of the riod of employment and for a period of 30 equally or better qualified for the job for obligations undertaken in the application. days preceding the period of employment, which the nonimmigrant is, or non- ‘‘(2) LIMITATION.—An application may not the other employer has displaced or intends immigrants are, sought and who will be be withdrawn while any alien provided sta- to displace a United States worker employed available at the time and place of need. tus under section 101(a)(15)(H)(ii)(a) pursuant by the other employer in the occupation at ‘‘(iii) PERIOD OF EMPLOYMENT.—The em- to such application is employed by the em- the place of employment for which the em- ployer will provide employment to any ployer. ployer seeks approval to employ H–2A work- qualified United States worker who applies ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.— ers. to the employer during the period beginning Any obligation incurred by an employer

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under any other law or regulation as a result applicable local or State standards, Federal ‘‘(II) METROPOLITAN COUNTIES.—If the place of the recruitment of United States workers temporary labor camp standards shall apply. of employment of the workers provided an or H–2A workers under an offer of terms and ‘‘(C) FAMILY HOUSING.—When it is the pre- allowance under this paragraph is in a met- conditions of employment required as a re- vailing practice in the occupation and area ropolitan county, the amount of the housing sult of making an application under sub- of intended employment to provide family allowance under this subparagraph shall be section (a) is unaffected by withdrawal of housing, family housing shall be provided to equal to the statewide average fair market such application. workers with families who request it. rental for existing housing for metropolitan ‘‘(e) REVIEW AND APPROVAL OF APPLICA- ‘‘(D) WORKERS ENGAGED IN THE RANGE PRO- counties for the State, as established by the TIONS.— DUCTION OF LIVESTOCK.—The Secretary of Secretary of Housing and Urban Develop- ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The Labor shall issue regulations that address ment pursuant to section 8(c) of the United employer shall make available for public ex- the specific requirements for the provision of States Housing Act of 1937 (42 U.S.C. amination, within 1 working day after the housing to workers engaged in the range pro- 1437f(c)), based on a 2-bedroom dwelling unit date on which an application under sub- duction of livestock. and an assumption of 2 persons per bedroom. section (a) is filed, at the employer’s prin- ‘‘(E) LIMITATION.—Nothing in this para- ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— cipal place of business or work site, a copy of graph shall be construed to require an em- ‘‘(A) TO PLACE OF EMPLOYMENT.—A worker each such application (and such accom- ployer to provide or secure housing for per- who completes 50 percent of the period of panying documents as are necessary). sons who were not entitled to such housing employment of the job opportunity for which ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF under the temporary labor certification reg- the worker was hired shall be reimbursed by LABOR.— ulations in effect on June 1, 1986. the employer for the cost of the worker’s ‘‘(A) COMPILATION OF LIST.—The Secretary ‘‘(F) CHARGES FOR HOUSING.— transportation and subsistence from the of Labor shall compile, on a current basis, a ‘‘(i) CHARGES FOR PUBLIC HOUSING.—If pub- place from which the worker came to work list (by employer and by occupational classi- lic housing provided for migrant agricultural for the employer (or place of last employ- fication) of the applications filed under this workers under the auspices of a local, coun- ment, if the worker traveled from such subsection. Such list shall include the wage ty, or State government is secured by an em- place) to the place of employment. rate, number of workers sought, period of in- ployer, and use of the public housing unit ‘‘(B) FROM PLACE OF EMPLOYMENT.—A tended employment, and date of need. The normally requires charges from migrant worker who completes the period of employ- Secretary of Labor shall make such list workers, such charges shall be paid by the ment for the job opportunity involved shall available for examination in the District of employer directly to the appropriate indi- be reimbursed by the employer for the cost Columbia. vidual or entity affiliated with the housing’s of the worker’s transportation and subsist- ‘‘(B) REVIEW OF APPLICATIONS.—The Sec- management. ence from the place of employment to the retary of Labor shall review such an applica- ‘‘(ii) DEPOSIT CHARGES.—Charges in the place from which the worker, disregarding tion only for completeness and obvious inac- form of deposits for bedding or other similar intervening employment, came to work for curacies. Unless the Secretary of Labor finds incidentals related to housing shall not be the employer, or to the place of next employ- that the application is incomplete or obvi- levied upon workers by employers who pro- ment, if the worker has contracted with a ously inaccurate, the Secretary of Labor vide housing for their workers. However, an subsequent employer who has not agreed to shall certify that the intending employer has employer may require a worker found to provide or pay for the worker’s transpor- filed with the Secretary of Labor an applica- have been responsible for damage to such tation and subsistence to such subsequent tion as described in subsection (a). Such cer- housing which is not the result of normal employer’s place of employment. tification shall be provided within 7 days of wear and tear related to habitation to reim- ‘‘(C) LIMITATION.— the filing of the application. burse the employer for the reasonable cost of ‘‘(i) AMOUNT OF REIMBURSEMENT.—Except repair of such damage. as provided in clause (ii), the amount of re- H 2A EMPLOYMENT REQUIREMENTS ‘‘ – ‘‘(G) HOUSING ALLOWANCE AS ALTER- imbursement provided under subparagraph ‘‘SEC. 218A. (a) PREFERENTIAL TREATMENT NATIVE.— (A) or (B) to a worker or alien shall not ex- OF ALIENS PROHIBITED.—Employers seeking ‘‘(i) IN GENERAL.—In lieu of offering hous- ceed the lesser of— to hire United States workers shall offer the ing pursuant to subparagraph (A), the em- ‘‘(I) the actual cost to the worker or alien United States workers no less than the same ployer may provide a reasonable housing al- of the transportation and subsistence in- benefits, wages, and working conditions that lowance, but only if the requirement of volved; or the employer is offering, intends to offer, or clause (ii) is satisfied. Upon the request of a ‘‘(II) the most economical and reasonable will provide to H–2A workers. Conversely, no worker seeking assistance in locating hous- common carrier transportation charges and job offer may impose on United States work- ing, the employer shall make a good faith ef- subsistence costs for the distance involved. ers any restrictions or obligations which will fort to assist the worker in identifying and ‘‘(ii) DISTANCE TRAVELED.—No reimburse- not be imposed on the employer’s H–2A locating housing in the area of intended em- ment under subparagraph (A) or (B) shall be workers. ployment. An employer who offers a housing required if the distance traveled is 100 miles ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORK- allowance to a worker, or assists a worker in or less, or the worker is not residing in em- ING CONDITIONS.—Except in cases where high- locating housing which the worker occupies, ployer-provided housing or housing secured er benefits, wages, or working conditions are pursuant to this clause shall not be deemed through an allowance as provided in para- required by the provisions of subsection (a), a housing provider under section 203 of the graph (1)(G). in order to protect similarly employed Migrant and Seasonal Agricultural Worker ‘‘(D) EARLY TERMINATION.—If the worker is United States workers from adverse effects Protection Act (29 U.S.C. 1823) solely by vir- laid off or employment is terminated for with respect to benefits, wages, and working tue of providing such housing allowance. contract impossibility (as described in para- conditions, every job offer which must ac- However, no housing allowance may be used graph (4)(D)) before the anticipated ending company an application under section for housing which is owned or controlled by date of employment, the employer shall pro- 218(b)(2) shall include each of the following the employer. vide the transportation and subsistence re- benefit, wage, and working condition provi- ‘‘(ii) CERTIFICATION.—The requirement of quired by subparagraph (B) and, notwith- sions: this clause is satisfied if the Governor of the standing whether the worker has completed ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A State certifies to the Secretary of Labor 50 percent of the period of employment, shall HOUSING ALLOWANCE.— that there is adequate housing available in provide the transportation reimbursement ‘‘(A) IN GENERAL.—An employer applying the area of intended employment for mi- required by subparagraph (A). under section 218(a) for H–2A workers shall grant farm workers, and H–2A workers, who ‘‘(E) TRANSPORTATION BETWEEN LIVING offer to provide housing at no cost to all are seeking temporary housing while em- QUARTERS AND WORK SITE.—The employer workers in job opportunities for which the ployed at farm work. Such certification shall shall provide transportation between the employer has applied under that section and expire after 3 years unless renewed by the worker’s living quarters (i.e., housing pro- to all other workers in the same occupation Governor of the State. vided by the employer pursuant to paragraph at the place of employment, whose place of ‘‘(iii) AMOUNT OF ALLOWANCE.— (1), including housing provided through a residence is beyond normal commuting dis- ‘‘(I) NONMETROPOLITAN COUNTIES.—If the housing allowance) and the employer’s work tance. place of employment of the workers provided site without cost to the worker, and such ‘‘(B) TYPE OF HOUSING.—In complying with an allowance under this subparagraph is a transportation will be in accordance with ap- subparagraph (A), an employer may, at the nonmetropolitan county, the amount of the plicable laws and regulations. employer’s election, provide housing that housing allowance under this subparagraph ‘‘(3) REQUIRED WAGES.— meets applicable Federal standards for tem- shall be equal to the statewide average fair ‘‘(A) IN GENERAL.—An employer applying porary labor camps or secure housing that market rental for existing housing for non- for workers under section 218(a) shall offer to meets applicable local standards for rental metropolitan counties for the State, as es- pay, and shall pay, all workers in the occu- or public accommodation housing or other tablished by the Secretary of Housing and pation for which the employer has applied substantially similar class of habitation, or Urban Development pursuant to section 8(c) for workers, not less (and is not required to in the absence of applicable local standards, of the United States Housing Act of 1937 (42 pay more) than the greater of the prevailing State standards for rental or public accom- U.S.C. 1437f(c)), based on a 2-bedroom dwell- wage in the occupation in the area of in- modation housing or other substantially ing unit and an assumption of 2 persons per tended employment or the adverse effect similar class of habitation. In the absence of bedroom. wage rate. No worker shall be paid less than

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.051 S07PT1 S7766 CONGRESSIONAL RECORD — SENATE July 7, 2004 the greater of the hourly wage prescribed sufficient to prevent wages in occupations in hours of work actually performed (including under section 6(a)(1) of the Fair Labor Stand- which H–2A workers are employed from fall- voluntary work in excess of the number of ards Act of 1938 (29 U.S.C. 206(a)(1)) or the ap- ing below the wage level that would have hours specified in the job offer in a work day, plicable State minimum wage. prevailed in the absence of H–2A employ- on the worker’s Sabbath, or on Federal holi- ‘‘(B) LIMITATION.—Effective on the date of ment; days) may be counted by the employer in enactment of the Agricultural Job Oppor- ‘‘(iv) whether any changes are warranted calculating whether the period of guaranteed tunity, Benefits, and Security Act of 2004 and in the current methodologies for calculating employment has been met. continuing for 3 years thereafter, no adverse the adverse effect wage rate and the pre- ‘‘(C) ABANDONMENT OF EMPLOYMENT, TERMI- effect wage rate for a State may be more vailing wage; and NATION FOR CAUSE.—If the worker voluntarily than the adverse effect wage rate for that ‘‘(v) recommendations for future wage pro- abandons employment before the end of the State in effect on January 1, 2003, as estab- tection under this section. contract period, or is terminated for cause, lished by section 655.107 of title 20, Code of ‘‘(H) COMMISSION ON WAGE STANDARDS.— the worker is not entitled to the ‘three- Federal Regulations. ‘‘(i) ESTABLISHMENT.—There is established fourths guarantee’ described in subparagraph ‘‘(C) REQUIRED WAGES AFTER 3-YEAR the Commission on Agricultural Wage FREEZE.— Standards under the H–2A program (in this (A). ‘‘(i) FIRST ADJUSTMENT.—Unless Congress subparagraph referred to as the ‘Commis- ‘‘(D) CONTRACT IMPOSSIBILITY.—If, before acts to set a new wage standard applicable to sion’). the expiration of the period of employment this section, effective on December 1, 2006, ‘‘(ii) COMPOSITION.—The Commission shall specified in the job offer, the services of the the adverse effect wage rate then in effect consist of 10 members as follows: worker are no longer required for reasons be- shall be adjusted by the 12 month percentage ‘‘(I) 4 representatives of agricultural em- yond the control of the employer due to any change in the Consumer Price Index for All ployers and 1 representative of the Depart- form of natural disaster, including but not Urban Consumers between December of the ment of Agriculture, each appointed by the limited to a flood, hurricane, freeze, earth- preceding year and December of the second Secretary of Agriculture. quake, fire, drought, plant or animal disease preceding year, except that such adjustment ‘‘(II) 4 representatives of agricultural or pest infestation, or regulatory drought, shall not exceed 4 percent. workers and 1 representative of the Depart- before the guarantee in subparagraph (A) is ‘‘(ii) SUBSEQUENT ANNUAL ADJUSTMENTS.— ment of Labor, each appointed by the Sec- fulfilled, the employer may terminate the Effective on March 1, 2007, and each March 1 retary of Labor. worker’s employment. In the event of such thereafter, the adverse effect wage rate then ‘‘(iii) FUNCTIONS.—The Commission shall termination, the employer shall fulfill the in effect shall be adjusted in accordance with conduct a study that shall address— employment guarantee in subparagraph (A) the requirements of clause (i). ‘‘(I) whether the employment of H–2A or for the work days that have elapsed from the ‘‘(D) DEDUCTIONS.—The employer shall unauthorized aliens in the United States ag- first work day after the arrival of the worker make only those deductions from the work- ricultural workforce has depressed United to the termination of employment. In such er’s wages that are authorized by law or are States farm worker wages below the levels cases, the employer will make efforts to reasonable and customary in the occupation that would otherwise have prevailed if alien transfer the United States worker to other and area of employment. The job offer shall farm workers had not been employed in the comparable employment acceptable to the specify all deductions not required by law United States; worker. If such transfer is not effected, the which the employer will make from the ‘‘(II) whether an adverse effect wage rate is employer shall provide the return transpor- worker’s wages. necessary to prevent wages of United States tation required in paragraph (2)(D). ‘‘(E) FREQUENCY OF PAY.—The employer farm workers in occupations in which H–2A ‘‘(5) MOTOR VEHICLE SAFETY.— shall pay the worker not less frequently than workers are employed from falling below the twice monthly, or in accordance with the wage levels that would have prevailed in the ‘‘(A) MODE OF TRANSPORTATION SUBJECT TO prevailing practice in the area of employ- absence of the employment of H–2A workers COVERAGE.— ment, whichever is more frequent. in those occupations; ‘‘(i) IN GENERAL.—Except as provided in ‘‘(F) HOURS AND EARNINGS STATEMENTS.— ‘‘(III) whether alternative wage standards, clauses (iii) and (iv), this subsection applies The employer shall furnish to the worker, on such as a prevailing wage standard, would be to any H–2A employer that uses or causes to or before each payday, in one or more writ- sufficient to prevent wages in occupations in be used any vehicle to transport an H–2A ten statements the following information: which H–2A workers are employed from fall- worker within the United States. ‘‘(i) The worker’s total earnings for the ing below the wage level that would have ‘‘(ii) USES OR CAUSES TO BE USED.—(I) In pay period. prevailed in the absence of H–2A employ- this subsection, the term ‘uses or causes to ‘‘(ii) The worker’s hourly rate of pay, piece ment; be used’ applies only to transportation pro- rate of pay, or both. ‘‘(IV) whether any changes are warranted vided by an H–2A employer to an H–2A work- ‘‘(iii) The hours of employment which have in the current methodologies for calculating er, or by a farm labor contractor to an H–2A been offered to the worker (broken out by the adverse effect wage rate and the pre- worker at the request or direction of an H–2A hours offered in accordance with and over vailing wage rate; and employer. and above the three-quarters guarantee de- ‘‘(V) recommendations for future wage pro- ‘‘(II) The term ‘uses or causes to be used’ scribed in paragraph (4)). tection under this section. does not apply to— ‘‘(iv) The hours actually worked by the ‘‘(iv) FINAL REPORT.—Not later than June ‘‘(aa) transportation provided, or transpor- worker. 1, 2007, the Commission shall submit a report tation arrangements made, by an H–2A ‘‘(v) An itemization of the deductions made to the Congress setting forth the findings of worker himself or herself, unless the em- from the worker’s wages. the study conducted under clause (iii). ployer specifically requested or arranged ‘‘(vi) If piece rates of pay are used, the ‘‘(v) TERMINATION DATE.—The Commission such transportation; or units produced daily. shall terminate upon submitting its final re- ‘‘(bb) carpooling arrangements made by H– ‘‘(G) REPORT ON WAGE PROTECTIONS.—Not port. 2A workers themselves, using one of the later than June 1, 2007, the Resources, Com- ‘‘(4) GUARANTEE OF EMPLOYMENT.— workers’ own vehicles, unless specifically re- munity and Economic Development Divi- ‘‘(A) OFFER TO WORKER.—The employer quested by the employer directly or through sion, and the Health, Education and Human shall guarantee to offer the worker employ- a farm labor contractor. Services Division, of the General Accounting ment for the hourly equivalent of at least ‘‘(III) The mere providing of a job offer by Office shall jointly prepare and transmit to three-fourths of the work days of the total an employer to an H–2A worker that causes the Secretary of Labor and to the Commit- period of employment, beginning with the the worker to travel to or from the place of tees on the Judiciary of the House of Rep- first work day after the arrival of the worker resentatives and the Senate a report which at the place of employment and ending on employment, or the payment or reimburse- shall address— the expiration date specified in the job offer. ment of the transportation costs of an H–2A ‘‘(i) whether the employment of H–2A or For purposes of this subparagraph, the hour- worker by an H–2A employer, shall not con- unauthorized aliens in the United States ag- ly equivalent means the number of hours in stitute an arrangement of, or participation ricultural work force has depressed United the work days as stated in the job offer and in, such transportation. States farm worker wages below the levels shall exclude the worker’s Sabbath and Fed- ‘‘(iii) AGRICULTURAL MACHINERY AND EQUIP- that would otherwise have prevailed if alien eral holidays. If the employer affords the MENT EXCLUDED.—This subsection does not farm workers had not been employed in the United States or H–2A worker less employ- apply to the transportation of an H–2A work- United States; ment than that required under this para- er on a tractor, combine, harvester, picker, ‘‘(ii) whether an adverse effect wage rate is graph, the employer shall pay such worker or other similar machinery or equipment necessary to prevent wages of United States the amount which the worker would have while such worker is actually engaged in the farm workers in occupations in which H–2A earned had the worker, in fact, worked for planting, cultivating, or harvesting of agri- workers are employed from falling below the the guaranteed number of hours. cultural commodities or the care of live- wage levels that would have prevailed in the ‘‘(B) FAILURE TO WORK.—Any hours which stock or poultry or engaged in transpor- absence of the employment of H–2A workers the worker fails to work, up to a maximum tation incidental thereto. in those occupations; of the number of hours specified in the job ‘‘(iv) COMMON CARRIERS EXCLUDED.—This ‘‘(iii) whether alternative wage standards, offer for a work day, when the worker has subsection does not apply to common carrier such as a prevailing wage standard, would be been offered an opportunity to do so, and all motor vehicle transportation in which the

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provider holds itself out to the general pub- United States of an H–2A worker may file a ‘‘(e) ABANDONMENT OF EMPLOYMENT.— lic as engaging in the transportation of pas- petition with the Secretary. The petition ‘‘(1) IN GENERAL.—An alien admitted or sengers for hire and holds a valid certifi- shall be accompanied by an accepted and provided status under section cation of authorization for such purposes currently valid certification provided by the 101(a)(15)(H)(ii)(a) who abandons the employ- from an appropriate Federal, State, or local Secretary of Labor under section 218(e)(2)(B) ment which was the basis for such admission agency. covering the petitioner. or status shall be considered to have failed ‘‘(B) APPLICABILITY OF STANDARDS, LICENS- ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC- to maintain nonimmigrant status as an H–2A ING, AND INSURANCE REQUIREMENTS.— RETARY.—The Secretary shall establish a worker and shall depart the United States or ‘‘(i) IN GENERAL.—When using, or causing procedure for expedited adjudication of peti- be subject to removal under section to be used, any vehicle for the purpose of tions filed under subsection (a) and within 7 237(a)(1)(C)(i). providing transportation to which this sub- working days shall, by fax, cable, or other ‘‘(2) REPORT BY EMPLOYER.—The employer paragraph applies, each employer shall— means assuring expedited delivery, transmit (or association acting as agent for the em- ‘‘(I) ensure that each such vehicle con- a copy of notice of action on the petition to ployer) shall notify the Secretary within 7 forms to the standards prescribed by the Sec- the petitioner and, in the case of approved days of an H–2A worker’s having pre- retary of Labor under section 401(b) of the petitions, to the appropriate immigration of- maturely abandoned employment. ficer at the port of entry or United States Migrant and Seasonal Agricultural Worker ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec- consulate (as the case may be) where the pe- Protection Act (29 U.S.C. 1841(b)) and other retary shall promptly remove from the titioner has indicated that the alien bene- applicable Federal and State safety stand- United States any H–2A worker who violates ficiary (or beneficiaries) will apply for a visa ards; any term or condition of the worker’s non- or admission to the United States. ‘‘(II) ensure that each driver has a valid ‘‘(c) CRITERIA FOR ADMISSIBILITY.— immigrant status. and appropriate license, as provided by State ‘‘(1) IN GENERAL.—An H–2A worker shall be ‘‘(4) VOLUNTARY TERMINATION.—Notwith- law, to operate the vehicle; and considered admissible to the United States if standing paragraph (1), an alien may volun- ‘‘(III) have an insurance policy or a liabil- the alien is otherwise admissible under this tarily terminate his or her employment if ity bond that is in effect which insures the section, section 218, and section 218A, and the alien promptly departs the United States employer against liability for damage to per- the alien is not ineligible under paragraph upon termination of such employment. sons or property arising from the ownership, (2). ‘‘(f) REPLACEMENT OF ALIEN.— operation, or causing to be operated, of any ‘‘(2) DISQUALIFICATION.—An alien shall be ‘‘(1) IN GENERAL.—Upon presentation of the vehicle used to transport any H–2A worker. considered inadmissible to the United States notice to the Secretary required by sub- ‘‘(ii) AMOUNT OF INSURANCE REQUIRED.—The and ineligible for nonimmigrant status under section (e)(2), the Secretary of State shall level of insurance required shall be deter- section 101(a)(15)(H)(ii)(a) if the alien has, at promptly issue a visa to, and the Secretary mined by the Secretary of Labor pursuant to any time during the past 5 years— shall admit into the United States, an eligi- regulations to be issued under this sub- ‘‘(A) violated a material provision of this ble alien designated by the employer to re- section. section, including the requirement to place an H–2A worker— ‘‘(iii) EFFECT OF WORKERS’ COMPENSATION promptly depart the United States when the ‘‘(A) who abandons or prematurely termi- COVERAGE.—If the employer of any H–2A alien’s authorized period of admission under nates employment; or worker provides workers’ compensation cov- this section has expired; or ‘‘(B) whose employment is terminated erage for such worker in the case of bodily ‘‘(B) otherwise violated a term or condition after a United States worker is employed injury or death as provided by State law, the of admission into the United States as a non- pursuant to section 218(b)(2)(H)(iii), if the following adjustments in the requirements of immigrant, including overstaying the period United States worker voluntarily departs be- subparagraph (B)(i)(III) relating to having an of authorized admission as such a non- fore the end of the period of intended em- insurance policy or liability bond apply: immigrant. ployment or if the employment termination ‘‘(I) No insurance policy or liability bond ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW- is for a lawful job-related reason. shall be required of the employer, if such FUL PRESENCE.— ‘‘(2) CONSTRUCTION.—Nothing in this sub- workers are transported only under cir- ‘‘(A) IN GENERAL.—An alien who has not section is intended to limit any preference cumstances for which there is coverage previously been admitted into the United required to be accorded United States work- under such State law. States pursuant to this section, and who is ers under any other provision of this Act. ‘‘(II) An insurance policy or liability bond otherwise eligible for admission in accord- ‘‘(g) IDENTIFICATION DOCUMENT.— shall be required of the employer for cir- ance with paragraphs (1) and (2), shall not be ‘‘(1) IN GENERAL.—Each alien authorized to cumstances under which coverage for the deemed inadmissible by virtue of section be admitted under section 101(a)(15)(H)(ii)(a) transportation of such workers is not pro- 212(a)(9)(B). If an alien described in the pre- shall be provided an identification and em- vided under such State law. ceding sentence is present in the United ployment eligibility document to verify eli- ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An States, the alien may apply from abroad for gibility for employment in the United States employer shall assure that, except as other- H–2A status, but may not be granted that and verify such person’s proper identity. wise provided in this section, the employer status in the United States. ‘‘(2) REQUIREMENTS.—No identification and will comply with all applicable Federal, ‘‘(B) MAINTENANCE OF WAIVER.—An alien employment eligibility document may be State, and local labor laws, including laws provided an initial waiver of ineligibility issued which does not meet the following re- affecting migrant and seasonal agricultural pursuant to subparagraph (A) shall remain quirements: workers, with respect to all United States eligible for such waiver unless the alien vio- ‘‘(A) The document shall be capable of reli- workers and alien workers employed by the lates the terms of this section or again be- ably determining whether— employer, except that a violation of this as- comes ineligible under section 212(a)(9)(B) by ‘‘(i) the individual with the identification surance shall not constitute a violation of virtue of unlawful presence in the United and employment eligibility document whose the Migrant and Seasonal Agricultural States after the date of the initial waiver of eligibility is being verified is in fact eligible Worker Protection Act (29 U.S.C. 1801 et ineligibility pursuant to subparagraph (A). for employment; seq.). ‘‘(d) PERIOD OF ADMISSION.— ‘‘(ii) the individual whose eligibility is ‘‘(d) COPY OF JOB OFFER.—The employer ‘‘(1) IN GENERAL.—The alien shall be admit- being verified is claiming the identity of an- shall provide to the worker, not later than ted for the period of employment in the ap- other person; and the day the work commences, a copy of the plication certified by the Secretary of Labor ‘‘(iii) the individual whose eligibility is employer’s application and job offer de- pursuant to section 218(e)(2)(B), not to ex- being verified is authorized to be admitted scribed in section 218(a), or, if the employer ceed 10 months, supplemented by a period of into, and employed in, the United States as will require the worker to enter into a sepa- up to 1 week before the beginning of the pe- an H–2A worker. rate employment contract covering the em- riod of employment (to be granted for the ‘‘(B) The document shall be in a form that ployment in question, such separate employ- purpose of travel to the work site) and a pe- is resistant to counterfeiting and to tam- ment contract. riod of 14 days following the period of em- pering. ‘‘(e) RANGE PRODUCTION OF LIVESTOCK.— ployment (to be granted for the purpose of ‘‘(C) The document shall— Nothing in this section or sections 218 or departure or extension based on a subsequent ‘‘(i) be compatible with other databases of 218B shall preclude the Secretary of Labor offer of employment), except that— the Secretary for the purpose of excluding and the Secretary from continuing to apply ‘‘(A) the alien is not authorized to be em- aliens from benefits for which they are not special procedures and requirements to the ployed during such 14-day period except in eligible and determining whether the alien is admission and employment of aliens in occu- the employment for which the alien was pre- unlawfully present in the United States; and pations involving the range production of viously authorized; and ‘‘(ii) be compatible with law enforcement livestock. ‘‘(B) the total period of employment, in- databases to determine if the alien has been ‘‘PROCEDURE FOR ADMISSION AND EXTENSION OF cluding such 14-day period, may not exceed convicted of criminal offenses. STAY OF H–2A WORKERS 10 months. ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN ‘‘SEC. 218B. (a) PETITIONING FOR ADMIS- ‘‘(2) CONSTRUCTION.—Nothing in this sub- THE UNITED STATES.— SION.—An employer, or an association acting section shall limit the authority of the Sec- ‘‘(1) EXTENSION OF STAY.—If an employer as an agent or joint employer for its mem- retary to extend the stay of the alien under seeks approval to employ an H–2A alien who bers, that seeks the admission into the any other provision of this Act. is lawfully present in the United States, the

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.052 S07PT1 S7768 CONGRESSIONAL RECORD — SENATE July 7, 2004 petition filed by the employer or an associa- 101(a)(15)(H)(ii)(a) for employment as sheep- edies (including civil money penalties in an tion pursuant to subsection (a), shall request herders— amount not to exceed $5,000 per violation) as an extension of the alien’s stay and a change ‘‘(1) may be admitted for a period of 12 the Secretary of Labor determines to be ap- in the alien’s employment. months; propriate; ‘‘(2) LIMITATION ON FILING A PETITION FOR ‘‘(2) may be extended for a continuous pe- ‘‘(ii) the Secretary of Labor may seek ap- EXTENSION OF STAY.—A petition may not be riod of up to 3 years; and propriate legal or equitable relief to effec- filed for an extension of an alien’s stay— ‘‘(3) shall not be subject to the require- tuate the purposes of subsection (d)(1); and ‘‘(A) for a period of more than 10 months; ments of subsection (h)(5) relating to periods ‘‘(iii) the Secretary may disqualify the em- or of absence from the United States. ployer from the employment of H–2A work- ‘‘(B) to a date that is more than 3 years ‘‘WORKER PROTECTIONS AND LABOR STANDARDS ers for a period of 2 years. after the date of the alien’s last admission to ENFORCEMENT ‘‘(E) DISPLACEMENT OF UNITED STATES the United States under this section. ‘‘SEC. 218C. (a) ENFORCEMENT AUTHORITY.— WORKERS.—If the Secretary of Labor finds, ‘‘(3) WORK AUTHORIZATION UPON FILING A PE- ‘‘(1) INVESTIGATION OF COMPLAINTS.— after notice and opportunity for hearing, a TITION FOR EXTENSION OF STAY.—In the case ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY willful failure to meet a condition of section of an alien who is lawfully present in the COMPLAINTS.—The Secretary of Labor shall 218(b) or a willful misrepresentation of a ma- United States, the alien is authorized to establish a process for the receipt, investiga- terial fact in an application under section commence the employment described in a tion, and disposition of complaints respect- 218(a), in the course of which failure or mis- petition under paragraph (1) on the date on ing a petitioner’s failure to meet a condition representation the employer displaced a which the petition is filed. For purposes of specified in section 218(b), or an employer’s United States worker employed by the em- the preceding sentence, the term ‘file’ means misrepresentation of material facts in an ap- ployer during the period of employment on sending the petition by certified mail via the plication under section 218(a). Complaints the employer’s application under section United States Postal Service, return receipt may be filed by any aggrieved person or or- 218(a) or during the period of 30 days pre- requested, or delivered by guaranteed com- ganization (including bargaining representa- ceding such period of employment— mercial delivery which will provide the em- tives). No investigation or hearing shall be ‘‘(i) the Secretary of Labor shall notify the ployer with a documented acknowledgment Secretary of such finding and may, in addi- of the date of receipt of the petition. The em- conducted on a complaint concerning such a failure or misrepresentation unless the com- tion, impose such other administrative rem- ployer shall provide a copy of the employer’s edies (including civil money penalties in an petition to the alien, who shall keep the pe- plaint was filed not later than 12 months after the date of the failure, or misrepresen- amount not to exceed $15,000 per violation) tition with the alien’s identification and em- as the Secretary of Labor determines to be ployment eligibility document as evidence tation, respectively. The Secretary of Labor shall conduct an investigation under this appropriate; and that the petition has been filed and that the ‘‘(ii) the Secretary may disqualify the em- alien is authorized to work in the United subparagraph if there is reasonable cause to believe that such a failure or misrepresenta- ployer from the employment of H–2A work- States. Upon approval of a petition for an ex- ers for a period of 3 years. tension of stay or change in the alien’s au- tion has occurred. ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN- thorized employment, the Secretary shall ‘‘(B) DETERMINATION ON COMPLAINT.—Under such process, the Secretary of Labor shall ALTIES.—The Secretary of Labor shall not provide a new or updated employment eligi- impose total civil money penalties with re- bility document to the alien indicating the provide, within 30 days after the date such a spect to an application under section 218(a) new validity date, after which the alien is complaint is filed, for a determination as to in excess of $90,000. not required to retain a copy of the petition. whether or not a reasonable basis exists to ‘‘(G) FAILURES TO PAY WAGES OR REQUIRED ‘‘(4) LIMITATION ON EMPLOYMENT AUTHOR- make a finding described in subparagraph BENEFITS.—If the Secretary of Labor finds, IZATION OF ALIENS WITHOUT VALID IDENTIFICA- (C), (D), (E), or (H). If the Secretary of Labor after notice and opportunity for a hearing, TION AND EMPLOYMENT ELIGIBILITY DOCU- determines that such a reasonable basis ex- that the employer has failed to pay the MENT.—An expired identification and em- ists, the Secretary of Labor shall provide for wages, or provide the housing allowance, ployment eligibility document, together notice of such determination to the inter- transportation, subsistence reimbursement, with a copy of a petition for extension of ested parties and an opportunity for a hear- or guarantee of employment, required under stay or change in the alien’s authorized em- ing on the complaint, in accordance with section 218A(b), the Secretary of Labor shall ployment that complies with the require- section 556 of title 5, United States Code, assess payment of back wages, or other re- ments of paragraph (1), shall constitute a within 60 days after the date of the deter- quired benefits, due any United States work- valid work authorization document for a pe- mination. If such a hearing is requested, the er or H–2A worker employed by the employer riod of not more than 60 days beginning on Secretary of Labor shall make a finding con- in the specific employment in question. The the date on which such petition is filed, after cerning the matter not later than 60 days back wages or other required benefits under which time only a currently valid identifica- after the date of the hearing. In the case of section 218A(b) shall be equal to the dif- tion and employment eligibility document similar complaints respecting the same ap- ference between the amount that should shall be acceptable. plicant, the Secretary of Labor may consoli- have been paid and the amount that actually ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN date the hearings under this subparagraph was paid to such worker. STATUS.— on such complaints. ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in ‘‘(A) MAXIMUM PERIOD.—The maximum ‘‘(C) FAILURES TO MEET CONDITIONS.—If the this section shall be construed as limiting continuous period of authorized status as an Secretary of Labor finds, after notice and op- the authority of the Secretary of Labor to H–2A worker (including any extensions) is 3 portunity for a hearing, a failure to meet a conduct any compliance investigation under years. condition of paragraph (1)(A), (1)(B), (1)(D), any other labor law, including any law af- ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE THE (1)(F), (2)(A), (2)(B), or (2)(G) of section fecting migrant and seasonal agricultural UNITED STATES.— 218(b), a substantial failure to meet a condi- workers, or, in the absence of a complaint ‘‘(i) IN GENERAL.—Subject to clause (ii), in tion of paragraph (1)(C), (1)(E), (2)(C), (2)(D), under this section, under section 218 or 218A. the case of an alien outside the United (2)(E), or (2)(H) of section 218(b), or a mate- States whose period of authorized status as rial misrepresentation of fact in an applica- ‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE an H–2A worker (including any extensions) tion under section 218(a)— RIGHT OF ACTION.—H–2A workers may en- has expired, the alien may not again apply ‘‘(i) the Secretary of Labor shall notify the force the following rights through the pri- for admission to the United States as an H– Secretary of such finding and may, in addi- vate right of action provided in subsection 2A worker unless the alien has remained out- tion, impose such other administrative rem- (c), and no other right of action shall exist side the United States for a continuous pe- edies (including civil money penalties in an under Federal or State law to enforce such riod equal to at least 1⁄5 the duration of the amount not to exceed $1,000 per violation) as rights: alien’s previous period of authorized status the Secretary of Labor determines to be ap- ‘‘(1) The providing of housing or a housing as an H–2A worker (including any exten- propriate; and allowance as required under section sions). ‘‘(ii) the Secretary may disqualify the em- 218A(b)(1). ‘‘(ii) EXCEPTION.—Clause (i) shall not apply ployer from the employment of aliens de- ‘‘(2) The reimbursement of transportation in the case of an alien if the alien’s period of scribed in section 101(a)(15)(H)(ii)(a) for a pe- as required under section 218A(b)(2). authorized status as an H–2A worker (includ- riod of 1 year. ‘‘(3) The payment of wages required under ing any extensions) was for a period of not ‘‘(D) WILLFUL FAILURES AND WILLFUL MIS- section 218A(b)(3) when due. more than 10 months and such alien has been REPRESENTATIONS.—If the Secretary of Labor ‘‘(4) The benefits and material terms and outside the United States for at least 2 finds, after notice and opportunity for hear- conditions of employment expressly provided months during the 12 months preceding the ing, a willful failure to meet a condition of in the job offer described in section 218(a)(2), date the alien again is applying for admis- section 218(b), a willful misrepresentation of not including the assurance to comply with sion to the United States as an H–2A worker. a material fact in an application under sec- other Federal, State, and local labor laws de- ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED tion 218(a), or a violation of subsection scribed in section 218A(c), compliance with AS SHEEPHERDERS.—Notwithstanding any (d)(1)— which shall be governed by the provisions of other provision of the Agricultural Job Op- ‘‘(i) the Secretary of Labor shall notify the such laws. portunity, Benefits, and Security Act of 2004, Secretary of such finding and may, in addi- ‘‘(5) The guarantee of employment required aliens admitted under section tion, impose such other administrative rem- under section 218A(b)(4).

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00080 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.052 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7769 ‘‘(6) The motor vehicle safety requirements may not be construed to prohibit agreements employee cooperates or seeks to cooperate in under section 218A(b)(5). to settle private disputes or litigation. an investigation or other proceeding con- ‘‘(7) The prohibition of discrimination ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI- cerning the employer’s compliance with the under subsection (d)(2). TABLE RELIEF.— requirements of section 218 or 218A or any ‘‘(c) PRIVATE RIGHT OF ACTION.— ‘‘(A) If the court finds that the respondent rule or regulation pertaining to either of ‘‘(1) MEDIATION.—Upon the filing of a com- has intentionally violated any of the rights such sections. plaint by an H–2A worker aggrieved by a vio- enforceable under subsection (b), it shall ‘‘(2) DISCRIMINATION AGAINST H–2A WORK- lation of rights enforceable under subsection award actual damages, if any, or equitable ERS.—It is a violation of this subsection for (b), and within 60 days of the filing of proof relief. any person who has filed an application of service of the complaint, a party to the ‘‘(B) Any civil action brought under this under section 218(a), to intimidate, threaten, action may file a request with the Federal section shall be subject to appeal as provided restrain, coerce, blacklist, discharge, or in Mediation and Conciliation Service to assist in chapter 83 of title 28, United States Code. any manner discriminate against an H–2A the parties in reaching a satisfactory resolu- ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX- employee because such worker has, with just tion of all issues involving all parties to the CLUSIVE REMEDY.— cause, filed a complaint with the Secretary dispute. Upon a filing of such request and ‘‘(A) Notwithstanding any other provision of Labor regarding a denial of the rights enu- giving of notice to the parties, the parties of this section, where a State’s workers’ merated and enforceable under subsection (b) shall attempt mediation within the period compensation law is applicable and coverage or instituted, or caused to be instituted, a specified in subparagraph (B). is provided for an H–2A worker, the workers’ private right of action under subsection (c) ‘‘(A) MEDIATION SERVICES.—The Federal compensation benefits shall be the exclusive regarding the denial of the rights enumer- Mediation and Conciliation Service shall be remedy for the loss of such worker under ated under subsection (b), or has testified or available to assist in resolving disputes aris- this section in the case of bodily injury or is about to testify in any court proceeding ing under subsection (b) between H–2A work- death in accordance with such State’s work- brought under subsection (c). ers and agricultural employers without ers’ compensation law. ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO- charge to the parties. ‘‘(B) The exclusive remedy prescribed in PRIATE EMPLOYMENT.—The Secretary of ‘‘(B) 90-DAY LIMIT.—The Federal Mediation subparagraph (A) precludes the recovery Labor and the Secretary shall establish a and Conciliation Service may conduct medi- under paragraph (6) of actual damages for process under which an H–2A worker who ation or other non-binding dispute resolution loss from an injury or death but does not files a complaint regarding a violation of activities for a period not to exceed 90 days preclude other equitable relief, except that subsection (d) and is otherwise eligible to re- beginning on the date on which the Federal such relief shall not include back or front main and work in the United States may be Mediation and Conciliation Service receives pay or in any manner, directly or indirectly, allowed to seek other appropriate employ- the request for assistance unless the parties expand or otherwise alter or affect— ment in the United States for a period not to agree to an extension of this period of time. ‘‘(i) a recovery under a State workers’ exceed the maximum period of stay author- ‘‘(C) AUTHORIZATION.—There is hereby au- compensation law; or ized for such nonimmigrant classification. thorized to be appropriated annually not to ‘‘(ii) rights conferred under a State work- ‘‘(f) ROLE OF ASSOCIATIONS.— exceed $500,000 to the Federal Mediation and ers’ compensation law. ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA- Conciliation Service to carry out this sec- ‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.— TION.—An employer on whose behalf an ap- tion, provided that, any contrary provision If it is determined under a State workers’ plication is filed by an association acting as of law notwithstanding, the Director of the compensation law that the workers’ com- its agent is fully responsible for such appli- Federal Mediation and Conciliation Service pensation law is not applicable to a claim for cation, and for complying with the terms is authorized to conduct the mediation or bodily injury or death of an H–2A worker, and conditions of sections 218 and 218A, as other dispute resolution activities from any the statute of limitations for bringing an ac- though the employer had filed the applica- other appropriated funds available to the Di- tion for actual damages for such injury or tion itself. If such an employer is deter- rector and to reimburse such appropriated death under subsection (c) shall be tolled for mined, under this section, to have com- funds when the funds are appropriated pursu- the period during which the claim for such mitted a violation, the penalty for such vio- ant to this authorization, such reimburse- injury or death under such State workers’ lation shall apply only to that member of ment to be credited to appropriations cur- compensation law was pending. The statute the association unless the Secretary of rently available at the time of receipt there- of limitations for an action for actual dam- Labor determines that the association or of. ages or other equitable relief arising out of other member participated in, had knowl- ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS- the same transaction or occurrence as the edge, or reason to know, of the violation, in TRICT COURT BY AGGRIEVED PERSON.—An H–2A injury or death of the H–2A worker shall be which case the penalty shall be invoked worker aggrieved by a violation of rights en- tolled for the period during which the claim against the association or other association forceable under subsection (b) by an agricul- for such injury or death was pending under member as well. tural employer or other person may file suit the State workers’ compensation law. ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING in any district court of the United States ‘‘(9) PRECLUSIVE EFFECT.—Any settlement AS AN EMPLOYER.—If an association filing an having jurisdiction of the parties, without by an H–2A worker and H–2A employer application as a sole or joint employer is de- regard to the amount in controversy, with- reached through the mediation process re- termined to have committed a violation out regard to the citizenship of the parties, quired under subsection (c)(1) shall preclude under this section, the penalty for such vio- and without regard to the exhaustion of any any right of action arising out of the same lation shall apply only to the association un- alternative administrative remedies under facts between the parties in any Federal or less the Secretary of Labor determines that this Act, not later than 3 years after the date State court or administrative proceeding, an association member or members partici- the violation occurs. unless specifically provided otherwise in the pated in or had knowledge, or reason to ‘‘(3) ELECTION.—An H–2A worker who has settlement agreement. know of the violation, in which case the pen- filed an administrative complaint with the ‘‘(10) SETTLEMENTS.—Any settlement by alty shall be invoked against the association Secretary of Labor may not maintain a civil the Secretary of Labor with an H–2A em- member or members as well. action under paragraph (2) unless a com- ployer on behalf of an H–2A worker of a com- plaint based on the same violation filed with plaint filed with the Secretary of Labor ‘‘DEFINITIONS the Secretary of Labor under subsection under this section or any finding by the Sec- ‘‘SEC. 218D. For purposes of sections 218 (a)(1) is withdrawn prior to the filing of such retary of Labor under subsection (a)(1)(B) through 218C: action, in which case the rights and remedies shall preclude any right of action arising out ‘‘(1) AGRICULTURAL EMPLOYMENT.—The available under this subsection shall be ex- of the same facts between the parties under term ‘agricultural employment’ means any clusive. any Federal or State court or administrative service or activity that is considered to be ‘‘(4) PREEMPTION OF STATE CONTRACT proceeding, unless specifically provided oth- agricultural under section 3(f) of the Fair RIGHTS.—Nothing in this Act shall be con- erwise in the settlement agreement. Labor Standards Act of 1938 (29 U.S.C. 203(f)) strued to diminish the rights and remedies of ‘‘(d) DISCRIMINATION PROHIBITED.— or agricultural labor under section 3121(g) of an H–2A worker under any other Federal or ‘‘(1) IN GENERAL.—It is a violation of this the Internal Revenue Code of 1986 (26 U.S.C. State law or regulation or under any collec- subsection for any person who has filed an 3121(g)). For purposes of this paragraph, agri- tive bargaining agreement, except that no application under section 218(a), to intimi- cultural employment includes employment court or administrative action shall be avail- date, threaten, restrain, coerce, blacklist, under section 101(a)(15)(H)(ii)(a). able under any State contract law to enforce discharge, or in any other manner discrimi- ‘‘(2) BONA FIDE UNION.—The term ‘bona fide the rights created by this Act. nate against an employee (which term, for union’ means any organization in which em- ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree- purposes of this subsection, includes a ployees participate and which exists for the ments by employees purporting to waive or former employee and an applicant for em- purpose of dealing with employers con- modify their rights under this Act shall be ployment) because the employee has dis- cerning grievances, labor disputes, wages, void as contrary to public policy, except that closed information to the employer, or to rates of pay, hours of employment, or other a waiver or modification of the rights or ob- any other person, that the employee reason- terms and conditions of work for agricul- ligations in favor of the Secretary of Labor ably believes evidences a violation of section tural employees. Such term does not include shall be valid for purposes of the enforce- 218 or 218A or any rule or regulation per- an organization formed, created, adminis- ment of this Act. The preceding sentence taining to section 218 or 218A, or because the tered, supported, dominated, financed, or

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00081 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.052 S07PT1 S7770 CONGRESSIONAL RECORD — SENATE July 7, 2004

controlled by an employer or employer asso- (b) TABLE OF CONTENTS.—The table of con- section 221, shall take effect on the effective ciation or its agents or representatives. tents of the Immigration and Nationality date of section 221 and shall be issued not ‘‘(3) DISPLACE.—In the case of an applica- Act (8 U.S.C. 1101 et seq.) is amended by later than 1 year after the date of enactment tion with respect to 1 or more H–2A workers striking the item relating to section 218 and of this Act. by an employer, the employer is considered inserting the following: SEC. 233. EFFECTIVE DATE. to ‘displace’ a United States worker from a ‘‘Sec. 218. H–2A employer applications. (a) IN GENERAL.—Except as otherwise pro- job if the employer lays off the worker from ‘‘Sec. 218A. H–2A employment requirements. vided, sections 221 and 231 shall take effect 1 a job for which the H–2A worker or workers ‘‘Sec. 218B. Procedure for admission and ex- year after the date of enactment of this Act. is or are sought. tension of stay of H–2A work- (b) REPORT.—Not later than 180 days after ‘‘(4) ELIGIBLE.—The term ‘eligible’, when ers. the date of enactment of this Act, the Sec- used with respect to an individual, means an ‘‘Sec. 218C. Worker protections and labor retary shall prepare and submit to the appro- individual who is not an unauthorized alien standards enforcement. priate committees of the Congress a report (as defined in section 274A(h)(3)). ‘‘Sec. 218D. Definitions.’’. that describes the measures being taken and ‘‘(5) EMPLOYER.—The term ‘employer’ Subtitle C—Miscellaneous Provisions the progress made in implementing this means any person or entity, including any title. farm labor contractor and any agricultural SEC. 231. DETERMINATION AND USE OF USER FEES. association, that employs workers in agri- SA 3553. Mr. GRAHAM of South (a) SCHEDULE OF FEES.—The Secretary cultural employment. shall establish and periodically adjust a Carolina (for himself and Mr. PRYOR) ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em- schedule of fees for the employment of aliens submitted an amendment intended to ployer’ means an employer who seeks to hire be proposed by him to the bill S. 2062, 1 or more nonimmigrant aliens described in under this title, and a collection process for section 101(a)(15)(H)(ii)(a). such fees from employers participating in to amend the procedures that apply to the program provided under this title. Such ‘‘(7) H–2A WORKER.—The term ‘H–2A work- consideration of interstate class ac- er’ means a nonimmigrant described in sec- fees shall be the only fees chargeable to em- tions to assure fairer outcomes for tion 101(a)(15)(H)(ii)(a). ployers for services provided under this title. class members and defendants, and for (b) DETERMINATION OF SCHEDULE.— ‘‘(8) JOB OPPORTUNITY.—The term ‘job op- other purposes; which was ordered to (1) IN GENERAL.—The schedule under sub- portunity’ means a job opening for tem- lie on the table; as follows: porary full-time employment at a place in section (a) shall reflect a fee rate based on On page 14, line 12, strike the end quote the United States to which United States the number of job opportunities indicated in and period at the end and insert the fol- workers can be referred. the employer’s application under section 218 lowing: ‘‘(9) LAYS OFF.— of the Immigration and Nationality Act, as ‘‘(A) IN GENERAL.—The term ‘lays off’, with added by section 221 of this title, and suffi- ‘‘§ 1716. Filing documents under seal respect to a worker— cient to provide for the direct costs of pro- ‘‘(a) IN GENERAL.— ‘‘(i) means to cause the worker’s loss of viding services related to an employer’s au- ‘‘(1) APPLICATION.—In any class action, any employment, other than through a discharge thorization to employ eligible aliens pursu- party seeking to file documents under seal for inadequate performance, violation of ant to this title, to include the certification shall comply with this section. Any party workplace rules, cause, voluntary departure, of eligible employers, the issuance of docu- who fails to obtain prior approval as required voluntary retirement, contract impossibility mentation, and the admission of eligible under this section shall be denied any re- (as described in section 218A(b)(4)(D)), or aliens. quest or attempt to seal filed documents. temporary layoffs due to weather, markets, (2) PROCEDURE.— Nothing in this section limits the ability of or other temporary conditions; but (A) IN GENERAL.—In establishing and ad- the parties, by agreement, to restrict access ‘‘(ii) does not include any situation in justing such a schedule, the Secretary shall to documents which are not filed with the which the worker is offered, as an alter- comply with Federal cost accounting and fee court. native to such loss of employment, a similar setting standards. ‘‘(2) EXCEPTION.—This section shall not employment opportunity with the same em- (B) PUBLICATION AND COMMENT.—The Sec- apply with respect to any document which is ployer (or, in the case of a placement of a retary shall publish in the Federal Register required to be sealed by another applicable worker with another employer under section an initial fee schedule and associated collec- statute, rule, or court order. 218(b)(2)(E), with either employer described tion process and the cost data or estimates ‘‘(b) MEMORANDUM.— in such section) at equivalent or higher com- upon which such fee schedule is based, and ‘‘(1) IN GENERAL.—A party seeking to file pensation and benefits than the position any subsequent amendments thereto, pursu- documents under seal in a class action shall from which the employee was discharged, re- ant to which public comment shall be sought file and serve a motion to seal accompanied gardless of whether or not the employee ac- and a final rule issued. by a memorandum containing the informa- cepts the offer. (c) USE OF PROCEEDS.—Notwithstanding tion described under paragraph (2). ‘‘(B) STATUTORY CONSTRUCTION.—Nothing any other provision of law, all proceeds re- ‘‘(2) CONTENT.—A memorandum under this in this paragraph is intended to limit an em- sulting from the payment of the alien em- subsection shall— ployee’s rights under a collective bargaining ployment user fees shall be available with- ‘‘(A) identify, with specificity, the docu- agreement or other employment contract. out further appropriation and shall remain ments or portions of those documents for ‘‘(10) REGULATORY DROUGHT.—The term available without fiscal year limitation to which sealing is requested; ‘regulatory drought’ means a decision subse- reimburse the Secretary, the Secretary of ‘‘(B) state the reasons why sealing is nec- quent to the filing of the application under State, and the Secretary of Labor for the essary; section 218 by an entity not under the con- costs of carrying out sections 218 and 218B of ‘‘(C) explain (for each document or group of trol of the employer making such filing the Immigration and Nationality Act, as documents) why less drastic alternatives to which restricts the employer’s access to added by section 221 of this title, and the sealing will not afford adequate protection; water for irrigation purposes and reduces or provisions of this title. and limits the employer’s ability to produce an SEC. 232. REGULATIONS. ‘‘(D) address the factors governing sealing agricultural commodity, thereby reducing (a) REGULATIONS OF THE SECRETARY.—The of documents reflected in any controlling the need for labor. Secretary shall consult with the Secretary of case law. ‘‘(11) SEASONAL.—Labor is performed on a Labor and the Secretary of Agriculture on ‘‘(c) ATTACHMENTS TO MOTION TO SEAL.— ‘seasonal’ basis if— all regulations to implement the duties of ‘‘(1) INDEX.—A non-confidential descriptive (A) ordinarily, it pertains to or is of the the Secretary under this title. index of the documents at issue shall be at- kind exclusively performed at certain sea- (b) REGULATIONS OF THE SECRETARY OF tached to the motion to seal. sons or periods of the year; and STATE.—The Secretary of State shall consult ‘‘(2) CONFIDENTIAL INFORMATION.—A sepa- (B) from its nature, it may not be contin- with the Secretary, the Secretary of Labor, rately sealed attachment labeled ‘Confiden- uous or carried on throughout the year. and the Secretary of Agriculture on all regu- tial Information to be Submitted to Court in ‘‘(12) SECRETARY.—The term ‘Secretary’ lations to implement the duties of the Sec- Connection with Motion to Seal’ shall be means the Secretary of Homeland Security. retary of State under this title. submitted with the motion to seal. An at- ‘‘(13) TEMPORARY.—A worker is employed (c) REGULATIONS OF THE SECRETARY OF tachment under this paragraph shall contain on a ‘temporary’ basis where the employ- LABOR.—The Secretary of Labor shall con- the documents at issue for the in camera re- ment is intended not to exceed 10 months. sult with the Secretary of Agriculture and view by the court and shall not be filed. ‘‘(14) UNITED STATES WORKER.—The term the Secretary on all regulations to imple- ‘‘(d) DOCKET.—The docket of the court ‘United States worker’ means any worker, ment the duties of the Secretary of Labor shall reflect that the motion to seal and whether a United States citizen or national, under this title. memorandum were filed and were supported a lawfully admitted permanent resident (d) DEADLINE FOR ISSUANCE OF REGULA- by a sealed attachment submitted for in alien, or any other alien, who is authorized TIONS.—All regulations to implement the du- camera review. to work in the job opportunity within the ties of the Secretary, the Secretary of State, ‘‘(e) PUBLIC NOTICE.—The clerk shall pro- United States, except an alien admitted or and the Secretary of Labor created under vide public notice of the motion to seal in otherwise provided status under section sections 218, 218A, 218B, and 218C of the Im- the manner directed by the court. Absent di- 101(a)(15)(H)(ii)(a).’’. migration and Nationality Act, as added by rection to the contrary, public notice may be

VerDate May 21 2004 02:19 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.052 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7771 accomplished by docketing the motion in a The hearing will take place on Thurs- sumers can purchase pharmaceuticals manner that discloses its nature as a motion day, July 15, 2004, at 9 a.m., in Room over the Internet without a medical to seal.’’. 342 of the Dirksen Senate Office Build- prescription, the importation of phar- SA 3554. Mr. LAUTENBERG (for him- ing. For further information, please maceuticals into the United States, self and Mr. KENNEDY) submitted an contact Elise J. Bean, Staff Director and whether the pharmaceuticals from amendment intended to be proposed by and Chief Counsel to the Minority, of foreign sources are counterfeit, ex- him to the bill S. 2062, to amend the the Permanent Subcommittee on In- pired, unsafe, or illegitimate. In addi- procedures that apply to consideration vestigations, at 224–3721. tion, the Subcommittee hearings are of interstate class actions to assure SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS examining the extent to which U.S. fairer outcomes for class members and Mr. CRAIG. Mr. President, I would consumers can purchase dangerous and defendants, and for other purposes; like to announce for the information of often addictive controlled substances which was ordered to lie on the table; the Senate and the public that a hear- from Internet pharmacy websites and as follows: ing has been scheduled before the Sub- the procedures utilized by the Bureau At the end, add the following: committee on Public Lands and For- of Customs and Border Protection, the TITLE ll—MEDICARE TRUST FUND ests of the Committee on Energy and Drug Enforcement Administration, the REIMBURSEMENT Natural Resources. U.S. Postal Service, and the Food and The hearing will be held on Wednes- SECTION ll01. SHORT TITLE. Drug Administration, as well as the This Act may be cited as the ‘‘Medicare day, July 21, at 2:30 p.m. in Room SD– private sector to address these issues. Trust Fund Reimbursement Act of 2004’’. 366 of the Dirksen Senate Office Build- The Subcommittee hearing is sched- SEC. ll02. REPAYMENT TO THE MEDICARE ing. uled for Thursday, July 22, 2004, at 9 TRUST FUNDS OF AMOUNTS ILLE- The purpose of the hearing is to re- a.m., in Room 342 of the Dirksen Sen- GALLY DISBURSED FOR POLITICAL ceive testimony on the following bills: ate Office Building. For further infor- PURPOSES. S. 738, to designate certain public lands (a) IN GENERAL.—Notwithstanding any mation, please contact Raymond V. other provision of law, if the Comptroller in Humboldt, Del Norte, Mendocino, Shepherd, III, Staff Director and Chief General of the United States determines that Lake, Napa, and Yolo Counties in the Counsel to the Permanent Sub- the Centers for Medicare & Medicaid Serv- State of California as wilderness, to committee on Investigations, at 224– ices has violated the restriction on expend- designate certain segments of the 3721. ing appropriated funds for publicity or prop- Black Butte River in Mendocino Coun- f aganda purposes contained in the Consoli- ty, CA as a wild or scenic river, and for dated Appropriations Resolution of 2003, other purposes; S. 1614, to designate a AUTHORITY FOR COMMITTEES TO Pub. L. No. 108–7, Div. J, Tit. VI, § 626, 117 MEET Stat. 11, 470 (2003), the principal campaign portion of White Salmon River as a committee (as defined in section 301(5) of the component of the National Wild and COMMITTEE ON FINANCE Federal Election Campaign Act of 1971 (2 Scenic Rivers System; S. 2221, to au- Mr. HATCH. Mr. President, I ask U.S.C. 431(5))) of the President of the United thorize the Secretary of Agriculture to unanimous consent that the Com- States shall reimburse the Federal Govern- sell or exchange certain National For- mittee on Finance be authorized to ment for the amount expended in commit- est System land in the State of Oregon, meet during the session on Wednesday, ting such violation. and for other purposes; S. 2253, to per- (b) REIMBURSEMENT OF MEDICARE TRUST July 7, 2004, at 10 a.m., in 215 Dirksen FUNDS.—The amount reimbursed under sub- mit young adults to perform projects Senate Office Building, to consider the section (a) shall be credited to the Federal to prevent fire and suppress fires, and following nominations: J. Russell Hospital Insurance Trust Fund under section provide disaster relief on public land George, to be Inspector General for Tax 1817 of the Social Security Act (42 U.S.C. through a Healthy Forest Youth Con- Administration, Department of the 1395i) and the Federal Supplementary Med- servation Corps; S. 2334, to designate Treasury; Patrick P. O’Carroll, Jr., to ical Insurance Trust Fund under section 1841 certain National Forest System land in be Inspector General, Social Security of such Act (42 U.S.C. 1395t). the Commonwealth of Puerto Rico as (c) EFFECTIVE DATE.—This section shall Administration; Timothy Bitsberger, apply with respect to determinations made components of the National Wilderness to be Assistant Secretary of the Treas- by the Comptroller General on and after May Preservation System; and S. 2408, to ury, U.S. Department of the Treasury; 1, 2004. adjust the boundaries of the Helena, and, Paul Jones, to be Member of the f Lolo, and Beaverhead-Deerlodge Na- Internal Revenue Service Oversight tional Forests in the State of Montana. Board, U.S. Department of the Treas- NOTICES OF HEARINGS/MEETINGS Because of the limited time available ury. PERMANENT SUBCOMMITTEE ON INVESTIGATIONS for the hearing, witnesses may testify The PRESIDING OFFICER. Without Mr. COLEMAN. Mr. President, I by invitation only. However, those objection, it is so ordered. would like to announce for the infor- wishing to submit written testimony COMMITTEE ON GOVERNMENTAL AFFAIRS mation of the Senate and the public for the hearing record should send 2 Mr. HATCH. Mr. President, I ask that the Permanent Subcommittee on copies of their testimony to the Com- unanimous consent that the Com- Investigations of the Committee on mittee on Energy and Natural Re- mittee on Governmental Affairs be au- Governmental Affairs will hold a hear- sources, United States Senate, Wash- thorized to meet on Wednesday, July 7, ing entitled ‘‘Money Laundering and ington, DC 20510–6150. 2004, at 10 a.m. for a hearing titled ‘‘Ju- Foreign Corruption: Enforcement and For further information, please con- venile Detention Centers: Are They Effectiveness of the Patriot Act.’’ The tact Frank Gladics at 202–224–2878 or Warehousing Children With Mental Ill- Subcommittee hearing will examine Amy Millet at 202–224–8276. ness?’’ current enforcement of key provisions PERMANENT SUBCOMMITTEE ON INVESTIGATIONS The PRESIDING OFFICER. Without in the Patriot Act combating money Mr. COLEMAN. Mr. President, I objection, it is so ordered. laundering and foreign corruption, would like to announce for the infor- COMMITTEE ON THE JUDICIARY using a single case study involving mation of the Senate and the public Mr. HATCH. Mr. President, I ask Riggs Bank. The hearing will examine that the Permanent Subcommittee on unanimous consent that the Com- Riggs’ anti-money laundering program, Investigations of the Committee on mittee on the Judiciary be authorized administration of accounts associated Governmental Affairs will hold a sec- to meet to conduct a hearing on with senior foreign political figures ond hearing on the danger of pur- Wednesday, July 7, 2004, at 10 a.m. on and their family members, and inter- chasing pharmaceuticals over the ‘‘Judicial Nominations’’ in the Dirksen actions with its primary regulator, the Internet. The Subcommittee held a Senate Office Building Room 226. Wit- Office of the Comptroller of the Cur- hearing on June 17, 2004, on this issue ness list: rency (OCC). The hearing will also ex- and will hold a second day of hearings, Panel I: [Senators]. amine the OCC’s anti-money laun- entitled ‘‘Buyer Beware: The Danger of Panel II: Michael H. Schneider, Sr., dering oversight and enforcement ac- Purchasing Pharmaceuticals Over the to be United States District Judge for tions. In addition, the hearing will ex- Internet—Federal & Private Sector Re- the Eastern District of Texas. amine the activities of some oil compa- sponse.’’ The Subcommittee hearings The PRESIDING OFFICER. Without nies in Equatorial Guinea. are examining the extent to which con- objection, it is so ordered.

VerDate May 21 2004 04:41 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00083 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.058 S07PT1 S7772 CONGRESSIONAL RECORD — SENATE July 7, 2004 SELECT COMMITTEE ON INTELLIGENCE that the nomination of David M. Stone, During his time in the Senate, Sen- Mr. HATCH. Mr. President, I ask PN1526, be referred to the Commerce ator CAMPBELL has been a leader in the unanimous consent that the Select Committee for a period not to exceed 30 area of law enforcement and brings Committee on Intelligence be author- calendar days. I further ask unanimous with him invaluable experience. As a ized to meet during the session of the consent that if the nomination is not former deputy sheriff, he knows the Senate on July 7, 2004 at 2:30 p.m. to reported after that period, it be auto- difficulties and dangers law enforce- hold a closed business meeting. matically discharged and placed on the ment officers face due to the patch- The PRESIDING OFFICER. Without calendar. work of conceal-carry laws in State objection, it is so ordered. The PRESIDING OFFICER. Without and local jurisdictions. He and I have SUBCOMMITTEE ON THE CONSTITUTION, CIVIL objection, it is so ordered. worked together on several pieces of RIGHTS, AND PROPERTY RIGHTS f law enforcement legislation, such as Mr. HATCH. Mr. President, I ask the Bulletproof Vests Partnership MEASURE READ THE FIRST unanimous consent that the Com- Grant Acts of 1998, 2000 and 2003. It has TIME—S.J. RES. 40 mittee on the Judiciary Subcommittee been a privilege working with him on on the Constitution, Civil Rights and Mr. FRIST. Mr. President, I under- our bipartisan Law Enforcement Offi- Property Rights be authorized to meet stand that S.J. Res. 40 is at the desk, cers Safety Act. to conduct a hearing on ‘‘Examining and I ask for its first reading. Law enforcement officers are never U.S. Efforts to Combat Human Traf- The PRESIDING OFFICER. The ‘‘off-duty.’’ They are dedicated public ficking and Slavery’’ on Wednesday, clerk will read the bill for the first servants trained to uphold the law and July 7, 2004, at 2 p.m. in SD226. time. keep the peace. To enable law enforce- Witness List The assistant legislative clerk read ment officers nationwide to be pre- as follows: Panel I: The Honorable Michael T. pared to answer a call to duty no mat- Shelby, United States Attorney, A joint resolution (S.J. Res. 40) proposing ter where, when or in what form it an amendment to the Constitution of the comes, I am proud to join Senator Southern District of Texas, Houston, United States relating to marriage. TX; The Honorable Johnny K. Sutton, CAMPBELL and 69 other cosponsors, in- United States Attorney, Western Dis- Mr. FRIST. Mr. President, I now ask cluding Judiciary Chairman HATCH, trict of Texas, San Antonio, TX; Sister for its second reading, and in order to Democratic Leader DASCHLE, Assistant Mary Ellen Dougherty, United States place the joint resolution on the cal- Democratic Leader REID, Majority Conference of Catholic Bishops, Wash- endar under provisions of rule XIV, I Leader FRIST and Assistant Majority ington, DC; Joseph Mettimano, World object to further proceedings on this Leader MCCONNELL, on the Senate Vision, Washington, DC; Dr. Mohamed matter. version of the Law Enforcement Offi- Mattar, Co-Director, The Protection The PRESIDING OFFICER. Objec- cers Safety Act, S. 253, which was re- Project, The Paul H. Nitze School of tion is heard. The joint resolution will ported out of the Senate Judiciary Advanced International Studies, Johns receive its second reading on the next Committee in March 2003 by a vote of Hopkins University, Washington, DC; legislative day. 18 to 1. Both H.R. 218 and S. 253 will Charles Song, Coalition to Abolish f permit off-duty and retired law en- Slavery and Trafficking, Los Angeles, LAW ENFORCEMENT OFFICERS forcement officers to carry a firearm CA; Wendy Patten, Human Rights SAFETY ACT OF 2004 and be prepared to assist in dangerous Watch, Washington, DC. situations. The PRESIDING OFFICER. Without Mr. FRIST. Mr. President, I ask These bills are strongly supported by objection, it is so ordered. unanimous consent that the Senate the Fraternal Order of Police, FOP, the proceed to the consideration of Cal- f National Association of Police Organi- endar No. 599, H.R. 218. zations, NAPO, the Federal Law En- PRIVILEGES OF THE FLOOR The PRESIDING OFFICER. The forcement Officers Association, Mr. HARKIN. Mr. President, I ask clerk will report the bill by title. FLEOA, the International Brotherhood unanimous consent that Amanda Sam- The assistant legislative clerk read of Police Officers, IBPO, the Law En- uelson and Amanda Smith from my as follows: forcement Alliance of America, and the staff be granted the privileges of the A bill (H.R. 218) to amend title 18, United National Law Enforcement Council. floor for today’s session. States Code, to exempt qualified current and I was honored to work closely on this The PRESIDING OFFICER. Without former law enforcement officers from State measure with the former FOP national objection, it is so ordered. laws prohibiting the carrying of concealed president, Lieutenant Steve Young, handguns. Mr. KYL. Mr. President, I ask unani- whose death last year was a sad loss for mous consent that Ryan Newburn, an There being no objection, the Senate us all. Steve was dedicated to this leg- intern with the Senate Subcommittee proceeded to consider the bill. islation because he understood the im- on Terrorism, be granted the privilege Mr. LEAHY. Mr. President, I am portance of having law enforcement of- of the floor. pleased that the Senate is taking up ficers across the Nation armed and pre- The PRESIDING OFFICER. Without and passing today the Law Enforce- pared whenever and wherever threats objection, it is so ordered. ment Officers Safety Act, H.R. 218, to our public safety arise. I have con- Mr. DAYTON. Mr. President, I ask which was passed overwhelmingly by tinued my close work with the FOP unanimous consent that Jordan the House last month by voice vote. I and current national president, Major Dorfman from my staff be granted the have waited a long time to see this ac- Chuck Canterbury, to make this legis- privilege of the floor during debate on tion taken. lation law. S. 2062. I want to pay special thanks to Con- Community policing and the out- The PRESIDING OFFICER. Without gressman RANDY ‘‘DUKE’’ CUNNINGHAM, standing work of so many law enforce- objection, it is so ordered. the author of this bill, and my good ment officers play a vital role in our f friend Senator CAMPBELL, with whom I crime control efforts. Unfortunately, DEPARTMENT OF DEFENSE cosponsored the Senate companion bill, during the past few years the down- APPROPRIATIONS ACT, 2005 S. 253, for their leadership and for- ward trend in violent crime—specifi- On Thursday, June 24, 2004, the Sen- titude while negotiating this legisla- cally murder—ended and violent crime ate passed H.R. 4613, as follows: tion. Without their perseverance and rates have turned upward. The FBI has The bill, H.R. 4613 will be printed in commitment, passage of this bill would reported that while preliminary num- a future edition of the CONGRESSIONAL not have happened. In fact, Representa- bers show that violent crime overall RECORD. tive CUNNINGHAM has been tirelessly declined slightly in the first half of working for over a decade to push this f 2003, murders increased by 1.3 percent legislation, and I commend him for his compared with the year before. REFERRAL OF NOMINATION dedication to making our communities There are more than 740,000 sworn Mr. FRIST. Mr. President, as in exec- safer and providing better protection law enforcement officers currently utive session, I ask unanimous consent for our law enforcement personnel. serving in the United States. Since the

VerDate May 21 2004 04:41 Jul 08, 2004 Jkt 029060 PO 00000 Frm 00084 Fmt 4624 Sfmt 0634 E:\CR\FM\A07JY6.053 S07PT1 July 7, 2004 CONGRESSIONAL RECORD — SENATE S7773 first recorded police death in 1792, laws that prohibit the carrying of con- ORDERS FOR THURSDAY, JULY 8, there have been more than 17,200 law cealed firearms, he or she must have 2004 enforcement officers killed in the line retired in good standing; have been Mr. FRIST. I ask unanimous consent of duty. Over 1,700 law enforcement of- qualified by the agency to carry or use that when the Senate completes its ficers died in the line of duty over the a firearm; have been employed at least business today, it adjourn until 10 a.m. last decade, an average of 170 deaths fifteen years as a law enforcement offi- on Thursday, July 8. I further ask that per year. Roughly 5 percent of officers cer unless forced to retire due to a following the prayer and pledge, the who die are killed while taking law en- service-connected disability; have a morning hour be deemed expired, the forcement action in an off-duty capac- non-forfeitable right to retirement Journal of proceedings be approved to ity. On average, more than 62,000 law plan benefits of the law enforcement date, the time for the two leaders be enforcement officers are assaulted an- agency; meet the same State firearms reserved for their use later in the day, nually. training and qualifications as an active and the Senate then begin a period for The Law Enforcement Officers Safety officer; not be prohibited by Federal Act creates a mechanism by which morning business for 60 minutes, with law from receiving a firearm; and be the first 30 minutes under the control qualified active-duty law enforcement carrying a photo identification issued officers would be permitted to travel of the majority leader or his designee by the agency. Preserved would be any and the final 30 minutes under the con- interstate with a firearm, subject to State law that permits restrictions of certain limitations, provided that offi- trol of the Democratic leader or his concealed firearms on private property, designee; provided that following cers are carrying their official badges as well as any State law that restricts and photographic identification. An ac- morning business, the Senate resume the possession of a firearm on State or consideration of S. 2062, the class ac- tive-duty officer may carry a concealed local government property or park. firearm under this measure if he or she tion bill. Last month, during the House Judici- is authorized to engage in or supervise The PRESIDING OFFICER. Without ary Committee markup of H.R. 218, any violation of law; is authorized to objection, it is so ordered. amendments were accepted to bar offi- use a firearm by the agency, meets The Senator from Nevada. cers or retired police from carrying agency standards to regularly use a Mr. REID. If the distinguished leader firearm; and is not prohibited from car- arms in other jurisdictions if they are would allow me to say a few words, and rying by Federal, State or local law. under the influence of alcohol or other it will be a few words, as I said earlier This measure would not interfere with intoxicating or hallucinatory drug or today the role of the majority leader is any officer’s right to carry a concealed substance, and to require retired police extremely difficult. While I disagree firearm on private or government prop- to have proof they received arms train- with the action taken of filing the mo- erty while on duty or on official busi- ing in the previous year before being tion for cloture, I understand that. But ness. permitted to carry concealed weapons. after having said that, there have been Off-duty and retired officers should The bill was then reported out of Com- many speeches given today. We have also be permitted to carry their fire- mittee by a vote of 23 to 9 and passed heard enough on this issue and we arms across State and other jurisdic- overwhelmingly by the House. should move forward. tional lines, at no cost to taxpayers, in Convicted criminals often have long order to better serve and protect our and exacting memories. A law enforce- f communities. H.R. 218 would permit ment officer is a target in uniform and qualified law enforcement officers and out, active or retired, on duty or off PROGRAM qualified retired law enforcement offi- duty. The bipartisan Law Enforcement Mr. FRIST. Mr. President, tomorrow, cers across the nation to carry con- Officers Safety Act is designed to es- following morning business, the Senate cealed firearms in most situations. It tablish national measures of uni- will resume consideration of the class preserves any State law that restricts formity and consistency to permit action bill. Again, I reiterate my hope concealed firearms on private property trained and certified on duty, off duty that we will make progress on the class and any State law that restricts the or retired law enforcement officers to action bill on Thursday. We are open possession of a firearm on State or carry concealed firearms in most situa- for business. We are open for relevant local government property. tions so that they may respond imme- amendments. We ask that those To qualify for the measure’s exemp- diately to crimes across State and amendments come forward. If they tions to permit a qualified off-duty law other jurisdictional lines, as well as to come forward, we can debate them, we enforcement officer to carry a con- protect themselves and their families can vote on them, and we can complete cealed firearm, notwithstanding the from vindictive criminals. the bill. We are prepared to consider law of the State or political subdivi- I urge the Senate to take up and pass the amendments and dispose of them. I sion of the State, he or she must have the bipartisan, commonsense Law En- encourage Members to come forward. authority to use a firearm by the law forcement Officers Safety Act, H.R. 218, Senators, therefore, should expect the enforcement agency where he or she as amended and passed by the House, possibility of rollcall votes tomorrow. works; not be subject to any discipli- to make our communities safer and nary action; satisfy every standard of better to protect law enforcement offi- f the agency to regularly use a firearm; cers and their families. not be prohibited by Federal law from Mr. FRIST. Mr. President, I ask ADJOURNMENT UNTIL 10 A.M. receiving a firearm; and carry a photo unanimous consent that the bill be TOMORROW identification issued by the agency. The bill preserves any State law that read a third time and passed, the mo- Mr. FRIST. Mr. President, if there is restricts concealed firearms on private tion to reconsider be laid upon the no further business to come before the property, and any State law that re- table, and any statements relating to Senate, I ask unanimous consent that stricts the possession of a firearm on the bill be printed in the RECORD. the Senate stand in adjournment under State or local government property or The PRESIDING OFFICER. Without the previous order. park. objection, it is so ordered. There being no objection, the Senate, For a retired law enforcement officer The bill (H. R. 218) was read the third at 7:17 p.m., adjourned until Thursday, to qualify for exemption from State time and passed. July 8, 2004, at 10 a.m.

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