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, THURSDAY, MARCH 25, 2004 No. 39 Senate The Senate met at 9:30 a.m. and was lic for which it stands, one nation under God, Senator DEWINE will be here to manage called to order by the Honorable JOHN indivisible, with liberty and justice for all. the bill on this side of the aisle. I un- E. SUNUNU, a Senator from the State of f derstand Senator FEINSTEIN may offer New Hampshire. APPOINTMENT OF ACTING her substitute amendment first. There will be up to four hours of debate in re- The PRESIDING OFFICER. The Sen- PRESIDENT PRO TEMPORE ate will be led in prayer this morning lation to the Feinstein amendment. by our guest Chaplain, Rev. Fredricka The PRESIDING OFFICER. The Senators should expect the first vote A. Steenstra of Christ Episcopal clerk will please read a communication to occur sometime just after the lunch Church, Elizabeth City, NC. to the Senate from the President pro hour. As always, we will notify all Sen- tempore (Mr. STEVENS). ators when votes are about to occur. PRAYER The legislative clerk read the fol- f lowing letter: The guest Chaplain offered the fol- RESERVATION OF LEADER TIME lowing prayer: U.S. SENATE, The ACTING PRESIDENT pro tem- Gracious God, accept our thanks and PRESIDENT PRO TEMPORE, pore. Under the previous order, the praise for all that You have done for Washington, DC, March 25, 2004. To the Senate: leadership time is reserved. us. We thank You for the splendor of Under the provisions of rule I, paragraph 3, f creation, for the beauty of this world, of the Standing Rules of the Senate, I hereby and for the wonder of life. We thank appoint the Honorable JOHN E. SUNUNU, a THE BUSH ADMINISTRATION’S You for the blessing of living in this Senator from the State of New Hampshire, MISTREATMENT OF RICHARD Nation and for the freedoms we enjoy. to perform the duties of the Chair. CLARKE AND OTHERS We thank You for the men and women TED STEVENS, President pro tempore. Mr. DASCHLE. Mr. President, I have of the Senate, both the Senators and a simple request for the President their staffs. We are grateful for the sac- Mr. SUNUNU thereupon assumed the today: Please ask the people around rifices they make in order to serve the chair as Acting President pro tempore. you to stop the character attacks they people of this Nation faithfully and in f are waging against Richard Clarke. accordance with Your will. RECOGNITION OF THE ACTING Ask them to stop their attempts to We thank You also, Lord, for setting MAJORITY LEADER conceal information and confuse facts. the people of our Nation and our Sen- Ask them to stop the long effort that ators at tasks which demand our best The ACTING PRESIDENT pro tem- has made the 9/11 Commission’s work efforts, and for leading us to accom- pore. The assistant majority leader is more difficult than it should be. plishments which satisfy and delight recognized. Regardless of whether one agrees or us. We thank You also for those dis- f disagrees with Mr. Clarke’s facts, he appointments and failures that lead us SCHEDULE set an eloquent example for all of us to acknowledge our dependence on You yesterday. He acknowledged to the alone. Mr. MCCONNELL. Mr. President, this families of the victims of September 11 Bless our Senators this day and in all morning the Senate will conduct a pe- that their Government had failed the days ahead, that they may enact riod of morning business until the hour them. He accepted responsibility for such laws as shall please You, O God, of 10:30, with the first half of that time September 11. He made himself ac- and further the welfare of Your people. under the control of the majority lead- countable and he tried, in my view, to Give all who labor in this great institu- er or his designee and the second half help us understand what happened in tion a zeal for justice and the strength under the control of Senator DASCHLE the months and years before September of forbearance that they may help the or his designee. 11. I could not be more disappointed in people of this Nation to use our liberty Following morning business, the Sen- the White House response. They have rightly, in accordance with Your gra- ate will begin consideration of the Un- known for months what Mr. Clarke was cious will. Amen. born Victims of Violence Act. That bill going to say. Instead of dealing with it f will be considered under a consent factually, they have launched a shrill agreement which allows for two attack to destroy Mr. Clarke’s credi- PLEDGE OF ALLEGIANCE amendments to be offered. The debate bility. The Honorable JOHN E. SUNUNU led is limited on the amendments and the I know something about those at- the Pledge of Allegiance, as follows: underlying bill. Therefore, we will vote tacks. I pledge allegiance to the Flag of the throughout the day and complete ac- On several occasions, I have been on United States of America, and to the Repub- tion today on the Unborn Victims bill. the receiving end of the White House

∑ 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 jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.000 S25PT1 S3120 CONGRESSIONAL RECORD — SENATE March 25, 2004 broadsides. I saw the White House fe- Rice’s full cooperation is political con- of the great leaders in the history of rocity firsthand. I saw the people sideration. The September 11 families our country. around the President attack JOHN deserve better than that and, just as Mr. DASCHLE. I thank the Senator MCCAIN when he ran for President in importantly, our country deserves bet- from Nevada for his very kind words, 2000. I will never forget the distortions, ter. and I thank my colleagues for yielding the recklessness, and the viciousness of There is only one person who can the floor to accommodate my leader those attacks. They were wrong and change what is going on at the White time this morning. they impugned one of our great patri- House, and that is the President. So I I yield the floor. appeal to President Bush to change it. ots. f I saw the same viciousness 2 years He deserves better than the tactics his ago when Senator Max Cleland, a man staff are using and, as I have said, the MORNING BUSINESS who served when called during the September 11 families and our country The ACTING PRESIDENT pro tem- Vietnam war, had his reputation and deserve better, too. pore. Under the previous order, there patriotism smeared in his reelection I yield the floor. will be a period for the transaction of campaign. The idea that a man who Mr. REID. Would the Senator allow morning business until 10:30 a.m. The gave so much to his country could be me to ask him a question through the majority leader or his designee will smeared by those who are willing to Chair? control the first half of this time and give so little haunted me then as it Mr. DASCHLE. Yes. the minority leader or his designee will The PRESIDING OFFICER. The Sen- haunts me now. There are some things control the remaining time. ator from Nevada. that simply ought not to be done in Mr. REID. I suggest the absence of a Mr. REID. I have listened to the politics, and that line was crossed by quorum, and have the time run equally statement of the Democratic leader. I attacks on both Senator MCCAIN and on both sides. acknowledge what happened to Senator Senator Cleland. The ACTING PRESIDENT pro tem- MCCAIN and the tragedy with Max Last year, I watched the people pore. The clerk will call the roll. Cleland, but one thing I did not hear around the President set their sights The legislative clerk proceeded to the leader mention was what was done on Ambassador Joe Wilson when he call the roll. to Paul O’Neill when he published his stepped forward to tell the truth about Mr. MCCONNELL. Mr. President, I book, ‘‘The Price of Loyalty,’’ a man the President’s claims on Iraq, Niger, ask unanimous consent that the order who is a certified, card-carrying con- and uranium. The White House did not for the quorum call be rescinded. servative Republican, one of the great battle Ambassador Wilson on the facts. The ACTING PRESIDENT pro tem- businessmen in the history of our coun- Instead, they put his wife’s life in dan- pore. Without objection, it is so or- try, who in effect was trashed for what ger by disclosing publicly that she was dered. a deep cover agent for the CIA. That he thought was good for the country. was a grossly irresponsible act done for I heard the Senator describe Joe Wil- f the worst of reasons—to avoid account- son and what was done to his wife and UNANIMOUS CONSENT ability and unwelcome political con- Richard Clarke, but the one thing the AGREEMENT—H.R. 4 sequences. It ought never have hap- leader undersold—in keeping with the Mr. MCCONNELL. Mr. President, I pened. It was shameful, and it crossed modesty of the minority leader and I ask unanimous consent that at a time a line that had never been crossed be- want the record to reflect—is what has to be determined by the majority lead- fore. happened to the leader. By virtue of Now when I watch what the people the fact that 48 other Democrats, in a er in consultation with the Democratic around the President are trying to do period of over 10 years, have selected leader on Monday, March 29, the Sen- to Richard Clarke, I think it is past the Senator from South Dakota as our ate proceed to consideration of H.R. 4, time to say enough is enough. leader, as a result of that the Senator the welfare reauthorization bill. The President came to Washington 4 does things for the caucus. I am sure The ACTING PRESIDENT pro tem- years ago promising to change the the caucus is not 100-percent headed in pore. Without objection, it is so or- tone. The people around him have done the right direction, but we do our best dered. that. They have changed it for the to try to, and when there is ever any- f worse. They are doing things that thing that is done that is not in keep- WELFARE REFORM EXTENSION should never be done and have never ing with what this White House wants, ACT OF 2004 been done before. What they need to the leader is attacked, his family is at- do, what we all need to do, is to put tacked, his religion is attacked, his Mr. MCCONNELL. I ask unanimous politics aside and put the American ethics are attacked. For those of us consent the Senate proceed to the im- people and their security first. who serve with the Senator from South mediate consideration of S. 2231, which I know how difficult that is in an Dakota, we know what a wonderful was introduced earlier today by Sen- election year, but we all, every one of family he has, what a loving family he ators GRASSLEY and BAUCUS. us needs to do exactly that. Some has, what a moral person he is, and The ACTING PRESIDENT pro tem- things are more important than poli- what a good leader he is. pore. The clerk will report the bill by tics, and September 11 ought to be at I want the record to reflect that the title. the top of the list. We need the facts on Senator from South Dakota has tre- The legislative clerk read as follows: September 11, not spin and not char- mendously undersold—all of these peo- A bill (S. 2231) to reauthorize the Tem- acter assassination. We need this ad- ple we have mentioned who have been porary Assistance for Needy Families block ministration and everyone involved to brutally assaulted, in my opinion, do grant program through June 30th, 2004, and follow Mr. Clarke’s example and accept not compare with what has happened for other purposes. responsibility and accountability. to TOM DASCHLE himself. The ACTING PRESIDENT pro tem- We need Condoleezza Rice, who seems I want the Senator to know that the pore. Is there objection? to have time to appear on every tele- entire caucus stands behind him for the Mr. REID. Mr. President, it is my un- vision show, to make time to appear great leader he has been, and we apolo- derstanding the majority leader has in- publicly before the 9/11 Commission. gize for what has happened to him by dicated there will be no votes on Mon- She is not constrained by precedent virtue of the fact that he is our leader. day. Is that true? from doing that, as the White House If he were not our leader, someone else Mr. MCCONNELL. I say to my friend has argued. As the Congressional Re- would be attacked; their religion would from Nevada, that is true. search Service documented, two of her be attacked; their families would be at- Mr. REID. No objection. predecessors have given testimony in tacked. Speaking for 48 other Demo- The ACTING PRESIDENT pro tem- open session on matters much less im- crats, we all admire and respect the pore. Without objection, it is so or- portant than September 11. work the Senator from South Dakota dered. I have reluctantly reached the con- has done and are sorry that he has had Mr. REID. I ask unanimous consent clusion that what really constrains Ms. to take the blows he has by being one that the bill be read the third time and

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.003 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3121 passed, the motion to reconsider by issue I am sure we are all concerned with that. We face more challenges in laid upon the table, and any state- about and interested in. As I go about the health care system than just re- ments regarding this matter appear in Wyoming and talk to people, particu- forming the public programs or ad- the RECORD at this point. larly in town meetings, the issue that dressing the nearly 42 million people— The ACTING PRESIDENT pro tem- arises most often and with the most 15 percent—who do not have health in- pore. Without objection, it is so or- passion is the high cost of health insur- surance. dered. ance. The cost of health insurance is There are some things, of course, we The bill (S. 2231) was read the third directly related to the cost of health need to consider. We need to improve time and passed, as follows: care. What we hear the most about is the underlying health care infrastruc- S. 2231 from people who are in private busi- ture. Its rising costs affect all of us. I Be it enacted by the Senate and House of Rep- ness, farmers and ranchers, who pro- think we have to take some of the re- resentatives of the United States of America in vide all of their own health care costs, sponsibility for fixing that system. Congress assembled, which have become increasingly pro- We have a health care system today SECTION 1. SHORT TITLE. hibitive. It seems to me we are going to where, for instance, hospital charges do This Act may be cited as the ‘‘Welfare Re- have to focus properly on Medicare, not reflect the actual costs because of form Extension Act of 2004’’. Medicaid, veterans, those government public and private insurance reim- SEC. 2. EXTENSION OF THE TEMPORARY ASSIST- programs for which we are responsible. bursements. I recently met with a hos- ANCE FOR NEEDY FAMILIES BLOCK GRANT PROGRAM THROUGH JUNE I suggest we need to focus now and pital CEO in my hometown. At that 30, 2004. begin to take a look at the broader pic- hospital they had some very inter- (a) IN GENERAL.—Activities authorized by ture of health care. We have a system esting topics they talked about. Their part A of title IV of the Social Security Act, that has available certainly some of gross charges, for example, were $202 and by sections 510, 1108(b), and 1925 of such the best health care in the world, but million; $80 million was written off; Act, shall continue through June 30, 2004, in the key is to have access. If the cost $120.7 million reflects actual costs; $1.4 the manner authorized for fiscal year 2002, limits access, we have a problem. million was income from insurance, notwithstanding section 1902(e)(1)(A) of such We have some unique features in Wy- Act, and out of any money in the Treasury of and they had $3.3 million in other in- the United States not otherwise appro- oming. Because of a small population, come. This is not a large profit margin. priated, there are hereby appropriated such we cannot have all the various profes- What does that mean? No. 1, Medi- sums as may be necessary for such purpose. sional services in every small town. care does not pay to the level of actual Grants and payments may be made pursuant There has to be a system. We have costs. Now, you may say, well, we need to this authority through the third quarter worked at that. There are several hos- to keep the cost of Medicare down. of fiscal year 2004 at the level provided for pitals with the different kinds of spe- That is true. On the other hand, if their such activities through the third quarter of cialties that help serve communities. payment is not equal to the cost, then fiscal year 2002. We have had more and more critical (b) CONFORMING AMENDMENT.—Section someone else has to bear the cost; Med- 403(a)(3)(H)(ii) of the Social Security Act (42 access facilities which make it easier icaid even more so. U.S.C. 603(a)(3)(H)(ii)) is amended by striking for small communities to work. Medicaid pays even a smaller per- ‘‘March 31’’ and inserting ‘‘June 30’’. I visited Dubois, WY, this week, a centage of the actual cost than does SEC. 3. EXTENSION OF THE NATIONAL RANDOM new clinic to a small town. I also met Medicare. This is a combination, of SAMPLE STUDY OF CHILD WELFARE with a group of physicians and hospital course, of State and Federal programs. AND CHILD WELFARE WAIVER AU- operators in Cheyenne. We talked THORITY THROUGH JUNE 30, 2004. So we find that situation. about some of these issues. Before it Charity, for those who are uninsured, Activities authorized by sections 429A and was over, these professionals, these 1130(a) of the Social Security Act shall con- for those who come in and are not able tinue through June 30, 2004, in the manner providers, indicated they agree this to pay, we still take them, of course. authorized for fiscal year 2002, and out of any system is broken and there needs to be Trauma care, sometimes, is reimbursed money in the Treasury of the United States some kind of change made in the fu- by the county or the State. But if not otherwise appropriated, there are hereby ture. I don’t know the answer. I don’t someone has an accident and arrives at appropriated such sums as may be necessary know that anyone yet knows the an- the hospital, they are given care, of for such purpose. Grants and payments may swer. I suggest to my fellow Members course, whether they have the ability be made pursuant to this authority through of the Senate and the House, we need the third quarter of fiscal year 2004 at the to pay, whether they have insurance. to begin to take a look. And guess who pays the principal cost level provided for such activities through the If I can start out by saying I am not third quarter of fiscal year 2002. of that. Those who have insurance. one who favors a Federal socialized People who are insured represent The ACTING PRESIDENT pro tem- medicine program, we need to find about 35 percent of the people in a hos- pore. The Senator from Wyoming. some ways to do something with what pital, but they pay 98 percent of the f we have now. cost. So what we are doing basically is THE MARINES National health expenditures grew $1.6 trillion in 2002, a 9.3-percent in- taking the costs that are there, and Mr. THOMAS. Mr. President, I will crease over the previous year. The those who have commercial insurance make some comments in morning busi- costs of health care generally have are paying a very large percentage of ness. First of all, I had the privilege gone up 15 percent a year for several that cost. Therefore, we are shifting this morning of attending a meeting of years. costs from the broad user base to a rel- Marines, which we have periodically, It is hard to sustain 15-percent atively small group who buy insurance, and I was very pleased to listen to a re- growth, particularly when, increas- which causes the private insurance to port from the commandant about the ingly, health care for families is a rel- be higher. current situation in Iraq and Afghani- atively large portion of expenditures. So there are some weaknesses there. stan. Certainly, he is very pleased with Health care as a share of GDP in 2002 Certainly, we have to do something what is happening there with regard to was 14.9 percent, up from 14.1 percent about it. Health providers must shift our military, what they are able to do in 2001. So we are seeing substantial in- this cost to private insurance or they and accomplish there. We do not hear creases. And over the years those in- do not make it up. much about the good stuff that is going creases have continued. Emergency room costs, of course, are on. We hear, of course, the news on bad So one has to ask, if the costs are extremely expensive. They are used a things. It was an excellent report. Cer- going up 15 percent a year, how long great deal, particularly with Medicaid tainly we are very proud of our Ma- can you sustain that? What do we need where there is no first-dollar payment rines and all of our service personnel to do? Folks are seeing double-digit by anyone. When anything goes wrong there. premium increases each year, includ- for someone who is under Medicaid, f ing Federal employees. So it is quite they can go to the emergency room be- obvious to me that we cannot continue cause it does not cost anything. HEALTH INSURANCE COSTS to grow rates at that level. Of course, we pay the highest prices Mr. THOMAS. Mr. President, I take a I indicated I had talked to some folks for prescription drugs and shoulder the few minutes today to talk about an who certainly agree we need to deal research and development costs for

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.006 S25PT1 S3122 CONGRESSIONAL RECORD — SENATE March 25, 2004 much of the rest of the world. I think You need to agree to this Be-Well pro- that in terms of the States. I am not most of us are working on that issue. I gram. necessarily supporting all these ideas. think we are going to have a hearing Most everyone agrees with that idea, But, for example, if you were a service next week in the Finance Committee but often there is not any real incen- station operator, you could be part of a to see if there is any relationship in tive to do that. This program provides national service station operators in- terms of the trade aspect of it—with an incentive to people to be more re- surance program. Canada, for example, where you can sponsible for themselves. Some have talked about the idea that send goods from this country that cost So we face some real challenges. Phy- everyone, even if they had to be helped, a certain amount, and the Government sicians and providers are retiring ear- should have insurance. We require in- up there says they will cost less. Is lier because of some of these pressures. surance on your car. We don’t require that part of a trade problem? I think it Hospital vacancy rates for registered it, but somebody else has to pay for it. is something we ought to talk about. nurses, radiology technicians, and So that is something we should talk Also, of course, one of the things we pharmacists have reached more than 10 about. have tried to fix—and I hope we con- percent. There are a number of hos- Better education efforts for con- tinue to try to do something about it— pitals that face rather severe short- sumers to make healthier choices, cer- is putting a limit on noneconomic ages. We are also facing dental short- tainly that is something we ought to damages for liability in health care. ages. Again, in low population States, take seriously. We have tried to pass that. We tried to we are seeing the dental providers be- As I mentioned, medical malpractice pass it in the Wyoming Legislature. I coming an older group. Many are soon reform is clearly something we ought think, hopefully, they will continue to to retire. Frankly, there are not to do. We, obviously, have been blocked do that. enough people standing in line waiting in the Senate from doing that. But what it has done in our State— to replace them. We are working on There are a lot of issues we need to look at, and they deal with where we and I think in a number of other trying to get a multistate dental train- are going to be in a few years and States—is it certainly has raised the ing arrangement and also urging some where we are now. But we will be worse costs because the cost for malpractice assistance for underserved areas in this off in a few years unless we begin to insurance for practioners has gone up a area as well. deal with some of those issues. great deal. It has also caused some So what I am interested in seeing is I appreciate the time and look for- practitioners, particularly OB/GYNs, to if we can start a little dialog on the ward to continuing to have the debate. not serve any longer. Again, in a State broader issues that affect health care I yield the floor. such as ours, where there may be just and health care costs and the ability to The ACTING PRESIDENT pro tem- one provider in a community, if that have access to health care for people in pore. The Senator from Kentucky. person does not provide services, then this country. Mr. MCCONNELL. Mr. President, I there is no one there and people have I will continue to work on this issue. say to my good friend from Wyoming, to go miles and miles to find care. We have been very involved in our of- before he leaves the floor, I share his So it has a great impact. Not only is fice on rural health care. We are very frustration over our failure to act on it the impact of increased costs to the pleased with some of the things that any kind of medical malpractice re- provider, which he or she passes on to were done in the bill that we passed form. We have tried a broad approach. his or her patients, but it also has last year for Medicare. We have tried a narrow approach. We caused practices to be quite different I was very pleased that we passed will be back again to try another nar- and to be overly general about care. A that bill. To be sure, it is not finalized, row approach. We can’t even seem to number of years ago, if you hurt your but it is a first step in 30-some years to get cloture on the motion to proceed. arm, you would go to a general practi- begin making changes. So we have had That is how dug in the Senate seems to tioner, he would fix it, put a cast on it, changes taking place with people but be against any effort to lower those li- and you would go home. Now you not a lot of changes in terms of how we ability insurance premiums for doc- would go in and: Oh, my gosh, you hurt provide health care. tors. The Senator from Wyoming your arm? You better see an arm spe- Last year we had a forum on rural brings up a very important issue. I cialist. We need to take some tests. We health care which is a little unique, thank him. need to have an MRI and a few other but some of the problems are the same. f things—all of which make care more We began to discuss those problems expensive than it used to be. Some of and to look to the future. That is what RICHARD CLARKE that cost is simply for protection we have to ask, what is health care Mr. MCCONNELL. Mr. President, I against malpractice lawsuits. So that going to look like 5 or 10 years from come to the Chamber this morning to is one of the things we can do. now, if we can make that sort of pro- talk about Richard Clarke’s testimony We are seeing more and more small jection, and then begin to look at what yesterday. businesses being unable and unwilling we can do to get where we want it to be We all now know who Richard Clarke to help provide health care for their rather than where we think it will be if is. He has sort of burst on the national employees. So there are all kinds of we do nothing. scene with his effort to defeat Presi- different problems that have arisen. There are some ideas out there. I dent Bush. Richard Clarke was the man I think people, also, are probably less don’t suggest they are all the best, but in charge of counterterrorism under responsible for their own health. This some are being talked about—tax cred- the previous administration for 8 idea that we should take care of our- its to have a medical setaside for pay- years. During those 8 years, we had selves a little better to avoid sick- ments that you could keep tax free and three terrorist attacks against Amer- ness—everyone agrees with that idea, then use it. In many cases you could ica: In 1993, the first attack against the but not everyone participates in that. use it for the first dollar cost, and then World Trade Center in New York; So, again, we have some things that all you have to buy is a higher level in- against the U.S. Embassies in Africa in could be changed. surance, which is much cheaper, cata- 1998; and against the USS Cole in 2000. I met a gentleman who is promoting strophic insurance, rather than the The most aggressive action, appar- a new program, running a new program first low dollar, which is much more ently, Mr. Clarke was able to convince called Be-well. It is a program for em- expensive. We are going to be working his superiors to take during those ployers who create health contracts on a better medical savings program. years was to launch a few cruise mis- with their employees under the propo- Association health plans have been siles at a single terrorist camp in Af- sition that the employer says to the talked about. The idea of insurance is ghanistan and take out a pharma- employee: I am willing and able to to get enough people into the package ceutical factory in Sudan—not a really cover your health care expense, your so you can level out the cost between robust response to multiple terrorist insurance expense. However, you must those who are less healthy and those acts against American interests both agree to do some things for your own who are more healthy. But if you do in the United States and overseas. health. You need to agree to exercise. not have large numbers, that doesn’t Now Mr. Clarke has the gall to come You need to agree to do some things. happen. There is some objection to forward and suggest that President

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.009 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3123 Bush was not particularly interested in terrorists, they will almost certainly Let me conclude by saying by any ob- the war on terrorism or in going after bring it to us. jective standard, the war on terrorism al-Qaida. But interestingly enough, Bringing the fight to the terrorists is going well. I think Mr. Clarke’s ef- back in an August 2002 interview with is, of course, exactly what President forts to convince the American public the news media, Mr. Clarke himself Bush has been doing. somehow President Bush was inatten- said the Bush administration, in the Instead of partisan finger-pointing, tive to the war on terror or obsessed spring of 2001, sought to increase CIA we should instead be working to bol- with Iraq are simply foolish and erro- resources for covert action fivefold to ster our intelligence infrastructure, neous and will not be believed by the go after al-Qaida. Back in 2002, he was continue our aggressive efforts to mon- American people. singing an entirely different tune than itor, apprehend and bring to justice I yield the floor. he was portraying either in his testi- terrorists around the world, and im- The PRESIDING OFFICER (Ms. MUR- mony yesterday before the 9/11 Com- prove our ability to defend America KOWSKI). The Senator from Hawaii. and its ideals from attack. mission or in his new book, which I am f sure he hopes will be a best seller and Although work remains to be done, I WAR ON TERRORISM help defeat President Bush. believe the Bush administration has But before he had some epiphany and made truly admirable progress in the Mr. AKAKA. Madam President, I rise went in a different direction, in August war on terrorism. Who could argue today to discuss the war on terrorism 2002, he said the Bush administration with a straight face that America is and the situation in Iraq on the 1-year plan was actually more aggressive than not safer today than it was on Sep- anniversary of Operation Iraqi Free- Clinton’s, and that the Bush adminis- tember 10, 2001? The Taliban is gone. dom. tration changed the strategy from one Saddam Hussein is gone. I had the honor and privilege of trav- We have destroyed all—not just one— of rollback by al-Qaida over the course eling to Iraq and Afghanistan over the all of al-Qaida’s training camps in Af- of 5 years, which it had been under the recent recess to visit our troops. I had ghanistan. All of them are gone from Clinton years, to a new strategy that the similar honor of visiting them in that country. the medical center at Ramstein, Ger- called for the rapid elimination of the We have apprehended or killed two- al-Qaida terrorist network. many. thirds of al-Qaida’s leaders. I report to my colleagues the troops That is what Mr. Clarke was saying We have launched international ef- in August of 2002—quite different from with whom I met were in good spirits. forts to make it difficult for terrorists They are, of course, eager to return what he said yesterday before the 9/11 to raise or transfer their funds to fund Commission or in his new book. home to their loved ones, but they are their deadly activities. also proud of the work they are doing Also in this August 2002 interview, We have worked with allies across to stabilize Iraq and assist the Iraqi Clarke noted the Bush administration, the world to break up al-Qaida cells people in building a democratic state. I in mid-January of 2001—before the 9/11 and other terrorist networks. attack—decided to do two things to re- We passed the PATRIOT Act, which was proud of them, proud of the leader- spond to the threat of terrorism: ‘‘One, provides U.S. law enforcement better ship of our military, and proud of all to vigorously pursue the existing pol- capabilities to monitor, apprehend, and the troops there. icy, including all the lethal covert ac- bring to justice terrorists plotting in As a veteran of World War II, I was tion finds which we have now made the United States. proud to see in the troops the same public, to some extent; the second We have won new allies in Pakistan dedication to duty, mission, and coun- thing the administration decided to do and Uzbekistan. And by engaging these try I remember so well from my own was to initiate a process to look at countries we have scored further vic- comrades in arms. In Ramstein, I was these issues which had been on the tories against terrorists. impressed with the wonderful support table for a couple of years and get As I said earlier, there has been the our wounded were receiving from the them decided.’’ end of the regime of Saddam Hussein medical staff, and I was equally im- In other words, what Clarke was say- who provided direct material support pressed with the eagerness our wound- ing in 2002 to members of the press was to Palestinian terrorists and who of- ed expressed to return to the sides of that the Bush administration’s re- fered safe haven to other Islamic ter- their comrades. In that eagerness to re- sponse to the war on terror was much rorists. join their units, they shared a bond more aggressive than it was under the We have rounded up and continue to with all their past brothers in uniform. Clinton years. kill foreign terrorists in Iraq. These In Iraq, I visited the newly deployed Now he is singing an entirely dif- terrorists would rather be blowing up Stryker brigade in Mosul. This unit is ferent tune. This is a man who lacks buses in midtown Manhattan. Believe demonstrating in the field for the first credibility. He may be an intelligent me, that is where the terrorists would time a powerful new capability. But it man, he may be a dedicated public rather be on the attack. Instead they has also been given the difficult objec- servant, but clearly he has a grudge of are in Iraq. That is where the war on tive of patrolling a large area. They are some sort against the Bush administra- terror is going on, right in Iraq. still waiting for Iraqi forces to be tion. If he was unable to develop a While we mourn the loss of every trained and adequately equipped to more robust response during the Clin- American soldier and innocent Iraqi supplement their effort. Clearly, one ton years, he would only be able to citizen, we are glad we are dealing with reason why the security situation still blame himself. He was in charge of al-Qaida over in the Middle East and remains so tenuous is the failure to counterterrorism during those 8 years. not on American soil. train and field sufficient Iraqi security How could the Bush administration be Finally, I think it is important to re- forces. But the apparent ambush of two to blame in 8 months for the previous member what is happening in Libya. American civilians recently by Iraqi administration’s failure over 8 years to Prime Minister Blair is meeting with police indicates even some of the newly truly declare war on al-Qaida? the Libyan leader today. He has been deployed security forces cannot be Let me be clear, I do not believe the somewhat born again. He is now de- trusted. Clinton administration is responsible nouncing terrorism. His weapons of According to the Coalition Provi- for September 11. Rather, I believe mass destruction are now being elimi- sional Authority, or CPA, we are only Osama bin Laden and his al-Qaida ter- nated. about 30,000 short of the approximately rorist network are responsible. I also It is noteworthy that Qadhafi seemed 236,000 security forces planned for Iraq. believe there exist other terrorists or- to have gotten religion in March 2003, This may be so in terms of absolute ganizations that share al-Qaida’s goal the same month we launched the inva- numbers, but it is not a reflection of of murdering innocent civilians who sion of Iraq, and seemed to have fully how well equipped they are, how well oppose their violent and extremist ide- converted shortly after Saddam Hus- trained they are, and how well led they ology. These terrorists don’t hate us sein was found hiding in a hole. Clear- are. because of our policies. They hate us ly, our Iraq policy is helping reduce or For example, the CPA carries about because of who we are. And if we don’t eliminate rogue regimes with weapons 60,000 police on payroll, but only 2,300 work together to bring the fight to the of mass destruction. of those have been fully qualified.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.011 S25PT1 S3124 CONGRESSIONAL RECORD — SENATE March 25, 2004 Prior to the war, the Iraqi police had a cannot pay for or sustain, further in- strategy and oversight of its implemen- well-deserved reputation for being cor- creasing the risk that the Taliban and tation are essential tools in sharpening rupt. Reports continue to indicate this al-Qaida terrorists could return to the tip of our policy weapons. But they remains a problem and, as I mentioned, power. need to take place in an atmosphere there are indications the security We need to give more attention and where such debate is not just another forces have been infiltrated by terror- make a greater commitment to Af- arrow in the quiver of partisan politics. ists. At the same time, many of the ghanistan. In Kosovo, for example, 25 I pray that one of the successes of honest policemen are being targeted by times more money was pledged on a per the 9/11 Commission and other discus- terrorists. On Tuesday, 11 were killed capita basis than to Afghanistan and 50 sions in this very political year will be in an ambush. So one should view num- times more troops per capita were sent. a determination to restore comity in bers with a healthy skepticism and Afghanistan needs an estimated $20 bil- foreign policy. focus on quality. lion in assistance over the next 5 years My recent travels in Iraq and Af- I also had the opportunity to visit but so far only $7 billion has been ghanistan have convinced me that, if Balad, about 25 miles north of Bagh- pledged and even less received. I worry we are to succeed in either country, we dad. This will become the future center that, 2 years after the fall of the need to be prepared to remain in both of air operations in Iraq, and we are Taliban, Afghanistan has become the countries for a long time, and we need now preparing a major airbase to serv- forgotten war even as al-Qaida terror- to be prepared for additional sacrifices ice American troops for the next 3 to 5 ists and Taliban remnants continue to in terms of lives and financial re- years. make it their sanctuary and regroup sources. To accept that burden, there Elsewhere, there is the intent to their forces. has to be a consensus in foreign policy. move American troops out of Baghdad I opposed going to war in Iraq when To bear that burden will require a de- and consolidate forces in fewer instal- we did. I did not think that the threat termination to establish international lations on the periphery, thus reducing posed by weapons of mass destruction support for our policies. I thank the Chair. I yield the floor. was imminent, nor did I think we had the visibility of the American foot- I suggest the absence of a quorum. print. This is going to be a very deli- taken sufficient time to prepare for the The PRESIDING OFFICER. The cate maneuver. Reducing the American consequences of a prolonged occupa- clerk will call the roll. presence in Baghdad has to be balanced tion of Iraq. I was concerned that The assistant legislative clerk pro- by an increase in the effectiveness of starting another conflict before we had ceeded to call the roll. Iraqi security forces inside the city. We squashed the al-Qaida terrorist threat Mr. DEWINE. Madam President, I ask could run the risk of having that city in Afghanistan would disperse our unanimous consent the order for the of about 6 million become an even safer forces and expose us to even more ter- quorum call be rescinded. haven for terrorists while we hunker rorist problems. To be successful in The PRESIDING OFFICER. Without down in bases on the outskirts. both, with the least cost to the United objection, it is so ordered. It also means we are planning for an States in terms of lives and resources, f extended stay in Iraq. While the admin- required an international coalition and istration indicates 33 countries are now consensus along the lines of the one CONCLUSION OF MORNING contributing troops to Iraq, the bulk of created in the first gulf war. We have BUSINESS the troops is American, and unless yet to achieve that either in Afghani- The PRESIDING OFFICER. Morning there is a change in strategy by the ad- stan, where there is international sup- business is now closed. ministration or a change in attitude by port but insufficient resources, or in f the international community, those Iraq where the bulk of resources and UNBORN VICTIMS OF VIOLENCE troops for the foreseeable future will personnel are being provided by the ACT OF 2004 remain largely American. United States. Will there be American troops in Iraq We need to rebuild support for Amer- The PRESIDING OFFICER. Under by the time of the next Presidential ican foreign policy both abroad and at the previous order, the hour of 10:30 election in 2008? Right now the answer home. A recent Pew Foundation poll having arrived, the Senate will proceed is yes. indicates that the U.S. image abroad to the consideration of H.R. 1997, which I was able to visit Kabul as well. So remains negative in most nations. This the clerk will report. The assistant legislative clerk read much attention and money have been cannot be good. For Americans to be as follows: focused on Iraq that I believe Afghani- secure, we need to be respected, and, as stan has been neglected to the det- both Iraq and Afghanistan dem- A bill (H.R. 1997) to amend title 18, United States Code, and the Uniform Code of Mili- riment of our goal of defeating the ter- onstrate, we cannot go it alone unless tary Justice to protect unborn children from rorists who attacked us on 9/11. American citizens want to bear the full assault and murder, and for other purposes. One example: in Iraq we hope to field burden of sacrifice. We need inter- The PRESIDING OFFICER. The Sen- an army of 27 battalions in 12 months national support. This does not mean ator from Ohio. at a cost of $1.8 billion, while in Af- sacrificing American interests to for- Mr. DEWINE. Madam President, I ghanistan we hope to field an army of eign interests, but it means working come to the floor this morning to begin 15 battalions in 26 months at a cost of with other nations to gain a consensus the debate on the Unborn Victims of $569 million. Yet, in Iraq, there is a in support of our objectives. In many Violence Act. I would like first to military infrastructure of garrisons, fa- we are one. thank our 40 cosponsors for their lead- cilities, and a history of a national At home, too, we need to rebuild bi- ership and support on this issue. army that Afghanistan lacks. There partisan support for American foreign Let me also thank specifically Sen- are huge cultural barriers to overcome policy. This has been lost in the last ator LINDSEY GRAHAM, who championed in linguistics and ethnicity that make few years. Healthy debate requires a this issue on the House side for a num- Iraq look homogenous in comparison. willingness to listen to arguments and ber of years before he joined us here in Our military is doing a great job in to accept those that are valid in order the U.S. Senate. He has worked tire- trying to stand up an army in Afghani- to develop a consensus on American lessly to see to it that the most vulner- stan, but it is an enormous job, and so foreign policy. This ability has been able members of our society are, in far the international community is not lost. fact, protected. providing sufficient resources either to Earlier this week, our former col- Let me also thank our lead House rebuild the country or create a sustain- league, Bill Cohen, spoke before the 9/ sponsors, Congresswoman MELISSA able and professional security force. 11 Commission. He talked about ‘‘the HART from Pennsylvania, and my Afghanistan has an even greater kind of poisonous atmosphere that ex- friend and colleague from the State of problem in the lack of a civic adminis- isted then that continues today,’’ refer- Ohio, Congressman STEVE CHABOT. trative infrastructure. Without the cre- ring to the questioning of President They have both been great champions ation of a strong local and central gov- Clinton’s motives when he launched at- of this great cause. They worked tire- ernment, we run the risk of creating a tacks against al-Qaida in Afghanistan lessly to help get this important bill well trained army that the government and Sudan. Constructive criticism of passed in the House of Representatives.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.013 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3125 Our bill is very simple. I will take ‘‘CHAPTER 90A—PROTECTION OF ‘‘§ 919a. Art. 119a. Causing termination of just a couple of minutes to explain it. PREGNANT WOMEN pregnancy or interruption of normal It is a bill about simple justice. It is a ‘‘CHAPTER 90A—PROTECTION OF course of pregnancy bill about doing what is right. I was PREGNANT WOMEN ‘‘(a)(1) Any person subject to this chapter asked yesterday by one of my col- ‘‘Sec. who engages in conduct that violates any of the provisions of law listed in subsection (b) ‘‘1841. Causing termination of pregnancy or leagues, Why do we need this bill? Why and thereby causes the termination of a interruption of the normal is this bill on the floor? pregnancy or the interruption of the normal course of pregnancy. This is what I responded yesterday course of pregnancy, including termination and this is what I would say to my col- ‘‘§ 1841. Causing termination of pregnancy or of the pregnancy other than by live birth, is leagues here in the Senate this morn- interruption of the normal course of preg- guilty of a separate offense under this sec- ing. Imagine a pregnant woman in a nancy tion. national park or a pregnant woman on ‘‘(a)(1) Any person who engages in conduct ‘‘(2)(A) Except as otherwise provided in an Air Force base and she is violently that violates any of the provisions of law this paragraph, the punishment for that sep- arate offense is the same as the punishment assaulted. As a result of that assault, listed in subsection (b) and thereby causes the termination of a pregnancy or the inter- for that conduct under this chapter had that she loses her child; that child dies. ruption of the normal course of pregnancy, injury or death occurred to the pregnant Today, there is no Unborn Victims of including termination of the pregnancy woman. Violence Act. Today, unless that Fed- other than by live birth is guilty of a sepa- ‘‘(B) An offense under this section does not eral park or Air Force base is located rate offense under this section. require proof that— in a State that has a similar law, a ‘‘(2)(A) Except as otherwise provided in ‘‘(i) the person engaging in the conduct had Federal prosecutor would search the this paragraph, the punishment for that sep- knowledge or should have had knowledge arate offense is the same as the punishment that the victim of the underlying offense was Federal statute books in vain to find pregnant; or anything to charge that assailant for provided for that conduct under Federal law had that injury or death occurred to the ‘‘(ii) the defendant intended to cause the the death of that child, for the death of pregnant woman. termination or interruption of the normal that unborn infant, the fetus. The only ‘‘(B) An offense under this section does not course of pregnancy. ‘‘(C) If the person engaging in the conduct thing that Federal prosecutor would be require proof that— thereby intentionally causes or attempts to able to charge that defendant with is ‘‘(i) the person engaging in the conduct had cause the termination of or the interruption the assault of the woman. The death of knowledge or should have had knowledge of the pregnancy, that persons shall be pun- that the victim of the underlying offense was that child would not be able to be ished as provided under section 918, 919, or pregnant; or charged as what we would think would 880 of this title (article 118, 119, or 80), as ap- ‘‘(ii) the defendant intended to cause the be a separate offense. Justice would plicable, for intentionally causing the termi- termination or interruption of the normal not be done for that, what we would nation of or interruption of the pregnancy or course of pregnancy. attempting to do so, instead of the penalties think would be a separate offense. ‘‘(C) If the person engaging in the conduct that would otherwise apply under subpara- This bill corrects that. This bill rec- thereby intentionally causes or attempts to graph (A). ognizes there are two victims. There is cause the termination of or the interruption the victim, the mother, who was as- ‘‘(D) Notwithstanding any other provision of the pregnancy, that person shall be pun- of law, the death penalty shall not be im- saulted; and there is the victim, the ished as provided under section 1111, 1112, or posed for an offense under this section. unborn child, who was either injured or 1113, as applicable, for intentionally termi- ‘‘(b) The provisions referred to in sub- killed. It is that simple. nating or interrupting the pregnancy or at- section (a) are sections 918, 919(a), 919(b)(2), This bill recognizes when someone tempting to do so, instead of the penalties 920(a), 922, 924, 926, and 928 of this title (arti- attacks and harms a mother and her that would otherwise apply under subpara- cles 111, 118, 119(a), 119(b)(2), 120(a), 122, 124, graph (A). 126, and 128). unborn child that attack does in fact ‘‘(D) Notwithstanding any other provision result in two separate victims: the ‘‘(c) Subsection (a) does not permit pros- of law, the death penalty shall not be im- ecution— mother and her child. That is what this posed for an offense under this section. ‘‘(1) for conduct relating to an abortion for bill does. ‘‘(b) The provisions referred to in sub- which the consent of the pregnant woman I will have more to say about this section (a) are the following: has been obtained or for which such consent bill later. I will reserve the remainder ‘‘(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, is implied by law in a medical emergency; of my time. 229, 242, 245, 247, 248, 351, 831, 844(d), 844(f), ‘‘(2) for conduct relating to any medical The PRESIDING OFFICER. The Sen- 844(h)(1), 844(i), 924(j), 930, 1111, 1112, 1113, treatment of the pregnant woman or matters ator from California. 1114, 1116, 1118, 1119, 1120, 1121, 1153(a), 1201(a), relating to her pregnancy; or 1203, 1365(a), 1501, 1503, 1505, 1512, 1513, 1751, ‘‘(3) of any woman with respect to her AMENDMENT NO. 2858 1864, 1951, 1952(a)(1)(B), 1952(a)(2)(B), pregnancy.’’. Mrs. FEINSTEIN. Madam President, 1952(a)(3)(B), 1958, 1959, 1992, 2113, 2114, 2116, (b) CLERICAL AMENDMENT.—The table of I would like to call up amendment 2858. 2118, 2119, 2191, 2231, 2241(a), 2245, 2261, 2261A, sections at the beginning of subchapter X of The PRESIDING OFFICER. The 2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of chapter 47 of title 10, United States Code (the clerk will report. this title. Uniform Code of Military Justice), is amend- The assistant legislative clerk read ‘‘(2) Section 408(e) of the Controlled Sub- ed by inserting after the item relating to as follows: stances Act of 1970 (21 U.S.C. 848(e)). section 919 the following: ‘‘(3) Section 202 of the Atomic Energy Act The Senator from California [Mrs. ‘‘919a. Causing termination of pregnancy and of 1954 (42 U.S.C. 2283). termination of normal course of FEINSTEIN] for herself and Mr. LAUTEN- ‘‘(c) Subsection (a) does not permit pros- pregnancy.’’. BERG, Mr. BINGAMAN, Mrs. BOXER, Mr. ecution— Mrs. FEINSTEIN. Madam President, KENNEDY, and Mr. CORZINE, proposes an ‘‘(1) for conduct relating to an abortion for amendment numbered 2858. which the consent of the pregnant woman I agree with virtually everything the Mrs. FEINSTEIN. I ask unanimous has been obtained or for which such consent Senator from Ohio has said. Although consent the reading of the amendment is implied by law in a medical emergency; there are many State laws which do be dispensed with. ‘‘(2) for conduct relating to any medical take into consideration a fetus, it is The PRESIDING OFFICER. Without treatment of the pregnant woman, or mat- true that the Federal laws, which ters related to the pregnancy; or would impact only those on Federal objection, it is so ordered. ‘‘(3) of any woman with respect to her The amendment is as follows: property, are silent. I am in complete pregnancy.’’. concurrence with everything the Sen- (Purpose: Entitled the Motherhood (b) CLERICAL AMENDMENT.—The table of Protection Act) chapters for part 1 of title 18, United States ator has said. I have had the privilege of working with him, so it is a delight Strike all after the enacting clause and in- Code, is amended by inserting after the item sert: relating to chapter 90 the following: for me to be able to discuss and debate SECTION 1. SHORT TITLE. ‘‘90A. Protection of pregnant women 1841’’. this issue with him. The substitute amendment I have This Act may be cited as the ‘‘Motherhood SEC. 3. MILITARY JUSTICE SYSTEM. called up is on behalf of Senators Protection Act’’. (a) PROTECTION OF PREGNANT WOMEN.—Sub- SEC. 2. PROTECTION OF PREGNANT WOMEN. chapter X of chapter 47 of title 10, United BINGAMAN, BOXER, CORZINE, KENNEDY (a) IN GENERAL.—Title 18, United States States Code (the Uniform Code of Military and LAUTENBERG. I would like to make Code, is amended by inserting after chapter Justice), is amended by inserting after sec- clearer a couple of places in that 90 the following: tion 919 (article 119) the following: amendment.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.015 S25PT1 S3126 CONGRESSIONAL RECORD — SENATE March 25, 2004 I ask unanimous consent to send a Senate wants to accomplish the same The DeWine bill provides exactly the modification to the desk. goal—punishing those who, by attack- same provisions. A prosecutor can Mr. DEWINE. I object. ing or killing a pregnant woman, de- charge two crimes—one for the under- The PRESIDING OFFICER. Objec- prive families not only of the mother lying attack on the woman and one for tion is heard. but also of the joy to help raise the the termination of the pregnancy. The Mrs. FEINSTEIN. I hear the objec- child yet to be born. Punishing those penalties in the DeWine bill are iden- tion. I am rather surprised by the ob- who end a pregnancy and thus end the tical to the penalties in our amend- jection. It is generally common cour- potential life experience, all of the ment. tesy to allow a Senator to amend his or hopes and dreams embodied by that For instance, the DeWine bill pro- her amendment. However, I believe our pregnancy and the child to come, is an vides that if the separate offense re- amendment is clear on its face. important advance in Federal criminal sults in the ending of the pregnancy, I would like to point out that since law. the penalty is identical to the penalty 2000, in the Senate, there has been no But here is where it gets more com- for taking an adult’s life. The Fein- hearing on this amendment and no op- plicated. The House bill before us, the stein substitute is the same. The portunity for the Judiciary Committee DeWine bill, now takes the position in DeWine bill says the maximum penalty to make corrections. This amendment law that life begins at conception. for ending a pregnancy is a life sen- is on the floor as a rule XIV. This, then, involves this bill directly tence, and the maximum penalty for I am very disappointed the Senator into a woman’s right to choose—an harming that pregnancy is a 20-year will not allow me to make a modifica- issue that need not be raised and sentence. The Feinstein substitute is tion. For the record, let me simply should not be raised in this debate. the same. state that I was proposing a minor Although the text of the amendment Neither bill allows for the death pen- change designed to further clarify what itself technically provides an exception alty and neither bill applies to conduct I believe to be the clear intent and ap- for abortion, experts on both sides of to which the pregnant woman has con- plication of our amendment. The bot- this issue agree the language in the bill sented. tom line is this: Even without the tech- will clearly place into Federal law a The simple truth is this: Whichever nical changes, our amendment is clear. definition of life that will chip away at bill passes in the end, a prosecutor will We include the same structure, the the right to choose as outlined in Roe be given exactly the same ability to same crimes, and the exact same pen- v. Wade. I hope to make that crystal charge a defendant. The crimes are the alties as the DeWine bill. clear as I go on. same. The penalties are the same. Ev- The only real difference between our The Philadelphia Inquirer in its edi- erything will be the same except a few amendment and the DeWine bill is that torial yesterday put it succinctly by simple words that inject the abortion we do not attempt to place into law saying: debate into this issue by clearly estab- language defining life as beginning at If passed and signed, as promised by Presi- lishing in criminal law for the first conception—beginning with an embryo. dent Bush, the Federal law would be the first time in history that life begins at the Just to clarify for the purpose of giv- to recognize unborn children at any stage of moment of conception. I contend that ing judges more legislative history development as victims with legal rights if this result is incorporated in law, it with which to interpret our amend- separate from those of their mothers. . . . will be the first step in removing a ment, let me be clear about the two It’s so easy to see how a Federal unborn vic- woman’s right to choice, particularly provisions at issue. tims law, coupled with unborn victims laws in 29 States, will form the basis of a new in the early months of a pregnancy be- The first modification concerns sec- legal challenge to Roe v. Wade, the land- fore viability. tion (c)(2) of our amendment which mark case that gives women the right to ter- As we all know, the question of when reads ‘‘For medical treatment of the minate certain pregnancies. If a fetus who life begins is a profound and a deeply woman or matters relating to the preg- dies during a crime is a murder victim, then divisive one. So I don’t believe we nancy.’’ This language simply tracks isn’t abortion murder? should be addressing that issue here the DeWine language and the House That is the Philadelphia Inquirer edi- today—without a hearing since the bill language. I believe it is quite clear torial of yesterday. year 2000, without expert testimony, what we meant by this was to exempt That is why I offered this substitute and without need to do so. But, more medical treatment of the woman or amendment. I think when I am finished importantly than that, this language any other medical treatment related to describing the differences between our unnecessarily turns a simple law into a the pregnancy. amendment and the underlying legisla- controversial one and, most impor- The second criticism or modification tion, it will become crystal clear that tantly, this language could make it was that section (c)(2) which applies to these two measures accomplish the more difficult for prosecutors to obtain intentional crimes against the preg- same goal in terms of criminal justice a conviction for the second defense of nant woman is awkwardly worded and and the same goal in terms of deter- harming or ending a pregnancy. I will thus vague. The intent of the section is rence. describe why later. also clear. Our amendment and the The difference between the two meas- It is possible that some pro-choice ju- House and the DeWine bill would pun- ures—the only difference—is our sub- rors might refuse to convict simply be- ish an individual who intentionally stitute does not include a new unprece- cause the language of the law refers to ends a pregnancy in accordance with dented definition of when life begins. an unborn ‘‘child in utero’’—that is a the murder, manslaughter, or intent The bottom line is this: It is unneces- quote, ‘‘child in utero,’’ that is bill lan- statutes already on the books. The sary to include a definition of when life guage—when the victim may have only level of penalty would be determined begins in this legislation, and including been 1 week or even 1 day pregnant. by a judge and would be based on the such language could, and I believe will, An embryo in this bill becomes a per- level of intent. For instance, punish- make it much more difficult to obtain son for the purpose of Federal criminal ment under the murder statute would convictions in these cases. sanctions for the first time in Amer- require malice. Punishment under the The substitute amendment I offer ica’s history. That is the significance manslaughter statute would not. But today essentially provides that if a per- of this bill. This substitute allows ju- either way the intent is clear. petrator of an attack on a woman com- rors to look at evidence and the law I believe the only real reason to raise mits certain violent Federal crimes and it doesn’t force jurors to grapple these issues is to try to defeat our against that woman and harms or ends with the complicated and controversial amendment without addressing the un- her pregnancy, a prosecutor can charge issue of when life begins. derlying fact that our amendment con- the perpetrator with the underlying Including language defining the be- tains the same law enforcement goals Federal crime first but can also charge ginning of life is not in any way nec- as the DeWine and the House bill, but the perpetrator with harming or ending essary to the criminal law but, rather, without injecting a debate over a wom- her pregnancy and effectively harming it is only relevant to the abortion de- an’s right to choose into the equation. or killing another potential life. bate. This issue is not as simple as it How is this different from the Let me show you a statement that I seems at first glance. Everyone in the DeWine bill? It is not different at all. believe reveals the clear intent of this

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.016 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3127 bill. That statement is made by Sam- unborn child, then we’re clearly saying there country outlawed entirely. Our amend- uel Casey, executive director and CEO is something very valuable there. ment avoids that problem and focuses of the Christian Legal Society. This is Why is he saying that? He is saying only on the need to increase penalties the intent: that because a fetus, even at concep- for those who attack pregnant women. In as many areas as we can, we want to put tion, becomes a person, becomes a There has been a lot of discussion on the books that the embryo is a person . . . human being. about the tragic Laci Peterson case in that sets the stage for a jurist to acknowl- Professor R. Alta Charo of the Uni- my State of California. I have had the edge that human beings at any stage of de- versity of Wisconsin further points out pleasure of meeting with Laci’s moth- velopment deserve protection—even protec- how these efforts are aimed at chang- er, Sharon Rocha, a very fine woman tion that would trump a woman’s interest in ing the law and how the Supreme Court terminating a pregnancy. and a woman who I can understand is might rule in future abortion cases. decimated by what happened to her This will be the first strike against Charo said recently: daughter. Some in the Senate have all abortion in the United States of If you can get enough of these bricks in suggested that this tragedy is evidence America. This will draw back the veil place, draw enough examples from different of a loophole in Federal law that needs and, I believe, makes crystal clear parts of life and law where embryos are to be closed. what this legislation actually is. This treated as babies, then how can the Supreme However, the House bill and the is the key to much of the support for Court say they’re not? This is, without ques- DeWine bill will have no impact in any tion, conscious strategy. this legislation: Not just adding a new way, shape, or form on the Laci Peter- criminal law on the books, but also de- This is a professor of law at the Uni- son case. The perpetrator of that crime fining life as beginning at conception versity of Wisconsin, pulling the veil will be prosecuted and punished under in statute here and then in the future, back further and exposing this exactly current California law and the per- wherever else and however else pos- for what it is, a ‘‘conscious strategy’’ petrators of almost all similar crimes sible. This is a concerted effort to in- to say life begins at conception and en- through the country will, in fact, be sert the definition of when life begins shrine it in this Federal law, and then prosecuted under State laws, not a into the law wherever possible. other laws, and then other laws, and Federal law, unless the crime takes Let me give some examples of quotes then go to the Supreme Court and Roe place on Federal property. that again make this very clear. The vs. Wade is struck down. In my State of California, the legisla- intention of the antichoice community In a CNN interview last May, the dis- ture amended California’s existing has been clearly revealed by a Repub- tinguished chairman of the Senate Ju- murder statute in 1970—that is 34 years lican strategist by the name of Jeffrey diciary Committee—and I have had the ago—to read as follows: Bell. Here is how he put it: pleasure of serving on that committee Murder is the unlawful killing of a human Parental notification rules don’t really for 12 years—made the following com- being, or a fetus, with malice aforethought. prohibit anything. They don’t ban the act of ment: abortion. But a cloning ban—this is saying Now, if this were the case, if this They say it undermines abortion rights. It were written in Federal law, easy, I that something should be illegal. And if tak- does undermine it. But that’s irrelevant. ing [unborn] human life became illegal, that We’re concerned here about a woman and her would support it in a minute because it would be a breakthrough. Since Roe, no one child . . . The partisan arguments over abor- draws a distinction, it permits the has been able to do that. tion should not stop at a bill that protects ‘‘double charge’’ that both Senator So this, Members of the Senate, is women and children. DEWINE and I agree is necessary. But clearly the agenda, freezing the law, If that is true, then the Senator from the use of the words ‘‘or fetus’’ makes any law, in this case criminal law, that Utah should vote for our amendment a distinction between a human being life begins at conception. Then, once because our amendment does exactly and a fetus for purposes of the applica- declared legally, that law becomes the the same thing, the same penalties for tion of the homicide statute. That is stepping-stone to refuse embryonic the same crimes as the House bill. important. And that is the law under stem cell research and to ban abortion. When Justice Harry Blackmun wrote which Laci Peterson’s alleged murderer Once the law defines human life as be- in 1973 the Roe decision, he said: is going to be prosecuted. ginning at conception, stem cell re- . . . the unborn have never been recognized If you look at it, you will see it is search could become murder, abortion in law as persons in the whole sense . . . completely adequate. The complexity becomes murder, even in the first days Let me repeat that: ‘‘the unborn have of that case, which continues today, is of a pregnancy. never been recognized in the law as one that relates to evidence and proof, That is where this is going. Please persons in the whole sense.’’ not a problem with statutes or pen- see it. Understand it. Know it. Every- What he did by saying that was actu- alties. The California statute is wholly one in this body who believes embry- ally, inadvertently provide a roadmap adequate. So the bill we discuss today onic stem cell research holds a promise for the anti-choice people and those would have absolutely no impact on for cures to Parkinson’s, for cures to who want to undermine Roe and even- the Laci Peterson case, none. Alzheimer’s, for cures to juvenile dia- tually to reverse it. This bill, the un- Now, I would like to bring to the betes, for perhaps spinal cord rupture derlying bill, is following that roadmap Senate’s attention a July 10 letter repair, will have to contend with a by changing a criminal law in a way from a Stanford law professor. He goes statute that has said life begins at con- which clearly says an embryo can be an into the problems of what this law, if ception. So embryonic stem cell re- individual as a person for the purposes passed, could actually do in the court- search may become murder and abor- of criminal prosecution. room to actual prosecutions and to ju- tion in the first trimester becomes Clearly, this is a concerted effort to ries. His name is George Fisher. He is a murder. That is where this debate is codify in law the legal recognition life criminal law expert. He is a former taking us. That is the reason for this begins at conception. If we allow that prosecutor. He served as an assistant bill. to happen today in this bill or in any DA, an assistant attorney general. He The supporters of this bill will say bill, we put the right to choose square- has taught criminal law at Stanford they do not want to undermine Roe, ly at risk. Roe v. Wade allowed States Law School since 1995, and he has but that is precisely what Nebraska to claim a legitimate interest in pre- founded Stanford’s criminal prosecu- State senator Mike Foley said when he venting abortion postviability. Many tion unit. proposed legislation to allow wrongful states—and we both know that—have He makes three points. Let me quote death suits involving the termination laws on the books with respect to the him: of a pregnancy. Let me quote him. Let third trimester and even the second The Bill’s apparent purpose of influencing me pull back the veil again: trimester. the course of abortion politics will discour- We said specifically in our bill that we did If the concept of viability, which age prosecutions under any future Act. I do not want to challenge Roe v. Wade, and that not know what motives gave rise to the would not affect abortion in the legal sense. means when a fetus can live outside of Bill’s use of the expressions ‘‘child in utero’’ But philosophically, sure, these laws are a the womb, gives way to a definition and ‘‘child, who is in utero,’’ but I do know challenge . . . If a state can put someone in that provides life begins at conception, that any vaguely savvy reader will conclude jail for life because they took the life of an we could soon see abortion in this that these terms and the Bill’s definition of

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.018 S25PT1 S3128 CONGRESSIONAL RECORD — SENATE March 25, 2004 them were intended by the Bill’s authors to vote for this bill without the expecta- persons deeply sensitive to the rights and in- influence the course of abortion politics. tion that they are creating the first terests of pregnant women. Such jurors If the authors of the Bill truly seek to pro- legal bridge to destroy Roe v. Wade. would regard an attack on a pregnant tect unborn life from criminal violence, they Now, there is a time and a place to woman as being a twofold crime, comprising will better accomplish this purpose by avoid- both the injury directly inflicted on the ing such expressions as ‘‘child in utero.’’ Bet- discuss the morality and philosophy of mother and the stark emotional and physical ter alternatives would refer to injury or when life begins. This is not that time. trauma resulting from injury to or loss of death to a fetus or damage to or termination Now is the time to change our Federal her pregnancy. of a pregnancy. law to punish criminals who would in- But such jurors also will be more likely Dr. Fisher goes on to say: flict grievous injuries or death upon than others to believe that pregnant women have the right to exercise autonomy over The Bill’s apparent purpose of influencing pregnant women on Federal lands. So I their bodies and to choose whether to abort the course of abortion politics will motivate urge my colleagues to support the sub- a pregnancy. I predict that many or most prosecutors to exclude those prospective ju- stitute amendment. judges will bar prosecutors and defense coun- rors who otherwise would be most sympa- EXHIBIT 1 sel from questioning prospective jurors thetic to the prosecution’s case. I predict that many or most judges will bar STANFORD LAW SCHOOL, about their views on abortion or about re- prosecutors and defense counsel from ques- Stanford, CA, July 10, 2003. lated matters such as their religion, reli- tioning prospective jurors about their views Senator DIANNE FEINSTEIN, gious practices, or political affiliations. on abortion or about related matters such as U.S. Senate, Senate Hart Office Building, Forced to act largely on instinct, prosecu- their religion, religious practices, or polit- Washington, DC. tors may be inclined to exercise peremptory DEAR SENATOR FEINSTEIN: I wish to express ical affiliations. Forced to act largely on in- challenges against those prospective jurors my concern about the current formulation of who appear to be most sympathetic to the stinct, prosecutors may be inclined to exer- S. 1019, the Unborn Victims of Violence Act rights of pregnant women. This result clear- cise peremptory challenges against those of 2003. Although I fully endorse the Bill’s ul- ly would frustrate the Bill’s stated purpose prospective jurors who appear to be most timate aim of protecting pregnant women of protecting unborn life from criminal vio- sympathetic to the rights of pregnant from the physical and psychological trauma lence. women. This result clearly would frustrate of an endangered or lost pregnancy, I believe Third: The Bill’s apparent purpose of influ- the Bill’s stated purpose of protecting un- that the Bill’s current formulation will frus- encing the course of abortion politics offends born life from criminal violence. trate rather than forward this goal. the integrity of the criminal law. He concludes: I write both as a former prosecutor and as To anyone who cares deeply about the in- The Bill’s apparent purpose of influencing a law professor specializing in criminal law tegrity of the criminal law, this Bill’s appar- the course of abortion politics offends the in- and criminal prosecution. At the outset of ent attempt to insert an abortion broadside tegrity of the criminal law. To anyone who my career, I served as an assistant district into the criminal code is greatly offensive. cares deeply about the integrity of the crimi- attorney in Middlesex County, Mass., and as The power to inflict criminal penalties is, nal law, this Bill’s apparent attempt to in- an assistant attorney general in the Massa- second only to the power to wage war, the sert an abortion broadside into the criminal chusetts Attorney General’s office. I then highest trust invested in our institutions of code is greatly offensive. went to Boston College Law School, where I government. Because the power to make and Now, that is a former prosecutor, a administered and taught in the criminal enforce criminal laws inherently carries prosecution clinic. I have been at Stanford enormous potential for abuse, those who ex- former assistant DA, assistant AG, a since 1995 and a tenured professor of law ercise that power must always do so with a professor of law at Stanford Law since 1999; during the next academic year, I spirit free of any ulterior political motive. School—one of the great law schools of will serve as Academic Associate Dean. In The American Bar Association’s Standards our country—and head of the criminal 1996 I founded Stanford’s criminal prosecu- Relating to the Administration of Criminal prosecution unit at Stanford Law tion clinic and have administered and taught Justice provide that ‘‘[i]n making the deci- School. in the clinic ever since. I have also created a sion to prosecute, the prosecutor should give I ask unanimous consent to have the course in prosecutorial ethics, which I no weight to the personal or political advan- taught at Boston College Law School and, as tages or disadvantages which might be in- entire letter printed in the RECORD fol- a visitor, at Harvard Law School. volved . . . .’’ (Standard 3–3.9(d).) Not all lowing my remarks. My background and interest in criminal prosecutors conduct themselves with fidelity The PRESIDING OFFICER (Mr. EN- prosecution prompt me to raise three objec- to this principle, but we may readily con- SIGN). Without objection, it is so or- tions to this Bill. All of them focus on the demn those who do not. We may likewise dered. Bill’s use of the expressions ‘‘child in utero’’ condemn other public actors who abuse the (See exhibit 1.) and ‘‘child, who is in utero,’’ and on its defi- sacred public trust of the criminal sanction Mrs. FEINSTEIN. Mr. President, the nition of these terms as ‘‘a member of the for political ends. substitute amendment, which I have species homo sapiens, at any stage of devel- For these reasons, I object to the current offered, has been crafted to avoid these opment, who is carried in the womb.’’ formulation of the Unborn Victims of Vio- First: The Bill’s apparent purpose of influ- lence Bill. As I am confident that an alter- problems. encing the course of abortion politics will Our amendment, the Motherhood native version of the Bill can fully accom- discourage prosecutions under any future plish its stated purpose of protecting unborn Protection Act, will accomplish the Act. life from criminal violence while avoiding same goal as the Unborn Victims of Vi- I do not know what motives gave rise to each of the difficulties I have outlined above, olence Act, but will do so in a way that the Bill’s use of the expressions ‘‘child in I strongly encourage the Senate to modify does not involve us in the debate about utero’’ and ‘‘child, who is in utero,’’ but I do the Bill in the ways I have suggested above abortion or when life begins. In my know that any vaguely savvy reader will or in some other manner that avoids the conclude that these terms and the Bill’s defi- freighted and frankly politicized terms, view, there is no reason to vote against nition of them were intended by the Bill’s this substitute unless the intention is ‘‘child in utero’’ and ‘‘child, who is in utero.’’ authors to influence the course of abortion My thanks to you for your consideration of to establish legally that human life, for politics. It is a fair prediction that when a my views. the purposes of Federal criminal law, pro-life President is in office, prosecutions Sincerely, begins at the moment of conception be- under this Bill will be more frequent than GEORGE FISHER, cause, ladies and gentlemen, that is ex- when a pro-choice President is in office. That Professor of Law. actly what this bill does. is because the public will interpret this Bill Mrs. FEINSTEIN. Mr. President, how as suggesting that abortion is a potentially To emphasize the point, let me again much time have I consumed? turn to the comments of Samuel Casey, criminal act and will interpret prosecutions under the Bill as endorsing this sentiment. The PRESIDING OFFICER. The Sen- executive director and CEO of the If the authors of the Bill truly seek to pro- ator has 89 minutes left. Christian Legal Society, who clearly tect unborn life from criminal violence, they Mrs. FEINSTEIN. I have 89 minutes states the intention behind the bill in will better accomplish this purpose by avoid- remaining? this quote: ing such expressions as ‘‘child in utero.’’ Bet- The PRESIDING OFFICER. Yes. In as many areas as we can, we want to put ter alternatives would refer to injury or Mrs. FEINSTEIN. I thank the Chair. on the books that the embryo is a person. death to a fetus or damage to or termination I know the Senator from New Jersey . . .That sets the stage for a jurist to ac- of a pregnancy. is on the floor wishing time. Second: The Bill’s apparent purpose of in- knowledge that human beings at any stage Mr. DEWINE. He can take it now. fluencing the course of abortion politics will of development deserve protection—even Mrs. FEINSTEIN. Good. May I ask motivate prosecutors to exclude those pro- protection that would trump a woman’s in- spective jurors who otherwise would be most the Senator how much time he would terest in terminating a pregnancy. sympathetic to the prosecution’s case. like? Let there be no doubt about the in- If I were prosecuting a case under this Bill, Mr. LAUTENBERG. I would like to tent. Anyone who is pro-choice cannot I would hope to have a jury that includes have about 10 minutes.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.021 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3129 Mrs. FEINSTEIN. Mr. President, I Anti-choice advocates simply don’t learn, who often get their only nutri- yield 10 minutes to the Senator from trust women and their doctors to know tional meal from the program. Three New Jersey. what is best for their bodies and their hundred thousand of those children are The PRESIDING OFFICER. The Sen- lives. We even encountered this male- denied access to these programs be- ator is recognized for 10 minutes. ogarchy last year when this body told cause we have taken away the funding The Senator from New Jersey. doctors and their patients that it is to give tax breaks to those who have Mr. LAUTENBERG. Mr. President, I Congress, rather than the medical ex- been fortunate enough to live in this thank my colleague from California perts, who know best about their country, to make a lot of money, to and also our distinguished colleague health. And when the so-called partial- succeed. from Ohio. birth abortion bill was signed, there I am one of those. I had a good busi- I rise to express my strong opposition were all men on the stage with the ness career, as did many here. We don’t to the underlying bill and support for President of the United States, smiling need this kind of thing. We don’t want the amendment by the Senator from and gloating as they took away the it. We want our country to be strong. California. right of a woman, in consultation with We want the strength to be built in a I have long supported legislation that her doctor and her conscience, to make harmonious society and to lend a hand combats domestic violence. I was the a decision that, though painful, is ap- to those who don’t have the ability to author of the domestic violence gun propriate for her well-being. help themselves. But now that can’t ban because abusers should not have Do we want to decide here whether or happen. We are focused on giving tax access to weapons, to guns. Whether an not a woman has a right to make a de- breaks to the wealthy and making abuser is terrorizing his wife or his cision about her choice for an abor- them permanent, as we dig ourselves children, let’s take away their means tion? Perhaps she has two, three, four deeper into debt. to inflict further terror and abuse. So other children at home and her health Many of my colleagues who support far, my law has prevented nearly 30,000 is in jeopardy. We are saying: It doesn’t this bill also reject expending health abusers from obtaining guns. matter what you think, Madam. We are insurance coverage for poor and lower Because of my long-term commit- going to make the decision for you. middle-class children and their fami- ment to stopping violence against That is why there wasn’t one woman lies. Many who support this bill will women and children, I take offense at standing with the President at the tell you they want to simply protect the fact that the backers of this bill White House the day that so-called par- children. I find it ironic that they only are exploiting this issue in order to ad- tial-birth abortion prohibition passed want to protect children before they vance another anti-choice agenda. the Senate, when the President signed are born, but they don’t want to do We see this regularly around this the bill. what they have to after they are born. place. I saw it in a commerce sub- President Bush and his supporters in I see it as hypocrisy. committee meeting that was supposed the Senate say they care about domes- I challenge supporters of this bill to to discuss science, space, and tech- tic violence and protecting women. But get serious about protecting women nology. The witnesses who were at the if that is the case, how, then, do we ex- and children and pass meaningful legis- table were there to talk about their op- plain the fact that the President’s lation that improves the lives of these position to abortion and their experi- budget cuts funding for the Violence women and children, not this under- ence after they themselves had abor- Against Women Act programs by $116 cover move to restrict choice for tions. They made their decisions after million next year? Is that going to help women. The PRESIDING OFFICER. Who an action that they took that placed women? Is that going to make life bet- them in that position. Now they want- yields time? ter for them? No. It is going to make Mrs. FEINSTEIN. Mr. President, I re- ed to block everybody else from having life worse. Those are living people. a chance to make their personal serve the remainder of my time. Those are people who were here. Those The PRESIDING OFFICER. The Sen- choices. are people for whom this male group ator from Ohio. We have to understand what wants to decide, make decisions. Mr. DEWINE. Mr. President, I have a underlies this issue. Yes, it is worth- If Congress wants to get serious great deal of respect for my colleagues while to protect people and those who about violence against women and chil- from New Jersey and California. My are not yet born against violence, but dren, let’s do something real about it. colleague from New Jersey knows I to make it a crime of this magnitude, Let’s fund programs that provide care about what happens after children when there is so much else at stake in money to law enforcement to prevent are born. I care about their health. I the matter of choice, decided many domestic violence and sexual assault. believe I have demonstrated that in the years ago by the Supreme Court—sup- Let’s fund battered women’s programs Senate. In fact, he and I have worked porters of this bill will tell you this and rape crisis centers instead of cut- on these issues together. I have worked legislation protects women, protects ting funding for these often lifesaving with my colleague from California on children, and this is a bill about pun- services. Let’s improve access to shel- many issues having to do with chil- ishing crime. But if you want to know ters, making it easier for abused dren. We just happen to disagree on what this bill is really about, you only women and their children to flee that this issue. need listen to what a leading supporter abuse. I have a great deal of respect for both of this bill told CNN when asked about If this so-called Unborn Victims of of them. We have worked together on a the legislation. I quote him: Violence Act were actually about vio- bipartisan basis on a wide range of They say it undermines abortion rights. It lent crime, then the domestic violence issues. I would hope that as we debate does . . . But that’s irrelevant. community would be in support of it. this bill, we would focus on the legisla- That is the prevailing attitude of But they oppose the bill. The National tion. I say that with all due respect. I those who want to impose yet another Network to End Domestic Violence, don’t understand—again, with all due restriction on a woman’s choice, on the the National Coalition Against Domes- respect to my colleagues—what debate protection of a woman’s health. This tic Violence, and the Family Violence about the motives of people has to do bill is intended, plainly and simply, to Prevention Fund, all oppose this legis- with what the facts are. undermine Roe v. Wade. But rather lation. I am going to try to confine my de- than being direct about the goal, anti- Many backers of this bill also sup- bate to what I think are the essential choice advocates want to use tragedies port giving a $1 trillion tax break to facts. I think they are fairly simple. like violence against women as a red the wealthiest among us, rather than Let me talk for a few moments about herring to move their agenda. giving it to the struggling working what I believe are the essential facts. Over and over, we see this body tak- families who need it to help pay for ev- I ask my colleagues who are listening ing up legislation that I believe is part eryday goods and services, programs to this debate to remember a couple of of an attempt to establish what I call a such as Head Start for children who things about the Feinstein amendment. ‘‘male-ogarchy’’ in our society. A male- don’t have a comfortable home life I am going to keep coming back to ogarchy is a society in which men are that permits them to engage in the these central facts about the Feinstein making decisions for and about women. process of learning or of expecting to amendment.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.023 S25PT1 S3130 CONGRESSIONAL RECORD — SENATE March 25, 2004 No. 1, the Feinstein amendment does Let’s turn to the penalty section. The If the Feinstein amendment would not recognize a second victim. Our bill penalty section is fatally flawed. The have passed, or a version of it, in Cali- does. The Feinstein amendment creates penalty section won’t work. The Jus- fornia, if the California legislature a legal fiction. It is contorted, it twists tice Department has sent a letter and, would have done what Senator FEIN- the law in a sense—maybe a better way in their opinion, the penalty section STEIN is asking us to do today in this of saying it is not that it twists the provides no penalty, under the Fein- Federal legislation, they would not law; it doesn’t do that, but it twists the stein amendment, for the killing of the have been able to prosecute for the reality of the common sense of people fetus. It is vague; it is unclear at best. death of Conner Peterson. They would when they look at this. When they see It defines additional crimes as the not have been able to recognize that a pregnant woman who is assaulted and interruption or termination of a preg- death as a second victim death. That is her child dies, they intuitively know nancy. When it describes the punish- the fundamental fact, and that is the there is a victim besides the mother. ment, it refers to injury or death. fundamental difference between the They know the mother is a victim, but Whose injury or death are we talking DeWine bill and the Feinstein amend- they also know there is a second vic- about here? Is it the unborn child? ment. tim. Whose injury? We have heard a lot of talk about The vast majority of the American The Feinstein amendment doesn’t motives and agendas. I think we should people, if you ask them was there an- recognize that the interruption and stop doing that, and I think we should other victim, will say of course there termination of the pregnancy means look to the victims and hear from the are two victims. Our bill recognizes the the injury or death of the fetus because victims. There are three victims. The second victim. The Feinstein amend- it won’t acknowledge the fetus, of families of the victims were here yes- ment refuses to recognize the second course, as a separate being. terday. When one talks with the vic- victim. Now we can talk about punish- The amendment is circular and really tims, it is clear the victims believe ment and all kinds of things, but it re- without meaning. Put simply, there is there are two victims. Let me talk fuses to recognize good common sense. no additional punishment because about several cases. They are tragic This bill in front of us has nothing to under this amendment there is no addi- cases and are difficult to listen to, but do with abortion. It has absolutely tional victim. The Feinstein amend- I think it brings home what we are nothing to do with abortion. We have ment goes out of its way not to recog- really talking about. explicitly exempted abortion in this nize another victim. What is the ref- Let me talk about the example of bill. Yet opponents still try to argue erence to? Let me read this section Airman Gregory Robbins. This is a case this point. and, again, this is a technical reading, about which I have talked many times Our statute could be no more clear but that is how you have to read a on the Senate floor, but I think is on this point. Senator FEINSTEIN uses criminal section. This is how judges worth repeating today because it illus- identical language to exempt abortion have to do it. The bottom line is—I am trates the injustice that exists today in or any related activity in her amend- going to say it again and again—if you our Federal law. ment. This bill simply doesn’t affect In 1996, Airman Robbins and his fam- abortion rights whatsoever. The lan- vote for Feinstein, there will be no pen- alty at all for the killing of a second ily were stationed in my home State of guage could not be clearer. I invite my Ohio at Wright-Patterson Air Force colleagues to pick up the bill and look victim, the child. There clearly is none for the injury of that child. Let me Base in Dayton. At that time, Mrs. at the section. It exempts any ref- Robbins was more than 8 months preg- read the penalty section, 2(a), under erence to abortion, anything a mother nant with their daughter they named the Feinstein amendment: would do to her own child, anything a Jasmine. On September 12, 1996, in a fit doctor would do is exempted. It has Except as otherwise provided in this para- of rage, Airman Robbins wrapped his nothing to do with abortion, not at all. graph, the punishment for that separate of- fense is the same as the punishment provided fist in a T-shirt and savagely beat his That is not what this is about. for that conduct under Federal law had that wife by striking her repeatedly about Point No. 1, this bill recognizes a sec- injury or death occurred to the pregnant the head and stomach. Fortunately, ond victim; the Feinstein amendment woman. Mrs. Robbins survived this violent as- does not. If you believe there is a sec- What injury or death are we talking sault, but tragically, her uterus rup- ond victim, you cannot vote for the about? To whom? tured during the attack, expelling the Feinstein amendment. It denies there The language doesn’t acknowledge baby into her abdominal cavity, caus- is a second victim. injury or death to the fetus. Who is it ing Jasmine’s death. The second point I want to make will referencing in the previous paragraph? Does anyone truly think Jasmine come as a surprise, I think, to the It clearly is fatally flawed. It is dif- was not a victim? I think we know she Members of the Senate. It will come as ficult for me to read this and for people was. Not only was her mom a victim, a surprise to you until you pick up the to understand it. But to get the section but she was as well. Feinstein amendment and read it care- out, it clearly doesn’t work and is fa- Let me give another example. In Au- fully. I invite you to do that. Pick up tally flawed. So this does not recognize gust 1999, Shiwona Pace of Little Rock, the amendment and read it carefully. the death, does not recognize any pun- AR, was days away from giving birth. First, the Feinstein amendment does ishment. It would not provide punish- She was understandably thrilled about not punish the criminal for harming or ment and it clearly presents a problem. her pregnancy. Her boyfriend, Eric Bul- injuring the baby. Let me read it. It My friend from California has said lock, however, did not share her joy only punishes the criminal for ‘‘inter- the DeWine bill would have no effect on and enthusiasm. In fact, Eric wanted rupting or terminating a pregnancy.’’ the Laci Peterson case. That is true; it the baby to die. So he hired three thugs That is the language, ‘‘interrupting or would not. Fortunately, California has to beat his girlfriend so badly that she terminating a pregnancy.’’ But not for a similar law that provides for a second lost the unborn baby whom she named injuring. So if a child is injured, not victim, the punishment for the death of Heaven. I might add, she lost that baby killed, the pregnancy not terminated, that child. While it is true the DeWine 1 day shy of her predicted delivery the Feinstein amendment will not bill would have no effect on the Laci date. Shiwona testified at a Senate ju- cover it. That, to me, is a problem. Peterson case, the fact is if the Fein- diciary hearing we held in Washington That is a fatal fallacy, fatal problem. stein amendment, or a similar amend- on February 23, 2000. This is what she Here is the language: ment to the Feinstein amendment, had said: Any person who engages in conduct that been approved by the California legis- I begged and pleaded for the life of my un- violates any of the provisions of law listed in lature at the time their law was being born child, but they showed me no mercy. In subsection (b) and thereby causes the termi- fact, one of them told me, ‘‘Your baby is nation of a pregnancy or the interruption of considered, there would be no punish- dying tonight.’’ I was choked, hit in the face the normal course of pregnancy, including ment for the death of baby Conner Pe- with a gun, slapped, punched, and kicked re- termination of the pregnancy other than by terson. There would have been in Cali- peatedly in the stomach. One of them even live birth is guilty of a separate offense fornia no recognition for that second put a gun in my mouth and threatened to under this section. victim. There would have been no rec- shoot. It does not cover the injury of a ognition of the death of that second Do we really believe Shiwona was the fetus. That is a problem. victim. only victim here? Do we really think

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.026 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3131 we should adopt an amendment that The PRESIDING OFFICER. The Let me read a couple of editorials says she was the only victim? I don’t clerk will call the roll. and statements that have come out in think so. How can we suggest to The legislative clerk proceeded to recent days. There is one editorial this Shiwona that her child was not mur- call the roll. morning in the Los Angeles Times. I dered? Should we twist the law so we Mrs. FEINSTEIN. Mr. President, I would like just quickly to read one don’t recognize that? I don’t think we ask unanimous consent that the order paragraph: should. And Federal law, quite frankly, for the quorum call be rescinded. The Senate is likely to vote today on a bill must recognize this wrong for what it The PRESIDING OFFICER. Without intended largely to score points in the end- is. It is a wrong against two separate objection, it is so ordered. less, wearying abortion debate. The proposed and distinct victims. Mrs. FEINSTEIN. I thank the Chair. Unborn Victims of Violence Act defines a Another example: I can think of no Mr. President, I wish to respond to child in utero as a member of the species better way to tell the story of Baby some of the concerns and complaints of homo sapiens, at any stage of development, the distinguished Senator from Ohio who is carried in the womb. In other words, Zachariah and his mother Tracy the child exists at the moment of concep- Marciniak than by simply reading from about our substitute amendment. Let tion. The House passed similar legislation her testimony before the House Judici- me take on his allegation that this last month. As with nearly every aspect of ary Subcommittee on the Constitution substitute does not provide a punish- the abortion debate, Americans are deeply which occurred on July 8, 2003. Let me ment for harming a child. In fact, it divided over when human life begins. How- read it: does. It clearly states that the inter- ever courts in most States generally accord more rights to a fetus considered viable out- I carried Zachariah in my womb for almost ruption of the normal course of the side the womb. DeWine’s bill, S. 1019, offers nine full months. He was killed in my womb, pregnancy relates to injury to the a sweeping declaration that ignores pre- only 5 days from his delivery date. The first fetus. So there is a penalty for harm. vailing scientific views and the national time I ever held him in my arms, he was al- Secondly, he stated my amendment legal consensus. True, his bill specifically ready dead. would not provide any penalty for end- bars prosecution for abortion, but its effect, There is no way that I can really tell you ing a pregnancy; that it was a legal fic- as DeWine intends, would be to give one side about the pain I feel when I visit my son’s tion in that sense. a new legal bullet in the broader abortion grave site in Milwaukee, and at other times, I think this is clearly a misunder- wars. thinking of all that we missed together. But that pain was greater because the man who standing of the plain text of our That is clear. I will go on. The Los killed Zachariah got away with murder. amendment. We explicitly create a sep- Angeles Times is not the only editorial Zachariah’s delivery date was to be Feb- arate offense for interrupting or ending page that believes that. I indicated ear- ruary 13, 1992. But on the night of February a pregnancy, and we explicitly state lier this is true of an editorial in the 8, my own husband brutally attacked me at the penalty for that offense is the same Philadelphia Inquirer: my home in Milwaukee. He held me against as if the crime had resulted in the in- a couch by my hair. He knew that I very It is so easy to see how a federal unborn jury or death of a mother. That is ex- victims law, coupled with unborn victims’ much wanted my son. He punched me very plicit. hard twice in the abdomen. Then he refused laws in 29 States, will form the basis of a to call for help, and prevented me from call- So the intent is clear. I think quib- new legal challenge to Roe v. Wade, a land- ing. bling about whether the language is mark case that gives women the right to ter- After about 15 minutes of my screaming in perfect, the amendment does exactly minate certain pregnancies. If a fetus who pain that I needed help, he finally went to a what the underlying bill does. I could dies during a crime is a murder victim, why, bar and from there called for help. Zachariah have cleared that up with a modifica- then, isn’t abortion murder? and I were rushed by ambulance to the hos- tion, but the Senator would not let me From the Buffalo News: pital, where Zachariah was delivered by send a modification to the desk, which Passage by House Republicans of a bill emergency Caesarean section. My son was in terms of just sheer congeniality is that treats an attack on a pregnant woman dead. The physicians said he had bled to rather surprising because that could as separate crimes against her and her un- death inside me because of blunt force trau- born child is at heart an attempt to erode ma. have been made crystal clear to every- abortion rights. It’s a disingenuous and mis- My own injuries were life-threatening. I one. guided bill and the Senate should make sure nearly died. I spent 3 weeks in the hospital. So I firmly believe our amendment it goes no further. During the time I was struggling to survive, does exactly the same thing as the That is the Buffalo News. the legal authorities came and they spoke to DeWine amendment, but it does not do my sister. They told her something that she The New York Times, April 25. This something his amendment does, and is 2001. found incredible. They told her that in the that is create life at the point of con- eyes of Wisconsin law, nobody had died on Packaged as a crime fighting measure un- the night of February 8. Later, this informa- ception. His use of the words ‘‘child in related to abortion, the bill is actually tion was passed on to me. I was told in the utero’’ as opposed to the California aimed at fulfilling a long-time goal of the eyes of the law, no murder had occurred. I statute’s use of the words ‘‘or fetus’’ right-to-life movement. The goal is to en- was devastated. make a huge difference in the law le- shrine in law the concept of fetal rights We surviving family members of unborn gally. Once again, I think that is clear. equal to but separate and distinct from the victims of violence are not asking for re- The bottom line is we believe the in- rights of pregnant women. venge. We are begging for justice—justice tent and the crafting of this bill is very Another editorial of the New York like we were brought up to believe in and clear. We do not create a child in utero. trust in. Justice means that the penalty Times: must fit the crime, but that is only part of We try to avoid getting to the point The bill would add to the Federal Criminal it—justice also requires that the law must where life is defined. Code a separate new offense to punish indi- recognize the true nature of a crime. We say that if the pregnancy is in- viduals who injure or cause death to a child who is in utero. The true nature of a crime, Mr. tentionally terminated and specific President. damages are done to the fetus, it is The Washington Post, October 2, 1999, punished either through manslaughter I know that some lawmakers and some What makes this bill a bad idea is the very groups insist there is no such thing as an un- in a second charge or murder in a sec- aspect of it that makes it attractive to its born victim, and that crimes like this only ond charge. I think the language is supporters, that it treats the fetus as a per- have a single victim—but that is callous and very clear. I think it is nitpicking to son separate from the mother though that that is wrong. Please don’t tell me that my say it is not. same mother has a constitutional right to son was not a real victim of a real crime. We I can change it, but I am not allowed terminate her pregnancy. This is useful rhe- were both victims, but only I survived. torically for the pro-life world, but it is ana- to change it. We have the modification, lytically incoherent. I will have more to say about this in but we are not allowed to send the The Blethen, ME, newspaper: a few minutes. At this point, I yield modification to the desk. I believe the floor. Members can vote on this amendment First considered in 1999, the bill purports The PRESIDING OFFICER. The Sen- and know clearly they are assessing to create new Federal crimes for the inten- tional harm or death of a fetus or unborn ator from California. the same penalties for the same crimes child. But, no matter how much supporters Mrs. FEINSTEIN. Mr. President, may as the underlying bill does. The only deny it, the bill’s real intent is to undermine I briefly suggest the absence of a difference is we do not decide in our women’s reproductive choices. If the bill is quorum. bill when life begins. passed and signed into law, it would weaken

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.028 S25PT1 S3132 CONGRESSIONAL RECORD — SENATE March 25, 2004 the prudent and pragmatic decision handed to intervene in certain cases, which has Two, of any person for medical treatment down in Roe v. Wade. been the case in many State laws that of the pregnant woman or her unborn child, In my remarks, I have tried to show have been passed. You now give the Su- or of any woman with respect to her unborn that this is a concerted effort. It need preme Court the ability to begin to child. not be so. You can attach the same say: ‘‘It is in law that the embryo has It is very clear. My colleague argues penalties for the same crimes, as our certain rights’’ and, therefore, forms that this language is going to somehow substitute does, without getting into the bulwark of the attack on Roe. roll back abortion rights. That is a de- the debate of where life begins. This You also do something else insidious. bate for another day. It is not a debate bill chooses to get into the debate of I think you very much intervene in for today. That language in this bill is where life begins and it defines life be- stem cell research. Stem cell research, very clear. ginning at conception. It does so in a and a good deal of the most auspicious If this language was a threat to abor- Federal criminal statute. It is one step of that research, deals with embryonic tion rights, then the language in 29 other States would have been a threat. in the building blocks of statutes that stem cells. If you have a law that says We have 29 States that recognize fetal will constitute the ability to demolish an embryo or a zygote is, in fact, a homicide law. The language in 16 of Roe v. Wade. human life, then it is murder if you use those States is virtually identical to I think every Member of this body that embryo for stem cell research, who is pro-choice should vote against the language in this bill. just as it becomes murder if that em- If the language in this bill was a the underlying bill and for this amend- bryo is harmed or rejected in the problem for abortion rights, then it ment because in this amendment, with- course of an attack on a woman. We would have been a problem with these out creating the separate person at avoid all of that. other States. conception, we establish the penalties We simply say termination of a preg- Also, there are some States that have for interruption or termination of a nancy, and termination of a pregnancy had this language on the books for 30 pregnancy. Those penalties are the in the course of a criminal attack cre- years, and it has not been a problem same—same for murder, same for man- ates a second charge, and that second for abortion rights. slaughter, same for attempted murder, charge carries with it the same penalty That is just a bogus issue. Let us stop same for attempted manslaughter. as the original charge against the talking about it, and let us talk about Again, I point out that in California woman herself would carry. what the issues are. what the State did 34 years ago was es- That is the clear intent. Let me get back to the two points sentially amend the murder statute. I regret that the Senator would not that I made before. I want everyone to By amending the definition in the allow me to modify my amendment. I understand the Feinstein amendment. Penal Code section 187, they provided a can never in 12 years remember any One is not in debate, and one my col- new definition of murder which said: Senator being refused the right to mod- league and I do debate. One I think is Murder is the unlawful killing of a human ify an amendment, but perhaps we are not in debate at all; that is, the Fein- being, or a fetus with malice aforethought. playing by new rules these days. I stein amendment does not recognize a That is the bill under which the Laci know what goes around comes around second victim. It goes against good Peterson case will be brought to court. in this body. I regret that. common sense. It is a different idea because it clearly But I believe on its face our sub- Ask someone back in your home says that it is a fetus. stitute amendment is clear, it is defini- State, if a pregnant woman is assaulted Additionally, there is information tive, it will stand the test of time, and and she loses her child, how many vic- from those who wish to continue this it will prevent what we hope to pre- tims are there? There are two. If you pursuit to make a fetus a human life, vent, which is the first major law ask the average person in your State— to make an embryo a human life, that which decides when life begins. whether your State is Ohio, California, this is a concerted strategy aimed at I yield the floor and reserve the re- wherever it is—the average person on weakening Roe v. Wade. mainder of my time. the street is going to say: Senator, What we have tried to do is mimic The PRESIDING OFFICER (Ms. MUR- there are two victims. the House bill with respect to the pen- KOWSKI). The Senator from Ohio. That is all we are saying with this alties but connect it to the termi- Mr. DEWINE. Madam President, once bill. We are trying to close a loophole nation of a pregnancy and thereby again, I want to bring this debate back so that if a pregnant woman who is avoid the distinction of exactly when to its essence. I am afraid so much of hiking in a national park or is out life begins for the purposes of statute the debate from the other side has been walking in a national park or a preg- law, in this case criminal statute law, about motives—by quoting, with all nant woman on an Air Force Base—we and therefore avoid the problem. due respect, the L.A. Times about pe- are not making these stories up. This I have indicated, from legal scholars, ripheral issues. happens. Pregnant women are attacked where they believe this will undermine Our intent, if you want to go by in- all the time. I saw it as a county pros- prosecutions in this situation because tent, is very simple. Our intent is to ecutor. You ask any county pros- they will encourage peremptory chal- bring about justice for the victims of ecutor—yes, any police officer, any- lenges of individuals who may have crime. Our intent is to bring about jus- body who is a victims rights advocate— strong beliefs in choice and, therefore, tice for the mother and for the child— how often pregnant women are at- not one likely to recognize that an em- for the unborn child as well as the tacked, a pregnant woman who is in a bryo, or a day pregnancy, or a week mother. It is to conform with what the national park, a pregnant woman who pregnancy, or a month pregnancy is, in vast majority of the American people is on Federal property and is attacked. fact, a living being subject to criminal believe; that is, when a pregnant What we are simply saying is that it is sanctions if their rights are violated. woman is assaulted and she either loses wrong if a national park or Federal It is a complicated issue. But it is a that child or that child is injured, property is in a State that does not significant issue. It is an important there are, in fact, two victims. It is as have a similar law to this. It is wrong issue. simple as that. for that Federal prosecutor searching The more I look at it and see the On the abortion issue, let us be done in vain the Federal statutes to find a strategy of the anti-choice movement, with this once and for all. This bill has law for which he can charge that per- the more I see that if you can establish nothing to do with abortion. The lan- son with the death of a fetus, a child— a beachhead of rights in Federal crimi- guage could not be simpler. whatever word you want to use. It is Let me read to the Members of the nal law here, and another statute wrong. That happens today. We are Senate and invite anybody to read it. there, and in a third statute some- closing that loophole. where else, you then begin the march Nothing in this section shall be construed When this law passes, that won’t hap- to the Supreme Court in an attack on to permit the prosecution of any person with pen anymore. A Federal prosecutor will conduct relating to abortion for which con- Roe. Roe sets up a trimester system sent of the pregnant woman or a person au- be able to say, when law enforcement giving the woman total rights in the thorized by law to act on her behalf has been people come in and they have that case first trimester, and then the State the obtained or for which such consent is implied where a woman has been violently at- right in the second and third trimester by law. tacked, she has been injured but the

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.033 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3133 child has been killed, they will be able create a separate punishable offense to pregnancy,’’ or ‘‘the interruption of the nor- to charge for death of that child. That terminating pregnancy. All it does is mal course of pregnancy,’’ there would be no is the right thing to do. They will be recognize attacks on an unborn child penalty even assuming that a successful able to file two charges, recognize two under the label of ‘‘interruption or ter- prosecution could be brought. victims, and recognize that reality. mination of pregnancy,’’ then tacks They have analyzed it a little dif- That is what this does. that label on as an element to any one ferently than I did, but they come to Let me state the second thing about of the 68 Federal crimes specified. The the identical conclusion for the same the Feinstein amendment. Look at the result is a new series of offenses iden- reason. Again, it goes back to this sen- amendment. tical to the previous 68, except for the tence in their letter, ‘‘However, in the We have to go to the penalty section. addition of that one element. substitute, the injury or death provi- This is the Feinstein amendment. For example, now a criminal could sion has no object because the only vic- Except as otherwise provided in this para- face a Federal charge of assault with tim under the substitute is the woman graph, the punishment for that separate of- the result of termination of pregnancy herself.’’ fense is the same as the punishment provided as well as the original charge of as- That is the problem. That is what we for that conduct under Federal law had that sault. This is important. But because have. injury or death occurred to the pregnant he could be charged with both does not Members who come to the Senate and woman. mean he could be convicted and pun- vote on this Feinstein amendment, Remember, this is a criminal law. I ished for both. Instead, he would be which is the key vote, need to under- go back to my days as a prosecutor: protected by a legal principle known to stand three things: One, abortion has You have to construe a law strictly. lawyers as lesser included offenses. nothing to do with this debate. We When it is a criminal law, you construe That principle protects a defendant have covered that in the language of it in favor of the defendant. You give from being convicted in and punished the bill. But more important is the every benefit of the doubt to the de- for a whole series of crimes that are all precedent in the States has already fendant. If this is vague, there is a a subset of a lesser crime. been set. States have bills like this. problem for the prosecutor. We have a We know, for example, the crime of They have not interrupted people’s problem with this one. A serious prob- manslaughter and murder. We know rights under the Supreme Court in re- lem. one defendant cannot be convicted of gard to Roe v. Wade and all the other We have a letter from the Justice De- both charges for the death of only one court decisions. It has not interrupted partment that says there is no penalty victim. If someone is guilty of murder, rights having to do with abortion. It under the Feinstein amendment. Let’s then he or she must have been guilty of has nothing to do with abortion. That look at this carefully and see why: all the components of murder, includ- is No. 1. ‘‘Except as otherwise provided in this ing the components that made him No. 2, the Feinstein amendment fails paragraph, the punishment for that guilty of manslaughter, but that per- to recognize what everybody in this separate offense is the same as that son, of course, is not convicted of both. country knows: When a woman is at- punishment provided for that conduct You cannot be convicted of both man- tacked, there are two victims. under Federal law had that injury or slaughter and murder. If a man is con- And No. 3, the thing to remember is death occurred to the pregnant victed of a felony for stealing $10,000, the Feinstein amendment carries no woman.’’ he is not also found guilty of the mis- penalty. So we will be saying if the What injury or death? The problem demeanor of having stolen $500. Feinstein amendment is passed, we are under the Feinstein amendment is it Of course, we can convict one crimi- turning our backs on these victims. We does not recognize the baby or fetus. nal of the murder and manslaughter of are turning our backs on the unborn, Who are we talking about? Read this two separate people because the laws of these kids who are, in fact, injured or section above. It talks about ‘‘termi- these crimes differ on one critical killed. nation of a pregnancy or the interrup- point: They have different victims. I yield the floor. tion of the normal course of preg- That is the difference between our bill Mr. TALENT addressed the Chair. nancy.’’ It does not recognize two as- and Senator FEINSTEIN’s amendment. The PRESIDING OFFICER. Who saults, two injuries, two people. There Ours does not have that problem be- yields time? is nothing for it to reference to. With cause we recognize two victims. Her Mr. DEWINE. Madam President, I all due respect, it is not drafted right. amendment does not. Therefore, it is yield to my colleague. If we pass the Feinstein amendment, fatally flawed under this principle. Mr. TALENT. Two or three minutes? with all due respect, not only are you Therein lies another problem. Mr. DEWINE. Yes. not recognizing a separate victim— The bottom line is the Feinstein The PRESIDING OFFICER. The Sen- which we all agree on—but, worse than amendment is fatally flawed. It has no ator from Missouri. that, there is no penalty for killing the penalty section, as well as not recog- Mr. TALENT. Madam President, I unborn; there is no penalty for injury. nizing there is a separate and distinct very much appreciate the Senator I have already pointed out, and we victim. yielding and also the courtesy of the looked at the language, why there is no The Justice Department analyzed Senator from South Carolina who, I penalty at all for injury. That is clear and came to the same conclusion. know, was expecting to go next. For when we look at this: ‘‘causes the ter- Again, it is a vague amendment. They that reason, I am going to be very mination of a pregnancy or the inter- come at it a little differently, but here brief. ruption of the normal course of preg- is what they say in a letter of March I want to say a few words about what nancy, including termination of the 24: I understand us to be doing today and pregnancy other than by live birth,’’ et Additionally, by omitting any reference to the importance of it. As I understand cetera. the unborn child but retaining language con- it, what we are doing today is con- Clearly, that is no reference to the tained in H.R. 1997 as introduced, the sub- forming Federal law to the common injury. What word here has to do with stitute appears to create an ambiguity that understanding of people around the likely leaves an offense, could one be found, country, and certainly in the heartland injury? Nothing. Clearly, this has noth- without a corresponding penalty. The sub- ing to do with injury. Any child who is stitute provides that punishment for an of- where Missouri is and, indeed, the prac- injured, not killed, would not be cov- fense prescribed by the legislation is the tice of most of the States. ered. And in the paragraph below, there same as the punishment provided under Fed- If a man takes a woman across State is no penalty at all. eral law had the ‘‘injury or deaths occurred,’’ lines—let’s say she is his girlfriend, If we get by that, which we cannot, to the pregnant woman. and she has gotten pregnant, and he but even if you get by all of that, you In H.R. 1997, the object of the ‘‘injury or does not like that fact—and he assaults have the problem of the lesser included death’’ was the unborn child. However, in the her, hits her in the stomach or some- substitute the injury or death provision has offense. We cannot get by that. But no object because the only victim under the thing, with the intention of getting rid take one more problem, assuming you substitute is the woman herself. Because of the baby, and his act of violence has could get by that. There is another rea- there are currently no penalties in federal the intended effect and the baby dies, son the Feinstein amendment fails to law for the offenses of ‘‘termination of a what we are saying is he has claimed

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.035 S25PT1 S3134 CONGRESSIONAL RECORD — SENATE March 25, 2004 two victims. He has hurt mom, or an important issue, and to allow Sen- You are liable for the consequences of maybe done worse to her, and he has ator FEINSTEIN to have her say about your actions. killed the baby, which is what his in- how we should craft this bill. There are plenty of cases that say, if tention was to do. In July 1999, this bill was first intro- you attack a woman of childbearing I think all of us recognize the seri- duced in the House. I was the author of years, you do not have to have actual ousness of that kind of offense and ac- the bill. Before I came to Congress, I knowledge. You are responsible for the knowledge that an offense like that spent some time in the Air Force. Sen- consequences of your illegal act. against a pregnant woman, and di- ator DEWINE has taken the cause up in In a poll, when people were asked, if rected at the baby, is more serious be- the Senate since it was first intro- a violent, physical attack on a preg- cause of the status of pregnancy and duced. I really appreciate all that Mike nant woman leads to the death of her because of the existence of that child has done. He has been very sympa- unborn child, do you think prosecutors than it would otherwise be. thetic to what we are trying to do. He should be able to charge the attacker So far I think we are agreed. My was leading the charge in the Senate as with murder for killing the fetus, 79 friend, the Senator from California, this bill was being debated and voted percent said yes; 69 percent of pro- wants to call that second offense the on in the House. choice people, in that poll, said yes. ‘‘interruption’’ of a pregnancy rather But prior to getting into politics, Why would a pro-choice person sup- than the claiming of the life of a child. from 1982 to 1988, I served as a pros- port this legislation? It passed three I appeal to the Senate, and to the ecutor and a defense attorney in the times in the House. The first time we country, through the Chair, and ask U.S. Air Force domestically and over- had it up for a vote was September 30, what our understanding is, what our seas. During that experience, I realized 1999, I believe. Madam President, 254 instinctual reaction is to that kind of a at the Federal level there was a gap in folks voted for the bill in the House, as crime. law. I recall. I assure everyone listening to When a woman loses a child in that We had a case involving a pregnant my voice today, there are not 254 pro- kind of instance, she has not lost a woman who was beaten up, and her life people in the House. Madam Presi- pregnancy, she has lost a child. child was lost, and she was almost dent, 52 Democrats have voted for this Earlier in our marriage, my wife had killed. I looked into the idea of charg- bill. several miscarriages. She did not think ing the offender with the damage done The parties tend to split on the issue of it as losing a pregnancy. She lost to the unborn child, and under the Uni- of abortion, with the Democratic Party children. That is why people have me- form Code of Military Justice there being more pro-choice and the Repub- morial services sometimes—often—in was no way to do that. So I was sen- lican Party being more pro-life. But we cases like that. That is why they go sitive to it from a prosecutor’s point of had Democratic support, and we had through a grieving process. That is why view early on in my legal career. pro-choice people supporting this idea they may get counseling. When I got to Congress, there was an that when it comes to criminal activ- I do not see why, with the greatest effort in some States to create unborn ity, we are going to define the unborn respect to the substitute amendment victims statutes, and I associated my- in terms that make it hard on the and to the Senator from California, self with that effort federally. A lot of criminal—not hard on the mother. why we cannot conform Federal law to pro-life people came over and were very You can never prosecute a woman for that common understanding. I think supportive of what we are doing. That anything she does to her child, no mat- we should. is true. Pro-life people generally like ter how much you would like to, under I understand the sensitivity on the the idea of protecting unborn children this bill. I did not want to get into that issue of abortion. I really do. I think whenever they can. debate. You can never ever prosecute the Senator from Ohio and the Senator Pro-choice people are very sensitive anybody for receiving medical treat- from South Carolina have tried to to the fact that a woman should decide ment related to their pregnancy or structure this bill to avoid those sen- what to do with her body in an inti- lawful abortion. sitivities. It is hard to do. mate situation like a pregnancy. I un- For over 30 years, in the State of But just because—for overriding rea- derstand that debate clearly. California, two things have coexisted: sons of public policy that some here ad- I am a pro-life person, so I have bi- the Roe v. Wade rights of a woman and here to very strongly—we cannot rec- ased there. But having said that, there a statute that will allow you to do ognize the status of this child when are pro-life people who hate this bill. It what is happening in California today— mom, for reasons that she thinks are surprised me, but it is true, because in prosecute a person for doing damage to justified, believes she must end the the bill, we wrote it in a way that abor- the mother and the unborn child, such pregnancy, it seems to me, it does not tion is not covered at all. As a matter as the Laci Peterson case. mean we cannot accord the child the of fact, we preserve, under the current This has been a long journey. This dignity of the status of a human being law—under this bill—the right to have July will be the fifth anniversary of when the child has been the victim of a a legal abortion, and you cannot pros- the time that I introduced this bill. vicious act of violence against both ecute the mother under any cir- Back in 1999, I remember saying on the mom and the child. cumstances. floor of the House there will be a case I thank my friend again for allowing There are cases out there where where a pregnant woman is brutalized me to intervene for a moment. I yield mothers are being prosecuted who and she loses her child and it will be the floor. abuse drugs and alcohol and do damage front-page news. Mr. DEWINE. Madam President, I to their children. What I wanted to do The reason I said that then is, having yield to the Senator from South Caro- was to focus on what I thought we all been a prosecutor and a defense attor- lina. could agree on, to a large extent. The ney, I understand the following: There The PRESIDING OFFICER. The Sen- law in abortion and the politics of are a lot of good people in this world, ator from South Carolina. abortion really do not play well here but there are some mean people, too. Mr. GRAHAM of South Carolina. because we are talking about criminal This happens more than you would Madam President, I thank the Senator activity of a third party. I do not know ever want to believe. The No. 1 cause of for yielding. I may take a few minutes, why you would want to give a criminal death among pregnant women in the I say to the Senator from Kansas, to any more breaks than you had to if District of Columbia is murder. As explain my relationship to this bill and they go around beating on pregnant much as we would like to believe other- why I am here today. women. wise, pregnant women have things No. 1, I want to thank the leadership And people say: Well, don’t they have come their way because of their preg- for allowing the bill to come to the to know if the woman is pregnant? No. nancy that shocks the conscience. floor. Senator FRIST and Senator Why? The law is really common sense. In Arkansas, there are three people MCCONNELL and our leadership team If you attack a woman of childbearing sitting on death row today because has worked hard with Senator DASCHLE years, you do so at your own peril. If they were hired by the boyfriend, who to get an agreement so we could come you push somebody, you do not know if didn’t want to pay child support, to to the floor and debate what I think is they have a severe medical condition. kidnap his girlfriend, who wanted to

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.038 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3135 have the child, took her off to a remote wrote this bill. That is as to the crimi- sequences of your action. And the full area and beat her within an inch of her nal world, if the pregnancy comes to an consequences of that action could be life with the express purpose of killing end and the unborn child’s right to de- the loss of the child and the loss of the the child. And when she was on the velop comes to an end because of third- mother or a combination thereof. floor, she begged for two things: Her party criminal activity, we are going Why not sentence enhancement? I own life and her baby’s life. Those peo- to hold you legally responsible at the think there is a reason under the law ple under Arkansas law were charged earliest onset of pregnancy. The Roe v. that no State has gone down this road. with two crimes, making them eligible Wade standard makes no sense. Why Sentence enhancement would say the for the death penalty. They deserve to give a criminal a benefit of the legiti- following: You get a stiffer penalty if be. mate debate of abortion? the woman is pregnant, but you don’t Under this bill, you cannot get the Thirteen States define it in stages. talk about the consequences in terms death penalty. The reason I chose not California, I think by law, defines the of the victim’s life. That is an artificial to include the death penalty is, I did unborn victim statute at the sixth distinction that I think denies justice. not want to get into the death penalty week of pregnancy. Some States, one This was a statement by Kent Willis, debate because people of goodwill and or two, have the term ‘‘viability.’’ executive director of ACLU, and I dis- good reasoning may disagree with the There is a sliding scale. But the domi- agree with this statement: State imposing that punishment. The nant way to define this in State law is That baby was not a murder victim. Senator from California cares as much the way we have chosen to define it in He was talking about the Laci Peter- about pregnant women as anybody this bill. This chart illustrates how the son case, the son Connor. I think Con- here. This is not about who cares about States break out. nor was a murder victim. The point I women and who is trying to do this or There is another situation I would guess I am trying to make is that when that. Her amendment may not be writ- ask you to think about. Let’s say there people talk about what happens to ten the way she would like. I would op- is a woman on death row. She is preg- them, the law, wherever it can, should pose it, if it was changed. nant for whatever reason. How many address the full range of what really It happens in America more times people would let the execution go for- happened to them. than you would ever believe that preg- ward knowing the woman is pregnant? There is another case you don’t know nant women are the victim of violent Think about that. What good would it about because it didn’t get nearly the assault and their children get killed or do to allow the execution to go forward publicity, but it is just as real. It is a severely injured. if you knew the woman was pregnant? good example of why we need this stat- That concept can and does exist with Would you wait? ute. the idea that a woman, early on in the Here is what I suggest to you, if any Michael Lenz and his wife were ex- pregnancy, can choose whether to State or the Federal Government de- pecting their first child. She worked in carry that child. These are two con- cided to impose the death penalty on a the Federal Building in Oklahoma cepts the law recognizes that exist side woman who was pregnant during any City. She was in the midstages of her by side. stage of the pregnancy, there would be pregnancy. She went to work early the Why do 84 percent of the people be- a riot in the street—among pro-choice day of the bombing to show an lieve a criminal should be prosecuted people, too, because what good would it ultrasound to her colleagues of their twice, not once? Because it really does do at any stage of the pregnancy to baby. That was going on at the mo- violate common decency. If a woman have the State kill the kid? You are ment the bomb goes off. She was killed. chooses to have a baby and she loses not enhancing Roe v. Wade. You are Michael Lenz III was killed. They had her baby because of a violent act, most not advancing the abortion debate. You already named their little baby boy. of us, a large percentage of us, want to are doing something you don’t need to The father came before my com- mittee when I was in the House to tes- whack the person who did it as hard as do. we can. And we don’t want to get into The definition that was used in the tify for this bill. He said: I am no ex- the debate about abortion. We want to Innocent Child Protection Act of 2000, pert on abortion, but here is what hap- pened to my family. My wife was make sure the prosecutor has the tools which I was involved in drafting, is the killed, and at the same moment I lost to bring about the most severe and just same definition that is in this bill about the unborn child. It passed 417 to my son, Michael Lenz III. verdict possible. The reason they lost their son is not This bill excludes abortion. It ex- nothing. To me, that makes perfect because of Roe v. Wade rights; it was cludes the death penalty for political sense. Four hundred seventeen pro-life because of a third party crazy man, a reasons and legal reasons. Pro-life peo- people do not exist in the House of Rep- criminal, who destroyed many lives ple have criticized me because in this resentatives. But when faced with the that day. When you look at the victims bill, in their opinion, I am legalizing question, should the State wait if a of the Oklahoma City bombing case, abortion. This bill doesn’t legalize woman is pregnant, even at the earliest when it came time in Federal court, abortion. This bill doesn’t ban abor- stages of pregnancy, 417 people said you don’t find a place for Michael Lenz tion. This bill says: If you are a crimi- yes. III. If this bill had been law, there The reason I mention this to you is, nal and you attack a pregnant woman would have been 22 people, not 21 peo- and you hurt her kid, you will get the when it comes time to prosecute people ple, that would have been before the full force of the law. who unlawfully attack a woman at the court. I cannot say it any better than What is going on in California? In earliest stage of pregnancy, why should that. 1999, when I said there will be a woman they get a pass? What good have you In terms of Michael Lenz and all the out there who suffers brutally and done? It does not change the abortion other victims who testified in support loses her child and we will all know debate. Roe v. Wade rights still exist. of this legislation, sentence enhance- about it because it will be front page All you have done is allow someone to ment doesn’t speak to what happened news, I never dreamed it would happen interrupt another person’s life, take to them. From a prosecutor’s point of so quickly. I never dreamed it would be something of value, and they get a pass view, it makes all the difference in the so vicious. The authorities inves- because you are mixing concepts that world to have two charges facing the tigating the Laci Peterson crime have don’t need to be mixed. That is why accused versus one. It gives you more two pieces of evidence to offer the jury: over 50 pro-choice people voted for this leverage than you could ever dream of. The decomposed body of the mother bill in the House. Ladies and gentlemen, in cases like and the decomposed unborn child late That is why if we ever get to final this, it is the right thing to do. in the pregnancy. It is important the passage, we are going to have a bipar- I yield the floor. jury know about both. It is important tisan coming together of pro-life and The PRESIDING OFFICER. The Sen- the criminal be held accountable for pro-choice people to say one thing loud ator from California is recognized. both. We will debate abortion another and clear: If you attack a woman of Mrs. FEINSTEIN. Madam President, day. childbearing years where Federal law I yield as much time as she requires to Sixteen States define life under the applies, you do so at your peril, and the Senator from California, Mrs. same legal terms I chose when we you are going to suffer the full con- BOXER. She was here a moment ago.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.041 S25PT1 S3136 CONGRESSIONAL RECORD — SENATE March 25, 2004 Mr. DEWINE. Madam President, I in- This is all about denying the human- child, the criminal faces the possibility quire of the Chair, how much time does ity of the child. We just cannot con- of being prosecuted for having taken or each side have remaining? template that in our laws. We cannot injured that unborn life. Twenty-eight The PRESIDING OFFICER. The Sen- have any admission anywhere in law additional States have similar laws on ator from Ohio has 58 minutes. The that says what is inside the woman’s the books. Sixteen of those States rec- Senator from California has 62 min- womb is a child—when, of course, we ognize the unborn child as a victim utes. all know that is exactly what it is. But throughout the entire period of pre- Mr. DEWINE. Sixty-two? we cannot express that legally. If we natal development. This is only proper The PRESIDING OFFICER. Right. do, somehow or another, this right to and, it seems to me, only just. Mr. DEWINE. Thank you. Madam abortion may be threatened down the However, there is a gap in the law President, I yield to the Senator from road. Who cares about what harm we under existing Federal criminal stat- Pennsylvania 5 minutes. may bring? Who cares about what utes. Current Federal law provides for Mr. SANTORUM. Madam President, I harm we may bring to a mother whose no additional criminal penalty when a thank the Senator from Ohio. If Sen- child is injured or what harm we may criminal assaults or kills a woman who ator FEINSTEIN’s speaker arrives, I will bring to the family who may lose or is pregnant and thereby causes death be happy to abbreviate my remarks to have an injury to a child in womb? Who or injury to that unborn child. It is accommodate the other side of the cares that we cannot bring somebody time Congress eliminates this unjusti- aisle. who has done violence to a child in the fied gap in the law. I wanted to congratulate Senator womb to justice? All of those things This bill bridges this existing gap, DEWINE and Senator GRAHAM, who are worth ignoring to protect this right and it does so in a way that protects have really worked hard not just on that is not even at stake today. the rights of the States. It creates a this legislation, but getting this legis- This issue, as I have said many separate Federal offense to kill or in- lation to a point where we can have an times, is a cancer. I thought at first it jure an unborn child during the com- up-or-down vote, have a vote on the was a cancer that ate away at us in mission of certain already defined Fed- amendments, and let the Senate work how we view the relationship between eral crimes committed against the un- its will. That is one of the things we the mother and the child, but it is born child’s mother. have not seen done in recent weeks. We worse. It is a cancer that reaches in Importantly, because this bill only have had an opportunity here on a very and infects even areas that have noth- applies to Federal crimes, it does not important issue to have the Senate’s ing to do with abortion. usurp jurisdiction over State law. If will be done. I also congratulate Sen- We need to let common sense reign in someone commits a crime that violates ator FRIST and Senator MCCONNELL the Senate today. The common sense State law, but does not violate any and the Democratic leaders for allow- is, this is a child who is loved and Federal law, then State law will pre- ing us to debate this issue. This is an wanted by the mother. This is a child vail, regardless of whether that State important debate. who, in many cases, has been given a has laws that protect unborn victims of I think Senator GRAHAM, who I had name, such as Conner Peterson, and violence. the privilege of listening to for a few this is a child who deserves the dignity I cannot imagine why anyone would moments, summarized it very well. The of recognition by our society. oppose this bill. issue is, how many victims are there? The PRESIDING OFFICER. The Sen- Some have mistakenly characterized Do we recognize the loss of a child in ator has used 5 minutes. this bill as anti-abortion. It is not, and the womb, a child who is anticipated, is Mr. SANTORUM. Madam President, I I am not saying that because I am pro- wanted, and whose life is very real to yield the floor. life. the mother and father and the family? The PRESIDING OFFICER. Who Let me take this opportunity to clar- When that life is taken away by a third yields time? ify a remark I made on May 7 of last party, do we recognize that child’s ex- Mr. DEWINE. I yield to the Senator year. I am quoted as saying the bill un- istence in the law? from Utah. dermines abortion rights, but that this I don’t think anyone would doubt The PRESIDING OFFICER. The Sen- effect is irrelevant. The point I was that when a woman who has a child in ator from Utah. trying to make, and I guess I did not the womb is attacked and injury comes Mr. HATCH. Madam President, I ap- make it well and it has been quoted out to that child, another person is af- preciate my colleague from California of context many times, is there is no fected. If the child dies, that child is af- permitting me to go before her. conflict between the bill language and fected. There is something that goes on I rise today to urge my colleagues to Roe v. Wade. Some are prepared to to another human being. The issue here vote in favor of the Unborn Victims of bring the abortion issue into anything, is whether we are going to recognize Violence Act. The importance of this any time, for any reason, even when it that in the law. I agree with the Sen- issue has been made tragically clear by does not fit, such as in this case. ator from South Carolina that it has the grisly murders of Laci Peterson I do not believe this bill in any way nothing to do with abortion. It is spe- and her unborn son Conner. I met with undermines abortion rights. It cer- cifically excluded from this legislation. her mother again yesterday and was tainly does not. So why do all of the abortion rights ac- very impressed with her and how she is The bill explicitly says the Federal tivists have a problem with this legis- handling this situation. Government cannot prosecute a preg- lation? This bill will ensure Federal law ap- nant woman for having an abortion. In It comes down to the very issue, do propriately protects unborn children fact, the bill goes even further. The bill we recognize the humanity of a child in from assault and murder. It has passed does not permit prosecution against womb? How far would we go to protect the House of Representatives by a any woman with respect to her unborn this right to an abortion? Do we go so strong bipartisan vote of 254 to 163. I child regardless of whether the mother far as to even deny the existence of a believe the Senate should give similar acted legally or illegally. If a woman child who is not subject to abortion? overwhelming approval. chooses not to have her baby, the bill How far do we go to protect this right, Before I begin the substance of my says she can have an abortion without the supreme right above all, the right remarks, I commend Senators DEWINE Federal prosecution. That is how far to an abortion, a right that can have and LINDSEY GRAHAM for their long- the authors of this bill have gone. But no restriction on it? In fact, it cannot standing and essential leadership on importantly, for those women who even have a restriction that is not at this most important issue and for have chosen to keep their baby, this all applicable to it. So, in other words, drafting the legislation that is before bill says no coldblooded murderer can we cannot even talk about this, or us today. This issue has already been take that choice away from her by kill- some way, through some logic, attack addressed in many States across the ing her baby and going unpunished. the issue. We have to deny under every country. In fact, in my home State of Those who oppose this bill are, in ef- circumstance that the child in the Utah, if a criminal assaults or kills a fect, saying the murderer, not the womb is a human life. That is what woman who is pregnant and thereby mother, has the choice to take the this is about. causes death or injury to the unborn baby away from his or her mother

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.044 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3137 against the mother’s will and against leagues are aware, I was an original co- The PRESIDING OFFICER (Mr. TAL- the individual’s will. Since the mur- sponsor of the Violence Against Women ENT). The Senator from California. derer will not be punished for this ter- Act over a decade ago, and I have tire- Mrs. BOXER. Mr. President, I thank rible offense, it exonerates his or her lessly fought in countless venues to the Senator from Utah because he actions. That is simply not right. protect the rights of women. This bill promised me he would keep within the I understand my dear friend Senator furthers that cause. 15 minutes so that I could get the floor FEINSTEIN says this bill somehow For many years, I have worked hard at this time, and I appreciate his co- threatens stem cell research. It does no on the issue of domestic violence and operation. such thing. I have been a supporter of violence against women, and when I I also thank my colleague, the senior embryonic stem cell research, and ev- stand here today before the entire Sen- Senator from California, Mrs. FEIN- eryone in this body knows it and I ate and offer my support for a bill, I STEIN, for her great leadership on this guess most scientists throughout the certainly make sure that bill does not issue. I also have to express a little bit world know that. I have been proud to diminish in any way our capacity to of dismay that she was not able to stand shoulder to shoulder with Sen- curb domestic violence and protect modify her amendment. It kind of gives ator FEINSTEIN, Senator SPECTER, Sen- women. one a clue that the people on the other ator KENNEDY, and Senator HARKIN on The bill before us strengthens the side have a different agenda when they stem cell research. I believe we are rights of women and provides those say they are not going to allow a col- right on that issue. But this bill in no who fight against domestic violence league they respect and admire to send way impedes stem cell research. This with another tool in their arsenal to go a modification to the desk. bill is about stopping and punishing after abusers. This bill focuses atten- So I thought I would want to place heinous crimes. tion on both a pregnant woman and her that on the record because we remem- Why would I support Laci and child. Before the Government could ber. These things we will remember be- Conner’s law if it jeopardized that re- prosecute someone for hurting the un- cause it is not right to not allow a col- search? The words ‘‘stem cell research’’ born child, it would first need to prove league to modify an amendment that are nowhere in the bill. This is a crimi- the pregnant woman was hurt. In other she has written. So the next time the nal law, not an abortion law. words, the Government needs to prove other side wants to do it, we will have As I have said on many occasions, it 1 of 68 enumerated predicate Federal to think a bit. It is just sad. It is not is my view life begins in a mother’s crimes against the mother before it the way the Senate should work. Senator FEINSTEIN has yielded me 10 womb. What this bill does is penalize could obtain a conviction under this those who act to viciously end that life minutes of her time, so if the Chair provision of this bill. would tell me when I have used 9 min- in the womb or any life in the womb. Moreover, this provision empowers Senator FEINSTEIN, the distinguished utes, I would appreciate it. abused women because it gives the Senator from California, suggested this The PRESIDING OFFICER. The Government a greater arsenal of pros- bill somehow may result in assigning Chair will so notify the Senator. ecutorial tools to put the abusive legal status to the term ‘‘embryo.’’ But Mrs. BOXER. I am very much in spouse behind bars for a longer period I cannot find the term ‘‘embryo’’ any- favor of enhanced penalties for those of time. Many today will talk about where in the bill. Nor for that matter offenders, those criminals, who harm can I find the term ‘‘embryo’’ in the the Peterson case. Suffice it to say pregnant women. I think Senator FEIN- amendment put forth by the distin- that the public reaction to that case STEIN’s substitute amendment is one guished Senator from California, Mrs. underscores the widespread support for that does exactly that. What I do not the changes that we are making with FEINSTEIN. support are the efforts of some Mem- In short, this bill does not affect H.R. 1997. bers of this body who clearly are the abortion, embryos, or, for that matter, A news poll taken last April con- leaders of the anti-choice movement in stem cell research. There is no legisla- sisting of an almost even split of pro- the Senate. We have heard from them tive intent here to prosecute research- life and pro-choice individuals indi- seriatim. They have just come right ers working on stem cell research— cated that 84 percent—let me repeat down and spoken. I do not support none whatsoever. that, 84 percent—believed that Scott what they are trying to do, which is to I have the utmost respect for my Peterson, who is currently on trial for undermine pro-choice laws, particu- dear friend from California, and she the murder of his wife, should be larly Roe v. Wade. knows that. We have worked together charged with two counts of homicide Now, one can dress up a bill to make on many issues during her 12 years on for murdering his wife and unborn son. it look like anything one wants, but the Judiciary Committee. I admire her California law permits criminals to the so-called Unborn Victims of Vio- and appreciate working with her on so be charged with murder for killing an lence Act, although they try to dress it many of these issues. I admire her judi- unborn child when that child has devel- up as a criminal statute designed to cious way in fighting for the issues in oped past the embryonic stage. The deter violence, I think has tremendous which she believes, even when we dis- tragic murder of an innocent unborn weakness in the way it is written and agree. If her bill truly considered the child is so shocking and so disturbing in the way it would prosecute a violent same crime, I would give strong consid- that regardless of any stance on abor- criminal who harms a pregnant eration to supporting it. But it does tion, the vast majority of all Ameri- woman. It is another effort to under- not. It tries to do it, but it does not. cans strongly believe an unborn life mine Roe v. Wade, which as we know, The phrase ‘‘interrupt a pregnancy’’ taken in murder should result in mur- has given women in this country the is overly vague and will probably be der charges brought against the perpe- right to choose, and it is a very impor- struck down by the courts on that trator. tant right of privacy. ground. Because of this vagueness, the It is only fair and just to ask for our How do I know this is the supporters’ courts may well interpret the Fein- Federal judicial system to incorporate motivation? It is easy for me because if stein amendment as providing no addi- this strong desire of the vast majority they wanted to create a law that says tional penalty for a crime committed of the American people on this issue. we believe that a pregnant woman against a fetus. I urge my colleagues to vote for H.R. should be protected and we want to Some will try to claim this weakens 1997. I urge my colleagues to vote punish someone who harms a pregnant domestic violence laws by averting at- against amendments to H.R. 1997. Do it woman, it is a pretty easy thing to just tention to the unborn. That is simply for Laci and Conner Peterson and for support Senator FEINSTEIN’s amend- not true. I am a strong supporter of do- thousands of others in similar situa- ment. It is clean; it is clear; she dou- mestic violence laws and, along with tions who have been abused. Do it for bles the penalties just as they do in Senator BIDEN, was the main writer of all women who have chosen to have their bill. She avoids the issue, how- those bills. I believe domestic violence their baby and are having that choice ever, of a woman’s right to choose, is an evil plague that needs to be taken away from them by a cold-blood- which this is not about. There is noth- stopped. ed murderer. Most of all, do it because ing about that in this bill. My commitment to this issue has it is the right thing to do. The substitute that Senator FEIN- been longstanding. As many of my col- I yield the floor. STEIN has offered to us, which is like

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.046 S25PT1 S3138 CONGRESSIONAL RECORD — SENATE March 25, 2004 H.R. 1997, creates a separate offense I ask unanimous consent that Peter against her lead to fetal injury or death. In- when someone harms a pregnancy or Rubin’s letter be printed in the deed, the approach taken by the current terminates a pregnancy while in the RECORD. statute may lead to some unintended results, commission of a violent Federal crime. There being no objection, the mate- and is not consistent with the treatment of the fetus in the American legal tradition. That is very important to do because rial was ordered to be printed in the To begin with, the proposed law refers to these crimes are heinous and all the RECORD, as follows: ‘‘a child, who is in utero at the time the con- more heinous if a woman is pregnant. GEORGETOWN UNIVERSITY duct takes place.’’ Because it uses these As the author of the Violence Against LAW CENTER, words, the proposed law would likely result Women Act in the House and working Washington, DC, July 21, 1999. more in useless litigation about the statute’s with Senator BIDEN for 10 years to get Re H.R. 2436, The Proposed ‘‘Unborn Victims meaning than in the prevention and punish- it through the Senate and the House of Violence Act of 1999’’—written testi- ment of conduct that results in fetal injury and get it signed into law, Senator mony of Peter J. Rubin, Visiting Asso- or death. Its use of the phrase ‘‘child, who is ciate Professor of Law, Georgetown Uni- in utero’’ may give a defendant an argument FEINSTEIN’s bill is in tune with that versity Law Center, before the Sub- that the statute is ambiguous, and that he point that we will not stand by and committee on the Constitution of the lacked the notice of what acts are criminal allow violence against women. Particu- House Committee on the Judiciary. that is required by the Due Process Clause of larly if a woman is pregnant, it makes I have been asked by this subcommittee to the Fifth Amendment. Does it mean the the crime more vicious and it doubles review and comment upon H.R. 2436, which statute applies only to the injury or death of the penalty for such a crime. It creates would create a separate federal criminal of- a ‘‘child,’’ that is one who is subsequently the same separate penalty for this sep- fense where criminal conduct prohibited born, but who was injured in utero? Does it arate crime, a maximum of 20 years for under a list of over sixty federal statutes, in refer to a fetus past the point of viability? the words of the proposed law ‘‘causes the Does it refer to a single-cell fertilized ova harm and a maximum of life in the that has not yet implanted in the uterine event a pregnancy is terminated. It death of, or bodily injury . . . to a child, who is in utero.’’ I am honored to have the oppor- wall? The statute does not tell us. does not require proof that the offender tunity to convey my views to the sub- Even if the law is not held inapplicable be- had knowledge of the woman’s preg- committee. cause of unconstitutional vagueness, the Su- nancy. Where an act of violence against a preg- preme Court has articulated a doctrine The sole difference between the sub- nant woman results in a miscarriage, that known as the doctrine of ‘‘lenity.’’ Rooted in stitute that Senator FEINSTEIN is offer- act of violence has wrought a distinct and part in separation of powers concerns, this ing and the Unborn Victims of Violence unique harm in addition to the harm it doctrine means that an ambiguous federal Act is that they want to bring in the would have done had the woman not been criminal statute must be construed in the pregnant. Similarly, injury to a baby that way most favorable to the defendant, lest an issue of a woman’s right to choose, and individual be criminally punished for con- they want to make this bill about a may result from unlawful violence per- petrated upon its mother when it was a fetus duct that Congress did not intend to crim- woman’s right to choose. in utero is something from which govern- inalize. At best, the phrase ‘‘child, who is in What on Earth does this have to do ment may properly seek to protect the utero’’ is ambiguous here, and a defendant is with a woman’s right to choose? Noth- woman and the child. likely to be able to avoid prosecution for ing, not a thing. Senator FEINSTEIN’s Consequently, although many states ad- whatever conduct it is that the drafters of substitute focuses on the pregnant here to the traditional rule that the criminal this law intend to criminalize. woman. That is the issue, the pregnant law reaches only conduct against a person In addition, this statute operates in a very woman. So one wonders why the other already born alive, some states have enacted unusual manner. It does not just increase the penalty for unlawful violence against a side cannot accept it. The answer is laws that penalize conduct that may kill or, in some cases, injure, a fetus in utero. One pregnant woman that results in the death of simple. Again, they are trying to make example is North Carolina’s state statute or injury to a fetus, nor does it criminalize this about abortion, not about con- which provides that ‘‘A person who in the injuring or killing a fetus if one has the req- victing a criminal. commission of a felony causes injury to a uisite mental state and is aware of the wom- I want to correct something. When I woman, knowing the woman to be pregnant, an’s pregnancy. Rather it includes fetuses referenced the House bill, I meant to which injury results in a miscarriage or still- within the universe of persons who may be reference the Zoe Lofgren bill—and I birth by the woman is guilty of a felony that protected from injury or death resulting am not sure of that number—not the is one class higher than the felony com- from violations of other federal criminal House bill that is identical to Senator mitted.’’ (N.C. Gen. State. § 14–18.2.) laws. If the members of Congress conclude that Many state laws address fetal injury and DEWINE’s bill. ZOE LOFGREN in the causing injury in this way during the com- death only in certain circumstances, and, re- House had a similar bill to Senator mission of a federal crime warrants addi- flecting the unique nature of the developing FEINSTEIN’s bill. That bill got a lot of tional punishment, it, too, could adopt such fetus, many provide some penalty that is dif- support but not enough support. a provision. Indeed, it seems as though this ferent from the penalty that would have ap- Again, it is very simple why people is one area on which both sides of the debate plied had the defendant killed or injured a over there who are anti-choice did not about abortion might be able to find com- person who was already born. They tend also support the Lofgren bill, and they do mon ground in supporting a properly worded to take account of the fetus’s stage of devel- not support the Feinstein bill, because statute that might give additional protec- opment. State feticide laws often do not they want to make this about abortion tion to women and their families from this treat even the intentional killing of a fetus unique class of injury. through violence perpetrated upon the preg- and they want to undermine Roe v. As currently drafted, however, the pro- nant woman as murder equivalent to the Wade and a woman’s right to choose. posed statute differs from some state laws on murder of a person who has been born. Some, I am a little bit shocked because the this issue in two critical respects. First is its like North Carolina, enhance the penalty for experts who have written to us have use of the phrase ‘‘child, who is in utero’’ to the underlying criminal conduct. Others told us that the bill that the anti- describe the fetus. This is not the ordinary treat even intentional feticide only as man- choice Senators are supporting would way statutes refer to fetuses in utero. In- slaughter. Thus, in Mississippi, for example, make it harder to convict a criminal. deed, the proposed law appears to be unique the law provides that ‘‘The wilful killing of For example, Peter Rubin, visiting in its use of this formulation. The use of this an unborn quick child, by an injury to the associate professor at Georgetown Law language will likely subject H.R. 2436 to mother of such child, which would be murder if it resulted in the death of the mother, Center, when he testified before the legal challenge, and will likely render the proposed law ineffective in preventing and shall be manslaughter.’’ (Miss. Code. Ann. House Judiciary Committee, said: punishing acts that harm or kill fetuses § 97–3–37.) The phrase ‘‘child in utero’’ is ambiguous being carried by pregnant women. The proposed law by contrast says that and would actually aid an offender in avoid- Second is the bill’s treatment of the fetus whenever causing death or injury to a person ing prosecution. solely as a separate victim of certain federal in violation of a listed law would subject an Imagine. It seems to me the other crimes. This approach is different from that individual to a particular punishment, he side is so anxious to undermine Roe taken by some states that have enacted shall be subject to the same punishment if he and to confuse the subject and to make criminal laws addressing fetal injury or causes death or injury to a fetus. This is true this bill about abortion, they are will- death in that it fails to focus at all on the regardless of the stage of fetal development. woman who is the victim of the violence that Whatever its rhetorical force, the proposed ing to pass an ambiguous bill which may injure or kill the fetus. It would be far law would lead to some unusual, and prob- would actually aid the offender, the easier to reach common ground with an ap- ably unintended, results. To give just one ex- criminal, and would actually allow proach that takes account of the place of the ample, under the Freedom of Access to Clin- some heinous criminal to go free. pregnant woman when acts of violence ic Entrances Act (‘‘FACE’’), 18 U.S.C. § 248,

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.048 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3139 one of the statues listed in H.R. 2436, if an in- H.R. 2436, the ‘‘Unborn Victims of Violence tion that would augment punishment of vio- dividual who is engaged in obstructing ac- Act of 1999.’’ lence against pregnant women. Additionally, cess to an abortion clinic knocks a pregnant Section 2 of H.R. 2436 would make it a sep- such an approach is unwise to the extent woman to the ground during a demonstra- arate federal offense to cause ‘‘death or bod- that it may be perceived as gratuitously tion, he is liable to imprisonment for up to ily injury’’ to ‘‘a child in utero’’ in the plunging the federal government into one of one year. If he causes her ‘‘bodily injury’’ course of committing any one of 68 enumer- the most—if not the most—difficult and when he knocks her down, he would be sub- ated federal crimes. The punishment for the complex issues of religious and scientific ject under FACE to a ten-year term of im- new crime under H.R. 2436 is the same as if consideration and into the midst of a variety prisonment. Under the proposed law, how- the harm had been inflicted upon the ‘‘un- of State approaches to handling these issues. ever, if she miscarried as a result of being born child’s mother,’’ except that the death Our policy concerns with H.R. 2436 are ex- knocked down, he would be subject to life penalty is not permitted. Section 3 of H.R. acerbated by the likelihood that the bill will imprisonment, the same as if his action had 2436 would make substantively identical yield little practical benefit. Because the caused the death of the woman herself. amendments to the Uniform Code of Military criminal conduct that would be addressed by In addition to being far more practical, it Justice. H.R. 2436 is already the subject of federal law would be fare easier to reach common ground The Justice Department strongly objects (since any assault on an ‘‘unborn child’’ can- on this issue with adoption of a statute simi- to H.R. 2436 as a matter of public policy and not occur without an assault on the pregnant lar to those state statutes, providing for en- also believes that in specific circumstances, woman), H.R. 2436 would not provide for the hanced punishments that I have described. illustrated below, the bill may raise a con- prosecution of any additional criminals. At For in addition to the practical con- stitutional concern. The Administration has the same time, prosecutors proceeding under sequences, the use of a statutory framework, made the fight against domestic violence H.R. 2436 would be likely to encounter dif- that seeks to achieve its result through and other violence against women a top pri- ficulty collecting evidence to support their treating all fetuses at all stages of develop- ority. The Violence Against Women Act prosecutions. For instance, the prosecutor ment as persons distinct from the women (VAWA), which passed with the bipartisan would have to establish that the defendant’s who carry them unnecessarily places federal support of Congress in 1994, has been a crit- conduct ‘‘cause[d]’’ the injury—given the in- statutory law on the path toward turning ical turning point in our national effort to herent risk of miscarriage and birth defects the pregnant women into the adversary rath- address domestic violence and sexual as- that occur absent any human intervention, causation may be very difficult to establish. er than the protector of this fetus she car- sault. VAWA, for the first time, created fed- Finally and critically, the drafters of H.R. eral domestic violence offenses with strong ries. For although this law contains excep- 2436 are careful to recognize that abortion- penalties to hold violent offenders account- tions for abortion, for medical treatment of related conduct is constitutionally pro- able. While most domestic violence crimes the woman or the fetus and for the woman’s tected. The bill accordingly prohibits pros- own conduct—exceptions that are both wise are appropriately prosecuted at the state and ecution for conduct relating to a consensual and constitutionally required—if the fetus local level, the Department of Justice has abortion or an abortion where consent ‘‘is were truly a ‘‘person,’’ there would be no brought 179 VAWA and VAWA-related fed- implied by law in a medical emergency.’’ principled reason to include such exceptions. eral indictments to date, and this number Without this exception, the bill would be Yet of course a law that did not contain continues to grow. In addition, the Depart- plainly unconstitutional. Including the ex- them would be shocking to most Americans ment of Justice alone has awarded well over ception does not, however, remove all doubt and both obviously and facially unconstitu- $700 million through VAWA grant programs about the bill’s constitutionality. The bill’s tional. since 1994, directing critical resources to exception for abortion-related conduct does Finally, then, in failing to take account of communities’ efforts to respond to domestic not, on its face, encompass situations in the women, the proposed statute also sets violence and sexual assault. These funds which consent to an abortion may be implied federal law apart from the American legal have made a difference in women’s lives, and by law (if, for example, the pregnant woman and constitutional tradition with respect to in how communities respond to violence is incapacitated) even though there is no the treatment of the fetus. As the Supreme against women. Indeed, these funds have medical emergency. In this situation, the Court has, described, ‘‘the unborn have never helped save the lives of many victims of do- bill may unduly infringe on constitutionally been recognized in the law as persons in the mestic violence. protected conduct. whole sense.’’ At common law, the destruc- If the Committee wants to make a dif- For these reasons, we strongly oppose H.R. tion of a fetus in utero was not recognized as ference in the lives of women victims of vio- 2436. The Administration, however, would homicide unless the victim was born alive. lence, it should reauthorize the Violence work with Congress to develop alternative And, of course, the Supreme Court has held Against Women Act. We hope that Congress legislation that would strengthen punish- that fetuses are not persons within the will work with us on this common goal. H.R. ment for intentional violence against women meaning of the Fourteenth Amendment. 2436, however, is not an adequate response to whom the perpetrator knows or should know This is a position with which even as staunch violence against women. Our three main ob- is pregnant, strengthen the criminal provi- an opponent of Roe v. Wade as Justice jections to H.R. 2436 are described below. sions of VAWA, and reauthorize the grant Antonin Scalia agrees. First, H.R. 2436 provides that the punish- programs established by this historic legisla- In addition, therefore, to the practical and ment for a violation shall be the same as the tion. political considerations that counsel in favor punishment that would have been imposed Thank you for this opportunity to present of an alternative approach, the proposed law had the pregnant woman herself suffered the our views. The Office of Management and would also unnecessarily set federal statu- injury inflicted upon her fetus. The Depart- Budget has advised us that from the stand- tory law on a conceptual collision course ment agrees that some additional punish- point of the Administration, there is no ob- with the Supreme Court’s abortion decisions. ment may be warranted for injury to preg- jection to submission of this letter. Please Whatever one may think of those decisions, nant women. H.R. 2436, however, would trig- do not hesitate to call upon us if we may be an unnecessary conflict about them would ger a substantial increase in sentence as of further assistance. not contribute to the important work of compared with the sentence that could oth- Sincerely, healing where possible the country’s division erwise be imposed for injury to a woman who JON P. JENNINGS, over abortion. is not pregnant. Acting Assistant Attorney General. Mrs. BOXER. Then you have Jon Jen- Second, H.R. 2436 expressly provides that Mrs. BOXER. Then there is a recent the defendant need not know or have reason letter of George Fisher, a tenured pro- nings who in 1999 was the Acting As- to know that the victim is pregnant. The bill sistant Attorney General. He sub- fessor at Stanford, former prosecutor thus makes a potentially dramatic increase and expert on the criminal justice sys- mitted a letter to Representative in penalty turn on an element for which li- HENRY HYDE on behalf of the Justice ability is strict. As a consequence, for exam- tem. He, too, believes it makes things Department. He also wrote the law ple, if a police officer uses a slight amount of worse in terms of convicting a crimi- would be hard to prosecute because of excessive force to subdue a female suspect— nal. the difficulty in gathering evidence. without knowing or having any reason to be- The PRESIDING OFFICER. The Sen- I ask unanimous consent to have Jon lieve that she was pregnant—and she later ator has now used 9 minutes of time. miscarries, the officer could be subject to Mrs. BOXER. I ask unanimous con- Jennings’ letter printed in the RECORD. There being no objection, the mate- mandatory life imprisonment without possi- sent for 2 more minutes from my col- bility of parole, even though the maximum rial was ordered to be printed in the league. sentence for such use of force on a non-preg- The PRESIDING OFFICER. Does the RECORD, as follows: nant woman would be 10 years. This ap- Senator from California yield an addi- U.S. DEPARTMENT OF JUSTICE, proach is an unwarranted departure from the tional 2 minutes? OFFICE OF LEGISLATIVE AFFAIRS, ordinary rule that punishment should cor- Mrs. FEINSTEIN. I yield as much Washington, DC, September 9, 1999. respond to culpability, as evinced by the de- Hon. HENRY HYDE, fendant’s mental state. time as she may require. Chairman, Committee on the Judiciary, U.S. Third, H.R. 2436’s identification of a fetus Mrs. BOXER. I thank my colleague. House of Representatives, Washington, DC. as a separate and distinct victim of crime is I ask unanimous consent the letter DEAR MR. CHAIRMAN: This letter presents unprecedented as a matter of federal statute. from George Fisher be printed in the the views of the Department of Justice on Such an approach is unnecessary for legisla- RECORD.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.007 S25PT1 S3140 CONGRESSIONAL RECORD — SENATE March 25, 2004 There being no objection, the mate- have the right to exercise autonomy over They say they don’t support the legis- rial was ordered to be printed in the their bodies and to choose whether to abort lation. They feel it would actually be RECORD, as follows: a pregnancy. I predict that many or most harmful to battered women. judges will bar prosecutors and defense coun- Again, as someone who coauthored STANFORD LAW SCHOOL, sel from questioning prospective jurors Stanford, CA, July 10, 2003. about their views on abortion or about re- the Violence Against Women Act with Senator DIANNE FEINSTEIN, lated matters such as their religion, reli- Senator BIDEN, here we have a piece of U.S. Senate, Senate Hart Office Building, gious practices, or political affiliations. legislation that is going to be harmful Washington, DC. Forced to act largely on instinct, prosecu- to battered women. Yet the other side DEAR SENATOR FEINSTEIN, I wish to express tors may be inclined to exercise peremptory will not support Senator FEINSTEIN’s my concern about the current formulation of challenges against those prospective jurors S. 1019, the Unborn Victims of Violence Act amendment, which absolutely avoids who appear to be most sympathetic to the this problem. of 2003. Although I fully endorse the Bill’s ul- rights of pregnant women. This result clear- timate aim of protecting pregnant women ly would frustrate the Bill’s stated purpose Juley Fulcher, public policy director from the physical and psychological trauma of protecting unborn life from criminal vio- of the National Coalition Against Do- of an endangered or lost pregnancy, I believe lence. mestic Violence, who testified before that the Bill’s current formulation will frus- Third: The Bill’s apparent purpose of influ- the House subcommittee in July 2003, trate rather than forward this goal. encing the course of abortion politics offends said in her written statement: I write both as a former persecutor and as the integrity of the criminal law. The bill is not designed to protect women a law professor specializing in criminal law To anyone who cares deeply about the in- and does not help victims of domestic vio- and criminal prosecution. At the outset of tegrity of the criminal law, this Bill’s appar- lence. Instead, the focus often will be shifted my career, I served as an assistant district ent attempt to insert an abortion broadside to the impact of the crime on the unborn em- attorney in Middlesex County, Mass., and as into the criminal code is greatly offensive. bryo or fetus, once again diverting the atten- an assistant attorney general in the Massa- The power to inflict criminal penalties is, chusetts Attorney General’s office. I then second only to the power to wage war, the tion of the legal system away from domestic went to Boston College Law School, where I highest trust invested in our institutions of violence or other forms of violence against administered and taught in the criminal government. Because the power to make and women. prosecution clinic. I have been at Stanford enforce criminal laws inherently carries I commend to my colleagues the July since 1995 and a tenured professor of law enormous potential for abuse, those who ex- 8, 2003 testimony of Juley Fulcher be- since 1999; during the next academic year, I ercise that power must always do so with a fore the Subcommittee on the Con- will serve as Academic Associate Dean. In spirit free of any ulterior political motive. stitution of the House Committee on 1996 I founded Stanford’s criminal prosecu- The American Bar Association’s Standards the Judiciary. Relating to the Administration of Criminal tion clinic and have administered and taught We also have a letter from Lynn in the clinic ever sine. I have also created a Justice provide that ‘‘[i]n making the deci- course in prosecutorial ethics, which I sion to prosecute, the prosecutor should give Rosenthal, the executive director of taught at Boston College Law School and, as no weight to the personal or political advan- the National Network to End Domestic a visitor, at Harvard Law School. tages or disadvantages which might be in- Violence, and the letter of Esta Soler, My background and interest in criminal volved....’’ (Standard 3–3.9(d).) Not all president of the Family Violence Pre- prosecution prompt me to raise three objec- prosecutors conduct themselves with fidelity vention Fund. I ask unanimous consent tions to this Bill. All of them focus on the to this principle, but we may readily con- to have them printed in the RECORD. Bill’s use of the expressions ‘‘child in utero’’ demn those who do not. We may likewise There being no objection, the mate- condemn other public actors who abuse the and ‘‘child, who is in utero,’’ and on its defi- rial was ordered to be printed in the nition of these terms as ‘‘a member of the sacred public trust of the criminal sanction species homo sapiens, at any stage of devel- for political ends. RECORD, as follows: opment, who is carried in the womb.’’ For these reasons, I object to the current NATIONAL NETWORK TO END First: The Bill’s apparent purpose of influ- formulation of the Unborn Victims of Vio- DOMESTIC VIOLENCE, encing the course of abortion politics will lence Bill. As I am confident that an alter- Washington, DC, February 18, 2004. discourage prosecutions under any future native version of the Bill can fully accom- DEAR MEMBER OF CONGRESS: The National Act. plish its stated purpose of protecting unborn Network to End Domestic Violence I do not know what motives gave rise to life from criminal violence while avoiding (NNEDV), a social change organization rep- the Bill’s use of the expressions ‘‘child in each of the difficulties I have outlined above, resenting state domestic violence coalitions, utero’’ and ‘‘child, who is in utero,’’ but I do I strongly encourage the Senate to modify is dedicated to creating a social, political know that any vaguely savvy reader will the Bill in the ways I have suggested above and economic environment where violence conclude that these terms and the Bill’s defi- or in some other manner that avoids the against women no longer exists. We are writ- nition of them were intended by the Bill’s freighted and frankly politicized terms, ing because we know that you will soon be authors to influence the course of abortion ‘‘child in utero’’ and ‘‘child, who is in utero.’’ considering the Unborn Victims of Violence politics. It is a fair prediction that when a My thanks to you for your consideration of Act (UVVA). We know that this is a difficult pro-life President is in office, prosecutions my views. and emotional issue, and that you are care- under this Bill will be more frequent than Sincerely, fully considering your position. when a pro-choice President is in office. That GEORGE FISHER, After very careful consideration and study is because the public will interpret this Bill Professor of Law. on our part, we have concluded that the as suggesting that abortion is a potentially Mrs. BOXER. Mr. President, accord- UVVA is not the appropriate remedy for ad- criminal act and will interpret prosecutions ing to the experts, creating a separate dressing violence against pregnant women. under the Bill as endorsing this sentiment. offense for a child in utero would make We certainly share the concerns of the spon- sors of the legislation about tragic crimes If the authors of the Bill truly seek to pro- it less likely that someone who harms tect unborn life from criminal violence, they such as the murder of Laci Peterson and will better accomplish this purpose by avoid- or terminates a pregnancy would be other pregnant women. We know that Con- ing such expressions as ‘‘child in utero.’’ Bet- convicted of a separate offense. So I gress is seeking tools and remedies to ad- ter alternatives would refer to injury or find it stunning that, rather than back dress such violence, and appreciate your on- death to a fetus or damage to or termination Senator FEINSTEIN’s substitute, which going support for the Violence Against of a pregnancy. is very clear—you harm a pregnant Women Act. Our concerns about the UVVA Second: The Bill’s apparent purpose of in- woman, you are going to do double the are mainly focused on its potential impact fluencing the course of abortion politics will time, you are going to get double the on the safety and status of women who are victims of domestic violence. motivate prosecutors to exclude those pro- punishment, and it avoids all question spective jurors who otherwise would be most Our first concern is that the legislation sympathetic to the prosecution’s case. of Roe v. Wade—it shocks me my col- could potentially remove the focus on the If I were prosecuting a case under this Bill, leagues on the other side would rather women as the victim of violence. It would be I would hope to have a jury that includes have a weaker bill, soft on the crimi- possible under the UVVA that a violent persons deeply sensitive to the rights and in- nal, soft on crime, in order to under- crime specifically targeted at a woman could terests of pregnant women. Such jurors mine Roe v. Wade. It is an injection of be prosecuted with the fetus presented as the would regard an attack on a pregnant a political agenda into the criminal primary victim. Yet, it is the violent act woman as being a twofold crime, comprising justice system which I think harms the against the woman that is at the root of the both the injury directly inflicted on the devastating injuries to the women and the mother and the stark emotional and physical integrity of the system. pregnancy. In our view, legislation and pol- trauma resulting from injury to or loss of Again, I am at a loss for words. That icy should be focused on recognizing violence her pregnancy. is hard for me to believe. But if you against women as the serious crime it is, and But such jurors also will be more likely look at domestic violence groups, they need not rely on loss of a pregnancy to vigor- than others to believe that pregnant women will tell you how they feel about it. ously prosecute these crimes.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.011 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3141 Our second concern is that while the UVVA END ABUSE, shows you how far the other side will on its face seems to protect women from Washington, DC, March 23, 2004. go. prosecution of the violence causes her to lose Hon. JERROLD NADLER, When we reach out our hand, as we the pregnancy, it may lead to a slippery 2334 RHOB, have done many times with them, they slope that erodes women’s rights and holds Washington, DC. them responsible for this loss. This slippery DEAR REPRESENTATIVE NADLER: On behalf will not take our hand. They push it slope has already formed in South Carolina of the Family Violence Prevention Fund, I away, because they are much more in- and California, two states with unborn vic- am writing to express concern about the Un- terested in the political agenda of tak- tims legislation. For example, in Whitner v. born Victims of Violence Act, H.R. 1997, ing away a woman’s right to choose. State, the court found that South Carolina’s passed by the House Judiciary Committee on My heart goes out to Laci Peterson’s child endangerment statute could be used to January 21. We are deeply disappointed that family and to all the other families punish a pregnant woman who engaged in some are promoting this bill as a way to end that have experienced the tragedy of any behavior that might endanger her fetus. domestic violence, when better and more di- Legislation regarding violence against rect measures to stop family violence lan- losing a loved one to a violent crime women must be carefully considered in order guish in Congress year after year. Members and, on top of that, losing the joy I and to prevent unintended effects from hurting of Congress who want to stop abuse will put Senator FEINSTEIN have of having the very women it is supposed to help. Bat- their energy into passing the prevention and grandchildren. tered women cannot control the violence intervention measures that offer great prom- But we need to pass laws here that against them, and should not face the possi- ise to stop violence before it starts. will make matters better, not make bility of prosecution simply because they are The murder of Laci Peterson was an un- matters worse. We need to pass laws victims of domestic violence. The landmark speakable tragedy, but many laws designed case of Nicholson v. Williams, decided in the as quick fixes have caused great harm. For here that are clean, that will make the Eastern District of New York, represents an example, mandatory domestic violence law clear and not murky. I think Sen- enormous step in clarifying this position. health reporting laws deter women from ator FEINSTEIN’s substitute—she wrote The federal district court in Nicholson found seeking the medical help they need. We need it with the Laci Peterson family in her that mothers’ due process rights had been to stop back and consider what actually heart. She wants to make sure crimi- violated when their children were taken works. Our goal must be to stop violence nals who would attack a pregnant away from them merely because they were against all women, regardless of whether woman are brought to justice and we victims of abuse. That decision correctly they are pregnant. puts the emphasis on the abused woman, and If Congress is serious about stopping do- don’t get diverted to some other issues. stands for the proposition that an abused mestic violence against pregnant women and I am proud to stand with my col- woman should not be punished, or pros- helping women and children who are victims, league on this one. I know how hard ecuted, for occurrences beyond her control. Members will quickly pass the Domestic Vio- this is. I know how hard she has Because of our work with battered women, lence Screening, Treatment and Prevention worked. I will support her substitute we do know that violence often occurs dur- Act, H.R. 1267. This essential bill would train very proudly, knowing it is the right ing pregnancy, and that pregnant women health care providers to routinely screen fe- thing to do, to crack down against male patients for a lifetime history of abuse may be both physically and psychologically these heinous crimes and to protect more vulnerable to such abuse. We believe and give women access to critical domestic that by supporting sentencing enhance- violence services when abuse is identified. pregnant women. ments, Congress can advance both its goals Introduced in the House in March of 2003 by I thank her very much, and I yield of protecting victims of domestic violence Representatives Lois Capps (D–CA) and Ste- the floor and reserve the remainder of and providing a legal sanction for loss of ven LaTourette (R–OH), this bill has the po- Senator FEINSTEIN’s time. pregnancy as a result of battering. Sen- tential to prevent tragedies by helping vic- The PRESIDING OFFICER. Who tencing enhancements appropriately punish tims before violence escalates. yields time? The Senator from Kansas We also urge Congress to fully fund all Vio- the additional injuries that such acts cause is recognized. without causing the unnecessary complica- lence Against Women Act programs and sup- port legislation that would actually prevent Mr. BROWNBACK. Mr. President, on tions, and potentially dangerous con- behalf of the Senator from Ohio, I yield sequences, for the women we serve. domestic violence before it begins. Domestic There are also a number of other steps violence prevention legislation should in- myself such time as I might consume Congress can take to more effectively ad- clude services for children who are exposed on his side. dress the problem of violence against women. to abuse, programs that support young fami- The PRESIDING OFFICER. Without First, Congress can fully fund the Violence lies at risk of violence, and efforts to each objection, it is so ordered. The Senator against Women Act. Unfortunately, the 2004 young men and boys how to develop healthy, is recognized. budget includes $16.1 million in cuts to the non-violent relationships. Such legislation Mr. BROWNBACK. Mr. President, I would do much more to stem the tide of do- STOP grant program, which provides funding inquire first how much time is remain- to states, tribes and territories to enhance mestic violence than the Unborn Victims of the law enforcement response to domestic vi- Violence Act. ing for the Senator from Ohio. olence and sexual assault, improve prosecu- Finally, we wish to thank you for your The PRESIDING OFFICER. There tion and support victim services. These cuts continued leadership and support on this are 41 minutes remaining on the Sen- will have a detrimental impact on commu- issue. As an advocate in Congress and as one ator’s side. nities all across the country that are strug- of our Founding Fathers, you truly make a Mr. BROWNBACK. Thank you, Mr. gling to maintain core interventions for vic- difference in the movement to end violence President. tims. In addition, the Battered Women’s against women and children. If we can be of I thank my colleagues for being here Shelter and Services funding was also cut in assistance, please do not hesitate to contact Kiersten Steward in our Washington, D.C. of- to participate in a difficult debate. I 2004, and remains at $48 million below the have a difficult set of stories I want to authorized level. Funds to battered women’s fice at 202–682–1212. programs and rape crisis centers have also Sincerely, tell. If any of the individuals here in received cuts at the local and state level ESTA SOLER, this body, or watching, are interested over the past several years. These losses are President, Family Violence in talking to the individuals involved, devastating to providers facing bruised and Prevention Fund. they are actually outside in the lobby. bleeding women every day. Congress can Mrs. BOXER. Here we have it. I am I invite anybody to come out. There work to address the problem of violence going to finish with this. We have a bill are grandparents, mothers of victims— against women by fully funding these life- before us Senator FEINSTEIN has im- there are the women who themselves saving services. proved greatly. We have a bill before us were assaulted and lost a child. They Thank you for considering our perspective on the UVVA. While the bill is noble in its that, instead of concentrating on pun- are here. For those individuals here intentions, we are concerned that it may not ishing the violent criminal, con- would care to visit with them, they fulfill its purpose of creating a legal atmos- centrates instead on trying to set the would love to have a chance to tell phere in which women feel protected from vi- stage to reverse Roe v. Wade, which the their story. olence. Please feel free to call me if you need vast majority of people in this country The question is simple: do we have any additional information. We appreciate think is a good law that balances the one victim or two involved in violent for your commitment to ending violence rights of the woman and the rights of crimes such as these? That is the sim- against women, and look forward to con- the fetus. Yet they are so interested in ple question. I will present a series of tinuing to work with you to address this most urgent social problem. doing this that they have a bill that is case studies to my colleagues and then Sincerely, going to make it difficult to convict I will ask my question again—col- LYNN ROSENTHAL, the criminal who commits the heinous leagues, do we have here one victim, or Executive Director. crime against the pregnant woman. It two?

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.015 S25PT1 S3142 CONGRESSIONAL RECORD — SENATE March 25, 2004 We start with the story of Christina Christina and Ashley Nicole lived in I hope Senators will hear the pleas of and Ashley Nicole Alberts. We have a Kanawah County, West Virginia. their constituents—the family of chart which presents a heartbreaking Her grandmother is here today. Heather and Jonah who are here in the picture. I think it needs to be shown to In addition to the horrific news of Senate today watching, as I noted. better tell the story. This is a gut- their daughter and granddaughter’s Please, in their behalf, on behalf of wrenching picture of Christina and murder, they were further traumatized Heather and Jonah, oppose this sub- Ashley Nicole Alberts (you can see to learn the West Virginia murder stat- stitute that says there is only one vic- them there in the coffin). It is a dif- ute does not allow the prosecution of tim. ficult picture. This body needs to know an individual for the murder of an un- The Feinstein substitute would in- what the Unborn Victims of Violence born child. crease penalties for Federal crimes in Act is about—the victim. Do you know what happened in the which a pregnant woman is a victim, I ask my colleagues to bear in mind murder trial for Christina and Ashley’s but it would also write into Federal that the Unborn Victims of Violence killer? Christina’s pregnancy could not law the doctrine that such a crime has Act states there are two victims—there even be discussed in court. Any recent only a single victim. If we pass this are two victims in this picture. The photos of Christina shown during the Feinstein amendment, and a mother amendment we are considering right trial could only show facial shots. survives such an attack, she will be now, the Feinstein amendment, says Why? Because the court said any pic- told, ‘‘We can prosecute your attacker there is only one victim—one victim in tures of Christina in which it would for assault but not for murder—the law have been obvious she was pregnant this picture. I simply ask my col- says nobody died.’’ leagues to make that determination. Is would have been prejudiced. I ask my friends from West Virginia This cannot and should not be. On be- there one victim or are there two in to support their constituents, the half of Heather and Jonah, I urge my this picture? Here is the story. Alberts, by opposing the Feinstein sub- colleagues to oppose the Feinstein sub- In December 1998, Christina was near- stitute and voting for passage of stitute and support the underlying bill ly 9 months pregnant. unamended Unborn Victims of Violence un-amended. Ashley was looking forward to life I have another story to tell. This pic- with her soon-to-be-born daughter Act. I have another story to tell—Heather ture shows the late Ashley Lyons of whom she could definitely feel moving, Fliegelman Sargent. Kentucky. Ashley was killed when she alive and well, and growing in her In this picture with her mother, as was 21 weeks pregnant with her son womb. When she found out she was you can see, 20-year-old Heather was Landon, in January of this year—just 3 going to have a girl, she decided to well into her pregnancy. Heather was 8 months ago. name her Ashley Nicole. months pregnant with her son Jonah. Her parents and Landon’s grand- However, this earthly life—which all I also point out that her mother and parents are here today. They are in the of us living and breathing here today the grandmother of Jonah are here lobby, if anybody would care to meet enjoy—tragically came to a screeching with us today in the lobby, if people with them. I have met personally with halt for Christina and Nicole on De- should care to visit with her. them. They are very passionate about cember 12, 1998. On that day, some Sadly, both the lives of Heather and this case and about what took place. If thugs were going around robbing Jonah were taken in January 2003, over Ashley and her son Landon were with homes for money. The thugs entered a year ago. Heather was found dead us today, they would be planning for the house where Christina was. Chris- with multiple stab wounds in her home Landon’s birth in just a little over a tina recognized one of them, and be- in Bangor, ME. Her husband Roscoe month. I have a staff member who is cause she recognized one of them, it Sargent was tried on one—only one— expecting a child in a little over a cost her and her baby Ashley Nicole count of murder. month, so this really hits home. their lives. The Bangor Daily News reported on Rather than telling the story of Ash- Christina was beaten. Can you imag- January 10, 2003: ‘‘That Heather Sar- ley and Landon myself,I would like to ine someone beating a woman in the gent was pregnant did not affect the read their story as it was written by ninth month of her pregnancy? Yet charges brought against her husband the mother and grandmother, Mrs. they did. I think of my own family and . . . No matter how advanced the preg- Carol Lyons. As I noted, Mrs. Carol my own wife if she were in that type of nancy, Maine’s homicide law does not Lyons is with us here today, along with situation. apply to unborn fetuses.’’ her husband Buford. It was their efforts Christina was then forced to kneel, But listen to this. Another news that helped get an unborn victims law and she was executed—shot in the story on that same day, January 2, passed in Kentucky—too late for their head. Once the trigger had been pulled, 2003, tells us that ‘‘Police also report- daughter and grandson, but not too releasing the bullet that abruptly edly found several dead cats at home. late for other victims. ended her life, one might think at least Whoever killed the cats faces charges I will read you this story which actu- the physical pain from the crime was under the State’s animal welfare act, ally quotes Ashley, as written by her over for Ashley Nicole. It was not. while no charges will stem from the mother, the grandmother of Landon. It When her mother’s heart stopped, her death of the unborn baby.’’ was written February 25, 2004. inutero child does not die instantly. In- Is it even remotely rational to charge I note parenthetically that if this stead, the inutero baby dies slower. someone with the death of these cats crime had happened on a military base When the mother’s heart stops beating, and yet not charge them with the where only Federal law applies, there the baby begins to suffocate for lack of death of a viable 8-month-old baby? would be only one victim—not two— oxygen. The baby can feel. The baby is As we move to the next chart in the unlike California law, which acknowl- in pain. At 4 minutes, the baby begins same case, I want to pause for a mo- edges two victims of violence. to suffer severe neurological damage. ment and urge caution for any parents Ashley’s mother writes: The process gets worse. Ashley Nicole who may be watching with young chil- would have finally died 15 minutes On January 7, I was seeing my grandson, dren present. They may not want to Landon, for the first time. Landon was mov- after her mother Christina had been view this. It is a serious matter, and ing around in an ultrasound image on the TV shot and killed. these are real life stories that people screen in our home in Stomping Ground, Look at this photo again of Christina need to hear. But, nonetheless, they Kentucky. We could clearly see Landon’s lit- and Ashley in the coffin. Is there one are difficult. tle heart beating. We could see his little victim? Or are there two? Who will say I would simply ask as we move to the face. Just a few hours later, Ashley and there is only one victim in this coffin? next chart, are we looking at one vic- Landon were both dead. They were found Yet this substitute amendment we are tim or two? On the left in the chart is murdered—shot to death in a local park. considering will say there is only one Heather before she was stabbed to Later, I found a journal that Ashley victim. death, and on the right is Jonah who had been writing to her baby. Right at What about the family? What about also died in the attack. the beginning, when she was only two Ashley Nicole’s grandparents? What The grandmother of Jonah is here months pregnant, she wrote how she happened to them after the murders? with us today. had rejected advice to get an abortion.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.054 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3143 Clearly Ashley made a choice to have could have been charged with murder. me, and other surviving family members of a child. She wrote in her journal: ‘‘I Let me state that again: If Tracy’s unborn victims, to reform the law. couldn’t do that. I already loved you.’’ attacker had known he could have been It took years. Again and again I told my story to state lawmakers and pleaded with Ashley also wrote: ‘‘You are the child charged with murder, he would not them, as I now plead with you, to correct I have always dreamed about. I know have attacked her. this injustice in our criminal justice system. that it will be a long time before I I would like to read a portion of Tra- Finally, on June 16, 1998, Governor Tommy meet you, but I can’t wait to hold you cy’s July 8, 2003, testimony in front of Thompson signed the fetal homicide law. for the first time. I love you more ev- the House Judiciary subcommittee, This means it will never again be necessary eryday. Always, Mommy.’’ where she has spoken about this case for state authorities in Wisconsin to tell a before. This is Tracy Marciniak’s state- grieving mother, who has lost her baby, that Yes, the killer took two lives—each with a nobody really died. Under this law, an un- long, bright future ahead. It is heartless and ment: born child is recognized as a legal crime vic- cruel to say that the law must pretend this I respectfully ask that the members of the tim, just like any other member of the is not so, in order to preserve ‘‘choice’’ on subcommittee examine the photograph that human race. abortion. Ashley had made her choice—and you see before you. In this photo, I am hold- Of course, the state still has to prove any- she chose life. ing the body of my son, Zachariah Nathaniel. thing beyond a reasonable doubt to a jury, This, again, is her mother Carol Often, when people see the photo for the which is as it should be. But when this bill speaking. first time, it takes a moment for them to re- was under consideration in the legislature, it Our case has been widely reported in Ken- alize that Zachariah is not peacefully sleep- was actually shown to some of the former tucky. In response, both houses of the legis- ing. Zachariah was dead in this photograph. jury members in our case, and they said if that had been the law at the time I was at- lature passed a strong fetal homicide bill, This photo was taken at Zachariah’s funeral. I carried Zachariah in my womb for almost tacked, they would have had no problem con- and on January 20th, Governor Ernie Fletch- nine full months. He was killed in my womb victing my attacker under it. er signed it into law. I pray that Congress, too, will soon pass only five days from his delivery date. The Next, I present a statement from Ms. the Unborn Victims of Violence Act, which first time I ever held him in my arms, he was Shiwona Pace of Arkansas. Ms. Pace will allow a criminal to be charged for any already dead. This photo shows the second suffered a horrible tragedy. She was se- time I held him—it was the last time. harm he does to an unborn child during com- verely beaten by several attackers, and mission of a Federal or military crime. There is no way I could really tell you about the pain I feel when I visit my son’s as a direct result, her baby, whom she Of course, laws are not retroactive, so no had named Heaven, died. Fortunately, laws enacted now will allow full justice to be grave site in Milwaukee, and at other times, done on Landon’s behalf. thinking of all we missed together. But that Arkansas passed an unborn victims of But they will ensure in the future no moth- pain was greater because the man who killed violence law prior to the crime com- er, grandmother, or other family member Zachariah got away with murder. mitted by Ms. Pace’s assailants. Under will ever again be told that the law is blind I know that some lawmakers in some the Feinstein amendment, Ms. Pace’s to the loss of a child who is unborn but al- groups insist there is no such thing as an un- assailants would not have even com- ready living and loved. born victim, and that crimes like this have mitted a crime, other than assault. only a single victim—but that is callous and I ask my colleagues to listen again to it is wrong. Please don’t tell me that my son Please listen to her plea to legislators. Ashley’s words to her child Landon— was not a real victim of a real crime. We My name is Shiwona Pace. On August 26, both victims, both were murdered: were both victims, but only I survived. 1999, I was a 23-year-old college student in You are the child I have always dreamed Zachariah’s delivery date was to be Feb- Little Rock. I was the mother of two—my about. I know it will be a long time before I ruary 13, 1992. But on the night of February five-year-old son, and an unborn baby girl meet you, but I can’t wait to hold you for 8, my own husband brutally attacked me in named Heaven Lashay. August 26 was one day before my predicted the first time. I love you more every day. Al- my home in Milwaukee. He held me against full-term delivery date. But that night, three ways, Mommy. a couch by my hair. He knew that I very men brutally murdered my unborn baby I ask my colleagues, is there one vic- much wanted my son. He punched me very hard, twice, in the abdomen. Then he refused daughter. I curled up face down on the floor, tim, or are there two? Is it one victim to call for help, and prevented me from call- crying, begging for them to stop beating me. or two when Ashley and Landon were ing. But they did not stop. One shouted, ‘‘F*** murdered? After about 15 minutes of my screaming in you! Your baby is dying tonight!’’ They choked me, punched me, hit me in I have another case—unfortunately, pain that I needed help, he finally went to a the face with a gun. They kicked me again bar and from there called for help. I and there are too many of these cases—that and again in the abdomen. After about thirty Zachariah were rushed by ambulance to the demonstrates why this law needs to be minutes, they left me sobbing there on the hospital, where Zachariah was delivered by dealt with. Here is a picture of Tracy floor. At the hospital, they found that Heav- emergency Caesarean section. My son was Marciniak holding her son Zachariah 12 en had died in my womb. She was a perfect dead. The physicians said he had bled to years ago. This is a case from Wis- baby, almost seven pounds. death inside me because of blunt-force trau- The assailants were arrested. They had consin. ma. We all have precious baby photos. I been hired by Erik Bullock, my former boy- My own injuries were life-threatening. I friend. He paid them $400 to kill little Heav- have five children, and I love each of nearly died. I spent three weeks in the hos- en Lashay. them and have precious photos. This pital. During the time I was struggling to Only a month before, a new state law took should be a happy baby photo, but if survive, the legal authorities came and they effect that recognized unborn children as you look closely, you will see it is not. spoke to my sister. They told her something crime victims. If that law had not been en- You can see it by the look on Tracy’s that she found incredible. They told her that acted, Erik Bullock would have been pros- in the eyes of Wisconsin law, nobody had ecuted only for the assault on me, but not case, by the coffin behind her, and by died on the night of February 8. the funeral flowers. Tracy’s son Zacha- for the death of my baby. Later this information was passed on to But thanks to the state law, Bullock was riah is dead and she, Tracy, survived, me. I was told that in the eyes of the law, no also convicted for his role in killing my and is here today. If people would like murder had occurred. I was devastated. baby. The men who attacked me are also to visit with her, she is in the lobby. My life already seemed destroyed by the being prosecuted for what they did to Heav- In 1992, in Wisconsin, Tracy was ter- loss of my son. But there was so much addi- en. ribly beaten. She lived and her son tional pain because the law was blind to I tell my story now for one reason: If this Zachariah died. I have spoken with what had really happened. The law, which I same attack occurred today within a federal had been raised to believe was based on jus- Tracy, and I have heard how the loss of jurisdiction, the men who killed my baby tice, was telling me that Zachariah had not would be prosecuted only for assault. That is Zachariah hurts her to this very day. really been murdered. why I urge members of Congress to support Regrettably, justice was not served. Before his trial, my attacker said on a TV the Unborn Victims of Violence Act, which Was Tracy and Zachariah’s assailant program that he would never have hit me if would recognize unborn children as victims charged with the murder of Zachariah? he had thought he could be charged with under 68 federal laws dealing with crimes of No. In Wisconsin, law enforcement au- killing an unborn baby. violence. thorities told Tracy’s family they My family and I looked for somebody who I was dismayed to learn that some mem- could only charge the attacker with as- would help us reform the law so that no such bers of Congress oppose this bill, and insist injustice would occur in our state in the fu- on adoption of a radically different [version] sault; in the eyes of the law, no one ture. We found only one group that was will- that says that such crimes only have one died. ing to help, Wisconsin Right to Life. They victim—the pregnant women. What is more, Tracy’s attacker says never asked me my opinion on abortion or on This is not the same as what would happen he would not have attacked her if he any other issue. They simply worked with under the Feinstein amendment. They are

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.056 S25PT1 S3144 CONGRESSIONAL RECORD — SENATE March 25, 2004 wrong. On the night of August 26, 1999, there duces men who would do this kind of Because once you give an embryo, at were two victims. I lived—but my daughter thing to a woman. I cannot help, as a the point of conception, all of the legal died. I lost a child, and my son lost the baby mother and a grandmother, to share rights of a human being, and you have sister he had always wanted—but little with those for whom this is a life scar said that embryo, then, if it is lost to Heaven lost her life. It seems to me that any congressman who that will never, never heal. humankind, is murdered, you have cre- votes for the ‘‘one-victim’’ amendment is And I understand it. I understand the ated the legal case to go against Roe v. really saying that nobody died that night. need to want to punish, and understand Wade in Federal law for the first time And that is a lie. the need to want to say this child—who in history. Then we have the well-known case of is so close to birth, who would be capa- Now, California and the Laci Peter- Laci and Conner Peterson in California ble of life outside of the womb at that son case was mentioned a great deal. that has been spoken of previously. moment—is a victim because, in fact, The prosecution of Scott Peterson will This is a statement from Sharon that child is a victim. I appreciate that be conducted under California law, Rocha, Laci Peterson’s mother, and and I understand it. which has amended the definition of Conner Peterson’s grandmother. She One of the reasons at the beginning the penal code section 187—which is has spoken out often on this issue. This of my remarks I said this bill is so con- first degree murder—to refer to a fetus. is a California case that is well known troversial is because definitions have But then other parts of law in Cali- and has probably done as much to different meanings in law. The con- fornia only imposes criminal liability bring this up today on this floor as troversial part in the underlying bill is starting at 7 to 8 weeks of gestation. anything else we have examined. the definition of ‘‘child in utero’’ and So where the California law effectively This is from Sharon Rocha’s state- ‘‘child, who is in utero’’ because the covers exactly the situation that the ment. I will read a portion of it: bill language is: ‘‘means a member of Senator from Kansas is mentioning— As you know, Laci and Conner were cruelly the species homo sapiens,’’ in other all of those situations—it takes into murdered. In this difficult time, my family words, a person, ‘‘at any stage of devel- consideration the period prior to 7 to 8 is grateful that under California law the opment’’—‘‘any stage of development,’’ weeks of gestation. murders of Laci and Conner can both be not when the fetus is what they call And, in fact, many other State laws prosecuted. But for the families of many ‘‘quick,’’ which means it is capable of do as well. other murder victims across the country, movement; not when it is viable, which The problem is this is a much more there can be no such comfort. Federal law comprehensive definition that doesn’t does not recognize that these crimes have means it is capable of life outside the two victims. womb; but at ‘‘any stage of develop- make any of the distinctions that are ment.’’ made by many of the States with re- So California law does recognize it. This is what causes the problem in spect to these criminal statutes. Many When I became aware that Congresswoman the law once you set it in the law. That of them cover when the fetus has Melissa Hart was working on a bill to correct is what is so distressing about this bill. quickened, which means the fetus or this problem, I contacted her to express my Because every Member of this Senate the child is capable of movement, and support. I asked her to name it ‘‘Laci and Conner’s Law’’ in memory of my daughter wants to vote yes. Every Member of many of them cover after viability. and grandson. I am grateful to Congress- this Senate wants to say: Throw the This creates the situation where the woman HART, the House leadership, and the book at that animal. Who could be so embryo has the rights of a person. That many congressmen, both Republicans and callous? Who could be without any mo- is the problem for many of us. Democrats, who have agreed to support this rality? Who could be so cruel? Who The Senator from Ohio—and I think common-sense legislation. I thank President could practice such a heinous crime? he knows I respect him; we have Bush for his willingness to sign it into law. Who could punch a 9-month pregnant worked on so many things—says don’t The House of Representatives has shown woman in the stomach to the extent bring in the abortion debate. But I their support for this law by approving it that it causes the killing of her unborn can’t help but bring in the abortion de- twice thus far, but the Senate has consist- child? bate because the proponents—not the ently failed to act. I call on every Senator to Senator from Ohio, but other pro- vote for this bill, so that the law will do jus- So I am there. I am there entirely. I tice for families of murder victims—families am there completely. But, again, it is ponents—have said ‘‘this is part of our like mine. It is time for the Senate to stand complicated because the definition we strategy—this is what we want to up for innocent victims like Conner. are working from gives rights at the achieve.’’ These are real stories. They are point of conception. It does not dif- Then you get somebody like me and tough stories. But they speak to the ferentiate. It does not say the 8-month- Senator BOXER and other cosponsors situation in this country today. This old baby or the 7-month-old baby, who who want to protect a woman’s right to type of crime happens all too fre- is capable of life today, is what we are control her own reproductive system, quently. Unfortunately, there are more talking about. It says the recently fer- particularly in those early months, cases that we could mention. tilized egg is what we are talking who read this bill and see the defini- I wanted to put a real face on this about. That is the difference. tion and say: ‘‘There is the ball game— issue for my colleagues, and to ask It is so hard, because you stand here here we lose big time.’’ them this simple question when they and you listen and your heart goes out, It is like you say to me, ‘‘gotcha,’’ vote on the Feinstein substitute: How and you think of these beautiful because I want to punish that guy who many victims are there? Is it one vic- women and their beautiful children, beat that woman to death, who killed tim, or are there two? That is the real and some animal comes at them, and in her unborn child, because I know that decision in regard to this amendment. some cases kills them both, in some child is capable of life. You know that I urge a vote against the Feinstein cases kills one, and in some cases kills child is capable of life. But to give that amendment. the other. Sure, throw the book at him. right to a fertilized egg or an embryo is I yield the floor and reserve the re- I will go a step further. I would give a different thing. Your bill gives that mainder of my time. them a death penalty because they right to a fertilized egg or an embryo The PRESIDING OFFICER. The Sen- have taken two lives, and I do believe or a zygote. ator from Kansas yields the floor. a child at that period of gestation is a Then, when I go out and I look at Who yields time? life. what people have said about the bill, I The Senator from California is recog- The problem is the bill language, see these statements, such as the state- nized. which begins this at the point of con- ment of Mr. CASEY: Mrs. FEINSTEIN. Mr. President, it is ception. In as many areas as we can, we want to put extraordinarily difficult to respond to Now, every single case presented on on the books that the embryo is a person. the litany of atrocities the Senator this Senate floor this morning is of a This bill puts on the books that an from Kansas has just enumerated. I child who is viable outside of the embryo is a person, a member of the cannot help but wonder: What kind of womb. But the bill covers children that species Homo sapiens, in bill language. animal can do this to a woman who is are not children; that are a day old in This bill establishes exactly what the 7 or 8 or 9 months pregnant? I cannot the womb, that are at conception. That right-to-life movement wants to estab- help but wonder how our society pro- is the problem we have with this bill. lish, that an embryo is a person. That

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.059 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3145 sets the stage for a jurist to acknowl- for that 3- or 5-day-old fertilized egg, going to have repercussions downline. edge that human beings at any stage of then this is what the law professor If you declare in this bill you can prove development deserve protection. Once meant when he said: ‘‘You are going to a 1-day-old fertilized egg was a victim you have the embryo being a human get the very people who are the most and therefore murdered, how do you being, then that human being at any interested in protecting the woman turn around and say in another law you stage of development deserves protec- being reluctant to go on that jury.’’ can proceed with embryonic stem cell tion—meaning deserves rights under Not every case under this law is research? You have the same 1-day-old the law, which this establishes because going to be post-viability, going to be fertilized egg. If it is murder here, is it it makes that embryo a victim—even like the cases that the Senator from not murder there? What are the reper- protection that would trump a wom- Kansas brought forward, where I would cussions of doing that? They are enor- an’s interest in terminating a preg- say: ‘‘Give the guy the death penalty.’’ mous. nancy. Think of that, that would I wouldn’t have a problem with that. The other side doesn’t talk about trump a woman’s interest in termi- They did terrible things, the acts of an this. They talk about women who are 7 nating a pregnancy. animal. But that is not what this law or 8 or 9 months pregnant. They talk Now, I am one who believes there says. That is the difference. about the most heinous and brutal as- should not be abortion if the baby is What we have tried to do is say: If saults. But the bill does much more. viable. I agree with Roe because it pro- you end a pregnancy, if you harm a The bill says a 1-day-old fertilized egg vides the woman choice in the first 3 pregnancy, the same penalties would is a member of the species Homo sapi- months of a pregnancy where there is apply that apply in the House bill and ens. Translation: It is a person. Trans- not viability. I lived and grew up at a Senator DEWINE’s bill. lation: It is a human being. time when abortion was illegal in Cali- I wish this could have gone to the Ju- That is the problem, and this Senate, fornia. I saw a good friend commit sui- diciary. I wish it wasn’t rule XIV. I before it passes out this bill, should un- cide because she was pregnant and in wish I had an opportunity in com- derstand it and should understand college. I saw women pass the plate so mittee, in markup, to make these there is an alternative, and the alter- someone could go to Tijuana for an il- points. native aims to impose the same pen- legal abortion. You would say that is Let me go over once again, so that alties, but doesn’t create that victim not relevant to this debate—‘‘don’t dis- everybody is crystal clear on the point fertilized egg, 1 day old—by nobody’s cuss it; don’t bring it up in the Sen- of the creation of a separate offense, stretch a human being—possible of be- ate—just think about the mothers and where a defendant violates any of the coming a human being, but not a the babies who were killed.’’ enumerated Federal crimes, our bills human being. I have live cells, but they I want to do that, too. And I think are identical. On the provision that the are not capable of producing life. about the mothers and the babies. I separate offense is punished the same But once the child, the fetus in the want to throw the book at those guys. as the violation of the enumerated Fed- womb, is capable of living, that is a dif- And the death penalty, too. I don’t eral crimes, our bill is identical. On the ferent story. I am the first one to have a problem with that because I be- provision that if the separate offense admit that is a different story. But ev- lieve by your actions, you can vitiate harms or ends the pregnancy, the pun- erything in this bill, the underlying your own right to live. That has been ishment is the same as a violation bill, goes back to the basic definition true for me since 1971, as well. That has would be for the underlying crime: of what is being done here, and that is been my consistent position. murder, manslaughter, or assault, as that personhood, life, is being given to But once in a statute you create a appropriate. Our bills are identical. a 1-day-old fertilized egg. fertilized egg as a human being with With respect to the provision of pen- Now I have one child biologically, I specific rights, the march to eliminate alty for death of a fetus is a maximum have three stepdaughters, and I have Roe v. Wade is on its way in statute. life sentence, our bills are identical. five grandchildren. I have seen close That is what is happening with this With respect to the provision of pen- friends—I know the glory of mother- bill. That is what I object to. There is alty for harm to the fetus is a max- hood. I know the catastrophe that no reference to viability. imum 20-year sentence, our bills are takes place when you lose a child. I I have the list of what all the States identical. And both bills do not impose have had miscarriages, so I understand do. They all do different things. Many the death penalty. Where our bills are that. But then there is the march to of them recognize it. For example, different—and this is important—is the turn back the clock to when I was in seven States impose criminal liability definition of when life begins. college and abortion was illegal. Then starting when a fetus is quick, in other The underlying bill defines life as be- after college, when I went out into the words, capable of movement: Florida, ginning at conception. world, I actually sentenced women con- Georgia, Mississippi, Nevada, Okla- (Mr. ALEXANDER assumed the victed of abortion in the State of Cali- homa, Rhode Island, Washington. Chair.) fornia in the State prison. I saw the Seven States impose criminal liability Mrs. FEINSTEIN. Mr. President, we terrible morbidity and the terrible starting at the point of viability: Flor- do not address when life begins. I just things they did illegally in back-alley ida, Indiana, Massachusetts, Missouri, read Justice Blackmun’s opinion in abortions. At that point, I said this is Oklahoma, South Carolina, Tennessee. Roe v. Wade. It is interesting, because so terrible. Then Roe v. Wade passed in So there are many differences. Dif- he goes back to the Stoics, the Catho- 1973, and a woman could control her ferent States do different things, even lic Church, to the Middle Ages, and dis- own reproductive system, particularly when they have this law. cusses the difference of opinion of when in that first trimester. I thought to But what this does, what this under- life begins, the difference of opinions in myself, we should never go back to the lying bill does, is say from the moment science. Then he reaches his conclusion way it was. of conception there is a baby and that that because these differences are so My concern about the underlying bill baby is a human being and that baby vast, the law generally does not di- is it is the first bridge to take us back has rights. rectly enjoin that point of when life be- to the way it was because of the defini- That is a problem in the criminal gins. tion that is in this bill, which gives law. As the Stanford law professor That is the problem we have here. human rights to a 1-day-old fertilized pointed out, if a case comes before the That is the dilemma the Senate faces. egg in utero. That is the problem for court where, let’s say, a woman was as- This bill is on a fast track. This bill me. That is the problem for a lot of us saulted and she was 3 days pregnant, has passed the House. This bill has in the Senate. Whether it will be and the forensics could establish that been subject to a Rule XIV, without a enough, I don’t know. she was 3 days pregnant, and you are hearing, from the year 2000. You have I tried to perfect the bill. Remember, voir-diring people for a jury and you heard the most poignant, disturbing, this was a rule XIV. We didn’t have a are telling them that there is a second heartrending stories on this floor. I re- chance to mark it up. I tried to perfect victim, and it is a fertilized egg that is spond to them like everybody else does. it. Unfortunately, I was not granted 3 days old and there is a 20-year charge But I also know if you give a fertilized the usual privilege of being able to pending or life imprisonment pending egg rights in the Federal law, it is send a modified amendment to the

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.061 S25PT1 S3146 CONGRESSIONAL RECORD — SENATE March 25, 2004 desk. But the intent is clear. I have reasonable doubt, to prosecute under mother’s right to choose. Under the made it crystal clear in my remarks. this law, that there was this unborn statute, you cannot prosecute the We will have the same penalties for the child. They would have to prove the ex- woman at any time. You cannot do same crimes as the underlying bill. We istence of the child. And then they anything about abortion rights because will avoid one thing, and that is deter- would have to prove there was death or the statute protects lawful abortions. mining when life, for the purpose of injury to the child beyond a reasonable For 30-something years in California, law, actually begins. doubt. They have to prove the exist- they had the ability to prosecute I yield the floor. How much time do ence, first of all, beyond a reasonable criminals who attacked pregnant I have remaining? doubt, and then they have to prove the women and have Roe v. Wade rights. The PRESIDING OFFICER. The Sen- death or injury beyond a reasonable Look in the phonebook anyplace in ator has 23 minutes 40 seconds. doubt. California and you will find people who Mrs. FEINSTEIN. Mr. President, I re- It is not, with all due respect, a ques- will provide a lawful abortion. Look at serve the remainder of my time. tion of at the moment of conception the criminal law and you will find a The PRESIDING OFFICER. The Sen- that this protection, as a practical statute that allows people to be put in ator from Ohio. matter, would kick in. First, it has to jail who attack a pregnant woman and Mr. DEWINE. In a moment, I will be carried in the womb; second, you do damage to her unborn child at the 6- yield to my colleague from South Caro- would have to be able to prove the ex- week period. lina. istence and then prove there was injury My point is, when criminals attack Mr. President, before I yield to my or prove there was death. That is the pregnant women, don’t play this game colleague, I want to respond very brief- practical application of the statute we of the abortion debate. Don’t bring it ly to my colleague and friend from propose to pass. over here. The reason we voted 417 to 0 California in regard, again, to the ques- I yield to my friend and colleague in the House was to prevent an execu- tion of abortion. My colleague is con- from South Carolina. tion of a pregnant woman at the ear- cerned—I understand her sincerity be- Mr. GRAHAM of South Carolina. Mr. liest stages of pregnancy. It does no cause she has expressed it many times President, how much time remains? good to kill the chance of that child to on the Senate floor. I don’t doubt that The PRESIDING OFFICER. Eleven grow to render justice to the mother. sincerity at all—that somehow this bill minutes. With a vote of 417 to 0, the House sets a precedent regarding abortion. Mr. GRAHAM of South Carolina. Will adopted the same definition as this First of all, we all know statutes can- the Chair notify me when I have used 4 statute because the purpose of that not overcome the Supreme Court deci- minutes? statute was to prevent the State from sions, constitutional law. We should The PRESIDING OFFICER. Yes. executing a woman who we know to be not be concerned about what the stat- Mr. GRAHAM of South Carolina. Mr. pregnant at the early stages of a preg- ute will do. We particularly should not President, I wish to speak to how the nancy. The reason being, it does no be concerned when we know many of bill was drafted and why. good. It does not advance Roe v. Wade. the States have statutes very similar Senator DEWINE articulated it well. It just does something you do not need to what we propose to enact today. In You have to prove the pregnancy, and to do to render justice. You do need the fact, several of the States have had we defined the pregnancy like 16 other ability to bring two prosecutions at the these statutes in place for up to 30 States. That is the dominant way of earliest stages of pregnancy to render years. They have not in any way defining the child for the purpose of justice for those who choose to vio- changed or infringed on abortion this statute. Thirteen States have a lently assault pregnant women. No rights. Whatever one might think of different view of it. In California, I medical researcher is going to be abortion rights, these have not affected think the law is at 6 weeks. If you can harmed. We will have the stem cell de- them and this bill will not affect them. prove the child is beyond 6 weeks—not bate. The Roe v. Wade rights that exist To make sure of that, we put provi- viable but beyond 6 weeks—the law today are not going to be eroded. They sions in this statute, which I have read kicks in. have existed in conjunction with these on the floor today, which make it crys- In 1999, when we first drafted this statutes for years and years, and that tal clear they will not in any way af- statute—Senator DEWINE was carrying debate will go on for years and years. fect that. So we have precedent. it in the Senate, I carried it in the But here is what is likely to happen. The PRESIDING OFFICER. The Sen- We have the fact that statutes can- House, and we are finally coming to- not interfere with constitutional law, ator has used 4 minutes. gether to have a vote—it never made Mr. GRAHAM of South Carolina. plus we have precedent of many years sense to me, if you believe this is not of experience of State laws not inter- There will be, unfortunately, human about abortion—because it is not; we nature being what it is, another assault fering with abortion rights. So there is wrote it so it is not—why would you just no reason for anybody, when they against a pregnant woman where Fed- give a criminal a break who destroyed eral jurisdiction would exist if we have come to the floor to vote on this, to a family’s life in two ways, not one? this statute. It is going to happen be- think this is in any way going to affect You are not going to prosecute med- cause people are mean, people are abortion rights at all. ical researchers under this statute. cruel, and they need to be dealt with My friend has talked about the fact You have to hurt the mother. This is that we follow what I believe 16 States when they are mean and cruel. not about medical research. It is not The Senate enhancement option has have done when we begin to protect the about abortion. It is about criminals been rejected by everybody who looked unborn. Some States define it dif- who attack pregnant women. at this because it does not render jus- ferently. My colleague has cited what Why would you give the criminal a tice. It creates a legal fiction that is California and some States do. They break at 3 weeks? You could prove the not necessary and destroys the whole are defined differently. But we follow baby has been around for 3 weeks. The purpose of this statute. in this statute what some others criminal just totally gets away with it. I mentioned the Arkansas case. States have done. The Feinstein amendment—as much Three teenagers were prosecuted for In our proposed statute, we use this as I like Senator FEINSTEIN, and she is beating up a pregnant woman for the language, and I would say it is not truly one of my favorites—nobody goes purpose of making sure one of them did what my colleague, with all respect, this way because this is not the way not have to pay child support. They are has said. This is what the language is: you would want to go if you are pros- not on death row. I misspoke. One of . . . who is carried in the womb. ecuting criminals. You do not want to them received 40 years, one received ‘‘Who is carried in the womb,’’ that is ignore the reality of what happened to life imprisonment. It was a capital the language, the precise term that is this family and to these victims. This statute, but it was not a death penalty used, ‘‘carried in the womb.’’ is not about abortion. If it was abor- case. I was wrong. I apologize. As a practical matter, since this is a tion law, you would not have any pros- The PRESIDING OFFICER. The Sen- criminal statute, we all know that to ecutions except until the late terms of ator used 5 minutes. prosecute under this statute, a pros- the abortion. Why would you let a Mr. GRAHAM of South Carolina. ecutor would have to prove beyond a criminal do that? This is not about a Five more seconds.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.062 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3147 The Laci Peterson case is a death alty would be an additional 10 years in I think the votes are very close. At penalty case because there are two vic- prison because she lost that egg. Well, this point, I will yield the floor, but I tims. I would have to make a decision as to reserve the remainder of my time. All we are saying is Federal law whether I want to be on that jury. So Mr. DEWINE. Mr. President, how should address reality. When Michael what the professor says is this can ac- much time is remaining? Lenz lost his wife in the Oklahoma tually work contrary to our intent, The PRESIDING OFFICER. Five City bombing incident, he also lost his particularly in these early cases. minutes. son, Michael Lenz III. All I am asking He also said he suspects it is depend- Mr. DEWINE. And the Senator from for is that justice be rendered in cases ent on the administration as to wheth- California? such as that. When somebody chooses er early cases will be brought to a The PRESIDING OFFICER. Fifteen to destroy a family—the mother and court or not, but the point is we cannot minutes. the unborn child—let them pay a se- make that decision. We cannot say this Mr. DEWINE. I suggest the absence of vere price, and let’s debate abortion is only going to be used when a mother a quorum, with the time to run equally another day, another time, and not is 7 months, 8 months, or 9 months, on both sides. interject it into a statute where it pregnant. In the horrific circumstances Mrs. FEINSTEIN. Equally divided. should not be interjected. described by the Senator from Kansas, The PRESIDING OFFICER. Without I yield the floor. which got all of our hearts beating objection, it is so ordered. The clerk The PRESIDING OFFICER. The Sen- faster, we cannot assume that all cases will call the roll. ator from California. will be of that type. The legislation The assistant legislative clerk pro- Mrs. FEINSTEIN. Mr. President, clearly says for the purposes of defini- ceeded to call the roll. could you give us the time remaining tion the child is defined from the point Mr. DEWINE. Mr. President, I ask on both sides, please? it is in the womb at any stage of devel- unanimous consent that the order for The PRESIDING OFFICER. Yes. The opment as a child, as a person, with the quorum call be rescinded. Senator from California has 23 minutes rights. That is the dilemma and that is The PRESIDING OFFICER. Without remaining. The other side has 5 min- why we have tried to craft a bill that objection, it is so ordered. utes remaining. does not do that, that says if someone Mr. DEWINE. We are getting close to Mrs. FEINSTEIN. I thank the Chair. harms or ends a pregnancy, they are the end of this debate. I think there are Mr. President, this is a difficult discus- subject to the same penalties. just a few points about this amend- sion because I am very fond of both the This body is going to have to decide— ment I would again like to stress. One Senators with whom I am debating. and it is a very hard question. I think is this whole debate today has nothing However, I certainly do not agree with this is one of the most controversial at all to do with abortion. I talked the statement the Senator from Ohio bills we have had. This is probably why about that. I will not belabor the point. just made with respect to the defini- this bill has been around for 5 years We have made that clear in the lan- tion that is in the bill. now. I think it had a hearing in Judici- guage we have written. It is set down I will read the definition that is in ary in 2000. It has not had a hearing in the precedent of States that have the bill. The term ‘‘a child who is in since. It has been rule XIVed to the passed similar legislation. It has not utero’’ means: floor. had anything to do with abortion. Again, I wanted to make some small If Members of the Senate truly be- A member of the species Homo sapiens at changes—I was not permitted to do any stage of development who is carried in lieve what the vast majority of the so—by modifying my amendment. I be- the womb. American people believe, and that is lieve, and my chief counsel believes, The one thing neither Senator there are two victims, then they have this bill provides the same penalties. to turn down the well-intended Fein- DEWINE nor I know is how fast the egg The one difference is the definition is stein amendment. The Feinstein gets to the womb, but I think it is pret- different. We use harm or end preg- amendment tries to provide for en- ty fast. nancy, rather than that the unborn I just had a note passed to me by hanced penalties. I believe it is clear, child becomes a child—well, that a someone more erudite than I. I think child in utero and child who is in utero from what I have spelled out a few mo- we can all put this in our lexicon. means a member of the species Homo ments ago, she has failed to do that, It takes about 7 days for a fertilized sapiens, at any stage of development, that there are no enhanced penalties. egg to get to the womb, but there is who is carried in the womb. That is the Even if there were, it is a contortion of also the belief the underlying bill ap- problem and that is where for those of the law and logic to deny the fact that plies at the moment of conception. Let us who want to protect a woman’s when a pregnant woman is violently us say the egg gets to the womb in 7 right to choose and who read the state- attacked and she loses her child, for days. The problem those of us on this ments that are put out by the far right, the law to say we refuse to recognize side of the aisle have with the bill is it we take them at their word that this is there is a second victim, and that is gives the status of a human being to where they are going. what the Feinstein amendment, unfor- that egg as soon as it is in the womb, I did not make this up. This is a rath- tunately, says. The Feinstein amend- and that creates for the first time in er well-known statement. It clearly ment denies the fact there is a second Federal criminal law a scenario where- says, ‘‘In as many areas as we can, we victim. by if that egg is hurt, criminal assault went to put on the books,’’—this stat- We have heard on the Senate floor charges, criminal manslaughter ute on the books—‘‘that the embryo is today, time and time again, these hor- charges, criminal murder charges can a person . . . ’’ rible stories that Senator FEINSTEIN be brought because that egg, at any For me, I am also very interested in and I—our hearts go out to these vic- stage of development—they do not use being able to see that there are prudent tims. Everyone’s heart does. But how trimesters, they do not use any way of regulations and Federal controls that can we say to these families that these deciding the development—at any will allow embryonic stem cell re- children who were lost, sometimes the stage of development, that egg in utero search. Well, if it is murder of a 7-day- grandchildren who were lost, were real- is a member of the species Homo sapi- old fertilized egg, then it is murder if it ly not, in the eyes of the law, victims? ens, and that is where this, for crimi- is used in stem cell research as well. In the eyes of everyone else in soci- nal purposes, becomes so difficult. That is where I think this is going. ety they are victims. Shouldn’t the law That is why the letter from the pro- There are also statements by people also recognize them as victims? That is fessor from Stanford, who runs the who want to ban embryonic stem cell what we are saying with our bill. Un- criminal prosecution unit at Stanford research that also say this is the strat- fortunately, the Feinstein amendment Law School, becomes so relevant, be- egy. So I say, why get into it at all? denies them that. cause let’s say I am in a jury pool and Why not just say, if someone ends or I reserve the remainder of my time. a woman has been beaten up and she terminates a pregnancy, the same pen- Mr. KYL. Mr. President, I am pleased was 7 days pregnant—at that moment alties will apply. That is what we have that the Senate is debating this sen- it is a fertilized egg—and she lost the tried to do. That is the intent of what sible measure, and I certainly hope fertilized egg, and I was told the pen- we are doing. that the outcome will be the rejection

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.065 S25PT1 S3148 CONGRESSIONAL RECORD — SENATE March 25, 2004 of the two amendments and passage of Congress must proceed cautiously here. defendants whose violent attacks the underlying bill. Such an outcome To pass the Murray amendment today against pregnant women resulted in will lead immediately to the enact- would be to flout that imperative. harm to a fetus have been prosecuted, ment of the Unborn Victims of Vio- I strongly support the unamended and thus ‘‘it is very clear that criminal lence Act, as the legislation has al- version of this bill. liability may be imposed under current ready passed the House and the Presi- Mr. LEAHY. Mr. President, acts of federal law.’’ dent has stated that he will sign it. violence against women are always ab- Moreover, the Federal Sentencing The Unborn Victims of Violence Act horrent, but they are especially dis- Guidelines already provide a sen- would recognize an unborn child as a turbing when committed against preg- tencing enhancement of two levels victim when he or she is killed or in- nant women. When a violent crime where the defendant knew or should jured during the commission of a Fed- causes injury to a pregnant woman have known that the victim was a eral or military crime. The gist of this that results in a miscarriage or other ‘‘vulnerable victim,’’ a term that is de- debate is the question of whether there damage to the fetus, we all share the fined as someone who is unusually vul- are one victim or two in such in- desire to ensure that our criminal jus- nerable due to age, or physical or men- stances. Polling suggests that upwards tice system responds decisively and tal condition. Guidelines Manual, of 80 percent of the American people firmly to exact appropriate punish- § 3A1.1(b)(1). This provision has been believe that there are two victims, a ment. This is not an issue on which you used to cover violent crimes against view no doubt reinforced by the well- will find any disagreement among pregnant women. Mr. Weich described known case of Laci and Connor Peter- Members of Congress, no matter their several cases in which a pregnant son. It has been noted that when defini- party affiliation or whether they are woman was treated as a vulnerable vic- tive evidence of foul play in that case pro-choice or anti-abortion. Protecting tim, resulting in enhancements and up- came to light, two bodies washed up on pregnant women and their families ward departures in the applicable the shore, not one. The Unborn Victims from violence is a serious and compel- guideline sentencing ranges for the de- of Violence Act would codify that com- ling problem that deserves to be ele- fendants. Nevertheless, if there is any mon sense observation in Federal law. vated above political agendas and par- question about the application of these Opponents of the bill contend that tisan politics. enhancements in violent crimes the bill’s ‘‘two victims’’ premise is Today we consider a bill that pro- against pregnant women, we should ‘‘unprecedented,’’ but 29 State laws— poses a new Federal crime to punish clarify that matter promptly. conduct that violates a list of over 60 including the law in California, where Respectfully, it seems to me that existing federal crimes and ‘‘causes the Laci and Connor Peterson were killed— this bill has not been crafted to find death of, or bodily injury to, a child, relfect that exact understanding of that common ground, nor designed to who is in utero.’’ The terms ‘‘a child, what merits punishment when a vio- provide an effective means to prosecute who is in utero’’ and ‘‘unborn child’’ lent crime is committed against a or prevent violence against pregnant are defined in this proposal to be ‘‘a woman and her unborn child. It is the women. ‘‘one victim’’ idea the Feinstein member of the species homo sapiens, at First, this bill unnecessarily injects amendment would inscribe in law that any stage of development.’’ Through the abortion debate into our national would depart form the understanding this proposal, we will be forced to re- struggle against violence towards embedded in the State laws addressing visit the divisive political debate about women. The Supreme Court in Roe v. this question. when human life begins and what is Wade held that ‘‘the word ‘person’, as Finally, I sincerely hope that my col- meant by these terms—whether, for ex- used in the Fourteenth Amendment, leagues—whatever their views on the ample, the term ‘‘any stage of develop- does not include the unborn.’’ This bill question of one victim versus two vic- ment’’ is intended to cover an purposely employs terms designed to tims—will firmly reject the amend- unfertilized human egg or a zygote, and undermine a woman’s right to choose ment offered by the senior Senator how far away from viability the pro- by recognizing for the first time in from Washington State. I am very posal is designed to move the federal Federal law the legal rights of a person proud of my record of support for vic- definition of a ‘‘person.’’ as applied to the earliest stages of de- tims of domestic violence, and I believe Generally, our Federal and State velopment of a fetus, an embryo or an that some of the ideas contained in the criminal laws only penalize conduct egg. Murray amendment merit our consid- that affects a person who was born eration. alive. That does not mean we cannot or Second, the National Coalition But passing the amendment we are should not go further. I support addi- Against Domestic Violence has warned presented with today would be a seri- tional punishment if a violent crime that a consequence of the bill is that ous mistake. First, I must note that against a pregnant woman causes her battered women who are financially or the Murray amendment was obviously to miscarry or otherwise injures the emotionally reliant on the batterer drafted in haste because it contains se- fetus. Senator FEINSTEIN will offer an may be less likely to seek appropriate rious technical flaws—not the least of amendment on this point, which I sup- medical attention if doing so could re- which is a provision that would—as I port, and which I will discuss in a mo- sult in the prosecution of the batterer understand it—give an abusive family ment. for an offense as serious as murder. We member the same rights as a victim! While no other Federal criminal stat- should pay attention to the experts The Murray amendment would create ute identifies a fetus as a distinct vic- about the consequences of legislative an unpaid leave provision that is dis- tim of crime, this does not mean that proposals such as this one, particularly tinct from the provisions contained in a fetus is left unprotected under our when the experts say this bill could the Family Medical Leave Act, FMLA, criminal laws. The Justice Department have devastating effects for victims of and State laws. This new leave provi- pointed out the obvious, in a letter domestic violence. sion would apply to employers with as dated September 9, 1999, to then-Chair- Finally, the bill ignores the problems few as 15 employees—compared to 50 man of the House Judiciary Com- of domestic violence, sexual assault for FMLA. FMLA applies to workers mittee, Representative HYDE. That let- and other forms of violence against who have been employed for at least a ter states that ‘‘[b]ecause the criminal women; in fact, the UVVA does not year, but the proposed Murray leave conduct that would be addressed . . . is even mention the woman. In short, this program has no minimum require- already the subject of federal law bill ignores the reality that an attack ments for length of service. Moreover, (since any assault on an ‘unborn child’ that harms a pregnancy is inherently under this amendment, domestic vio- cannot occur without an assault on the an attack on a woman. lence leave could be taken without ad- pregnant woman), [the bill] would not The senior Senator from California vance notice, and without corrobo- provide for the prosecution of any addi- will offer a substitute amendment to S. rating evidence beyond the employee’s tional criminals.’’ As Ronald Weich, a 1019 that does what the Unborn Victims own sworn statement. Given the ex- former prosecutor and former Special of Violence Act purports to do without traordinary degree of uncertainty such Counsel to the Sentencing Commission, wading into the political waters of the a regime could create for employers, noted in his February 2000 testimony, abortion debate. This amendment,

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.013 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3149 commonly referred to as the Mother- brought over 1000 VAWA and VAWA-re- those who attack them. But I am con- hood Protection Act, creates a sepa- lated indictments and awarded over cerned that by recognizing the fetus as rate, additional Federal criminal of- one billion dollars in VAWA grants to an entity against which a separate fense for harm to a pregnant woman. communities working hard to combat crime can be committed, the Unborn Under this legislation, the prosecutor violence against women and to help Victims of Violence Act may under- may (1) charge the defendant with an cure the pain and suffering that results mine women’s reproductive rights as offense against the woman, and (2) sub- from it. set forth by the Supreme Court in Roe sequently charge the defendant with I am proud to say that Vermont was v. Wade. the separate offense of interrupting— the first State in the country to apply That is why I plan to support a sound e.g., causing brain damage to the for and receive funding under VAWA, alternative, the Motherhood Protec- child—or terminating the normal and I have seen the way in which tion Act, offered by my colleague Sen- course of her pregnancy. A defendant groups such as the Vermont Network ator FEINSTEIN. the Motherhood Pro- would face a maximum of 20 years in Against Domestic Violence and Sexual tection Act would accomplish the same prison for interrupting the pregnancy Assault have worked effectively to stated goal as the Unborn Victims of and a maximum of life imprisonment stem violence against women and chil- Violence Act: establishing an addi- for terminating the pregnancy. Such dren and to assist those who have suf- tional, separate Federal offense for sentences would be in addition to any fered from it. harm to a pregnant woman. It carries penalties for the underlying federal I am also pleased that the conference the same penalties as H.R. 1997: a max- crime. These terms of imprisonment report on the AMBER Alert and PRO- imum 20-year sentence for harm to a reflect the same sentences included in TECT Acts included Leahy-Kennedy- pregnancy and a maximum life sen- the UVVA. Biden legislation to establish a transi- tence for termination of a pregnancy. Senator FEINSTEIN’s amendment ad- tional housing grant program within I believe that the Feinstein sub- dresses harm to a pregnant woman, the Department of Justice to provide stitute is the better approach because while recognizing the loss she suffers victims of domestic violence, stalking, it accomplishes the same goal that through injury to the fetus. By exclud- or sexual assault the necessary means H.R. 1997 seeks to address without delv- ing the language in the UVVA that de- to escape the cycle of violence. It ing into the controversial issue of de- fines a human to include a fetus, the amends the Violence Against Women fining when human life begins. Regard- Feinstein amendment accomplishes the Act of 1994 to authorize $30 million for less of our views on that highly stated goal of the UVVA without un- each of fiscal years 2004–2008 for the At- charged question, we can agree that vi- dermining reproductive rights or ignor- torney General to award grants to or- olence against pregnant women is a ing violence against women. ganizations, States, units of local gov- heinous crime and should be punished The senior Senator from Washington ernment, and Indian tribes. The grants to the fullest extent of the law. That is will offer an amendment in support of will help victims of domestic violence, why I will oppose H.R. 1997 and instead domestic violence victims, which I am stalking, or sexual assault who need support the Feinstein substitute. proud to cosponsor. The Murray transitional housing or related assist- I yield the floor. amendment would authorize HHS ance as a result of fleeing their abus- The PRESIDING OFFICER. The Sen- grants to nonprofit agencies to help ers, and for whom emergency shelter ator from California. service providers design and implement services or other crisis intervention Mrs. FEINSTEIN. Mr. President, how intervention programs for children who services are unavailable or insufficient. much time does the other side have re- witness domestic violence. The grants President Bush signed the conference maining? would encourage domestic violence report into law on May 7, 2003. The PRESIDING OFFICER. They agencies and schools to work together We know that violence against have 1 minute 58 seconds. to address the needs of affected chil- women pervades all areas of our coun- Mrs. FEINSTEIN. Mr. President, I dren. The amendment would also estab- try. It makes no difference if you are agree that the debate is concluding, lish entitlement standards and guide- from a big city or a rural town; domes- and I thank the Senator from Ohio. lines for employees to use emergency tic violence and other violence against This is a serious subject and it is a dif- leave to address domestic and sexual women can be found anywhere. This is ficult subject and it is a controversial violence. a serious issue. We owe this country a subject. I appreciate the manner in Unlike UVVA, these two amend- serious response, not a debate on ideo- which the debate has been conducted, ments address the issue of violence logical proposals that ignore effective because I think it has been conducted against women. If we are serious about programs designed to help women in the best tradition of the Senate, addressing this problem and trying to crime victims. I urge my colleagues to with the exception of your not letting end the violence, then we should put a join me in supporting the Feinstein me modify my amendment. But I will stop to the partisan politics sur- and Murray amendments, and in voting only interpret that as caused by the rounding UVVA and vote for these against the Unborn Victims of Violence fact that the other side is worried and amendments. Act. doesn’t want my amendment to get When it has focused on the real issue Mr. FEINGOLD. Mr. President, I will any better, so they refuse to let me of violence against women, Congress oppose H.R. 1997, the Unborn Victims of modify it. has taken aggressive action to address Violence Act, and instead support an We have two different bills here. I the problem of violence against alternative offered by Senator FEIN- think we have expressed the dif- women. Congress made great strides in STEIN, and I would like to take a mo- ferences. The underlying bill does rec- the fight against domestic violence by ment to explain why. ognize the unborn at any stage of de- passing the bipartisan Violence I join with Senator DEWINE and the velopment, as long as they are in the Against Women Act as a part of the supporters of this bill in condemning womb, as a human being, as a victim 1994 Violent Crime Control and Law acts of violence against women, includ- and with rights. Enforcement Act. Senator BIDEN and ing pregnant women. The Unborn Vic- My bill, rather than enter into where Senator HATCH contributed consider- tims of Violence Act would make it a life begins, at what point in this gesta- able time and leadership to achieve the Federal crime to injure or kill a fetus tion period life actually begins enough enactment of VAWA, which marked a during the commission of a Federal to say this is a person with rights—it turning point in our Nation’s effort to crime against a pregnant woman. This doesn’t get into that. It takes the pen- address domestic violence and sexual separate offense would be punished as alties and does a double charge and assault. if injury or death had occurred to the says if the predicate crime is present, This landmark legislation created pregnant woman. I believe that acts of and you carry out the crime to harm or federal domestic violence offenses with violence against pregnant women are end the pregnancy, it is a double severe penalties to hold offenders ac- deplorable and should be punished se- charge so you are charged accordingly. countable for their destructive and verely. Congress has taken and should The hard part of this is that we all criminal acts of violence. Since the end continue to take steps to protect know there has been a march to turn of 1994, the Department of Justice has women from violence and prosecute back Roe v. Wade. Every Member of

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.117 S25PT1 S3150 CONGRESSIONAL RECORD — SENATE March 25, 2004 this Senate knows it. We have had vote Mrs. FEINSTEIN. I yield but I am re- saying if you harm or end a pregnancy, after vote after vote. Since 1994, the serving the remainder of my time. I these full charges will revert. pro-choice side has lost most of the may have something to say in a minute The reason we do it that way is be- votes. That is irrevocable fact. We or so, and I may not. cause it exists all around us. The fact know the march is on. Mr. President, I suggest the absence that there is a reason for how this So those of us who are pro-choice of a quorum. child in utero is defined and the reason naturally are going to look at laws to The PRESIDING OFFICER. The is, as I have tried to elucidate—and see if those laws can constitute, in ad- clerk will call the roll. there are many other cases—‘‘In as dition to what they are supposed to do, The assistant legislative clerk pro- many areas as we can, we want to put any kind of bulwark from which to at- ceeded to call the roll. on the books that the embryo is a per- tack Roe. Mrs. FEINSTEIN. Mr. President, I son.’’ Because of the definition of a child in ask unanimous consent that the order Why do they want to do that? It is utero being, at any stage of develop- for the quorum call be rescinded. simple. They want to do it because if The PRESIDING OFFICER. Without ment, a member of the species Homo we legislate, and the Federal crime is objection, it is so ordered. sapiens, we come to a conclusion. We that if a 3-day-old egg is a person and asked the question, first, why do they Mrs. FEINSTEIN. Mr. President, I think I have just a short time left. How has rights, then abortion under this use that definition? So many States same context is murder or man- have passed laws and many of them much time do I have? The PRESIDING OFFICER. Five slaughter or assault. Full rights of a have used different definitions, why do person are given. they select that definition? minutes. Mrs. FEINSTEIN. Mr. President, for I think that is a problem when you Answer, because it accomplishes the codify it in statute. This body is then purpose of determining that once a fer- those who might have gotten involved in this late, I would like to use the 5 saying: Yes, we agree. Therefore, a case tilized egg is in the womb, it becomes can be brought against abortion of any a human being. That, then, buttresses minutes to say a few things. The first is that this is one of the kind at any time and also against em- statements such as this one on the most difficult areas in which to legis- bryonic stem-cell research that some easel. of us believe is the new horizon of med- This isn’t the only statement. I can late because it is filled with so much icine, which is capable of finding cures give another statement by another pro- emotion and so much difference of for Parkinson’s and Alzheimer’s, and fessor which I used in my opening re- opinion. It is one of those great cul- juvenile diabetes. marks. It is a statement of a Repub- tural problems that exists out there in The PRESIDING OFFICER. The Sen- lican strategist. Professor Charo is at our real world, as opposed to this ator’s time has expired. the University of Wisconsin. She made world, where human lives are very Mrs. FEINSTEIN. Just to sum up, I the statement recently: much affected. On the one hand, you have the situa- hope Members of the Senate will vote If you can get enough of these bricks in place, [meaning laws] draw enough examples tion the Senator from Kansas, the Sen- for the substitute amendment and from different parts of life and law where ator from Ohio, and the Senator from against the underlying bill. embryos are treated as babies, then how can South Carolina pointed out—situations I thank the Chair. I thank the distin- the Supreme Court say they are not? This is, where you have women who have ter- guished Senator from Ohio. It has been without question, a conscious strategy. rible things done to them. It is just so a very interesting morning. So if you believe it is without ques- hard for us to realize how that can hap- The PRESIDING OFFICER. The Sen- tion a conscious strategy—and I, based pen, that any man can be that callous ator from Ohio. on the history of how the erosion to beat to death a woman who is 7, 8, or Mr. DEWINE. Mr. President, I thank against Roe is being waged, piece by 9 months pregnant; can use a knife; can my colleague from California. This has piece, bit by bit, law by law, action by cut her fetus when you know that child been a very good debate. No one in the action, I believe it is a conscious strat- is capable of life. Senate Chamber cares more about the egy. The hard part about it for me is I understand what drives this desire. victims we have been talking about that you feel this terrible empathy for What drives the desire is to see that than my colleague. I salute her for her women who have been the victims and there is equal punishment for the tak- compassion. I salute her for all the who are 7, 8, 9 months pregnant. That ing of that life, which I believe is a life great work she does in this Chamber. has been every case that has been be- because it can sustain life. Its pul- Three points: This bill has nothing to fore us today, it has reached that stage monary functions have cleared out in do with abortion. We shouldn’t fear it. of gestation, where you know your the last few weeks of pregnancy and People who are on either side of abor- child can exist outside of the womb and those kinds of things. But basically it tion should not fear this bill. The some animal has taken the child away is a baby, and basically it is viable. I States have already passed laws simi- from you by beating you to the point understand all of that. lar to this. They have not affected where they have killed the child and in When you get down to definitions, abortion. That is point No. 1. many of the same cases—the Senator and when you look at the statute Point No. 2: The Feinstein amend- from Kansas illustrated today—killed itself, what concerns many of us and ment denies that there is a second vic- the mother as well. We want to throw makes us understand we are dealing tim. If you care that there is a second the book at that perpetrator. And we with something much more than just victim, if you care about justice, don’t do. We believe our bill is clear, and we what I have said is the definition of a vote for the Feinstein amendment. believe our bill will stand the test of child in utero who is made by this bill Point No. 3: The Feinstein amend- time. a person, a member of the species ment is drafted, unfortunately, so So we ask the Senate to support the Homo sapiens at any stage of develop- there is no penalty for the killing or substitute amendment and turn down ment as long as it is in the womb—that the injuring of the child. the underlying bill. I reserve the re- could be 3 days, I am now told, from That is a problem. I don’t think any- mainder of my time. I yield. conception—you are not only creating one intends for that to be the case in The PRESIDING OFFICER. The Sen- criminal law for the woman who can the sense of voting that way. If you ator from Ohio. produce a child who can live and whose vote for the Feinstein amendment, you Mr. DEWINE. Mr. President, I will life is taken away but we are creating are denying that there is a second vic- again point out for those who are wor- a sanction for an egg that is fertilized tim. You are also denying that there ried about some great precedent being that may be 3 days old. That sanction will be any penalty for the killing or set here in regard to abortion that over can be murder and carry with it the the injuring of that victim. That is half the States have similar laws and full weight of murdering another what a vote for the Feinstein amend- many of them are absolutely identical human being. It is a very heavy sanc- ment would do. I ask my colleagues to to what we are writing. So people tion. You are giving rights to that vote no on the Feinstein amendment. should not be concerned about this. newly conceived egg of a full person. I thank the Chair. I yield the floor. The PRESIDING OFFICER. Who There are many of us who say this is The PRESIDING OFFICER. All time yields time? another way of doing this. That is just has expired.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.069 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3151 The question is on agreeing to the The PRESIDING OFFICER. There that need to be heard on the Senate amendment. are 2 hours equally divided on the floor, not talking points from lobby- Mr. DEWINE. Mr. President, I ask for amendment. The Senator from Wash- ists, not the same old excuses from the the yeas and nays. ington is recognized. very people who are cutting Violence The PRESIDING OFFICER. Is there a Mrs. MURRAY. Mr. President, today Against Women Act programs by $10 sufficient second? I am offering an amendment to help million. We have had enough of that. There is a sufficient second. The prevent violence against women and We know where it has gotten us: 2 mil- clerk will call the roll. children. We have heard a lot of talk lion women assaulted every year. The legislative clerk called the roll. today about punishing abusers. Now it Nearly 1 in 3 adult women are as- Mr. REID. I announce that the Sen- is time to see who is serious about pre- saulted. There are 4.9 million intimate ator from Delaware (Mr. BIDEN) is ab- venting abuse in the first place. partner rapes and physical assaults, sent attending the funeral of his wife’s As someone who has spent my entire and thousands of women every year are grandmother. public life talking with victims, vis- killed by a spouse or a boyfriend. We The PRESIDING OFFICER (Mr. iting shelters, working with advocates know what all those excuses have pro- CRAPO). Are there any other Senators in law enforcement, and funding the duced: Women who are beaten, raped, in the Chamber desiring to vote? programs victims rely on, I am here and murdered. The result was announced—yeas 49, this afternoon to offer an amendment Some lobbyists and Members of Con- nays 50, as follows: that will help women and children get gress want to bury my amendment. You know what. We have had to bury [Rollcall Vote No. 61 Leg.] the help they need to be safe and, most enough people already. Let’s see who is YEAS—49 importantly, to save their lives. Mr. President, the amendment I am serious about helping to prevent vio- Akaka Durbin Lieberman offering this afternoon is built on what lence and who is just playing politics Baucus Edwards Lincoln with the lives of battered women. Bayh Feingold Mikulski victims and experts have told me they Let me read a note I received from an Bingaman Feinstein Murray need. That is why this amendment has Boxer Graham (FL) advocate for victims of abuse. She Nelson (FL) been endorsed by the National Coali- Byrd Harkin Pryor writes: Cantwell Hollings tion Against Domestic Violence and Reed I have had many many clients over the Carper Inouye Reid the Family Violence Prevention Fund. Chafee Jeffords years who have come to me after they have Rockefeller These organizations know what vic- Clinton Johnson been fired from work because they missed a Sarbanes Collins Kennedy tims need, and they say the Murray day of work to go to court to get a civil pro- Schumer Conrad Kerry amendment will really help victims of tection order. In some of these instances, the Corzine Kohl Snowe Specter violence. women had sick days, but they were still Daschle Landrieu fired. Several of these women were forced to Dayton Lautenberg Stabenow Mr. President, I am honored to say Dodd Leahy Wyden that my amendment is named for Paul return to their batterers after they lost their Dorgan Levin and Sheila Wellstone, who were such jobs because they lost their income and they and their children would have been homeless NAYS—50 champions for victims of domestic vio- if they did not return. lence. Senator Wellstone and I intro- Alexander Dole McConnell These are some of the women who are duced legislation which is today in- Allard Domenici Miller trapped today and who desperately Allen Ensign Murkowski cluded in this amendment. Paul’s desk need our help. Mr. President, my Bennett Enzi Nelson (NE) was just behind me here on the Senate Bond Fitzgerald amendment is especially important be- Nickles floor. I can still see him behind me Breaux Frist Roberts cause the Bush administration is cut- Brownback Graham (SC) waving his arms and making the case Santorum ting or freezing funding for critical do- Bunning Grassley Sessions for people who have no voice. Burns Gregg mestic violence programs. Every year, Shelby This amendment is a real tribute to Campbell Hagel Smith 2 million American women are sexually Chambliss Hatch Paul and Sheila and the fight we carry Stevens assaulted, stalked, or physically as- Cochran Hutchison on for the millions of people who need Sununu saulted—2 million women every year. Coleman Inhofe a voice in the U.S. Senate. Whenever Cornyn Kyl Talent You would think that the White House Paul debated an issue, you could al- Craig Lott Thomas would recognize the need to fund do- Voinovich ways tell who was really standing up Crapo Lugar mestic violence programs, but the DeWine McCain Warner for families and who was just talking. President’s latest budget offers more NOT VOTING—1 The vote on my amendment will reveal bad news to victims of violence. Biden who is truly concerned about giving Let me give you some examples. The women and children the tools they The amendment (No. 2858) was re- President’s budget cuts Violence need to escape violent relationships, Against Women Act programs by $10 jected. and who is more interested in playing Mr. FRIST. Mr. President, I move to million. It cuts a Justice Department politics and attempting to undermine rape prevention program by $29 mil- reconsider the vote. women’s constitutional rights. Any Mr. BROWNBACK. I move to lay that lion. It freezes funding for the domestic Senator who is truly concerned about motion on the table. violence hotline, and it freezes funding the safety of women and children will The motion to lay on the table was for grants for battered women shelters, join me and give battered women the agreed to. precisely at a time when we need in- support they need to escape violent re- creases because evidence shows us that AMENDMENT NO. 2859 lationships before it is too late. domestic violence increases during The PRESIDING OFFICER. The Sen- Now, I have a feeling that during this tough economic times just as we are ator from Washington. debate we are going to hear a lot of ex- having today. Mrs. MURRAY. Mr. President, I have cuses. Some Senators are going to So I find it pretty ironic to be here an amendment No. 2859 at the desk. I stand up here and claim that pre- today with a bill before the Senate ask for its immediate consideration. venting violence against women is that purports to help victims of domes- The PRESIDING OFFICER. The somehow not relevant. Senators will tic violence while it ignores all we clerk will report. stand up here with the talking points know about preventing it. Anyone who The legislative clerk read as follows: that have been prepared for them by has talked with victims’ advocates and The Senator from Washington [Mrs. MUR- the Chamber of Commerce and say that law enforcement knows that domestic RAY] proposes an amendment numbered 2859. protecting women from deadly abuse is violence prevention requires more sup- Mrs. MURRAY. Mr. President, I ask somehow bad for business. port, not less—not less. It is clear that unanimous consent that reading of the We are going to hear a lot of excuses. we need to help victims escape violent amendment be dispensed with. But I have something stronger. I have relationships, and the Paul and Sheila The PRESIDING OFFICER. Without the actual stories of dozens of women Wellstone domestic violence preven- objection, it is so ordered. who are being abused, who have es- tion amendment will help. (The amendment is printed in today’s caped abuse, or who have been killed Mr. President, my amendment does RECORD under ‘‘Text of Amendments.’’) by their abusers. Those are the voices several things. It gives victims of abuse

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.072 S25PT1 S3152 CONGRESSIONAL RECORD — SENATE March 25, 2004 access to unemployment insurance if know where their Senators stand, and some other interesting facts about do- they have been forced to leave their job Members of Congress are certainly mestic violence and how it affects the because of violence. It gives victims of hearing from outside groups on this, bottom line. On their site, you will find violence access to expanded emergency from groups that are not known—not medical expenses from domestic vio- leave so they can go to court or to the known—for their advocacy on fighting lence costs $3 billion to $5 billion a police to stop the abuse. It protects domestic violence. year. Businesses are paying $3 billion victims from employment and insur- Yesterday, Senators received a letter to $5 billion a year in health care for ance discrimination. It provides serv- from the U.S. Chamber of Commerce victims of domestic violence. ices for children who witness domestic urging them to oppose my amendment. You also learn that 94 percent of cor- violence so we can end that cycle of Bruce Josten, the Chamber’s Executive porate security directors rank partner abuse. It helps health professionals Vice President for Government Affairs, violence as a high security problem. screen for abuse and respond appro- makes the Chamber’s case rather force- They estimate that 75 percent of vic- priately. It gives victims better access fully in his letter. He writes: tims of domestic violence are harassed to critical health services. Those are It is important to note as a preliminary at work by their abuser. the steps we need to take today to pro- matter that H.R. 1997 is clearly an inappro- Here is a startling fact they have on tect the more than 2 million women priate vehicle for this amendment as the their Web site: Homicide is the No. 1 who are sexually assaulted, stalked, or issues involved are completely unrelated. leading cause of death on the job, and physically assaulted every single year. ‘‘Unrelated.’’ We are dealing with a 20 percent of those murders were com- Mr. President, let me say a word bill that claims to address the crime of mitted by their intimate partner at the about the relevance of my amendment. violence against women, but an amend- workplace. I expect some Senators will come here ment that would actually prevent vio- What should we conclude from this and claim that preventing violence lence is ‘‘unrelated,’’ according to the data? Domestic violence is bad for against women is somehow not rel- Chamber of Commerce. business. It has real and it has painful evant to the bill we are debating today. Mr. Josten goes on to write: costs on employers. So for those Mem- To them, it never seems to be the right The ill-designed programs promise to im- bers who want to weigh this measure time. There is always an excuse. In pose significant costs on business, particu- against its economic merits, as the fact, these Senators are sending a mes- larly small business. Chamber does, the facts are clear. Pro- sage that victims are not relevant So the Chamber argues that the cost viding the tools that will allow abused until they are dead. If any Senator of preventing further violence against women to escape abusive relationships wants to come down here and tell women is too high to pay. In other can help offset billions of dollars in women across America that the abuse words, preventing domestic violence costs that domestic violence imposes they face is not relevant, then they and giving women the tools to escape on businesses. will have to make that insulting claim from abusive relationships is bad for But I hope my colleagues will con- alone because I am going to keep fight- the bottom line. sider more than the economics as they ing to get victims the help they need, Let’s, for a minute, examine the eco- cast their vote. I hope my colleagues to prosecute abusers and break the nomics of domestic violence. There are will consider the cost to the women cycle of violence. You tell a woman costs associated with allowing domes- and children who are the victims of do- who is being abused she doesn’t deserve mestic violence—the cost in pain, the more help; you tell a child who is wit- tic violence to continue, not just for women but for businesses. cost in lives—and the pain and the nessing abuse every night that my lives we can protect by giving women amendment is unnecessary. I am not In 2002, economists Amy Farmer of the University of Arkansas and Jill the tools they need to escape abusive going to tell victims that. My amend- relationships. ment gives them the real help they Tiefenthaler of Colgate University pub- lished a report on the economic impact I would like to share with my col- need. leagues this afternoon some of the sto- Mr. President, victims of violence of domestic violence. They examined ries of the women we are trying to help have heard a lot of excuses over the publicly available studies performed in with this amendment. These stories years. Claiming that their daily abuse the United States, including the an- were shared with me by a nationally is not relevant to this Senate debate is nual National Crime Victimization recognized advocate for domestic vio- just another of the excuses that have Surveys, two Physical Violence in lence victims. trapped women every year in this coun- American Families studies, and seven Let me tell my colleagues a story try. That claim is as insulting as it is studies in the national violence against about a woman who had worked at a false. women survey. Just look at the recent debate in the As Ms. Farmer explained: medium-sized organization for over a House of Representatives on this un- Each study was intended to answer dif- year as an administrative assistant. derlying bill. During that debate, every ferent questions, so the data sets have dif- Her husband had been beating her on single anti-choice Member who spoke ferent strengths and weaknesses. When we and off for over 15 years of their rela- referred to criminal acts of violence incorporated these data into a single model tionship. When things escalated, she against women. Violence against of domestic violence, a different picture missed work due to a severe beating. emerged that can be seen from any one She called in to work and was honest women is a central part of this debate. study. Preventing violence against women about what happened to her. She came and helping women and children who They found that absenteeism, tardi- in to work the next day and was told are being abused is central to this dis- ness, and turnover rates are all high she was fired. Her company told her cussion. among domestic abuse victims. Farm- they were afraid that her husband Opponents cannot have it both ways. er’s research also concludes that do- would come to the workplace and hurt They cannot claim that their bill is mestic abuse may result in almost 7 her coworkers, although that had never needed to address the violence against million lost work days annually—7 mil- happened before. women and then claim we should not lion—reduced workplace productivity, She did not qualify for job guaran- debate ways to prevent violence increased insurance costs, and lower teed leave under the Family and Med- against women. This amendment is profits. ical Leave Act because the company clearly relevant and will truly help The researchers also cited a 1995 employed less than 50 employees and, women and children. Roper report that found that 49 percent arguably, her injuries from the beating Anyone who wants to claim it is not of the Fortune 100 executives surveyed did not qualify as a serious health con- relevant will have to answer to the vic- believed that domestic violence hurt dition. So it made her firing legal. tims to whom they are denying help. their company’s productivity, and 33 If VESSA—the act we are talking Either you are serious about helping percent said it lowered their profits. So about—had been in effect, she would women and victims or you are playing this is a problem that is real, and it have had access to job guaranteed politics and making excuses. has real costs for businesses. leave or perhaps a provision prohib- Women and children who are being If you go to the Corporate Alliance to iting employers from discriminating violently abused every day deserve to End Partner Violence, you can learn against victims of domestic violence.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.075 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3153 She applied for and was denied unem- fired for missing work, even though she they cannot work. In addition, more ployment insurance. had obtained permission the day be- than 25 percent of domestic violence This is a real woman. This is what fore. victims surveyed in three national happened to her. It could be your next- These are just some of the people studies reported they lost a job due at door neighbor. It could be your daugh- who desperately need our help. These least in part to domestic violence. ter. are real stories. These are real women. We know that a job is often the only There is another woman who worked They need this amendment to break way for a victim to build up resources as a hospital nurse. She just left her out of these abusive relationships. for themselves to eventually leave a batterer and was concerned that he Let me take a minute to put this violent relationship, but abuse and might follow her to her workplace. She amendment in context because it is the stalking can make it impossible for a told her employer of her fears, and next logical step in the progress that victim to keep a job. We know of cases they fired her. She applied for unem- we have been making in fighting do- where abusers will deliberately sabo- ployment insurance. She was denied. mestic violence. We have come a long tage a victim’s ability to work, placing Another story: Abusers often contact way over the past few years in dealing harassing phone calls, cutting off their employers themselves to get the with domestic violence. Not long ago transportation, showing up at the women they are abusing fired. One domestic violence was considered a workplace and threatening employees. batterer called up the workplace and family problem. It was something peo- When a victim loses her job because of told them his victim was HIV positive. ple did not talk about. That climate violence, she should have access to un- He then told the employer that the made it very difficult for victims to employment insurance compensation woman was a liar and was missing seek help. It prevented friends or benefits. work so she could file a frivolous re- neighbors from getting involved in During this debate some may claim straining order against him. The what was considered someone else’s this is some big, onerous expansion. I woman took an earned sick day off business. have seen the talking points from the from work, but when she returned to Today stopping domestic violence is groups that want to kill this genuine work, she was told she was fired be- everyone’s business, thanks to the Vio- effort to protect women from violence, cause she was a victim of domestic vio- lence Against Women Act, which I was and they have it wrong. This is not lence. If VESSA had been in place, that proud to work on and help pass. For some dramatic expansion. In fact, would have been illegal. the first time, the Violence Against today 25 States already provide some Another story: A woman was as- Women Act recognized domestic vio- type of unemployment insurance as- saulted by her batterer in the parking lence as a violent crime and a national sistance for victims of domestic vio- lot at her workplace. She was then public health crisis. It laid out a co- lence. We can offer that same protec- fired for ‘‘being in a fight.’’ ordinated strategy to bring advocates, tion to victims in every State, and we Let me tell you about a woman who shelters, prosecutors, and law enforce- have an obligation to do it. My amendment will also protect vic- was strangled by her batterer. Her doc- ment professionals together to fight tims by allowing them unpaid time to tor told her to stay home from work domestic violence. I was proud to help get the help they need. Today a woman for 5 days after being strangled. She reauthorize the Violence Against can use family and medical leave to called in sick to work, and she was Women Act in 2000. care for a sick or injured spouse, but fired because she did not have enough Over the years, I have been proud to many women cannot use that act to go vacation days and she did not qualify work with advocates from Washington to court to stop the abuse. My amend- State and across the country to for family and medical leave because ment fixes that. We know that taking strengthen these violence against her employer was too small. a day off of work to go to court or to These are real people, Mr. President. women programs, to increase the fund- go to the police can save a woman’s These are our next-door neighbors. ing, and to help raise awareness. So the life. My amendment ensures women Violence Against Women Act was the These are women who live in our com- will not be punished for taking those first step and it helped us respond to munities. These are real stories. steps that they need to take to protect Another example: One morning a the immediate threat of abuse. Now it themselves from abuse. woman was getting ready to go to work is time for us to address the long-term Let me turn to another part of my and her abuser came to her home with problems that victims face. We need to amendment which deals with the chil- a gun. He told her that if she left the break down the economic barriers that dren who witness domestic violence. house, he would kill her. She was able trap these women in abusive relation- Batterers often harm children as well to call the police, and the police came ships, and we need to reach out to the as their intimate partners, and wit- to her home and arrested the batterer. children who witness this violence, nessing violence can have a serious im- She got a police report. She called her help health care professionals stop the pact on young children and all chil- workplace and explained why she was cycle of violence and truly protect dren. Let me offer some statistics unable to come to work that day. The women and children. about abuse and children to put this in next day she returned to work and was Let me take a few moments to walk perspective. fired for missing work and was denied through the parts of my amendment Between 3.3 million and 10 million unemployment insurance. and show how it will help prevent and American children annually witness as- Let me tell you another story: One stop abuse. My amendment gives vic- saults by one parent against another. woman got a call at work from her tims of violence access to unemploy- In 43 percent of households where inti- abuser. Her coworker overheard the ment compensation. Specifically, it mate violence occurs, at least one child conversation, and then her employer provides victims of domestic violence, under the age of 12 lives in that home. took her aside and said since she was dating violence, sexual assault, or Children are caught in the crossfire of dealing with so much, she couldn’t pos- stalking with unemployment insurance abuse, and while we know all children sibly continue to work for him and if they have been separated from their are affected differently, we do know fired her. employment as a result of the violence. that children who witness violence at Here is an example of what happens Many abusers trap their victims fi- home may display emotional and be- when a woman tried to go to court to nancially, limiting their ability to havioral differences as diverse as with- get help. A woman told her employer work and forcing them out of a job. I drawal, low self-esteem, nightmares, or that she was in a violent relationship will share some statistics that have aggression against their peers, family and that she would need to take a day been compiled by the National Coali- members or property. off from work to go to court to get a tion Against Domestic Violence. Many We know that witnessing abuse by a protection order. victims of domestic violence have cur- child can contribute to the cycle of vi- The employer seemed supportive and rent or former partners who interfere olence. The Office of Juvenile Justice agreed, so she took the day off and with their efforts to work by harassing and Delinquency Prevention at the went to the court. The next day when them on the job, threatening them and U.S. Department of Justice finds that she arrived at work, her supervisor their children, withholding transpor- as many as 40 percent of violent juve- called her into his office and she was tation, or beating them so severely nile offenders come from homes where

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.077 S25PT1 S3154 CONGRESSIONAL RECORD — SENATE March 25, 2004 there is domestic violence. In my home they suffered. The cost of intimate viding help for those children who wit- State of Washington, we are now all partner violence exceeds $5.8 billion ness abuse, offering access to health too aware of the price children pay in every year; $4.1 billion of that is for di- care for victims, and improving the cases of domestic violence. rect medical and mental health care way our health care providers screen In April of 2003, the Tacoma police services. for domestic violence. chief, David Brame, shot and killed his Health care providers can do a great My amendment combines the protec- wife Crystal. Then he took his own life, deal to stem the tide of domestic vio- tions and services victims, law enforce- all while their two young children lence before it becomes life threat- ment, and advocates tell us are needed, watched. The final tragic act was the ening. A 1999 study published in the based on their real world experiences last in a long history of abusive events Journal of the American Medical Asso- every day on the front lines of domes- that often played out in front of their ciation found only 10 percent of pri- tic violence. We have an opportunity two small children. mary care physicians routinely screen today finally to make a real difference According to the police report, David for intimate partner abuse during new for millions of women who are being Brame had been driving around in a patient visits, and 9 percent routinely assaulted. We can save lives and we can shopping center parking lot in Gig Har- screen during periodic checkups. eliminate all the costs domestic vio- bor that day when he spotted his wife Emerging research shows us hospital- lence imposes on our businesses, on our Crystal and the couple’s children as she based domestic violence interventions families, and on our communities. The was parking the car. Brame shot her could reduce health care costs by 20 question is whether we are serious and then turned the gun on himself. percent. My amendment will help en- about helping to prevent violence According to a witness, 7-year-old sure health care providers are trained against women. Haley told her: in how to identify and serve victims of The underlying bill before the Senate My daddy is a policeman and he is very domestic violence, and provide grants today focuses only on penalties after a mean to my mommy. I think my daddy has to strengthen health care systems’ re- woman has been abused. My amend- killed her. sponses to domestic violence. ment aims to prevent that abuse in the Then Haley told officers she had seen My amendment will promote public first place. After a woman has been her dad point a gun at her mom’s head health programs that integrate family killed, it is too late. We have to stop in the past. violence assessment and intervention this abuse before it ends up killing Detectives talked to the son, David, 5 into basic care. It encourages collabo- some woman. My amendment gives years old, at the hospital a few hours ration between health care providers, women today the tools to escape dead- later as the mother was fighting for public health programs, and domestic ly abuse. her life. They asked the little boy, 5 violence programs. Are the Senators in the Chamber se- years old, ‘‘Did you see the gun?’’ My amendment will lead to more ef- rious about helping victims of abuse? He answered: fective interventions, more coordi- That is the question before us. Yeah. And, it shooted my mom into flat nated systems of care, greater re- Frankly, I don’t care what the lobby- dead. sources to educate health care pro- ists say out there. The Chamber of The children talked about past anger viders about domestic violence, and ul- Commerce has lobbyists lined up and between their mother and their father timately what we all want, more down the hall, and they have plenty of and what led to that terrible day. That women receiving help. people making their case. But I tell is just one terrible example of the trau- In December of 1999, the New England you, the women whose stories I shared ma that children who live with domes- Journal of Medicine published a major with you today don’t have lobbyists tic violence have to live with. It should study on the risk factors for injury to lined up in the hall. be our collective goal to help them women from domestic violence. Here is I have been to the shelters. I talked overcome it. what one of the researchers, Dr. Robert to the women who have been beaten. I This is how this amendment would Muelleman, had to say. have looked in their eyes and I know help children who witness domestic vi- A lot of women who have died from domes- the odds they are up against. I know olence. It establishes grants to children tic violence had been seen in their local what I would say next time I am look- who have been exposed to domestic vio- emergency rooms at least 2 years before ing into the eyes of the victim of lence such as I just described. It sup- their deaths. In America, 2 to 4 million abuse. ports direct counseling and advocacy, women are injured each year, and 1 to 2 mil- My colleagues will have to decide for early childhood and mental health lion of those show up in emergency rooms. Of themselves if they are going to give her these, 2,000 to 3,000 a year end up as homi- services, legal advocacy and specialized cides. excuses or throw a lifeline to help her services. It provides training for school It’s clear that medical professionals in the escape the violence that may kill her. personnel to develop effective preven- emergency room can be a great help in iden- I say to my colleagues, what are you tion and intervention strategies. It tifying at-risk women and directing many of going to say to the victims of abuse? helps child welfare agencies, domestic them to supportive resources before it’s too Your vote will speak volumes. violence, and sexual assault service late. The PRESIDING OFFICER. The Sen- providers work together to protect the That is from Dr. Robert Muelleman ator from Ohio. children. of the University of Nebraska Medical Mr. DEWINE. Mr. President, I want Finally, it supports multisystem Center. to take a moment to address my con- intervention models and crisis nurs- Let me turn to another part of my cerns about the amendment my friend eries for children who are exposed to amendment, which expands the serv- and colleague from Washington, Sen- violence in their home. ices available to victims of abuse. My ator MURRAY, has offered to the under- Children who witness domestic vio- amendment gives the States the option lying bill. lence have special needs. They are not to use Medicaid to help victims, it en- First, let me commend my colleague being addressed today. We have an obli- sures domestic violence screening and for her passion, for her dedication to gation to change that. treatment is covered by the Federal promoting public awareness about do- Let me turn to the next part of my Employees Health Benefit Program, mestic violence, and for her dedication amendment, which increases health and finally my amendment ensures to this cause. She certainly is a tireless screening so more victims can get as- States use some of the maternal and advocate in these efforts to help end sistance. More than one in three child health block grant on domestic domestic abuse. She is steadfast and women who seek care in emergency violence screening and treatment. unwavering in her commitment to rooms for violence-related injuries Those are the main provisions of my these issues, and I applaud her for of- were injured by their intimate partner. amendment. Extending unemployment fering this amendment today. Unfortunately, most victims who seek insurance benefits for victims of abuse, But, reluctantly, I come to the floor health care leave the doctor’s office offering family and medical leave so a this afternoon to oppose this amend- without addressing the underlying victim can go to court or the police ment. I say this not because I am op- cause of their injuries. They leave that station to get help, ending insurance posed to all the provisions of her untreated, and that is the violence and employment discrimination, pro- amendment, but because the reality is

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.080 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3155 this is not the time or the place for a bipartisan effort to get that through. hopeful we will consider in the next this amendment. Her amendment being Of course, I worked very hard side by week or so, we have substantively ad- offered to this bill, as a practical mat- side with him to get that bill passed, dressed many of the more troubling as- ter, does not have any chance of be- and have stood up for it ever since. pects of civil lawsuit abuse. This coming law. We understand how not Because of the passage of the Vio- amendment, however, takes us exactly only this body but the other body oper- lence Against Women Act, the Depart- in the wrong direction after all of that ates. The truth is, what the agreement ment of Justice is now authorized to work. to this amendment would do is stop the coordinate with Federal and State gov- For instance, section 112 allows underlying bill. When we look at the ernments, as well as international gov- plaintiffs to recover liquidated dam- calendar, when we look at the reality ernments, on matters concerning vio- ages in addition to other damages of the other body, when we look at lence against women. under this amendment. This is a tech- what is going on in this body, the In fact, the Bush administration will nical area of the law. But it is a very agreement to this amendment to this allocate almost $400 million this year important area. What this amendment bill will stop this bill. It will kill this alone for these worthy programs. does makes absolutely no sense. It bill. I note with a sense of pride that a doesn’t have a chance in the world of So when Members come to the floor, former adviser to my Woman’s Advi- going through the whole Congress, but I implore them to think about this, sory Council from Utah is now the di- will in essence destroy this very wor- however tempting it might be to agree rector of the Office on Violence thy and important bill. to this amendment. It is a very big Against Women in the Department of Liquidated damage provisions are ap- amendment. It is a very complex Justice. She is doing a terrific job. propriate when the actual damages are amendment. Some of my other col- Violent crimes against women con- too difficult to ascertain. Accordingly, leagues in just a moment will talk tinue to be among the most under-re- in lieu of actual damages, parties agree about the merits of this amendment. I ported. Even so, the statistics that are upon a reasonable estimate of liq- am not going to get into that. reported do not convey the feeling of uidated damages. Thus, liquidated I have a long history in the House, fear and vulnerability millions of damages are used as a substitute for when I was in the House and later when women across this country must face actual damages and not as a supple- I was Lieutenant Governor of Ohio, and in our streets and all too often in their ment to them. Courts simply do not en- now in the Senate, of supporting the own homes. force liquidated damages that are cause of dealing with the problem of To address this problem, effective merely intended to serve as a penalty. domestic violence. So many other intervention in the area of domestic vi- In this litigation-prone country we Members of the Senate have done that olence requires coordinated efforts by have right now, this would go com- as well. I don’t say I am the only one. police, prosecutors, counselors, and pletely awry, and it would undermine, Other Members have had a great courts. It demands a major commit- it seems to me, what we are trying to record. My colleague has a great ment by Government at all levels, Fed- do to prevent violence against women record. eral, State, and local. I am proud to in the end. But the reality is this amendment, help in coordinating the response to What it seems the Murray amend- however well intended, cannot become this important issue and have been ment is trying to do is codify a set for- law this way. It will not become law very proud to have done so in the past. mula for determining punitive damages this way, and it will have the effect of I intend to continue addressing these by automatically doubling the amount killing this underlying bill. So, there- concerns in the future. for compensatory damages with the fore, I must oppose this amendment. I say all of this to set the backdrop possibility of a reduction if good faith This amendment would kill this bill. for why I urge my colleagues to vote We are so close to seeing the under- is shown. But if that is the intent, the against the Murray amendment. lying bill, a bill we have worked so bill is not drafted properly to carry out Let me say at the outset I appreciate hard to pass, actually go to the Presi- that intent. my colleague, Senator MURRAY, for at- dent. This glaring error is just one example The House has passed it. We are very tempting to advance the discussion on of what occurs when a bill does not un- close to passing it here in the Senate this issue. As someone who has been dergo the scrutiny required to pass and sending it on to the President for working on this matter my whole po- sound legislation. his signature. The only thing, frankly, litical career—and even before I offi- It took us years to pass the Violence that now stands between this bill be- cially began my political career—I Against Women Act—not because we coming law and going to the President know how difficult it is to craft effec- were stupid and not because we didn’t for his signature is the Murray amend- tive legislation which truly makes a want to do it faster, but because we ment. difference in this area of the law. It had to listen to experts and make the At this point, I will yield time to my takes countless hours of hearings, appropriate changes that have made it colleague from the State of Utah for meetings with interested and affected the great law it is today. his comments about this amendment. constituents, as well as committee What will happen if this amendment The PRESIDING OFFICER. The Sen- markups to ensure what is ultimately is adopted? First of all, this amend- ator from Utah. passed is well formulated and well vet- ment isn’t going to go anywhere, any- Mr. HATCH. Mr. President, I couldn’t ted so you accomplish the goals you set way. But if it is adopted, it will destroy agree more with the comments the dis- for yourself without causing unin- this bill. Basically it will undermine tinguished Senator from Ohio just tended consequences. what all of us—a vast majority in this made. This is a very important piece of This is a complex area of law. I am body—are trying to do. legislation. It should not be killed on sorry to say, however, this amendment The one reason we created the com- by this last-minute, 158-page amend- has not been adequately scrutinized. In mittee system, of course, is to correct ment, which has not had a single hear- fact, I am told no committee has exam- and vet legislation rather than wasting ing. ined this proposal, leaving it with far valuable floor debate time. I have long been a supporter of ensur- too many troubling provisions. An additional provision found in the ing that our Nation’s laws extend all This is not a simple amendment. It is Murray amendment pertaining to class the protections available to women 158 pages long. Let me take a moment action—section 112(g)—appears to fly who are victimized by domestic and to point out just a few of the more in the face of the efforts of a vast ma- other violence. troubling provisions contained within jority of Senators. It makes no effort Along with Senator BIDEN, I have the Murray amendment. I am only to take into consideration issues that taken the lead in addressing this issue talking about a few of them. There are trouble the majority of Senators. This through national legislation with the plenty more. amendment codifies in the United passage of Violence Against Women In this Congress we have taken on a States Code a right to bring class ac- Act. number of civil justice reforms. From tions. I commend Senator BIDEN for the class action to medical malpractice re- I have helped lead the fight in this work he has done on that. But it took form to asbestos reform, which I am Congress to reform the substantial

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.083 S25PT1 S3156 CONGRESSIONAL RECORD — SENATE March 25, 2004 abuses that have occurred by some un- longer because there is only an hour on good amendment. I am opposing this scrupulous trial lawyers, personal in- each side in this debate. These are just amendment because it is an unprece- jury lawyers primarily, who have a few of the problems caused by this dented expansion of workplace laws brought unjustified class actions in an amendment as it relates to civil justice without any consideration for the com- attempt to extort settlements from judiciary issues, important issues that mittee of jurisdiction. companies across this country. That is should not be dealt with frivolously. This amendment greatly expands right. Extort settlements. In fact, well I have not touched on other problems workplace laws without any hearings over 50 of my colleagues—truth be caused by the amendment such as the or Committee consideration. The known, over 60 of my colleagues have increase in taxes on small business amendment creates a new set of laws joined with me to take a stand against that will inevitably follow if it is requiring businesses—including small these abuses. In light of this clear ex- passed, the wholesale restructuring of businesses—to provide employees with pression of sentiment, it makes no state unemployment insurance rules additional leave and special accommo- sense to codify in the United States and regulations, as well as the substan- dation. However, the amendment has Code this class action authorization. It tial 11th amendment concerns raised not been reviewed by the Committee of flies in the face of everything we are by this poorly drafted but well-inten- jurisdiction. It creates new workplace doing around here. tioned amendment. requirements without considering the Obviously, there has been no serious I understand others will come to the impact of its implementation or its re- effort to address the legitimate con- floor to discuss these issues so I don’t lation with existing laws. The process cerns of the bipartisan majority of the intend to repeat them now. They are is flawed and irresponsible. Senators working on the class action important issues. This is not an itty- The amendment creates broad, vague issue, and we have worked on it for bitty amendment. This is a major workplace requirements that conflict years. We are still working on it. We amendment that literally has not had a with existing law and invite litigation. have come a long way. We now have a day of hearings. It creates new rights to leave and pro- supermajority of Senators who will I take a backseat to no one, not any- hibitions against employment dis- support class action reform as it should one, in ensuring that Congress does ev- crimination against domestic violence be supported. But it took years for us erything it can to provide protections, victims that are inconsistent with cur- to get there. Unlike some 158-page support, and resources to combat do- rent employment laws, including the amendment that has not been well mestic violence. But this amendment Family and Medical Leave Act (the thought through but brought up on the is not well written. Or perhaps I should FMLA), the Americans with Disabil- ities Act, Title VII of the Civil Rights floor suddenly. However well inten- say, not only is it not well written, it Act of 1964, and the Civil Rights Act of tioned the efforts are, in the end, the is overwritten in many respects. result will be to destroy the underlying Because of the problems replete in 1991. The nondiscrimination provisions bill that the vast majority of us would the Murray amendment, I cannot vote extend to ‘‘perceived’’ victims of do- mestic violence who have never been like to pass. in favor of it. I recommend Senators on subjected to domestic violence. The I am sure Senators GRASSLEY, KOHL, both sides of the aisle vote against this Murray amendment defines a victim of CARPER, and I will work with the dis- amendment. We will certainly sit down domestic or sexual violence to include tinguished Senator from Washington in with the distinguished Senator and family members of domestic or sexual good faith, if she will work with us in look at her goals and her aims, try to violence victims. Under this definition, good faith with regard to her concerns help her fashion this amendment so abusers such as parents who molested as exemplified in this 158-page amend- that it can pass the Senate in a form ment. their own children would be protected that literally makes sense in the law, Finally, let me point out another under the Murray Amendment. makes sense in reality, and makes provision of the Murray amendment This amendment creates unprece- that opens the door to further lawsuit sense in practicality. dented Federal workplace regulation I yield the floor. abuse. on small business. Congress has recog- In a country that has long been The PRESIDING OFFICER (Mr. nized the burden of workplace regula- known for its litigation abuse, and we CHAMBLISS). Who yields time? tion on small businesses with limited all know this is true, these ill-thought- Mr. HATCH. I yield such time as he resources. The FMLA exempts busi- out litigation matters are running us needs to the distinguished Senator nesses with fewer than 50 employees into bankruptcy—ruining businesses from Wyoming. from coverage. The Murray amendment throughout the country, not getting The PRESIDING OFFICER. The Sen- would cover all employers with 15 or money to those who deserve them, and ator from Wyoming. more employees. Mr. ENZI. I rise in opposition to the driving a set of unscrupulous trial law- The lack of administrative alter- yers who basically know better but amendment offered by the Senator natives increases litigation and bur- who are more interested in making from Washington. This amendment is a dens courts. Unlike existing federal money than they are in doing what is sweeping expansion of Federal employ- anti-discrimination laws, the Murray right. ment law without a hearing, without amendment allows claimants to bypass Section 134 of this 158-page amend- committee debate, without committee the Equal Employment Opportunity ment itemizes what can be recovered in amendments, and without any poten- Commission, EEOC, and file a private a lawsuit brought under this amend- tial for floor amendments. We never suit directly in court. This undermines ment. legislate like that. This bill does not the efficacy of the EEOC and this In addition to the ordinary recoveries just have one concept in it; it has amendment. already permitted in the civil justice many concepts in it. It is 158 pages. These are unlimited damages for em- system, this amendment proposed by That makes it evermore unworkable to ployment discrimination caused by the distinguished Senator from Wash- do in the Senate. This just is not how someone else. Unlike existing Federal ington would permit a money recovery we legislate. laws which cap damages for employ- when the plaintiff suffers ‘‘inconven- As chairman of the Subcommittee on ment discrimination, the Murray ience,’’ ‘‘loss of enjoyment,’’ and other Employment, Safety, and Training, I Amendment allows unlimited compen- non-pecuniary losses. Recovery for in- am compelled to discuss the implica- satory damages, and punitive damages convenience? Recovery for loss of en- tions of such an unprecedented and of up to 300 percent of actual damages. joyment? My gosh, what does that misguided expansion of current law. Why should a victim of domestic vio- mean in the law? Anyone who takes Let me begin by saying I share Sen- lence discrimination be able to recover the metro during rush hour suffers ator MURRAY’s concern about domestic greater damages than a victim of race from inconvenience. And, I might add, violence. Domestic violence shatters or disability discrimination? loss of enjoyment. This type of lan- families and with it the very founda- The amendment imposes an unfunded guage is absurd. It should not even be tion of our society. My opposition to Federal mandate on State unemploy- considered by this right-thinking body. the amendment is not based on a lack ment compensation. The Murray I am just mentioning a few of the of concern for victims of domestic vio- Amendment imposes a Federal Man- problems. I don’t want to take much lence. A good title does not make a date to cover domestic violence under

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.085 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3157 state unemployment compensation the author probably wishes were dif- provider to certify the need for leave. programs. This requires states to pay ferent. I certainly wish they were dif- This amendment invites misuse and the tab, but gives them no voice in ferent. abuse because there is no third-party whether or now to do so. Employers in The first bill I ever did in the Wyo- verification—no third-party verifica- States that fail to comply must pay ming legislature was only a three-sen- tion—for the leave to be required. So if huge penalties in the form of higher tence bill when I took it to the legisla- a person says they were abused, that is Federal Unemployment tax. Unemploy- ture. In committee, it got two amend- good enough to take time off. ment compensation is—and should re- ments. On the floor, it got three The Murray amendment does not main—a state issue. amendments. When it went to the Sen- amend the Family and Medical Leave With vague, broad language that con- ate side, it did not get any in com- Act itself; instead, it gives more capa- flicts with current employment law, mittee but it got one on the floor. bility to someone, under this amend- lawyers—not domestic violence vic- What I learned through that process ment, than they would get under the tims—will be the biggest winners under was that every step of that made an regular law. It is a backdoor effort to important difference. It turned out to the Murray amendment. expand Federal leave law at the ex- be a far better bill because all of the The Senator from Washington is the pense of equity and clarity. ranking Member of the Subcommittee opinions of all of the people serving in on Employment, Safety, and Training. that body were injected and they could This amendment prohibits employers Many of the provisions in this amend- see a lot more different directions than from discriminating against an indi- ment fall within that subcommittee’s any one member of that body. vidual who is ‘‘perceived’’ to be a vic- jurisdiction. The rest of them fall That is how we work it here. We tim—that is interesting wording, ‘‘per- under the jurisdiction of the Senator work it so that the 100 Senators have ceived’’ to be a victim—of domestic or from Utah, who chairs the Judiciary an opportunity to take something as sexual violence. Individuals with abso- Committee, who just spoke from that complicated as this and make changes lutely no legitimate claims of domestic perspective. to it. Then the House looks at the same or sexual violence would have a cause The first time we are considering this thing. Again, there are a lot more opin- of action under this vague and broad major expansion of Federal employ- ions that get into the bill. standard. ment law is on the Senate floor on a The committee process is so impor- How are employers and courts to de- bill totally unrelated to employment tant because that is when we carefully termine who a ‘‘perceived’’ victim is? and, I have to add, unamendable. There evaluate the impact of pending legisla- Whatever the intent of this legislation, is an agreement between the two sides tion and its relationship to current the result will be excessive confusion there would be two amendments today, law. We did not do that here. What we and, worse yet, excessive litigation. and those amendments would not be have here is a 158-page proposal which The amendment defines a ‘‘victim of amendable, nor would there be allowed is not related to the underlying bill, domestic or sexual violence’’ to in- any intervening action. What we have and that proposal rewrites employment clude—and I am sure the Senator from is what we get. I have to say, no one is law without the benefit of hearings or Alabama, who is on this committee going to want to get that. committee consideration. That process that has not had a hearing on it yet, The overly broad and vague provi- is flawed and irresponsible. who is on the floor, will make some sions of this amendment conflict with So, more specifically, what will this comments on this—an ‘‘individual amendment do? It creates a new Fed- and undermine existing employment whose family or household member has eral law that mandates employers, in- laws. The committee process is so im- been a victim of domestic or sexual vi- cluding small employers, to give up to portant because that is where we care- olence.’’ 30 days of leave to an employee to ad- fully evaluate in a much less formal dress domestic or sexual violence. How- Under this definition, family-member situation the impact of pending legisla- ever, this proposal ignores important abusers—such as parents who molested tion and its relation with current law. requirements that Congress applied to their own children—would be protected Let me explain a little bit more how leave taken under the Family and Med- under this poorly drafted legislation. that committee process works. Besides ical Leave Act, FMLA. People could get time off for bad be- the hearing part where we get to bring Let me highlight a few of the dif- havior. panels of experts before us and ask ferences between FMLA and the Mur- There is a good reason for this proc- them extensive questions so we have a ray amendment. ess we have of hearings, committee better understanding of what is going The Family and Medical Leave Act markup, debate on the floor, with on and to give them an opportunity to applies to employers with 50 or more amendments, and then the discussion speak on the provisions that are before employees. The Murray amendment ap- between the two bodies. us, we also have what we call a com- plies to employers with 15—that is 15, mittee markup. The problems with the amendment instead of 50—employees. Most small extend beyond poor drafting. This The committee markup is where businesses do not have the processes or most of the work for this Chamber is amendment is inconsistent with the personnel necessary to begin com- remedy and enforcement provisions of done. It is a much smaller group; it is plying with this new leave require- a much more informal group. People existing employment discrimination ment. laws. Under title VII of the Civil turn in their amendments ahead of In the past, Congress has recognized Rights Act of 1964, the Americans with time so that they can be reviewed by the burden of workplace regulations on Disabilities Act, and the Age Discrimi- all. Even on the day of the markup peo- small businesses. However, this amend- nation in Employment Act, Congress ple can get together and work on ment would impose workplace regula- amendments to get agreement. It is tions on small businesses never before gave the Equal Employment Oppor- fairly successful. The amendment proc- covered by Federal employment laws. tunity Commission the role of inves- ess usually results in a bill coming This amendment would undermine the tigating and enforcing complaints of from committee with about 80-percent small business exemption Congress in- employment discrimination. These ex- agreement. cluded in the Family and Medical isting laws require a claimant to first The unfortunate thing for this coun- Leave Act. file a complaint with the Equal Em- try is that the bill comes to the floor, The Family and Medical Leave Act ployment Opportunity Commission be- and what we usually debate is the 20 imposes a length-of-service require- fore being able to file a private suit in percent we do not agree on. That is not ment for employees to be eligible for court. the case on this particular item. This leave. The Murray amendment has no The Equal Employment Opportunity has not even been discussed in com- service requirement for an employee to Commission plays a vital role in em- mittee, so the 80-percent agreement is be eligible. Under this amendment, a ployment nondiscrimination laws. The not there. The ability to work out worker is presumably eligible for leave Commission’s mediation activities ex- issues with some flexibility is not on the first day of work. pedite resolution of cases and reduce there. I am sure there are provisions in Under the Family and Medical Leave the backlog of employment cases in this bill that are written in a way that Act, employers can require a health our courts. This amendment would

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.021 S25PT1 S3158 CONGRESSIONAL RECORD — SENATE March 25, 2004 allow victims of domestic violence dis- to pay the tab. However, we give the Although I very much appreciate the in- crimination to bypass the administra- States no voice in whether or how to tent of the Murray Amendment, I cannot tive process and file suit in court. Al- do so. It is unfair and irresponsible for support it, particularly Subtitle A (Entitle- Washington to impose this burden— ment to Emergency Leave for Addressing lowing claimants to bypass the Equal Domestic and Sexual Violence). Its intent Employment Opportunity Commission and, in fact, against the law—on al- may be laudable, but it will have unintended undermines the efficiency of the agen- ready burdened State unemployment consequences that could easily be avoided if cy and the legislation. programs and employers. a more thoughtful approach to such a law This amendment disregards the rem- Domestic violence is a serious prob- were to be taken. edy structure of other Federal employ- lem that devastates lives and shatters I have a number of concerns about Subtitle ment discrimination laws. Existing families. However, we cannot allow a A of the Murray Amendment. I have summa- laws limit available damages. For ex- misguided attempt—with no hearings— rized my primary concerns below (with a to address this problem and create new more detailed explanation attached as Ex- ample, consequential and punitive hibit ‘‘B’’): damages for claims under title VII of problems that will impose unfair bur- 1. Potential for Misuse and Manipulation. the Americans with Disabilities Act dens on States and employers, particu- Subtitle A has many loopholes that will are progressive with the size of the em- larly small businesses. allow it to be misused and manipulated by ployer and capped at $300,000. This When I am back in Wyoming, I like employees and their abusers. I have identi- amendment provides unlimited com- to hold town meetings so I can find out fied five different ways that Subtitle A can pensatory damages and punitive dam- what is on the minds of my constitu- be easily misused or manipulated (see Ex- ages up to three times the amount of ents. At each town meeting, there is hibit ‘‘B’’). The potential for misuse and ma- usually someone in attendance who is nipulation is directly related to the fact that the actual damages. an employee merely has to sign a self-serv- Why should a victim of domestic vio- quite concerned about Government reg- ing certification stating that he/she is a vic- lence discrimination be able to cir- ulations. I am often told to rein big tim of domestic violence. No verification is cumvent the complaint process that government in, keep the rules and reg- required, nor are any mechanisms included victims of race or disability discrimi- ulations simple and responsive, and in Subtitle A to enable an employer to ques- nation must follow? Why should a vic- make sure they make sense. tion the veracity of the certification or to tim of domestic violence discrimina- This amendment takes the opposite prevent fraud. tion be able to recover greater damages approach. It is a classic example of one 2. Perpetuation of Domestic Violence. One size fits all that doesn’t fit outside the of the outcomes of Subtitle A will be the per- than victims of race or disability dis- petuation of domestic violence in some situ- crimination? There is no justification beltway. ations. This can occur in two ways. First, an for this unequal treatment. We must The amendment ignores the careful abuser will be able to force a victim, under guard against enacting legislation consideration Congress has given to ex- threat of violence, to take domestic violence that, in an effort to protect individuals isting employment laws with vague leave from work whenever the abuser wants from one type of discrimination, cre- and broad language that conflicts with the victim to take time off from work for ates inequities for those who have been current Federal employment law. Law- reasons unrelated to the proposed law’s stat- subjected to another type of discrimi- yers, not domestic violence victims, ed purposes. Second, a victim who is not will be the big winners in this one. making any effort to remove himself/herself nation. from a domestic violence situation can sim- I find the leave and discrimination I will close by sharing a letter from a survivor of domestic violence who di- ply take time off work after suffering abuse provisions of this amendment very to ‘‘recover’’ from injuries, even if he/she troubling. I find the unemployment vorced her first husband in 1978 because seeks no medical or other help. In either sit- compensation provisions to be mis- of abuse and, in addition, is an employ- uation, domestic violence leave will become guided as well. The amendment re- ment attorney with 23 years of experi- a method of merely ‘‘managing’’ or ‘‘toler- quires States to provide unemployment ence specializing in employment law. ating’’ abuse and threats of abuse. It will en- compensation benefits to individuals I ask unanimous consent to print the able abuse instead of helping a victim be- come a survivor. who are separated from employment as letter in the RECORD. There being no objection, the mate- 3. Adequate Time Off From Work Already a result of domestic violence. That has rial was ordered to be printed in the Available. I seriously question the necessity always been and is a State decision. of this law. I believe that most employees al- RECORD, as follows: Under the amendment, that is taken ready have adequate time off work programs away from the States. States can de- OVERLAND PARK, KS, available to them in the event they need do- cide and, in many instances, have de- March 22, 2204. mestic violence leave. Those time off pro- Re Murray amendment S.A. 2859 (Domestic grams include family and medical leave cided. Individuals would receive unem- Violence Prevention Act) to H.R. 1997 ployment compensation if they leave under the Family and Medical Leave Act (Unborn Victims of Violence Act of 2004). (FMLA) and its state counterparts, leave of employment because of a reasonable Senator SAM BROWNBACK, absence or other accommodations under the fear of domestic violence, a desire to Hart Senate Office Building, Americans with Disabilities Act (ADA) and relocate to avoid domestic violence, or Washington, DC. its state counterparts, employers’ existing to obtain physical or psychological DEAR SENATOR BROWNBACK: I am writing to vacation and sick day policies, and employ- treatment. ask that you oppose S.A. 2859 (Domestic Vio- ers’ existing attendance policies. The pro- Eligibility for unemployment com- lence Prevention Act), proposed by Senator ponents of Subtitle A have not provided any pensation is and should continue to be Murray as an amendment to H.R. 1997. data to verify that employers’ existing time I have reviewed the Murray Amendment a State—not a Federal—decision. The off programs are inadequate. from what I believe is a rather unique per- 4. Lack of Due Process for Employers. Con- terms of unemployment compensation spective. I am a survivor of domestic vio- sidering that Subtitle A requires employers are decided on a State-by-State basis. lence and divorced my first husband in 1978 to provide a new benefit to employees, I find States have the authority to extend because of the abuse. I have also served on it appalling that employers have had no op- unemployment compensation to vic- the Board of Directors for two organizations portunity to provide input or be heard on tims of domestic violence. A number of devoted to the prevention of domestic vio- this proposed law. Basic principles of fair- States have already done so. This lence (see attached Exhibit ‘‘A’’ for more in- ness would seem to suggest that employers amendment imposes a Federal mandate formation). In addition, I am an employment be given due process (rather than be dictated attorney with almost 23 years of experience and higher costs on State unemploy- to) on an issue of this importance. I have no specializing in employment law. doubt that employers could provide very use- ment compensation programs. The As a result of my background and experi- ful comments and suggestions. Federal mandate will impose huge pen- ences, I am sensitive to the victims’ perspec- Subtitle A of the Murray Amendment alties on employers in States that fail tive, but also sensitive to the employers’ per- raises many questions that obviously have to comply. It is estimated that the spective. To say the least, the path from vic- not been given much, if any, thought. This Federal unemployment tax on all em- tim status to survivor status is not easy, and letter is by no means to be read as including ployers in the State will be increased it is beneficial for victims to have resources all of my concerns about Subtitle A. I have available to help them. At the same time, I from $56 per worker to $434 per worker. others, but have tried to focus on the major am aware of the challenges faced by employ- ones in this letter. How many jobs will that cost? ers in complying with new employment laws, For the sake of sound policy for victims of A Federal mandate to cover domestic especially laws with good intent but which domestic violence like myself, for other em- violence under State unemployment are poorly written and which have not been ployees who will have to absorb their work- compensation programs requires States given proper thought. load when they are absent due to domestic

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.090 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3159 violence issues, and for employers who will Ms. LANDRIEU. Mr. President, I she was pregnant or not, I can’t recall. have to comply with this proposed law, I come to the floor to support my col- But to say that it is irrelevant to the urge you to oppose Senator Murray’s Amend- league from the State of Washington subject that we are debating is an in- ment S.A. 2859. Thank you for your thought- and her comprehensive amendment on sult to many people. ful consideration of my comments. Let me clarify one other point. Peo- Sincerely, this important bill and discussion this ple come to this floor and act like the SUE KENNEDY WILLMAN. afternoon. I thank her for the extraor- dinary work she has done in the area of Senator from Washington and the co- Mr. ENZI. She writes: domestic violence, not just this year sponsor, who was Senator Wellstone, Although I very much appreciate the in- but in every year she has been a Mem- before his death—he did a magnificent tent of the Murray amendment, I cannot ber of this body, over a long period of job on this subject the years he rep- support it. time, her intense interest and advocacy resented his State in the Senate. In his She gives an explanation and lists for women and for children and for memory, I will say this: He worked like four very specific reasons: One, the po- families and for communities which a Trojan on this subject. This bill was tential for misuse and manipulation; her effort shows today. introduced in the 106th Congress, the two, the perpetuation of domestic vio- I have a great deal of respect for the 107th Congress, and the 108th Congress. lence; three, adequate time off from Senator from Ohio. He and I usually But this bill, although there has been work already available; and four, the don’t find ourselves on opposite sides, one hearing, pushed mostly by Demo- lack of due process for employers. so it is unusual that I would be here crats, has never received a markup, not This is a person who has been there. supporting an amendment and the Sen- in the 106th, 107th, and not in the 108th. This is a person who has been abused. ator from Ohio, Mr. DEWINE, would be Evidently, there is not enough Repub- She did find a way out. And inciden- opposing it. I understand there are a lican leadership thought that this is an tally, in her credentials, she has de- few—not many—good reasons that peo- important subject to discuss. voted most of her life to helping bat- ple could raise today against this Those of us who came to the floor tered women in the Kansas City metro amendment. But I will tell you what today to debate this issue to try to pro- area and has an astounding record of one of the reasons is not that I have tect people from murder—women and, doing that and is very concerned about heard in this Chamber and I have seen yes, their unborn children—wonder us going this way. sent out by such groups as the U.S. what we have actually accomplished Again, without a hearing, I am con- Chamber of Commerce and the U.S. today because with the underlying bill, cerned, too. I urge my colleagues to op- Right to Life organization, two organi- the only way you can prosecute people pose this amendment, and I yield the zations that oppose Senator MURRAY’s is if the murder actually occurs on floor. amendment. They have some legiti- Federal property. The PRESIDING OFFICER. The Sen- mate arguments in this document The bill we are going to pass today is ator from Washington. about some of the details of the amend- not nearly as good as the 21 or 31 stat- Mrs. MURRAY. Mr. President, I lis- ment, but they also go so far as to say utes that are already on the books that tened carefully to the Senators from that one of the reasons we should not are legitimate and genuine efforts. Ohio and Utah and Wyoming express support this amendment is because it When we asked to have some help for their concerns about the amendment as is irrelevant to the underlying subject. the victims of domestic violence, who we have written it. I know the under- Irrelevant? Domestic violence is ir- are women and their children, we get lying bill was not marked up in com- relevant to the deaths of pregnant all kinds of ‘‘can’t do it,’’ ‘‘too com- mittee either, so I find that argument women, when experts across the board, plicated,’’ ‘‘too expensive.’’ Then I have hard to believe. Republican and Democratic, people to read the Chamber of Commerce busi- I hear their argument. I understand who have been prosecutors before—go ness alert that says the whole subject they are going to defeat this amend- look at any study—will tell you the is not relevant. I want to read from ABCNEWS.com ment. I want to move forward on the majority of women who are killed in for the RECORD, ‘‘Expectant Victim,’’ issue of domestic violence. It is ex- the latter terms of their pregnancies April 25. tremely important that when we are are killed not by strangers, not by peo- talking about the abuse of women, that ple who just happen on to their house, On Monday, police found the remains of 20- we do something to prevent it. I want year-old April Renee Greer, whose dis- but they are killed by the hands of membered body was found in a trash can to make sure we do take a step for- their husbands or the fathers of their that had washed into a farmer’s field. She ward. children? was 81⁄2 months pregnant when she was re- Therefore, I ask unanimous consent I have to sit here and read a vote ported missing on March 8. to send a modified amendment to the alert from the Chamber of Commerce, Experts and women’s advocates are not desk. supposedly representing women who surprised to find that pregnant women are Mr. DEWINE. I object. own businesses, supposedly rep- especially prone to violent deaths. In many The PRESIDING OFFICER. Objec- cases, pregnant women are killed by their resenting women, many of whom are husbands or significant others. tion is heard. business owners, who perhaps have ‘‘Most pregnant women are killed by peo- Mrs. MURRAY. Mr. President, that is been victims of domestic violence, and ple they know, like husbands or boy frustrating. I listened to the Senators not a word in this memo about ‘‘so friends’’. . . . from the other side say they want to do sorry that you were beaten so badly Think of that. It is one thing to get something about prevention. I hear that you and your unborn died,’’ noth- attacked in a dark alley by somebody them saying they have objection to ing. They go on to say this is an inap- you don’t know; you are coming home specific concerns. I am willing to make propriate vehicle for this amendment later than you should be. It is another a modification to my amendment to because the issues involved are ‘‘com- thing to be beaten to death by someone move it forward. It is fairly clear the pletely unrelated.’’ who is supposed to love you. It is very Republican leadership simply doesn’t I hope my Chamber of Commerce in terrible for a child to sit there and want to engage in a serious debate to Louisiana did not approve this docu- watch their father, in many cases, beat address the cycle of violence. That is ment because I don’t believe businesses up their mother in front of them. It unfortunate. We could take steps for- in Louisiana think these subjects are breaks more than their spirit. It crush- ward to change lives for women who unrelated, since one of the recent es their heart and destroys their life. have been victims of abuse. things that just happened in my State You would think that somebody on I yield 15 minutes to the Senator was a woman shows up to go to work the other side of the aisle would think from Louisiana, and I ask unanimous about 2 years ago in Jefferson Parish, this was significant and relevant and consent that she be listed as a cospon- gets out of her car, and in front of would want to do something about it sor of the amendment. about 50 people, going through the re- and put some money in this bill to do The PRESIDING OFFICER. Without volving doors to get into her place of something about it. But, no, we don’t objection, it is so ordered. business, her husband comes up to her, have time for it, we can’t have a hear- The Senator from Louisiana is recog- takes out a revolver, sticks it in her ing on it, and it is too complicated for nized for 15 minutes. face and blows her head off. Whether anybody to understand.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.023 S25PT1 S3160 CONGRESSIONAL RECORD — SENATE March 25, 2004 I don’t think this is complicated. Let there. The Right to Life Association it. We would like for you to look at it me go on to read this: said they could not support help for do- and see. ‘‘Sometimes it depends on how far along mestic violence victims because they, That was shared with me the other the woman is in the pregnancy,’’ she said. again, agreed with the Chamber of day. It was totally unrelated to this This is Pat Brown, a criminal profiler Commerce that it is not relevant. 158-page amendment that has not un- and CEO of the Sexual Homicide Ex- I hope people who support the Right dergone careful scrutiny, and I believe change. I am sorry, I don’t know what to Life Association might write them goes much further and provides bene- State. an e-mail or something today and ex- fits that far exceed what is under the ‘‘Sometimes it depends on how far along plain to them that regardless of how current Family Leave Act, which has the woman is in the pregnancy,’’ she said. ‘‘If you feel, whether you are pro-choice or problems with it. it’s a serial killer, they normally go after pro-life, clearly, this is relevant to the We need to, as Members, be careful women who may be three months pregnant underlying bill. what we pass, what we mandate on pri- and are not showing very much. With serial With that, I yield the floor. I support vate entities, and what we tell them killers, the women are tiny, easy to handle, the Murray amendment. not too big—someone they can easily over- they must do. We should do so in a way The PRESIDING OFFICER. The Sen- that furthers the public policy we want come. They go after a ‘neat package,’ some- ator from Ohio is recognized. thing that is desirable where they could get to further, which is to help families something big. Mr. DEWINE. Mr. President, before I who need leave for family emergencies. ‘‘With husbands or boyfriends, women tend yield to my friend and colleague from We want to do that, and the act does it to be eight months pregnant—they’re there Alabama, let me say that I understand in many different ways. But it is not and the baby is coming,’’ Brown continued. what my colleague from Louisiana has perfect. This amendment is even less ‘‘They can see the woman and unborn child said and what my colleague from Wash- perfect. as something that is in the way, keeps them ington State has said. I will reiterate Let me show you a couple things we from living the lifestyle they want.’’ what I said a few minutes ago. discovered in a brief reading of the And we come to the floor and ask for The reality of the way this place Murray amendment. It says: a little help for domestic or sexual vio- works, the way the House works, is lence, maybe a little time off of work that whatever the merits of this The term ‘‘victim of domestic or sexual vi- to get her situation in order because amendment, the passage of this amend- olence’’ includes an individual whose family her husband is working and he also or household member has been a victim of ment will effectively mean, that the domestic or sexual violence. happens to be the one beating her. She underlying bill will simply die. The needs 30 days to get a job. They say: only thing to prevent the underlying Clearly, I think I can say, as a former No, we cannot give you 30 days. We ask bill from going to the White House and prosecutor, that would include the per- for 30 days of unpaid leave, and the being signed by the President of the petrator. That would include the Chamber of Commerce goes wild saying United States is the Murray amend- wrongdoer. So now is the wrongdoer they can’t afford it—and they don’t ment. That is what the facts are. going to be able to ask for time off? have to pay for it. If the Murray amendment is attached The law would mandate it, I suspect. We talk about increasing grants to to this bill, we can kiss this bill good- Some say that would not happen. But I local communities to help them pro- bye. That is a fact. I yield to my col- am telling you, people use the law as it vide shelters, since we have not seen a league from Alabama. is written to further their agendas significant increase in shelters, but The PRESIDING OFFICER. The Sen- when they want to. Maybe he had to go that is too complicated. ator from Alabama is recognized. to court to defend himself, and he is So I ask, What have we done today? Mr. SESSIONS. Mr. President, I going to claim time off for that. I bet Are we going to save any lives, whether thank the Senator from Ohio for his you his lawyer would say he is entitled it is the life of the unborn, or whether leadership on this issue. He has taken to time off. it is the life of a woman? No, because the issue and considered it thought- Here is another one: there is no money in this for preven- fully and prepared a seven-page piece The term ‘‘employee’’ means any person tion. We, obviously, want to just pros- of legislation that I believe, as a employed by an employer on a full or part- ecute people in a very small place, on former prosecutor, stands the test of time basis, for a fixed time period, on a tem- Federal land, maybe just to make a careful draftsmanship and is worthy of porary basis, pursuant to a detail, or as an point. I came to the Senate to do more passage. I believe we have a majority independent contractor. than just make a point, and I think the in the Senate prepared to pass this leg- That is not even in the current Fed- Senator from Washington came here to islation. But it is threatened by this eral Leave Act. So we have added this make more than a point. We came here amendment. The Senator is correct statement. So the businessperson has to make a difference. This afternoon, that if this amendment passes, this bill to take care and provide leave or suf- there is no difference being made and it will not become law. So a vote for this fer. I think that is a step to which we is a shame. amendment is a vote against the un- ought to give a lot of thought before In conclusion, I want to say some- derlying legislation. we put it into law. thing about the Right to Life Associa- I further say the amendment—the Another thing that hit me in talking tion. I have worked with them on 158-page amendment—is not so care- with this lady the day before yester- cloning. I don’t support human cloning. fully drafted, has quite a number of day, and talking about problems with Some people do; I don’t. I have worked problems, and does not deal effectively the act, is the difficulty of a business with them. When they came to my of- with the issue that the Senator seeks in having any proof to ascertain that fice yesterday to tell me they were to promote. the person really does need leave. sorry that they could not support the The day before yesterday, in my of- Under the act, after you get one ap- Murray amendment because it would fice, I met with a group of people from proval, say, for a child’s asthma, you ‘‘mess up the bill’’—and they need a one of America’s great corporations, an never have to present proof again, or clean bill—I would like to think they international corporation. I asked the even just make a statement that it is need an effective bill. But they just human resources officer—and I asked so and the businesses are bound by it. need a clean bill. For what, I am not them all—how things were going out A lot of businesses on a manufac- sure. Maybe for television commer- there and what can we do to help, what turing basis try to do things well. They cials. problems do they have. The human re- have a team that produces a product. I think we need an effective bill. I sources officer said: The one thing When one member of that team unex- would like to prevent these deaths of causing us the most grief is the Family pectedly or routinely misses, it makes unborn children, of women, give pre- Leave Act. For a lot of different rea- it difficult for them. If they have a le- vention on the front end, and then go sons, complex reasons, this act is sub- gitimate excuse, OK. This says: ahead and prosecute people. In my ject to abuse. We certainly believe and An employee may satisfy the certification State, that is what we do because we support a mother being home with a requirement of paragraph (1) by providing to already have a law on the books. So I young child. We support the purposes the employer . . . a sworn statement of the am happy that Louisiana is already of the act, but there are problems with employee.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.095 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3161 That automatically takes care of it— work on that are in the Murray amend- We just rejected the idea Roe v. Wade no proof of a doctor’s certificate, a law- ment will go nowhere, and we all know rights should be used by criminals to yer’s statement, or anything else. I that. avoid prosecution for their criminal ac- just point that out. I did not come here to play a game, tivity that results in the mother being The hour is late. As a member of the to participate in endless debates for denied to have a child. Roe v. Wade is Health, Education, Labor, and Pen- the sake of debating, to cast votes to an honest, genuine debate that exists sions Committee, as Senator ENZI said be measured on ‘‘you are for sexual vio- in this land. Eighty percent of Ameri- so eloquently and in detail, these lence or you are against.’’ That is not cans, when polled, believe if a criminal issues need to be given careful thought. what this is about. I got elected on a takes the right to have a child away Let’s don’t kill this underlying bill belief that we could get some things from a mother, they ought to be pros- Senator DEWINE worked so hard on and done, and that is hard in this body be- ecuted to the fullest extent of the law has dealt with so many Members of cause it is so easy to kill a bill. It is so for what has happened to that family— this body to refine language so every- easy to tack on an amendment that is damage to the mother and damage to body can agree to it and it will have a so hard to vote against because we are the unborn baby. majority vote. afraid of being accused of being against Professor Walter Dellinger, a former Let’s don’t kill this legislation that domestic violence. adviser to President Clinton, said: is important to protecting those un- I am passionate about dealing with . . . although he is a strong advocate for a born victims of violence in America by domestic violence. I was a prosecutor woman’s right to choose abortion, he sees no tacking on an amendment that is not in the State of Minnesota and pros- major problem with fetal-homicide laws. ‘‘I ecuted some of the early child abuse don’t think they undermine Roe v. Wade,’’ ready, that has problems with it, on he said. ‘‘The legislatures can decide that which we have not had hearings and cases. I was mayor of the city of St. Paul. I thought we did cutting edge fetuses are deserving of protection without should not be added to this bill, any- having to make any judgment that the enti- way. If it is added to the bill, the bill things to deal with domestic and sex- ty being protected has freestanding constitu- will be in trouble. ual violence. I want to do more about tional rights. I just think that proposals like I thank the Chair. I thank Senator domestic and sexual violence while I this ought to be considered on their own DEWINE for his leadership. I yield the am here in the Senate, but we are not merit.’’ floor. going to do more about it by voting for That is all we are asking. Senator Mr. DEWINE. Mr. President, I yield the Murray amendment today. MURRAY has a very long and com- time to the Senator from Minnesota. I am going to cast my vote against plicated amendment that deals with The PRESIDING OFFICER. The Sen- the Murray amendment, even though I domestic violence, family leave, and ator from Minnesota is recognized. share a belief in some of the principles other issues. South Carolina, to its Mr. COLEMAN. Mr. President, I had the good Senator from Washington is shame, for lack of a better word, has a chance to hear my colleague from trying to raise. I am going to vote one of the leading number of domestic Ohio speak in humble terms about the against it because I want to get some- violence cases against women. Our leg- work he did, the commitment he made thing done, and the one opportunity we islature is dealing with that. We can do when he was working in Ohio at the have today, I say to my colleagues, to more here. But this should stand on its State level and now in the Senate re- get something done is to pass out of own. garding issues of domestic abuse and this body a clean Unborn Victims of Just as we said no to Roe v. Wade sexual violence. Violence Act. If we pass this bill and it being an impediment to prosecuting a I don’t know if there is a stronger is signed into law, we have provided criminal who attacks a mother who champion in the Senate than my col- protection on the Federal level—by the chooses to have a child, we will not let league from Ohio, Senator DEWINE, on way, it is similar to what many States the criminal benefit from Roe v. Wade, these issues. I know where his heart is. do and what we do in the State of Min- nor should we allow an amendment to I know where his passion is. nesota—for a mom and an unborn baby, destroy a bill whose purpose is to put When I look at the Murray amend- such as the Laci and Conner Peterson people in jail who attack pregnant ment, there are provisions in this case. We all know many cases like women and do damage to the mother amendment I would like to support. that. and the child. There are principles in this amendment Again, I appreciate the principles my No good purpose is served by destroy- on which I would like to work with her colleague from Washington is attempt- ing this bill, even though the under- and I would like to see happen. I be- ing to raise, but I think it is time to be lying problem is very real. This bill lieve—I know my colleague from Ohio very blunt and very honest. If you want should stand on its merits. There are feels the same way, and we have to be to do something about that issue, this more cases such as this than we would very candid, we have to be very blunt— bill is not the place to do it. It will not all like to admit. We have a chance to that the reality is that the effect of the go forward. It will not further the ends do something about it today. Please Murray amendment, if it were to pass, about which we are talking. vote against Senator MURRAY’s amend- We have an opportunity to do some- would simply kill the underlying bill. ment. The PRESIDING OFFICER. The Sen- We have an opportunity to do some- thing today, and that is to pass the Un- ator from Ohio. thing today for unborn victims of vio- born Victims of Violence Act. I support this bill in a clean manner. Tomorrow Mr. DEWINE. Mr. President, I yield lence. We have an opportunity to do to my colleague from Oklahoma. something. Or we can do what I see I will work with my colleague from Washington and my colleague from The PRESIDING OFFICER. The Sen- going on far too often in this Chamber, ator from Oklahoma. and that is to—I don’t know whether it Ohio and do what needs to be done to further some of the very laudable goals Mr. NICKLES. Mr. President, to in- is political gamesmanship, I don’t form my colleague from Washington, know if it is ‘‘gotcha’’ policy, I don’t she desires. Mr. President, I yield the floor. at the appropriate time, when she con- know what it is, but it is not about get- The PRESIDING OFFICER. The Sen- cludes her statement, I plan on making ting something done. We can get some- ator from Ohio. a budget point of order. thing done today. We can pass a clean Mr. DEWINE. Mr. President, I yield First, I compliment my colleague, Unborn Victims of Violence Act. For to my colleague from Oklahoma. How Senator GRAHAM from South Carolina, those of us who would like to work much time do I have? for his leadership on this issue for with my colleague from Washington on The PRESIDING OFFICER. Eleven years. I believe today we are going to some of these important principles, minutes 50 seconds. pass a bill that is long overdue. who really want to get something done, Mr. DEWINE. I yield to my colleague I also compliment my colleague, Sen- let’s be honest and let’s do it in a form from South Carolina first. ator DEWINE from Ohio, for his leader- and manner in which we know some- The PRESIDING OFFICER. The Sen- ship. thing will happen. ator from South Carolina. I complimented him in private. I If this amendment is attached to this Mr. GRAHAM of South Carolina. Mr. have observed his very high quality of bill, this bill dies. Some of the prin- President, I thank Senator DEWINE for debate. We have had some excellent de- ciples I may believe in and want to yielding. I will be brief. bate today, and I compliment Members

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.098 S25PT1 S3162 CONGRESSIONAL RECORD — SENATE March 25, 2004 on all sides. I think it has been very would say, for some safety provisions Mr. NICKLES. He says the cost of important and we are going to pass a employers are going to get a 40-percent this provision in 5 years is estimated at good bill today, largely due to the lead- tax credit. $8.7 billion, and over 10 years, $18.4 bil- ership of the Senator from Ohio, Mr. Then I started looking at the defini- lion. DEWINE, and also Senator GRAHAM of tion. It applies to basically any new se- That is a lot of money. We are going South Carolina. I compliment both of curity personnel, purchase, or installa- to say companies get a 40-percent tax our colleagues for their effort. This is tion of new security equipment and so credit if they do something in the an important bill, one that deserves to on. That is wide open. In this day and realm of safety, which one could al- be passed and sent to the President. age of terrorist threats, there are a lot most drive a truck through anything I rise today to speak against the of people who are going to be hiring and call it safety. amendment of our colleague from more security personnel and they are I am not a big fan of tax credits any- Washington. I have great respect for going to say: Thank you very much, way, but that is beside the point. This our colleague from Washington, espe- Government, because you just gave us is a very expensive provision, one, in cially for the title of the amendment. a 40-percent tax credit. my opinion, that has not been well The Wellstone Domestic Violence Act If a company is profitable, that is thought out, one that is enormously is very well named, but when looking worth a lot. If they are not profitable, expensive, one that is not paid for. at the substance of the bill I find it it is not worth much. A week before last, we had votes say- leaves a lot to be desired. I asked the Joint Tax Committee to ing we should be paying for these new I happen to believe in the legislative give an estimate on how much this spending proposals and tax cuts. Well, process. This bill has not had a hear- would cost. I just received it. I ask this is a big tax cut that is not paid for. ing. I happen to be on the Finance unanimous consent that a letter I re- Frankly, it is a big loophole that is not Committee. There are two or three ceived from Dr. George Yin, that gives paid for. It also causes other little con- things that deal with Finance Com- the revenue estimate, be printed in the stitutional problems. mittee issues that we have not RECORD. We have a Constitution that says all touched. It did not go through the There being no objection, the mate- revenue measures have to originate in Labor Committee. It addresses family rial was ordered to be printed in the the House. We do not have a tax bill be- leave, not the Family Medical Leave RECORD, as follows: fore us. This did not originate in the Act. It is basically a whole new act. It JOINT COMMITTEE ON TAXATION, House of Representatives. I know my is not consistent with the Family Med- Washington, DC, March 23, 2004. colleagues very well in the House. I re- ical Leave Act. To qualify for the Fam- Hon. DON NICKLES, spect them and I know they will blue- U.S. Senate, Committee on the Budget, ily Medical Leave Act, we exempt em- slip this if this amendment is passed ployers with 50 employees or less. This Washington, DC. DEAR SENATOR NICKLES: This letter is in because this would turn this into a tax says employers of 15 or less. That does response to your request dated March 17, bill. So this amendment would kill this not make sense to me. 2004, for a revenue estimate for Senate bill. I look at the unemployment section amendment 2859, which according to your re- Our colleagues in the House want to of it, and a lot of people are not even quest may come up for a vote on March 24, pass the bill as it is. I hope that a ma- aware of this—I have not heard very 2004, under a unanimous consent agreement jority in the Senate want to pass the much debate about this—but if a State for H.R. 1997. bill as it is. does not comply with the unemploy- In general, the amendment would establish As it is, this amendment does a cou- ment dictates given by this bill we tell a new general business tax credit equal to 40 ple of things. It increases spending and the States they must have unemploy- percent of the domestic and sexual violence safety and education cost paid or incurred by it increases taxes, both of which vio- ment compensation for people who are an employer during the taxable year. Any late the budget, both of which I can victims of abuse as defined by this. The amount taken into account for purposes of make a budget point of order against, tax to the State goes from $56 a year to determining the credit would not be eligible and at the appropriate time I will $434 a year. That is a 675-percent in- for any other credit or deduction. Under the make a budget point of order against crease. That is a heavy penalty on the amendment, the types of cost that may be this amendment, certainly for the tax States. included for purposes of determining the One could say, well, they give States amount of the credit include, among other provision, and I will leave it at that. time to amend their law. They are things, the hiring of new security personnel I yield the floor. and the purchase or installation of new secu- given 25 days if they are in session and MURRAY AMENDMENT TO THE UNBORN VICTIMS rity equipment, the purpose of which is to OF VIOLENCE ACT 180 days if they are not in session. address domestic or sexual violence. Because Oklahoma is shortly going to be out of the hiring of all new security personnel and Mr. KENNEDY. Mr. President, I sup- session and we do not go back into ses- the purchase or installation of all new secu- port Senator MURRAY’s amendment, sion for the rest of the year, so 180 days rity equipment is, in part, for the safety of and I want my colleagues to support it would not be adequate. I guess there employees, we have assumed that all such too. Violence against women—espe- would have to be a special session. I expenditures would be eligible for the tax cially those who are pregnant—is a used to serve in the Oklahoma Legisla- credit. tragic example of violence in our soci- The amendment would apply to taxable ture. Most legislatures are kind of like ety, and we need to do all we can to years beginning after December 31, 2003. Es- prevent it. Congress is right to address Congress, they do not move that fast. timated changes in Federal fiscal year budg- If they do not move that fast, they et receipts are as follows: this issue and do more to protect have a very heavy penalty increase in women. But if the administration and their unemployment compensation [By fiscal years in billions of dollars] Congress are serious about addressing taxes. 2004 ...... ¥0.6 the issue of domestic violence, let us do The main thing I guess I am object- 2005 ...... ¥1.3 it effectively, and not turn it into yet 2006 ...... ¥1.5 another battleground in the debate ing to, as I look at it, there is a new 2007 ...... ¥1.7 tax credit in this bill. It is a 40-percent 2008 ...... ¥1.8 over abortion. tax credit for a provision that is very 2009 ...... ¥1.8 As domestic violence experts and ad- expensive. It applies to a lot of things. 2010 ...... ¥1.9 vocates make clear, the Unborn Vic- It applies to a long definition that 2011 ...... ¥1.9 tims of Violence Act will do nothing to 2012 ...... ¥1.9 provide the protection that battered would qualify expenses that an em- ¥ 2013 ...... 2.0 women need to be safe. Instead of pro- ployer might incur to implement work- 2014 ...... ¥2.0 place safety. 2004–09 ...... ¥8.7 tecting women, the bill focuses solely I used to be an employer in the pri- 2004–14 ...... ¥18.4 on the fetus and what happens after the vate sector, and I know all employers crime. I hope this information is helpful to you. If are interested in safety. Almost all of we can be of further assistance in this mat- It does nothing to prevent domestic those expenses related to safety are ex- ter, please let me know. violence, and it punishes only one of pensed. None of them, to my knowl- Sincerely, the many possible consequences of such edge, get a tax credit. This amendment GEORGE K. YIN. violence.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.101 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3163 The harm to women at the hands of violence come nowhere close to meet- thought her abuser might attack her in their abusers and attackers is not ad- ing the obvious need. The New England the office and be a safety threat to her dressed anywhere in this bill. The sup- Learning Center for Women in Transi- co-workers too. Victims of domestic vi- port and services they need to avoid vi- tion in Greenfield, MA, has to turn olence need job stability. They need olence in their homes or escape from it away ten families from its shelter for economic independence in order to are not addressed. It offers no financial each family it is able to serve. Life- leave their abuser. safety net for women who move away saving services such as hotlines and Without a viable source of income, from their homes to escape from abus- emergency shelters for battered women victims to often have no way to escape ers. It does not address children af- are funded $48 million below the level from their abusive relationship. fected by the abuse. It offers no health authorized by Congress. Women across Senator MURRAY’s amendment helps care assistance for abused women. the country are not obtaining the help these victims by guaranteeing them ac- The real purpose of this bill is obvi- they need when they face these dangers cess to emergency leave to obtain med- ously not to protect and support or suffer from them. We can do far ical attention, counseling or other women who are victims of abuse. Its more than we are doing to see that services without fear of losing their real purpose is to give new legal rights women do not suffer from domestic vio- job. It provides unemployment com- to the fetus, in a blatant effort to un- lence. pensation. It supports the specific dermine women’s rights under the Con- Senator MURRAY’s amendment will training for medical providers to recog- stitution and Roe v. Wade. In other do that. Unlike the underlying bill, her nize the signs of abuse, so that fright- words, this bill is a threat to women, proposal will genuinely help to combat ened women who arrive in the emer- not a protection for them. the serious problem of domestic vio- gency room with tell-tale bruises will Proponents of this measure also call lence in our country. know that help is available and will be it the Laci Peterson Act, but this bill Incredible as it seems, nearly one- more likely to reveal and seek the fur- would have done nothing to prevent third of all American women report ther support they recall is available. that tragedy. Federal criminal juris- being physically or sexually abused by It will ensure that children who wit- diction over violent crimes is very lim- their husbands or boyfriends at some ness violence in the home will receive ited. The bill would apply only to fed- time in their lives. A shocking 25 per- the help they need in order to break eral and military crimes. It would have cent to 40 percent of all women who are the tragic cycle of violence before it no bearing on the law of California or battered are battered when they are consumes the next generation in their any other State. Today, 95 percent of pregnant. One study found that 37 per- families too. all criminal prosecutions, like the cent of all women who visited a hos- We need laws that genuinely protect prosecution of Laci Peterson’s mur- pital emergency room for violence-re- women in all of these ways, as Senator derer, take place at the State or local lated injuries were injured by a current MURRAY’s amendment will do. And it level. or former husband or boyfriend. Ac- does so without undermining a wom- A majority of States already have cording to a study published in the an’s fundamental right to choose. laws that enable prosecutors to file Journal of the American Medical Asso- The Murray amendment provides fetal homicide charges. In Massachu- ciation, murder is actually the leading long and overdue support to victims, setts, the courts have treated the fetus cause of death among pregnant women. employers, public health professionals as a separate victim of crime if the de- Over 3 million children are exposed and families to combat violence veloping fetus has reached the stage of to parental violence in the United against women, and I urge my col- viability. That view is consistent with States every year. According to a re- leagues to support it. the careful balance between women’s port of the American Psychological As- The PRESIDING OFFICER (Mr. rights and fetal rights established by sociation, a young boy who sees his fa- CORNYN). The Senator from Ohio. the Supreme Court in Roe v. Wade and ther abusing his mother is the strong- Mr. DEWINE. I think we are about reaffirmed in Planned Parenthood v. est risk factor for future violent behav- ready to close this out. Casey. This bill completely ignores the ior by that child. The PRESIDING OFFICER. The Sen- Supreme Court’s viability standard. Far from preventing such violence, ator from Washington. In cases where federal law or mili- the so-called Unborn Victims of Vio- Mrs. MURRAY. Mr. President, if my tary law applies, prosecutors and lence Act will actually prevent victims colleagues on the other side are going judges already have ample discretion of abuse from seeking help. Juley to yield back, I will take a couple of to impose longer sentences for flagrant Fulcher, Public Policy Director of the minutes to wrap up. I know my col- crimes committed against vulnerable National Coalition Against Domestic leagues want to get to the vote and victims. Courts have regularly held Violence, testified before the House final passage, so I will take only a few that the Federal Sentencing Guidelines Subcommittee on the Constitution last minutes to end the debate on this provide for a sentencing enhancement July. She said that if a battered amendment. based on the victim’s pregnancy or in- woman is financially or emotionally I have listened carefully to the other jury to a fetus. The military also dependent on her batterer, she is less side. They raised concerns about the makes clear that the pregnancy of the likely to seek medical assistance if she tax credit side of it, and the budget victim can lead to a harsher sentence. thinks it may result in the criminal point of order. I asked unanimous con- The administration says it wants to prosecution of her batterer. sent to send an amendment to the desk prevent violence against women and The underlying bill contains none of to at least move the other parts of the children. But that priority is not re- these urgently needed protections for bill forward without the objectionable flected in the budget. The President’s battered women. The Murray amend- part and they refused. That says to me budget is cutting or starving key vio- ment will give them the security and that, despite the rhetoric we have lence-prevention programs. support they need to leave an abusive heard from the other side, they are not If Congress genuinely intends to do relationship before it’s too late. very willing to do something truly more to prevent such tragedies, we According to a GAO report in 1998, about preventing domestic violence. should be discussing ways to strength- between a quarter and a half of domes- I have heard my colleagues on the en the Violence Against Women Act tic violence victims report that they other side of the aisle say the reality of and its funding. lost their job at least partly because of this place is that if this amendment Since its enactment in 1994, violence domestic violence. A victim who was gets added that it will kill the bill. I against women has been reduced by 21 forced to change her name and Social have been in the Senate almost 12 percent, so we are clearly making Security number in order to escape her years and I know the reality of this progress. We are on the right track, abuser testified before the Massachu- place is when Members believe in some- and there’s no excuse for making a u- setts Commission on Domestic Vio- thing and want to solve a problem we turn. lence. She said that when she met with can move mountains to get it done. The most urgent priority is the need the human resources officers at her To the millions of women across this for additional funds. The services workplace to explain why she needed country who have been victims of do- available today to victims of domestic help, she lost her job because they mestic violence, what they are going to

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.119 S25PT1 S3164 CONGRESSIONAL RECORD — SENATE March 25, 2004 see on the Senate floor today is Sen- looked the women in the eyes; I have [Rollcall Vote No. 62 Leg.] ators being allowed the opportunity to promised them I will not forget, and I YEAS—46 say whether they are actually going to will not. Akaka Dorgan Levin do something to prevent domestic vio- This amendment is named after Sen- Baucus Durbin Lieberman lence or if Senators are only willing to ator Paul Wellstone. Every one of us Bayh Edwards Lincoln Biden Feinstein Mikulski deal with domestic violence after the here know he and Sheila cared and Bingaman Graham (FL) Murray woman has died. were adamant that we provide victims Boxer Harkin Nelson (FL) I believe we have the responsibility of abuse with the ability to get out of Breaux Hollings Pryor Byrd Hutchison Reed to do everything we can to prevent do- their abusive situation. I hope my col- Cantwell Inouye Reid mestic violence. I hope the bill Sen- Carper Jeffords leagues will continue to work with us Rockefeller Clinton Johnson ators are putting forward today never and that the rhetoric we have heard on Sarbanes has to be used because we have pre- Conrad Kennedy the other side about working with us is Corzine Kohl Schumer vented violence, but the fact is they not forgotten when this bill is gone. Daschle Landrieu Stabenow are going to prevent us today from of- The PRESIDING OFFICER. The Sen- Dayton Lautenberg Wyden fering an amendment that would pre- ator from Ohio. Dodd Leahy clude the underlying bill from ever Mr. DEWINE. I commend my col- NAYS—53 having to be used. I think that is a league again for her dedication to this Alexander Dole Miller tragedy. I think it is a tragedy for the issue, and her passion. But the fact is, Allard Domenici Murkowski Allen Ensign Senate. I think it is a tragedy for the as I have said, this bill cannot pass Nelson (NE) country. I certainly think it is a trag- Bennett Enzi Nickles through this method. It will have the Bond Feingold Roberts edy for women who face abuse every unintended effect of killing the under- Brownback Fitzgerald Santorum single day. lying bill. That is why I must come to Bunning Frist Sessions Two million women are assaulted Burns Graham (SC) Shelby the floor and oppose it. Campbell Grassley Smith every year. I introduced this bill with Chafee Gregg Let me yield the remainder of my Snowe my colleague Senator Paul Wellstone 3 Chambliss Hagel Specter time to my colleague from Oklahoma. Cochran Hatch years ago. We introduced it in three Stevens consecutive Congresses and the other Mr. NICKLES. Mr. President, is all Coleman Inhofe time yielded back from our colleague Collins Kyl Sununu side has not allowed us to bring it for- Talent from Washington? Cornyn Lott ward. I keep hearing that we have not Craig Lugar Thomas had hearings on it. Well, we would love Mrs. MURRAY. Yes. Crapo McCain Voinovich DeWine McConnell Warner to have hearings on it. We would love The PRESIDING OFFICER. The Sen- to move forward, but it is always said ator from Oklahoma. NOT VOTING—1 that the time is never right. That is Mr. NICKLES. Mr. President, this Kerry certainly something victims of abuse bill has a big tax provision that is esti- The PRESIDING OFFICER. On this hear far too often. mated to cost $18.4 billion. Therefore, a question, the yeas are 46, the nays are This bill simply allows women the budget point of order does lie against 53. Three-fifths of the Senators duly time to be able to go to court to get a this amendment. chosen and sworn not having voted in court order to prevent their abuser Mr. President, I yield the remainder the affirmative, the motion is rejected. from tracking them down and killing of our time. The point of order is sustained and the them. It allows them the ability to The PRESIDING OFFICER. All time amendment falls. make sure that children who have seen is yielded back. Mr. NICKLES. I move to reconsider domestic violence get the kind of help Mr. NICKLES. Mr. President, the the vote. they need so they do not create a cycle pending amendment offered by our col- Mr. HATCH. I move to lay that mo- of violence in their lives, which we league from Washington, Mrs. MURRAY, tion on the table. know happens too often. It makes sure decreases revenues and if adopted The motion to lay on the table was we offer health care to victims of do- would cause an increase in the deficit agreed to. mestic violence. These are victims who in excess of the levels permitted in the RIGHT TO CHOOSE are still alive and need help. It makes most recent budget resolution. There- Ms. COLLINS. Mr. President, I rise sure our health care providers screen fore, I raise a point of order against the to engage the distinguished Senator for domestic violence so we do not end amendment pursuant to section 505 of from South Carolina, Senator GRAHAM, up with murdered victims every single House current resolution on the budget in a brief colloquy in order to make day. Not relevant? The Chamber of for fiscal year 2004. clear the intent behind the language in Commerce says this is unrelated? How The PRESIDING OFFICER. The Sen- this bill. It is my understanding that can anyone look in the eye a woman ator from Washington. there is nothing in the language of this who has been abused by a batterer and Mrs. MURRAY. Mr. President, pursu- bill that would, in any way, undermine tell her we are not going to help you ant to section 505(b) of H. Con. Res. 95 the constitutional right of a woman to until you are gone, until you die? I of the 108th Congress, I move to waive choose to terminate a pregnancy, as think that is a real tragedy. I am sorry the Budget Act. expressed by the Supreme Court in Roe my colleagues on the other side see it I ask for the yeas and nays. v. Wade, and subsequent decisions. that way. I don’t. The PRESIDING OFFICER. Is there a I inquire of the Senator, who is one I have heard rhetoric out here from sufficient second? There is a sufficient of the coauthors of the bill, if my un- some of my colleagues—and I do want second. derstanding of the intent behind the to commend the Senator from Ohio. He language in the bill is correct. The question is on agreeing to the has worked on this issue. I do want to Mr. GRAHAM. The Senator from motion. The clerk will call the roll. work with you. But I find it a tragedy Maine is correct. Nothing in the lan- today that, again, the time is not The legislative clerk called the roll. guage of this bill is intended in any right. That is what women who are vic- Mr. REID. I announce that the Sen- way to undermine the legal basis for tims of domestic violence hear every ator from Massachusetts (Mr. KERRY) abortion rights, as expressed by the Su- single day: The time is not right. We is necessarily absent. preme Court in Roe v. Wade, and subse- can’t help you today. That is what we I further announce that, if present quent decisions. are doing today. I find that a tragedy. and voting, the Senator from Massa- Based on my extensive experience as I am going to continue to work on chusetts (Mr. KERRY) would vote a prosecutor in the U.S. Air Force, this this issue. I know my colleagues on the ‘‘yea.’’ legislation would, however, fill a gap in other side are going to defeat it today. The PRESIDING OFFICER. Are there our Federal laws. I know they are going to move on. any other Senators in the Chamber de- Ms. COLLINS. Mr. President, it is They have other issues they are going siring to vote? also my understanding that at least 27 to deal with. But this issue is critical. The yeas and nays resulted—yeas 46, States have statutes that criminalize I have been to the shelters; I have nays 53, as follows: the killing of a fetus or an ‘‘unborn

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.103 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3165 child.’’ Am I correct in understanding law and kills or injures her unborn that the criminal responsible should be that there is no legal precedent where child, that person can be punished for accountable for the loss of both lives. a court has held that any of these the violence against both the mother When pregnant women suffer at the State statues in any way undermine and the unborn child. But if a person hands of violent criminals I urge my abortion rights of a woman, as ex- commits a Federal crime of violence colleagues to protect both victims pressed by the Supreme Court in Roe v. against a pregnant woman and injures under Federal law. Wade, and subsequent decisions? or kills her unborn baby, the death or Mr. ALLEN. Mr. President, I rise Mr. GRAHAM. The Senator from injury of the unborn child would not be today in support of the Unborn Victims Maine is correct. There is no legal punished as a crime. of Violence Act, or what many individ- precedent where a court has concluded This bill extends the protections cur- uals refer to as ‘‘Laci and Conner’s that any of these State statutes under- rently available in 29 States to the un- Law.’’ mines the legal basis for abortion born victims of violent acts committed We have all heard the tragic story of rights. in violation of Federal law. Thus, Laci and Conner Peterson; Laci, 8 Ms. COLLINS. Mr. President, I have where a Federal crime of violence has months pregnant with her unborn son one final inquiry I would like to make been committed and the injury or Conner, were viciously murdered at the of my colleague. It is my under- death of an unborn child results, the hands of a killer. Regrettably, Laci and standing that the intent behind the perpetrator will be held to account for Conner’s story is only one of many in- language of this bill, H.R. 1997, is that the crime of violence against the un- stances where a woman is harmed and this bill, like those State laws, not be born child. may not only lose her life but the life construed to undermine the legal basis I know some of my colleagues will of her unborn child. for abortion rights. want to paint this as an abortion issue. In my Commonwealth of Virginia, we Mr. GRAHAM. The Senator from But, it is important to note that this had a similar tragic situation occur in Maine is correct. bill has been drafted narrowly to apply April of 2002. Ronda Robinson was ma- Ms. COLLINS. I thank my colleague only where the death or injury to the liciously gunned down in her Lynch- burg home, while her two daughters for making the intent in this respect unborn baby occurs as a result of an watched in terror. Like Laci, Ronda clear. existing Federal crime. The bill ex- was in her third trimester when she Mr. VOINOVICH. Mr. President, I pressly excludes any death or injury to and her unborn child had their lives rise today in strong support of the Un- an unborn baby caused by abortion, taken. born Victims of Violence Act. I firmly any medical treatment of the mother, believe that we need this legislation to At that time, Virginia did not have a or an act of the mother herself. fetal homicide law on the books, and correct the loophole in federal law that As I stated before, we live in a vio- the Commonwealth was unable to bring currently does nothing to criminalize lent world where unborn babies are the a homicide charge against the mur- violent acts against unborn children. victims, intended or otherwise, of vio- derer for the killing of Ronda’s unborn Sadly, we live in a violent world where lent acts. And these babies, the small- child. unborn babies are the victims, intended est and most helpless victims, deserve Unfortunately, the situation in Vir- or otherwise, of violent acts. I find this justice, too. We must pass this legisla- ginia and many other States remains horrifying, and believe that all chil- tion and take a stand against crimes the same. If a mother survives an as- dren, born or unborn, are a precious committed against women and chil- sault, but loses her unborn child, the gift and responsibility. dren. I therefore ask my colleagues to law currently does not recognize any This is something we have already support this very important legisla- loss of any human life at all. recognized in Ohio. I am proud to say tion. However, I am pleased that the Vir- that we got this done on my watch Mr. BOND. Mr. President, I rise ginia General Assembly has taken when I was Governor of Ohio. In June today to express my support for the steps to correct this wrong. This year, 1996, I signed legislation making it a Unborn Victims of Violence Act. the Virginia General Assembly over- crime to injure or kill a prenatal child Any pregnant woman will tell you whelmingly passed legislation that who could survive on his or her own that all she wants is for her baby to be would hold an individual accountable outside the mother’s womb. We passed born healthy. A pregnant mother can who, ‘‘unlawfully, willfully, delib- this legislation in record time due to take her vitamins, follow the instruc- erately, maliciously, and with public outcry over a case in Indian tions of her doctor, and do everything premeditation kills the fetus of an- Hill, a suburb of Cincinnati in 1995. Jo- in her power to deliver a healthy baby. other.’’ Twenty-Nine senators or 72 seph Daly’s wife and her unborn baby But, no amount of prenatal care can percent of the senate and 77 members were killed in a car accident when a protect her unborn child from the of the house of delegates or 77 percent drunk driver hit her car. People were hands of a violent criminal. of the house supported this legislation. outraged that action could be brought This question before us is simply— While this legislation has not yet on behalf of Mrs. Daly, but not their when a violent crime is committed been signed into law, I am hopeful that unborn daughter, who was 2 weeks against a pregnant woman—is there Virginia will follow the lead of the 29 away from being born. And people will one victim or two? Pregnant women other States that have passed this im- be outraged. who have been harmed by criminal vio- portant and meaningful legislation. Under current Federal law, an indi- lence and their families know that I have the same optimism for the Un- vidual who commits a Federal crime of there are two victims. born Victims of Violence Act. We have violence and kills or injures an unborn In a letter to the sponsors of this bill, a chance to hear the voice of the voice- child cannot be prosecuted separately the family of Laci and Conner Peter- less and bring fairness to a system that for those violent acts against the un- son, whose lives were brutally ended, has essentially told hundreds of women born child because Federal criminal requested that the bill before us today and their families, their unborn child law does not recognize the unborn child be referred to as ‘‘Laci and Conner’s never existed. as a crime victim. Can you imagine? A Law in their memory.’’ The Peterson I have been blessed with four great baby that could be viable outside of its family can, better than any of us, ex- gifts, my loving wife and my three mother’s womb would not be consid- press the impact of this terrible loss. wonderful children. I have witnessed ered a crime victim? This bill will close They wrote, ‘‘As the family of Laci Pe- my children grow and live healthy and that gap. terson and her unborn son, Conner, this happy lives. I see what my children Under this bill, if an unborn child is bill is very close to our hearts. We have have accomplished so far in their lives injured or killed during the commis- not only lost our future with our and I am eager to see what other great sion of a Federal crime of violence, the daughter and sister, but with our accomplishments will follow. But assailant could be charged with a sepa- grandson and nephew as well.’’ No one many individuals are unable to witness rate offense on behalf of the unborn can tell the Peterson family that there the birth and growth of their child be- child. In 29 States, including Ohio, if a was only one victim. The Peterson cause of a violent criminal act. person commits a crime of violence family mourns for two lives that were Throughout my tenure in public serv- against a pregnant woman under State brutally ended. There is no question ice, whether it was in the Virginia

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.025 S25PT1 S3166 CONGRESSIONAL RECORD — SENATE March 25, 2004 House of Delegates, U.S. House of Rep- alties for crimes of violence committed tic violence, I urge them to advocate it resentatives, Governor’s office, or now against pregnant women. At the Fed- in the open and not by stealth. But for in the U.S. Senate, I have always tried eral level, I believe that it is appro- those who want to reduce further the to be tough on criminals. I have always priate and necessary to conform our number and severity of crimes against believed in the principle that if you Federal laws to the statutes of these women to continue working with peo- commit a crime, you should be pun- States. ple like Senators FEINSTEIN and MUR- ished. Particularly heinous crimes ought to RAY. Working together, I am confident The Unborn Victims of Violence Act receive particularly harsh penalties. we can make a substantial difference closely upholds my beliefs by making And for that reason, I strongly sup- in the lives of hundreds of thousands of criminals accountable for their ac- ported the Feinstein amendment dur- women across the country. tions. Under current Federal law, an ing today’s debate. Like the underlying Mr. SMITH. Mr. President, I rise individual who commits a Federal legislation, the Feinstein amendment today to speak about the Unborn Vic- crime of violence and kills or injures would have allowed Federal prosecu- tims of Violence Act and our duty to an unborn child cannot be prosecuted tors to ‘‘double-charge’’ those individ- protect the most innocent among us. for those violent acts against the un- uals convicted of crimes against preg- A woman becomes a mother the mo- born child. The Unborn Victims of Vio- nant women, and would have set forth ment she hears she is with child. From lence Act seeks to rectify this situa- severe and just punishments for those that time forward, her primary concern tion and close that loophole. crimes. Unfortunately, this amend- is providing for and protecting the new Under this bill, if an unborn child is ment was defeated. life within. Our concerns should be no injured or killed during the commis- I also realize that punishing individ- different. sion of an already-defined Federal uals for crimes against women, both It is horrifying that an expectant crime of violence, then the assailant pregnant and not, is only one step to- mother could be the target of vio- could be charged with a separate of- ward reducing domestic violence. We lence—yet it happens. And when such a fense for the second, enhanced crime must do more as a society not only to crime is committed, there is not one upon the unborn child. punish but to prevent domestic vio- victim, but two. Recognizing this fact Opponents of the Unborn Victims of lence. For this reason, I strongly sup- in Federal law not only fulfills our Violence Act contend that this will ported the Murray amendment today. commitment to mothers and the un- hamper a woman’s right to choose and This amendment would have protected born, it also serves as a deterrent to the economic security of women who constitute an attack on Roe v. Wade. crimes against the innocent. This is simply false. In fact, this legis- are victims of domestic violence by al- Under the laws of 29 States, if a per- lation explicitly provides that it does lowing them to keep their jobs if and son commits a violent crime against a when they needed to take time off to not apply to any abortion to which a pregnant woman and seriously injures attend court and receive medical care woman has consented, to any act of the or kills her unborn child, that assail- related to an act of domestic violence mother herself, legal or illegal, or to ant can be punished for both the vio- committed against them. It would have any form of medical treatment. lence against the mother and the un- also authorized important new initia- In addition, opponents have brought born child. This is not the case in fed- tives for the establishment of family numerous challenges against State un- eral law. A perpetrator who commits a violence research and education cen- born victims laws, based on Roe and violent crime under Federal jurisdic- ters to develop, implement, dissemi- other constitutional arguments, and tion and kills an unborn child cannot nate, and evaluate family violence pre- all of these challenges have been re- be prosecuted for that death. This is vention and early intervention services jected by State and Federal courts. wrong. and strategies. Again, I was dis- I have always been a strong sup- Today, I am proud to join my col- appointed when this amendment failed. porter of rights of the people in the We have come a long way from the leagues in voting in favor of the Un- States to determine their laws so long days when domestic violence was con- born Victims of Violence Act. Under as it does not harm interstate com- sidered a private matter. Major initia- this legislation, an assailant who com- merce or our Constitution. This bill tives like the Violence Against Women mits a Federal crime and kills or in- safeguards those States’ laws. This leg- Act have offered protection for women jures an unborn child can be charged islation does not supersede State un- while treating domestic violence for with a separate offense on behalf of the born victims laws, nor does it impose what it is—crimes committed by cow- child. Passage of this bill sends an im- such a law in a State that does not ards. However, as the continued preva- mediate message to criminals that have one on the books. The Unborn lence of domestic violence cases show, they will be punished for violence Victims of Violence Act merely applies we have a long way to go. against women and their unborn chil- to an already defined set of Federal Regrettably, the underlying bill that dren. crimes. was before us today is not principally This legislation and the ban on par- The bottom line is that criminals focused on curbing violence and pun- tial-birth abortion enacted last year must be held accountable for their ac- ishing those individuals found guilty of further protect the sanctity of life. tions. The Unborn Victims of Violence committing these heinous crimes. Like the ban on partial-birth abor- Act ensures that justice is sought and Rather, the legislation was focused on tions, this bill is supported by the vast available for the totality of the violent advocating a cause about which its pro- majority of Americans who recognize it murderous act. This is good, solid leg- ponents feel very deeply, but a cause as a reasonable stop we can take to islation that is tough on crime, appro- that a majority of Americans do not protect women and children. priately punishes criminals, and meets share—the cause of eroding and ulti- I look forward to President Bush the ends of justice desired by law-abid- mately ending women’s right to signing this legislation into law. It will ing citizens. choose. show criminals that they can no longer I urge my colleagues to support this I happen to support a woman’s right act with impunity and it will tell ex- bill so that we can send it to President to choose as set forth in the Roe vs. pectant parents what they already Bush for his signature and ensure that Wade decision. And I find it regrettable know—that their unborn children have justice will be served. and inappropriate that legislation that value, too. Mr. DODD. Mr. President, I share the ought to be focused on eroding the Mr. DEWINE. I am prepared to yield outrage of every other Member in this number of heinous crimes committed back our time on the general debate. Senate over the heinous and violent against all women focuses instead on The PRESIDING OFFICER. There is crimes that are committed against eroding a woman’s right to choose. For still time on the underlying bill. over 300,000 women a year. These this reason, while I supported both the The minority leader. crimes are especially horrific when the Feinstein and Murray amendments, I Mr. DASCHLE. We yield back on the perpetrator knows his victim and am unable to support the underlying minority side. knows her to be pregnant. bill. The PRESIDING OFFICER. The Today, a significant number of For those who wish to advocate a clerk will read the bill for the third States already allowed stricter pen- cause not related to the issue of domes- time.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.118 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3167 The bill was ordered to a third read- DeWine bill without raising a potential the world—from the South American ing and was read the third time. issue on a possible challenge to Roe v. nations of Colombia, Peru, Bolivia and The PRESIDING OFFICER. The ma- Wade. Paraguay to Afghanistan, which, he jority leader. When the Feinstein Amendment lost, said, accounts for more than 70 percent Mr. FRIST. Mr. President, for the in- I voted for final passage of the DeWine of the world’s supply of opiates. formation of our colleagues, the next Bill in order to impose appropriate Mr. President, we know that 12 of the vote is the last vote of the week. We double sanctions for the murder or as- 25 major terror organizations identified will begin consideration of welfare re- sault of a pregnant woman that inter- by the State Department in 2002 have authorization on Monday. There will be feres with a pregnancy. ties to drug traffickers and we know no rollcall votes on Monday. Any votes f that drugs are a major source of fund- ordered will be stacked on Tuesday of ing for these terrorist groups. We know next week. MORNING BUSINESS these groups sometimes work as con- Mr. DOMENICI. I ask for the yeas Mr. DEWINE. Mr. President, I ask spirators to carry out their evil pur- and nays. unanimous consent that the Senate poses. The PRESIDING OFFICER. Is there a now proceed to a period of morning The Lebanese Hezbollah group is in- sufficient second? business, with Senators permitted to creasingly involved in drug trafficking There is a sufficient second. speak therein for up to 10 minutes and terrorist organizations in Europe The PRESIDING OFFICER. Both each. and Southeast Asia also are tied to il- sides having yielded back their time The PRESIDING OFFICER. Without licit drugs. and the bill having been read the third objection, it is so ordered. The Revolutionary Armed Forces of time, the question is, Shall the bill Mr. DEWINE. Mr. President, I sug- Colombia, commonly known as the pass? gest the absence of a quorum. FARC, protects cocaine laboratories The clerk will call the roll. The PRESIDING OFFICER. The and clandestine airstrips in southern The legislative clerk called the roll. clerk will call the roll. Colombia and some FARC units di- Mr. MCCONNELL. I announce that The legislative clerk proceeded to rectly control local cocaine base mar- the Senator from New Hampshire (Mr. call the roll. kets. GREGG) is necessarily absent. Mr. GRASSLEY. Mr. President, I ask As evidence that terrorist groups co- The PRESIDING OFFICER (Mr. unanimous consent that the order for operate and work together, the Colom- COLEMAN). Are there any other Sen- the quorum call be rescinded. bian National Police arrested three ators in the Chamber desiring to vote? The PRESIDING OFFICER. Without members of the IRA in July, 2001, who The result was announced—yeas 61, objection, it is so ordered. are believed to have used the demili- nays 38, as follows: Mr. GRASSLEY. Mr. President, am I tarized zone to train the FARC in the [Rollcall Vote No. 63 Leg.] right that we are in morning business? use of explosives. While we know these connections, we YEAS—61 The PRESIDING OFFICER. The Sen- have not taken full advantage of the Alexander Dayton Miller ator is correct. Allard DeWine vast resources and knowledge available Murkowski f Allen Dole Nelson (NE) to exploit this connection. The link be- Bennett Domenici Nickles DRUG TRAFFICKING AND tween terrorism and drug trafficking Bingaman Dorgan Pryor that may take many forms, ranging Bond Ensign TERRORISM Reid (NV) from facilitation—protection, trans- Breaux Enzi Roberts Mr. GRASSLEY. Mr. President, since Brownback Fitzgerald Rockefeller portation, and taxation—to direct traf- Bunning Frist the tragic events of September 11, we Santorum ficking by the terrorist organization Burns Graham (SC) have all strived mightily to ensure Sessions itself in order to finance its activities. Campbell Grassley that our great homeland is never sub- Shelby Traffickers and terrorists have many of Carper Hagel jected to a terrorist attack by the Chambliss Hatch Smith the same needs in terms of the secret Cochran Hutchison Specter evildoers again. But everyday those Stevens movement of goods, people and money. Coleman Inhofe very evildoers weaken the fabric of our There are no swans in the sewer, and Collins Kyl Sununu country, their enemy, by flooding our Talent the relationships between drug traf- Conrad Landrieu great society with addictive and deadly Cornyn Lott Thomas fickers and terrorists benefit both. As Craig Lugar Voinovich drugs. While the link between terror- Mr. Beers stated, ‘‘Drug traffickers Crapo McCain Warner ists and drugs has been made countless Daschle McConnell benefit from the terrorists’ military times publically, we, as a Nation, have skills, weapons supply, and access to NAYS—38 yet to attack the problem with an ap- clandestine organizations. Terrorists Akaka Feingold Levin proach that is consistent and success- gain a source of revenue and expertise Baucus Feinstein Lieberman ful. [from drug traffickers] in illicit trans- Bayh Graham (FL) Lincoln On March 13, 2002, Rand Beers, As- Biden Harkin fer and laundering of proceeds from il- Mikulski sistant Secretary for International Boxer Hollings Murray licit transactions.’’ Corrupt officials Byrd Inouye Nelson (FL) Narcotics and Law Enforcement Af- who are influenced by the dirty money Cantwell Jeffords Reed (RI) fairs, and Francis Taylor, Ambassador- of the narco-terrorists make it easier Chafee Johnson Sarbanes Clinton Kennedy at-large for Counterterrorism, made Schumer for the groups to get access to fraudu- Corzine Kerry the points in joint testimony prepared Snowe lent documents, including passports Dodd Kohl Stabenow for a hearing on ‘‘Narco-Terror: The and travel documents. This allows the Durbin Lautenberg Worldwide Connection Between Drugs Edwards Leahy Wyden terrorists to travel abroad under the and Terror’’ held by the Judiciary stealth and protection of a shadowy NOT VOTING—1 Committee Subcommittee on Tech- network that is virtually undetectable. Gregg nology, Terrorism and Government In- Terrorists and drug traffickers also The bill (H.R. 1997) was passed. formation. Taylor, who delivered the use the same methods to hide their il- Mr. SPECTER. Mr. President, I sup- opening testimony, told us that ‘‘rela- legal profits and conduct fundraising to port enhanced penalties for criminal tions between drug traffickers and ter- feed their evil plans. The schemes used acts of violence against pregnant rorists benefit both.’’ by the terrorists for the transferring women. ‘‘Drug traffickers benefit from the and laundering of drug money for gen- My concern with the DeWine bill is terrorists’ military skills, weapons eral criminal purposes are similar to that it unnecessarily seeks to weigh in supply, and access to clandestine orga- those used to move money to support on the abortion controversy with the nizations. Terrorists gain a source of terrorist activities. The use of ‘‘char- definition of ‘‘unborn child’’ and ‘‘child revenue and expertise in illicit transfer ities’’ and informal networks such as in utero.’’ and laundering of proceeds from illicit ‘‘hawalas’’ are easy and efficient ways I voted for the Feinstein amendment transactions,’’ he said. to launder money. because it accomplishes the sub- Taylor listed terrorist groups with Yet these are the only methods we stantive criminal law objectives of the known links to drug trafficking around know about. Congress is in the process

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.107 S25PT1 S3168 CONGRESSIONAL RECORD — SENATE March 25, 2004 of crafting a budget for the 2005 fiscal come is far from certain, and it doesn’t ated because the government was un- year. We have some tough choices seem as if we are paying enough atten- able to protect these rural landlords ahead of us. But as we move forward, I tion to the danger signs. from attacks by the guerrillas. would urge my colleagues to keep in According to the latest International But the end of the cold war did not mind the lessons we have learned in Narcotics Control Strategy Report, re- mean an end to the guerrilla activities our efforts to go after drug trafficking leased by the State Department at the in Colombia. Instead, all three of these organizations. beginning of this month, Afghanistan organizations were able to turn to the First, to be successful, we need the had the potential to produce 2,865 met- narcotics trade for funding. Because of assistance of other nations. Though ric tons of opium in 2003. This rep- this, their membership and the vio- many countries have been quick to up- resents almost two-thirds of the total lence associated with each of these or- date their regulations, few have the potential opium production in the ganizations has increased dramati- law enforcement structure in place to world. We know the havoc that drug cally. It is now estimated that these carry out interdiction. Law enforce- use creates in a society. We know the groups receive a significant portion of ment capabilities must improve glob- corruption that drug trafficking en- their operating revenues from nar- ally. In addition, communication be- courages whereever it occurs. Experi- cotics. tween law enforcement agencies na- ence has shown us that ignoring drug With that move, much of the ide- tionally and internationally, must be- production and trafficking has only ology and even the pretense of being a come seamless in order to rapidly and made things worse. These factors alone guerrilla group disappeared as well. At effectively identify, target and eradi- should be a reason for concern. first, they just provided security and cate terrorists and their drug traf- We should also be concerned about other support to the drug lords and ficking brothers before they eradicate who is profiting from this resurgence. were paid for their services. But that us. The difference between what the Af- was not enough. Second, our various law enforcement ghan farmer is getting and what an Today we know that both the AUC efforts within the United States must eightball of heroin is worth on the and the FARC fight each other for ac- be coordinated. As our efforts to catch streets of Paris is astronomical. And I cess to the best smuggling routes into drug traffickers have taught us, no one am certain those reaping this enor- and out of Colombia. They fight the agency has all of the tools, informa- mous profit are not the same individ- government to protect their drug pro- tion, resources or skills to get the job uals who support the Karzai govern- duction and transportation networks. done alone. Encouraging interagency ment, or who are happy to see coalition They have also begun reaching out to cooperation, then, must be a priority. troops there. foreign terrorist organizations as well, And third, the efforts made at the The profits and instability that fol- using narcotics as currency in ex- State and local level to go after drug low drug production wherever it occurs change for guns and training. traffickers are also an important piece should be raising alarms for everyone Until recently, these terrorist orga- of our war on terror. We cannot, should involved. What is most worrisome, nizations were able to move freely not, and must not, overlook the efforts however, is we have seen these ingredi- throughout a significant portion of and expertise of our State and local ents thrown together before, in Colom- rural Colombia, forcing the displace- law enforcement officers. They know bia. We can go down that same road, or ment of millions of Colombians as they best what’s going on in their commu- we can take action now, before events battled the government and each other nities and often have the best, most ef- boil over into chaos. over drugs and politics. Only after fective approach to stem the flow of Earlier this week I spoke on this coming to the conclusion that both crime within their borders. floor about the connections between drug trafficking and terrorism must be I will say more about the links be- drug trafficking and terrorism. The addressed equally has there been tween drug trafficking and terrorism in clearest nexus between drug trafficking progress in restoring the control of Co- the future. But the connection is there and terrorism is in Colombia, where lombia to the legitimate government. and should not be ignored. Whether we there are three major terrorist organi- discuss the financing or smuggling by zations using drugs to fund their ef- Fast forward to Afghanistan. Like terrorists, document fraud or corrup- forts to overthrow the government. the FARC, there are groups within Af- tion by drug traffickers, the sewer The State Department has des- ghanistan, primarily operating in the where the individuals bent on these ac- ignated these three groups, the Revolu- remote areas of the country, who for tivities dwell needs to be cleaned up. tionary Armed Forces of Colombia, ideological reasons would like to over- Let’s not overlook the other filth in FARC, the National Liberation Army, throw the government. The Taliban is the water just because the sewer rat ELN, and the United Self-Defense perhaps the best known, but there are floats by. Groups of Colombia, AUC, as Foreign others as well. Numerous warlords also operate throughout the countryside, f Terrorist Organizations. But these ter- rorist organizations began with more some whom have even had the blessing A STEW POT OF TROUBLE ideological roots, and more localized of the government. Mr. GRASSLEY. Mr. President, I objectives. The Taliban, like the FARC after the think we have a bubbling stew pot of Together, these three terrorist orga- fall of the Soviet Union, need to secure trouble brewing in Afghanistan, and we nizations have killed thousands of in- an alternative means of financing their need to take stronger action action re- nocents. Three American civilians are operations if they are to survive. Our quested by President Karzai, by the currently being held hostage by the success in choking off their traditional way—soon, or much of our effort to FARC, and have not been allowed any funding sources has created this neces- root out lawlessness in Afghanistan contact with the outside world for over sity. Opium—like coca for the FARC— may be undercut. a year. is an easy, local, and available oppor- What am I talking about? Nar- For nearly 40 years the FARC have tunity to do exactly that, and will not cotics—particularly about the signifi- been pressing a pro-Marxist ideology. be a new source of revenue for the cant increase in opium production and Similarly, the ELN held a more Maoist Taliban. While the Taliban banned trafficking in Afghanistan. I am not philosophy, but also strove for the opium production for a period of time challenging the significant progress same revolutionary objective. Initially when they controlled Afghanistan, which has been made in the past 2 these efforts were supported by dona- they also taxed the trafficking and re- years. Removing the Taliban and pre- tions from both the Soviet Union and sulting profits from the sale of stored paring the groundwork for a democrat- Cuba. But that support ended with the opium after the ban. ically elected government is no small fall of the Soviet Union. Add to this equation some of the feat. Working with our allies, we have While not as old, the AUC began as a many warlords that control various gathered all of the right ingredients to- series of para-military groups initially areas of Afghanistan. Some of these gether to build a new Afghanistan that funded by the wealthy landlords in Co- warlords even worked with coalition will benefit everyone—particularly the lombia. These groups, initially en- forces to oust the Taliban. But most people of Afghanistan. But the out- dorsed by the government, were cre- have no intention of surrendering any

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.110 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3169 of their power or authority to the cen- Federal Government and that is the double that amount by designating ap- tral government in Kabul, preferring to Lewis and Clark Expedition. proximately 160,000 new acres of wilder- fight for their own fiefdoms. One way to mark this very special ness thereby lessening the pressures of They have no interest in enforcing time would be to enact a new Oregon overuse while also staving off the edicts from Kabul, or in taking any ac- wilderness bill, which I could conceive threat of development. tion that might give the central gov- of as the Lewis and Clark Mount Hood Today, the economic role of these ernment additional legitimacy. Profits Wilderness Act of 2004. In tribute to the important public lands has shifted. from opium production and trafficking great river-dependent journey of Lewis Communities on the highway to Mount are a key method for continuing to and Clark, I believe it would also be ap- Hood often market themselves as the fund their war clan. propriate to add four free-flowing ‘‘Gateway to Mount Hood,’’ and see These efforts are not as blatant or as stretches of rivers to the National Wild this as a special opportunity to im- well organized as what we have in Co- and Scenic River System. prove their tourism. lombia today, but the ingredients are In the last few years, Congress has They should. On weekends, crowds of there. It is time we start connecting protected some of my home State’s Oregonians come out of the cities seek- the dots. most important treasures: Steens ing a natural and often wild experi- Today, several thousand U.S. and co- Mountain is now home to 170,000 acres ence. In the 20 years that has elapsed alition soldiers are hunting down ter- of wilderness. The Little Sandy water- since any new wilderness has been des- rorists. These terrorists are receiving shed is now part of the Bull Run Man- ignated in the Mount Hood area, the physical and financial support from agement unit and will help provide population in the local counties has in- somewhere. Meanwhile, the Karzai gov- drinking water for over 700,000 Orego- creased significantly—20 percent in my ernment is working furiously to estab- nians. Soda Mountain has been des- home county of Multnomah, 24 percent lish the police, judicial, and military ignated a national monument. Fort in Hood River County, and 41 percent systems necessary to ensure that the Clatsop National Memorial has been in Clackamas County. people of Afghanistan can equitably expanded, and this year it may be des- With increasing emphasis on wild govern themselves. But they must ignated as Oregon’s second national scenery, unspoiled wildlife habitats, overcome the chaos created by 20 years park. free flowing rivers, wilderness, and the of occupation and civil war. The last The draft I have been discussing with need for opportunities for diverse out- thing that they need is a well funded my constituents would take a fresh door recreation, it seems to me that rebellion in their backyard. look at protecting the lower elevation very often we are in jeopardy of loving The Karzai government recognizes forests surrounding Mount Hood and our wild places to death. A few years the dangers posed by bumper crops of the Columbia River Gorge. These for- ago, the Forest Service made a pro- opium. They know the profits being ests symbolize the natural beauty of posal to limit the number of people generated by this drug production go my home State. They provide the clean who could hike the south side of Mount not to the Afghani people, but to the water for the biological survival of Hood. I can tell you the public outcry few powerful enough to move the threatened steelhead, Coho, and Chi- was staggering. opium out of Afghanistan. These drug nook salmon. These forests provide So it seems to me, rather than to tell traffickers flourish in the same kind of critical habitat and diverse ecosystems people they are going to be restricted lawless environment where terrorists for elk, deer, and of course the majestic from using our public lands, the solu- train. bald eagle. These are the forests that tion lies in providing more opportuni- We need to start connecting the dots. provide unparalleled recreational op- ties for them to enjoy our great places. We cannot continue to separate ter- portunities for millions of Oregonians I have heard from community after rorism and narco-trafficking. I fear and all of our visitors. community that they fear a threat to that if the United States narcotics pol- Mount Hood is the highest mountain their local drinking water or the need icy in Afghanistan does not catch up to in my home State. Captain Clark de- for further protections from develop- that of the Karzai government, we will scribed it as ‘‘a mountain of immense ment. Congressional statutory designa- be facing the same mess that we are height, covered with snow,’’ while John tion as wilderness provides the only working to clean up in Colombia. We Muir described Mount Hood a bit more real protection of the historic, sci- have watched this pot before. We need poetically as ‘‘one glorious manifesta- entific, cultural, environmental, sce- to begin looking at our options now, tion of divine power.’’ nic, and recreational values that con- before it boils over and we have a real ‘‘Wy’East’’ is the American Indian tribute to the quality of life of which mess. name for Mount Hood. Before Lewis the people of my State are so proud. The PRESIDING OFFICER. The Sen- and Clark came to what we now know The protection of the special Oregon ator from Oregon. as my home State, these forests and places is going to depend on the hard Mr. WYDEN. Mr. President, I ask species they supported in turn sup- work and dedication of all Oregonians, unanimous consent to speak as in ported native Indians for thousands of and especially my colleagues in the morning business for up to 20 minutes. years. These are the forests that con- Congress. The PRESIDING OFFICER. Without nect the high elevation snowfields with I have had a chance already to dis- objection, it is so ordered. the rich, diverse lower valleys that cuss this with Senator SMITH. He and I f produce our famous salmon which were always work in a bipartisan way. As al- described as so plentiful one could ways, he has been very gracious with LEWIS AND CLARK MOUNT HOOD walk across the river on their backs. respect to saying he would work with WILDERNESS ACT OF 2004 DRAFT Although the history of Mount Hood me and will join me in listening to the LEGISLATIVE PROPOSAL and her environs are fascinating, the people of Oregon. Mr. WYDEN. Mr. President, I rise need to designate these areas as pro- I have also been pleased today to be today to discuss a draft legislative pro- tected wilderness and wild and scenic able to talk to Congressman WALDEN, posal I have developed and am solic- rivers is best expressed by the very who is the new chair of an important iting comment from people in my modern stories of increased pressures subcommittee who will be in a position State to add 160,000 acres of new wil- from development and recreational use to listen to the people of our State, derness in the Mount Hood National that are at the heart of our State’s fu- take their ideas, and take their input Forest. ture. on this draft. I also have talked to Con- The year 2004 is momentous for wil- The need to protect and build on Or- gressman BLUMENAUER today, who rep- derness in Oregon. It marks the 40th egon’s wilderness system that is as im- resents the congressional district that anniversary of the 1964 Wilderness Act portant now as it was in 1804, 1964, or I was so proud to represent for 15 years and the 20th anniversary of the last Or- 1984. There are currently 189,200 acres in the House of Representatives. egon wilderness bill. Perhaps most im- of designated wilderness on the Mount I believe the four of us in particular portantly, 2004 marks the bicentennial Hood National Forest. I believe it will take the time now to listen to the of the single most important explor- would be appropriate this year, 2004, to people of our State, the county com- atory committee ever launched by the discuss a draft bill which would almost missioners, the environmentalists, the

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.112 S25PT1 S3170 CONGRESSIONAL RECORD — SENATE March 25, 2004 entrepreneurs, the chambers of com- The PRESIDING OFFICER. Without the leader for those 3 to 4 hours. We merce, the Governor, various State- objection, it is so ordered. had a young woman by the name of elected officials who have an interest Mr. FRIST. Mr. President, in a few Dawn, who is part of the AmeriCorps in this issue, and other interested par- minutes we will be closing for the affiliation with Habitat for Humanity, ties and work to try to get this impor- evening, but over the next several min- who walked us through the construc- tant work done in the right fashion. utes I would like to comment on a cou- tion of this house that was nothing but I have been very proud to have been ple of events from today, and then, in a slab of concrete, but by the time we involved in two natural resource ef- closing, we will talk a bit about what left, it had the walls up around it. forts in the last few years where people to expect over the next several days But part of my team was also thought the polarization was so great and next week. Charlissa Tomlinson. Charlissa is the that you could not get anything done. f owner of the home, who began, about 2 With respect to the county payments years ago, with this dream, and now, CONGRESS BUILDING AMERICA legislation Senator CRAIG and I teamed with her three children there today, NATIONAL BUILD up on a matter that was absolutely participated in the construction of that critical to funding schools and roads. Mr. FRIST. Mr. President, I, first, very house. We worked in a bipartisan way, lis- would like to comment on the way my As we put up that last wall, and there tened to people, and got an important day began. It happened to begin with was a window there, and we looked out piece of legislation passed. the distinguished Presiding officer, the the window, I asked: Whose bedroom is We did the same thing with respect Senator from Minnesota, early this this going to be? She very quickly told to forest health legislation earlier in morning, as we engaged in a project me which child’s bedroom it was going this Congress. People said we couldn’t that many people around the country to be. get a bill out of the Senate. A lot of have participated in. For those who She has been very active in her people of good will, including the Pre- have not, I hope they do participate in church, very active in her community. siding Officer tonight, came together it; and that is, to build—I was not The realization of her family’s dream and we got 80 votes for it in the Senate. going to say a house—but, indeed, a shows us how powerful volunteers can When you listen to people, it is pos- home as part of Habitat for Humanity. be, how the very best of the public sec- sible to get important natural re- Not too far from here—about 15 min- tor, Government, which funds, in part, sources legislation passed. I think it utes from our Nation’s Capitol—there Habitat for Humanity, and the 10 or 15 would be very appropriate to take the is a plot of land. We have been blessed sponsors, organizations, companies draft I am now circulating to the peo- in many ways because, right now, we that invest, and invest heavily, in sup- ple of Oregon, spend the necessary time have been part of a group of people who port of Habitat for Humanity can come listening to people of our State, and put up several houses. We did not put together. turn it into legislation that could be them all up today, but eventually that I thank my colleagues because this is considered formally by the Congress whole site—and it is probably a couple- the first year we have had broad bipar- and perfect it in the coming weeks and acre site; actually, it must be larger tisan, bicameral participation. A num- days ahead. Congress ought to try to than that—will have 50 different houses ber of Senators have gone out and par- pass this legislation after listening to with individual homeowners, families ticipated before, but today we broke all the people of my home State. The gran- who will call those houses their homes. records in terms of Senate participa- deur of Mount Hood and other Oregon Many of those people have no homes tion in this wonderful, wonderful treasures can be assured for future gen- today, but they have devoted a fair project. erations if we can come together and amount of planning, with their sweat We were there to demonstrate our approach this in a bipartisan way. and their equity and their spirit, in commitment, as elected leaders. I That is what I am committed to helping to construct these houses should also add that the spouses of the doing based on my conversations today through Habitat for Humanity. Senators were there as well throughout with Congressman WALDEN and Con- We were there with a number of the morning. They even stayed into the gressman BLUMENAUER, the Members House Members and Senate Members. afternoon. But we really were there to who are most affected by the legisla- It was bipartisan, bicameral. It was demonstrate our commitment, our tion, and Senator SMITH who has joined part of what is called ‘‘Congress Build- me so often. I am convinced our delega- deep, personal commitment to afford- ing America.’’ Today was called: ‘‘Con- tion is committed to doing this job able home ownership for low-income gress Building America National right, recognizing that 2004 is a mo- American families. Build.’’ We were also there to show our ap- mentous year for wilderness in our It was a great celebration this morn- State. preciation for faith-based groups and I would very much like to see the ing. Millard Fuller was there. Millard other nonprofits such as Habitat for people of our State, working with our Fuller is the man who had the vision Humanity that do provide these crit- congressional delegation, coming to- and the heart to first think of and then ical services to individuals and families gether and passing a Lewis and Clark lay out and then implement Habitat in need across America. Mount Hood Wilderness Act of 2004. We for Humanity International. His com- Home ownership is such an essential have a lot of work ahead of us in the mitment reflects a merging, a coming part of our lives, of our social invest- days ahead, but we are committed to together of faith, a call to service. He ments, of our economic investments. It approaching this in a responsible and has professional training. He has been is empowering to families. It is empow- bipartisan fashion. I want to tell the a very successful attorney. We had an ering to communities. It contributes people of my State I think it would be opportunity to congratulate him, but economic vitality to areas and regions exciting to make sure that we could also to spend most of the morning in communities where these beautiful take steps in this session to ensure working side by side with him. new homes arise. So it was an exciting that, for the millions who will come to Millard is a fascinating individual. project this morning. We have done a visit Mount Hood in the days ahead, we He travels around the world both pro- lot. have acted to preserve the grandeur of moting and educating people about As we were there and looking around, this spectacular treasure. Habitat for Humanity. I talked to him we saw the AmeriCorps volunteers. I yield the floor. a bit this morning about recent trips I There was a group of college students Mr. President, I suggest the absence have had the opportunity to make, from Cornell who, instead of going of a quorum. again, one with the Presiding Officer to where 99.9 percent of the college stu- The PRESIDING OFFICER. The Africa, where, to me, we have a great dents go—to vacation, which I guess is clerk will call the roll. opportunity, but also there is great Florida or the west coast or to warmer The legislative clerk proceeded to hope, as we look at that continent weather—dedicated their spring vaca- call the roll. today. tion to being there and hammering Mr. FRIST. Mr. President, I ask This morning there were teams of nails, and spending their 8 days away unanimous consent that the order for five or six people who worked together, from Cornell—again, colleges all over the quorum call be rescinded. with a leader in that team. I was not the country are doing this, but they

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.122 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3171 were with us today, and the volunteers south Nashville. Tracey was between 38 I would argue that when a boyfriend from the community, working with the and 40 weeks pregnant, just about tires of his pregnant girlfriend and corporate executives, working with the ready to deliver, could have delivered hires an assassin to dispose of the Members of the Senate. It was really, any day. The perpetrators said they be- girlfriend and the baby, he is killing really gratifying. lieved they had hit the pregnant two human beings. One may even argue The Congress participates and works woman with their truck and they were that the baby is in fact—and many with the administration. We provided afraid they would get in trouble. So times is—the primary target. $27 million this year for the Self-Help they stopped and they got out, and as But we don’t need to examine the Homeownership Opportunity Program, Tracey was laying there crying out for motives of the perpetrators in these SHOP. Under this grant program, help, one of the assailants just looked real life cases to reach those conclu- homeowners contribute significant at her and said: Here is your help. And sions. Even if an assailant is unaware amounts of their own volunteer labor with that, he shot her in the abdomen, of his victim’s pregnancy, should he, to the construction or to the rehabili- actually shot her five times with a .22- the perpetrator, decide whether or not tation of a property. President Bush re- caliber pistol. One of those bullets ac- the baby exists? Should we accept that quested $67 million next year for this tually hit the baby and she was about because he didn’t know when he was particular program, SHOP, Self-Help ready to deliver. killing one person he was snuffing out Homeownership Opportunity Program. After murdering Tracey and her un- the life of a second, there is no second The 108th Congress passed and Presi- born baby, the two men went back to crime? dent Bush signed the American Dream an ex-girlfriend’s apartment. They The Unborn Victims of Violence Act Downpayment Act of 2003. That is cleaned the weapon off, and then they does. And now we know it is going to going to help over 40,000 families a year fell asleep. They were picked up after a go to the President. This was the exact with their downpayment and closing motorist found Tracey’s body and a same act that passed in the House of costs and further strengthen our hous- witness at the scene told investigators Representatives and, thus, we know ing market all over the country. See- they had seen the two men shooting at there is no stopping this one. It is ing the Senate in action, as we ham- parked cars. Investigators quickly going to go to the President. This act mered and nailed and put the siding up, found the culprits, and they quickly protects the rights of the baby to come made me realize how much this body confessed. The perpetrators now sit in into this world as the mother intends, does do and cares in terms of elimi- jail awaiting the grand jury. and it holds the criminal responsible nating poverty housing in America. I A police detective in the case said: In for endangering the life and the health hope that demonstrates our commit- my 22 years on the job, I have never of the child. ment to that goal and our continued seen anyone executed—and I mean exe- We did have an amendment today commitment for affordable housing cuted—because someone thought they from the senior Senator from Cali- throughout America but in particular had hit the person with a vehicle. fornia that was offered that said it was Tennessee is one of 29 States with a for low-income American families. sufficient to add special penalties for fetal homicide law on the books. So f attacking a woman who is pregnant. then the question arises, was Tracey’s Indeed, it really pushed aside the in- UNBORN VICTIMS OF VIOLENCE baby, who was only days away from de- tent of the underlying bill and said it is Mr. FRIST. Mr. President, the rest of livery, also slain? That is what this bill sufficient to add special penalties for was about today. That is what this act today was spent on a very important attacking a woman who is pregnant. was about. That is why it is so impor- initiative that was really long overdue. And tougher laws will assuage the feel- tant that this body responded and re- That was addressing the issue of the ings of the devastated family and com- sponded so positively with the final Unborn Victims of Violence Act. pensate the mother for her sense of vote, now just an hour or an hour and I very much appreciate the Demo- loss. All of that misses the point, the a half ago. The answer to that question cratic leadership working with us to heart and soul of this underlying legis- to me is simple. I think it is simple. Ul- have a unanimous consent agreement lation. The harmed child is not no- timately, no matter how you voted today where we could begin this morn- tional. The harmed child is not a sense. today, the answer is straightforward. ing and continue straight through in a The reason why I use this example is The harmed child is not an emotion. very orderly way, have very good de- because it is so obvious. You only have The baby is real and the loss is real. bate, very good amendments on the to look at the autopsy results them- Again, I wish my colleagues could floor of the Senate, and then, 8 hours selves. The medical examiner did not have heard today the four families who after we began, to come to a conclusion examine just Tracey alone; she exam- suffered such real and tragic losses. with a vote that will have a huge im- ined the baby as well. Indeed, that is The second life has been harmed, pact, an impact on victims of violence how we know that the baby was shot whether intentional or not. Verbal eva- that were protected in some States but by one of those five shots. That little sions and euphemisms simply cannot in many States were not. baby was hit. And common sense tells hide this plain fact. I think about an The issue at hand really boiled down us that in examining the murder vic- expectant mother, her excitement to that single question, that when a tims, the coroner was faced not just about her family, her future family, pregnant woman is murdered along with one dead body but with two dead how she starts to show, and even with her unborn baby, is there one vic- bodies. strangers, when she walks by, begin to tim or are there two? All of this is very We have groups such as the American smile and ask, ‘‘When is the baby due?’’ simple. It is simple to me in terms of Civil Liberties Union which opposed You cannot help but think of friends understanding it, but also simple in the bill, the Unborn Victims of Vio- who are throwing showers or the metro that it applies so directly to humanity. lence Act. They said that counting two rider who stands up and offers his seat There is a case that I never talked victims is a ‘‘dangerous attempt to sep- for that expectant mother. about on the floor today. It came to arate a woman from her fetus in the Our natural reaction is to celebrate mind this afternoon in a press con- eyes of the law.’’ In other words, they the miracle of life and offer our love ference later where there were four tried to cast this as an abortion issue. and compassion, not for a theory, or a families that were victims of violence, One of the wonderful things about theoretical baby, but for an actual and they told their stories. It was very the discussion today is that everytime baby—a baby we hope will be born and powerful. I am not sure if it was cap- someone tried to cast it as an abortion will be healthy. tured by the news cameras there or issue, that was debunked and was made Well, this act, the Unborn Victims of not, or if many people will see it—very very clear that this is not an abortion Violence Act, which now is going to be powerful stories. issue. the law of the land, recognizes the sim- But it did remind me of a story, a re- When a husband intentionally ple reality. It is not about abortion, as cent case in my own State of Ten- punches his expectant wife in the abdo- its opponents took great pains to argue nessee. It was an early morning in Jan- men with the express purpose of caus- but which was debunked today. It uary, and two young men gunned down ing a miscarriage, it is he who is sepa- doesn’t undermine the 1973 Roe v. Wade Tracey Owens on an empty street in rating the woman from the fetus. Supreme Court decision, as even pro-

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.124 S25PT1 S3172 CONGRESSIONAL RECORD — SENATE March 25, 2004 choice legal scholars admit. The Un- Representative BILIRAKIS and BILLY edly attacked him in a parking lot. The born Victims of Violence Act is about TAUZIN, who have been instrumental in young assailants beat the victim and simple humanity, simple reality. leading this initiative in the House. scratched anti-gay slurs into his car. A child in the womb, whether you Organ donation is one of the most The victim suffered a broken nose and call it a baby or a fetus, is alive, it is challenging issues we face today be- numerous other injuries, including real, and it deserves our best efforts to cause of this supply-demand issue. The blood clots on his brain. protect it from criminal harm, and real supply is bigger than the realized I believe that Government’s first with the action of this body today, and supply, and that is what this bill sets duty is to defend its citizens, to defend with the action of the House of Rep- out to achieve. About 82,000 to 84,000 them against the harms that come out resentatives in the past, this act will people are waiting today for an organ of hate. The Local Law Enforcement become the law of the land, soon to be to become available. Many will become Enhancement Act is a symbol that can signed by the President of the United available tonight—hopefully, a lot—to- become substance. I believe that by States. morrow, and every day. But it is not passing this legislation and changing f enough. You have people dying. current law, we can change hearts and I will be speaking principally, using minds as well. ORGAN DONATION figures on America, the U.S. While f Mr. FRIST. Mr. President, it has organ donations increased by 7.5 per- HONORING OUR ARMED FORCES been a satisfying day. Shortly, I will cent since 2002, it is a small increase. finish the day with a third issue which The 84,000 people waiting have far out- SPECIALIST CHRISTOPHER E. HUDSON means a great deal to me. I will be ask- stripped that in terms of the number of Mr. BAYH. Mr. President, I rise ing unanimous consent for action on a people added to the waiting list. By im- today with a heavy heart and deep bill that promotes organ donation, and proving public awareness to encourage sense of gratitude to honor the life of a for other purposes. I would like to close organ donation, we literally save lives, brave young man from Carmel, IN. Spe- on that third topic. hundreds and thousands of lives. cialist Christopher Hudson, 21 years The bill is called the Organ Donation This legislation takes a comprehen- old, died in Abu Ghraib, just west of and Recovery Improvement Act. For sive approach. It will not solve the Baghdad, on March 21, 2004, during an the 10, 12, to 15 years before I came to problem, but it is a comprehensive ap- attack when the Humvee he was riding the Senate, that is what I had the proach to increase organ donation and, in was struck by an improvised explo- privilege of doing, transplanting hearts at the same time, improving the over- sive device. and lungs together, for end stage dis- all efficiency of the organ donation After joining the Army in November ease, for people who would otherwise process. I believe patients and families of 2002, Chris was assigned to the 2nd die but had the opportunity and bless- will soon benefit from this very impor- Battalion, 12th Cavalry Regiment, 1st ing to be able to have taken out those tant legislation tonight. Cavalry Division based in Fort Hood, diseased organs—out of somebody who TX. Chris served as a gunner during his otherwise would die usually within 3 to f deployment, which began when his unit 6 months, and replace those with or- AMENDING THE PUBLIC HEALTH joined the efforts in Iraq one year ago. gans that would allow them to live 10, SERVICE ACT TO PROMOTE With his entire life before him, Chris 15, 20, or 40 years. ORGAN DONATION chose to risk everything to fight for It is marvelous what American medi- the values Americans hold close to our Mr. FRIST. Mr. President, I ask cine and science can do generally, but hearts, In a land halfway around the unanimous consent that the Senate also that the good Lord allows that mi- world. proceed to the immediate consider- raculous procedure to happen today. It Chris was the twenty-fifth Hoosier ation of H.R. 3926, which is at the desk. was only imagined not too long ago. soldier to be killed while serving his The PRESIDING OFFICER. The This particular bill, which we will be country in Operation Iraqi Freedom. clerk will report the bill by title. passing shortly, represents the most This brave young soldier leaves behind The assistant legislative clerk read significant reforms to organ donation his father; his mother, Sally; his wife, as follows: in over a decade. It improves research, Michelle; his 1-year-old son, Gavon; improves public awareness, and helps A bill (H.R. 3926) to amend the Public and 3-year-old daughter, Veronika. us improve the process, which makes Health Service Act to promote organ dona- May Chris’ children grow up knowing tion, and for other purposes. organ transplantation possible. It is that their father gave his life so that not hard to take the diseased organs There being no objection, the Senate young Iraqis will some day know the out. The real challenge we have is find- proceeded to consider the bill. freedom they enjoy. ing the available, appropriate organs to Mr. FRIST. Mr. President, I ask Today, I join Chris’ family, his transplant, actually implant into that unanimous consent that the bill be friends, and the entire Carmel commu- chest. That is the shortage. People are read the third time and passed, the mo- nity in mourning his death. While we dying every day, waiting for a heart, tion to reconsider be laid upon the struggle to bear our sorrow over his waiting for a lung, waiting for kidneys, table, and that any statements related death, we can also take pride in the ex- a liver, or a pancreas, and the problem to the bill be printed in the RECORD. ample he set, bravely fighting to make is the shortage of donors. But in truth, The PRESIDING OFFICER. Without the world a safer place. It is his cour- there are plenty of donors out there. It objection, it is so ordered. age and strength of character that peo- is how you get this potential supply to The bill (H.R. 3926) was read the third ple will remember when they think of meet this huge demand. Right now, the time and passed. Chris, a memory that will burn bright- supply is too small. When the demand f ly during these continuing days of con- is high, all these people are dying. If we flict and grief. increase the supply, these people begin LOCAL LAW ENFORCEMENT ACT When looking back on the life of her to live. It is as simple as that. This leg- OF 2003 late husband, Chris’ wife Michelle told islation moves us in that direction. Mr. SMITH. Mr. President, I rise the Indianapolis Star that he ‘‘was I want to applaud the work of Sen- today to speak about the need for hate proud to defend his country . . . His ator CHRIS DODD, our colleague from crimes legislation. On May 1, 2003, Sen- family loves him, misses him and is Connecticut, who helped lead the fight ator KENNEDY and I introduced the very proud of him.’’ Today and always, to pass this legislation in the Senate, Local Law Enforcement Enhancement Chris will be remembered by family and also our colleague from New Hamp- Act, a bill that would add new cat- members, friends and fellow Hoosiers shire, JUDD GREGG, chairman of the egories to current hate crimes law, as a true American hero, and we honor Health, Education, Labor, Pensions sending a signal that violence of any the sacrifice he made while serving his Committee, for his support. This par- kind is unacceptable in our society. country. ticular bill that will pass tonight was On October 21, 2000, in Fort Worth, As I search for words to do justice in passed by the House of Representatives TX, a 17-year old high school student honoring Chris’ sacrifice, I am re- yesterday. I recognize the leadership of was hospitalized after two peers alleg- minded of President Lincoln’s remarks

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.127 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3173 as he addressed the families of the fall- cently. Also within the last few days, a ciation of Chiefs of Police, the Na- en soldiers in Gettysburg: ‘‘We cannot court seized property of Iryna tional Troopers Coalition, the Inter- dedicate, we cannot consecrate, we Makavetskaya, a correspondent for one national Brotherhood of Police Offi- cannot hallow this ground. The brave of Belarus’ leading independent news- cers, the Police Executive Research men, living and dead, who struggled papers, Beloruskaya Delovaya Gazeta. Forum, the Major Cities Chiefs, the Na- here, have consecrated it, far above our Lukashenko has a choice—he can tional Association of School Resource poor power to add or detract. The continue to act as a pariah, sup- Officers, the National Black Police As- world will little note nor long remem- pressing the voices of democracy in sociation, the National Organization of ber what we say here, but it can never Belarus, or he can realize that the only Black Law Enforcement Executives, forget what they did here.’’ This state- way to reverse his self-imposed isola- and the Hispanic American Police ment is just as true today as it was tion from the international community Command Officers Association. nearly 150 years ago, as I am certain and increasingly, from his own people The gun industry immunity legisla- that the impact of Chris’ actions will is to end his offensive against democ- tion would have provided unprece- live on far longer than any record of racy and civil society. dented protection from liability to gun these words. Meanwhile, it is essential that the manufacturers and dealers, even in It is my sad duty to enter the name United States back up its rhetorical cases where their own gross negligence of Christopher E. Hudson in the Official support for democratic forces in or recklessness led to someone being Record of the United States Senate for Belarus through concrete assistance. injured or killed. I opposed the bill and his service to this country and for his Earlier this Congress, I introduced the it was defeated in the Senate. However, profound commitment to freedom, de- Belarus Democracy Act, a measure before the bill was defeated, the gun mocracy and peace. When I think about with bipartisan support designed to show loophole amendment passed with this just cause in which we are en- promote democracy, human rights and bipartisan support. Given that, I hope gaged, and the unfortunate pain that the rule of law in Belarus. In light of the Senate will take up and pass gun comes with the loss of our heroes, I the campaign of repression against show loophole legislation this year. hope that families like Chris’ can find democratic forces in Belarus, timely f comfort in the words of the prophet consideration of the Belarus Democ- CBO REPORT Isaiah who said, ‘‘He will swallow up racy Act is warranted. I urge col- death in victory; and the Lord God will leagues to support this important leg- Mr. DOMENICI. Mr. President, at the wipe away tears from off all faces.’’ islation. time Senate Report No. 108–233 was filed, the Congressional Budget Office May God grant strength and peace to f those who mourn, and may Gold bless report was not available. I ask unani- CLOSING THE GUN SHOW America. mous consent that the report, which is LOOPHOLE now available, be printed in the f Mr. LEVIN. Mr. President, three RECORD for the information of the Sen- OPPOSITION UNDER ATTACK IN weeks ago the Senate passed an amend- ate. BELARUS ment during consideration of the gun There being no objection, the mate- Mr. CAMPBELL. Mr. President, in immunity bill which would close the rial was ordered to be printed in the recent days the Belarusian Prosecutor gun show loophole. I supported this RECORD, as follows: General’s office opened criminal pro- amendment because I believe it is com- U.S. CONGRESS, ceedings against one of the leaders of mon sense gun safety legislation. CONGRESSIONAL BUDGET OFFICE, the embattled Belarusian democratic Under current law, when an indi- Washington, DC, March 22, 2004. opposition, Anatoly Lebedka. Anatoly, vidual buys a handgun from a licensed Hon. PETE V. DOMENICI, Chairman, Committee on Energy and Natural who is chairman of the United Civic dealer, there are federal requirements Resources, U.S. Senate, Washington, DC. Party, has been accused of defaming for a background check to insure that DEAR MR. CHAIRMAN: The Congressional Belarusian dictator Alexander the purchaser is not a person prohib- Budget Office has prepared the enclosed cost Lukashenko during an interview with ited from purchasing or possessing a estimate for S. 1107, the Recreational Fee Russian television last month where he firearm. However, this is not the case Authority Act of 2004. linked the recent Belarusian-Russian for all gun purchases. For example, If you wish further details on this esti- mate, we will be pleased to provide them. dispute over gas deliveries with the when an individual wants to buy a The CBO staff contact is Deborah Reis, who Belarusian authorities’ failure to build handgun from another private citizen can be reached at 226–2860. an efficient economy. Anatoly also who is not a licensed gun dealer, there Sincerely, mentioned a shadow budget replenished is no requirement to ensure that the DOUGLAS HOLTZ-EAKIN, through illegal arms sales and the purchaser is not in a prohibited cat- Director. cover-up of the truth about political egory. This creates a loophole in the Enclosure. disappearances in Belarus. law, which makes it easy for criminals, S. 1107—RECREATIONAL FEE AUTHORITY ACT Given the pattern of behavior of the terrorists, and other prohibited buyers OF 2004 Lukashenko regime, it is crystal clear to evade background checks and buy Summary: S. 1107 would authorize the Na- that this case is politically motivated guns. This loophole is the gateway to tional Park Service (NPS) to establish, charge, and modify admission and user fees and designed to suppress dissent. the illegal market because criminals at units of the National Park System. Sec- Lebedka’s United Civic Party is a know they are not subject to a back- tion 3 of the bill would allow the NPS to re- member of the Popular Coalition Five ground check and no record is made of tain and spend all offsetting receipts col- Plus, an opposition bloc which is plan- the sale. lected under this authority without further ning to field candidates in this fall’s I cosponsored the amendment offered appropriation. Both the authority to collect parliamentary elections. by Senators JACK REED and JOHN and to spend NPS recreation receipts would The action against Anatoly Lebedka MCCAIN, which would close the gun become effective on January 1, 2006, the day and on the opposition fits squarely show loophole, because I believe it is a after the existing recreation fee demonstra- within a pattern of the suppression of tion program expires. (Created in 1996, the critical tool in preventing guns from demonstration program authorizes the NPS independent thought and action in getting into the hands of criminals and and other federal land management agencies Belarus. Lukashenko’s repression of other ineligible buyers. This amend- to charge higher recreation fees than would those who would dare to challenge him ment would have simply applied exist- otherwise be permitted and to spend the pro- has only intensified over the past year. ing law governing background checks ceeds.) Just last week, a criminal case was to individuals buying firearms at gun The effect of S. 1107 on total recreation fee opened against the Belarusian Helsinki shows. Preventing easy and unchecked receipts and spending would partly depend Committee chairperson Tatiana on how the NPS would use the bill’s authori- access to guns is critical in preventing ties in conjunction with current law fol- Protska and accountant Tatiana gun violence. lowing the expiration of the current dem- Rudkevich. This comes after politi- This amendment also had the support onstration program. For this estimate, CBO cally-motivated economic sanctions of major law enforcement organiza- assumes that the NPS would use the authori- were imposed on the Committee re- tions including the International Asso- ties provided under S. 1107 to continue the

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.034 S25PT1 S3174 CONGRESSIONAL RECORD — SENATE March 25, 2004 recreation fee demonstration program per- This legislation contains no intergovern- Estimated cost to the Federal Govern- manently. We estimate that direct spending mental or private-sector mandates as defined ment: The estimated net budgetary impact would increase under the bill by $592 million in the Unfunded Mandates Reform Act of S. 1107 is summarized in the table below. over the 2006–2014 period because the bill (UMRA) and would impose no costs on state, The costs of this legislation fall within budg- would authorize the spending of fee collec- local, or tribal governments. et function 300 (natural resources and envi- tions that would not otherwise be available. ronment).

By fiscal year, in millions of dollars— 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

DIRECT SPENDING NPS Recreation Fee Program Net Spending Under Current Law: Budget Authority 1 ...... 0 0 ¥63 ¥79 ¥81 ¥82 ¥84 ¥86 ¥88 ¥89 ¥91 Estimated Outlays ...... 6 30 76 5 ¥59 ¥79 ¥84 ¥86 ¥88 ¥89 ¥91 Proposed Changes: Authorization Level ...... 0 0 63 79 81 82 84 86 88 89 91 Estimated Outlays ...... 0 0 ¥4 33 62 77 82 83 85 86 88 NPS Recreation Fee Program Net Spending Under S. 1107: Authorization Level ...... 0 0 0 0 0 0 0 0 0 0 0 Estimated Outlays ...... 6 30 72 38 3 0 ¥2 ¥3 ¥3 ¥3 ¥3 1 The current law amounts represent net direct spending of the NPS under the existing recreation fee demonstration program (which expires on December 31, 2005) and under the Land and Water Conservation Fund Act (LWCFA), which will govern the collection and spending of NPS recreation fees after December 31, 2005.

Basis of Estimate: For this estimate, CBO pact would be the same because spending ford further delay in improving the re- assumes that the NPS would collect and would fall by the same amount. liability of the electricity grid. Last spend recreation fees at all park units under Intergovernmental and private-sector im- August’s Northeast/Midwest blackout, pact: S. 1107 contains no intergovernmental the authority provided by S. 1107, at rates which affected 50 million consumers similar to those it now charges under the or private-sector mandates as defined in recreation demonstration program. S. 1107 UMRA and would impose no costs on state, from New York to Michigan, again would provide broad, permanent authority to local, or tribal governments. sounded the wake up call for federal collect and spend recreation fees at NPS Estimate prepared by: Federal Costs: Debo- electric reliability legislation. sites similar to that contained in the tem- rah Reis (226–2860); Impact on State, Local, I would like to quote from a January porary recreation fee demonstration pro- and Tribal Governments: Marjorie Miller 1, 2004 letter published in the New York gram. Unlike that program, however, the bill (225–3220); and Impact on the Private Sector: Times from North American Electric would not specifically repeal or override the Selena Caldera (226–2966). Reliability Council President and CEO fee-related provisions in the Land and Water Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Anal- Michehl R. Gent. Mr. Gent wrote that Conservation Fund Act (LWCFA). The interim steps NERC has taken to im- LWCFA will govern the collection and spend- ysis. ing of recreation fees after December 31, 2005. f prove grid reliability since last Au- Moreover, the bill would not apply to other gust’s blackout does ‘‘not reduce the federal land management agencies that offer STAND-ALONE RELIABILITY need for federal legislation that would similar, often competing, recreation oppor- Ms. CANTWELL. Mr. President, I provide authority to impose and en- tunities. This estimate is based on informa- rise today to begin the process of plac- force mandatory reliability standards. tion provided by NPS and assumes that the ing directly on the Senate calendar Whether legislation is adopted on a NPS determines that the fee caps, fee prohi- stand-alone electric reliability legisla- stand-alone basis or as part of a com- bitions, and other fee limitations contained tion. prehensive energy bill, passage is es- in the LWCFA would not apply to fees that As all my colleagues in this body are would be established under S. 1107. sential. If reliability legislation had CBO estimates that enacting S. 1107 would well aware, devising a comprehensive been enacted when first proposed [in essentially continue the current recreation policy that will help this nation 1999], I believe that the blackout would demonstration program. The bill—like the achieve its energy independence is a not have occurred.’’ demonstration program—would allow the task that has divided the Energy and Mr. Gent reiterated this position in NPS to spend 100 percent of all receipts. Natural Resources Committee on February 24, 2004 testimony before the Starting in 2006, the LWCFA would other- which I serve, the United States Senate Senate Energy and Natural Resources wise authorize the spending of 15 percent of and the Congress as a whole for three Committee. I asked Mr. Gent whether recreation receipts. The net effect of these changes would be an years now. Regardless, I believe that in fact it wouldn’t be irresponsible of increase in direct spending authority of $63 there is at least one thing on which this body not to pass reliability legisla- million for fiscal year 2006, $79 million in 2007 every Senator can agree—and that is tion this year, even if we are to pass it (the first full year after the new authority the need to pass legislation giving the on a stand-alone basis. Quite simply, would become effective), and $745 million Federal Energy Regulatory Commis- Mr. Gent replied, ‘‘I agree.’’ through fiscal year 2014. CBO estimates that sion, working closely with regional en- We are beginning the process of put- outlays from this new spending authority tities, the statutory authority to put ting this legislation directly on the would total $592 million over the 2006–2014 in place mandatory and enforceable re- Senate calendar because we believe period. American consumers have waited long Under the bill, recreation fees could also liability standards. increase by as much as $32 million in 2006 The call for legislation of the kind we enough for Congress to take this sim- and between $41 million and $47 million a are introducing today dates back to at ple step, putting in place mandatory year thereafter, but any new receipts would least 1997, when both a Task Force es- and enforceable reliability standards to be offset by an identical increase in new tablished by the Clinton Administra- govern operation of the electric trans- spending. If the NPS were to determine that tion’s Department of Energy and a mission grid—the backbone of our na- it must abide by specific restrictions in the North American Electric Reliability tion’s economy. LWCFA when establishing fees under S. 1107, Council, or NERC, blue ribbon panel There are those who will argue that the agency would probably not implement independently determined that reli- we are ill-advised to take this step. any significant increase in offsetting re- ceipts. In the event that no new receipts ability rules for our nation’s electric They ill argue in favor of taking up and could be collected under S. 1107, the NPS system needed to be mandatory and en- passing last year’s failed energy bill would be authorized to spend recreation fees forceable. conference report (H.R. 6), or S. 2095— under the bill, and the net budget impact In response, the Senate passed stand- the so-called ‘‘slimmed down’’ energy would be similar. alone legislation on this matter, au- bill introduced this year, which hap- In addition, because fees charged by other thored by my predecessor Senator Gor- pens to be 100 pages longer than the land-management agencies would not be in- ton, in June 2000. Since then, under the original. However, I am of the firm be- creased under S. 1107, it is possible that the leadership of both parties, the Senate lief that we cannot allow these crucial NPS might not be able to charge higher fees at some parks without putting itself at a has twice passed consensus-based elec- reliability provisions to be held hos- competitive disadvantage with other federal tric reliability provisions—most re- tage to a flawed comprehensive energy recreation providers. In that event, the NPS cently, last July. bill. may not be able to increase rates to the level There is no doubt that this nation’s Now, I know that the distinguished estimated here; however, the net budget im- consumers and businesses cannot af- Chairman of the Senate Energy and

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.038 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3175 Natural Resources Committee has of placing the bill directly on the Sen- The Hellenic Republic was estab- worked to strip one of the most out- ate calendar. lished in 1974. Since that time, Greece rageous provisions of the H.R. 6 con- f has built itself into a strong democ- ference report—the MTBE liability racy, a vibrant economy, a regional RULING AGAINST MICROSOFT protection, which many Senators sim- leader and an ever more solid partner ply cannot abide—from the new version Mrs. LINCOLN. Mr. President, I rise of the United States. Greece has re- of his energy bill. But I am one of the today to voice my strong opposition to claimed its leading role in the region, many who believe that the bill that re- yesterday’s ruling by the European joining the European Community in mains requires very, very substantial Commission against the Microsoft Cor- 1981. In April 2003, the European Union, revision and thorough debate. With its poration. under the Greek presidency, signed the origins in last year’s conference report, While Arkansas is not the head- Accession Treaty to accept 10 new there are far too many provisions in quarters of the Microsoft Corp., we are members in the ancient agora market- the new bill that the Senate Energy keenly aware of the negative impact place of Athens, that city serving once Committee has simply never consid- that the European Union’s protec- again as a cradle for democratic expan- ered. Moreover, if one of our primary tionist trade actions have on American sion. policy goals is to improve the reli- business and our Nation’s economic Greece’s democracy has flourished ability of our nation’s electricity grid, growth and job creation. and prospered over the past 30 years. I am hard-pressed to see how many of Time and time again, farmers and ag- Recent elections have again dem- the provisions in that bill are relevant. ribusiness in my state have been denied onstrated the stability and openness of How will weakening the Safe Drink- the opportunity to compete in the Eu- the nation’s political institutions. ing Water Act help keep the lights on? ropean market. With the transfer of power from one Will providing MTBE producers with As a member of the Senate Finance party to another, a new generation of $2 billion in taxpayer-funded ‘‘transi- Committee, I am dedicated to ensuring Greek leaders is emerging, a genera- tion’’ assistance in any way reduce the a level playing field with our trading tion that promises to build on the likelihood of outages? partners. strength of the existing relationship How would delaying Clean Air Act This goal cannot be accomplished with the United States to develop new implementation in our nation’s most alone. It will require a multinational avenues of cooperation. polluted cities ensure reliable oper- cooperative effort which developed Today Greece is preparing for the ation of our electricity grid? countries like the United States and 2004 Olympics. It is a matter of pro- Can anyone really argue that ex- Europe must lead. found satisfaction for those of us of empting oil companies form Clean The EU’s actions, specifically the one Greek ancestry that the Games this Water Act requirements will make our taken yesterday, are a significant step year are returning to their birthplace, high-voltage transmission lines more in the wrong direction. and that Greece will play host to more reliable? I encourage the administration to than two million athletes and visitors S. 2095 might not subsidize Hooters, continue to engage their European from every corner of the world. In con- but there remain plenty of handouts to counterparts and demand a more coop- nection with the Olympic Games, the polluters and corporate looters— erative effort. Greece has undertaken structural im- none of which have anything to do with I yield the floor. provements that are transforming Ath- bolstering the reliability of our trans- f ens into a thoroughly cosmopolitan mission infrastructure. And that’s be- GREEK INDEPENDENCE DAY and modern city, and building facilities fore a non-existent conference with the and infrastructure throughout the House, the Leadership of which has Mr. SARBANES. Mr. President, country. The investment Greece has publicly expressed its complete disin- March 25 has very special meaning in made in connection with the Olympics terest in revisiting the provisions of Greek history. On this date 183 years holds out the prospect of a new era, for H.R. 6 most objectionable to the Sen- ago, a small but resolute band of Greek the people of Greece and visitors to ate. In fact, I ask my colleagues to con- patriots began the struggle to end the Greece alike. The Games offer a splen- sider the following passage, published foreign domination that for nearly four did opportunity to present Greek in the February 14, 2004 edition of CQ centuries had oppressed and impover- achievements to the international Today. ished Greek lands. For 8 difficult years, community not only in sports but also ‘‘You can’t start carving out pieces resolute and courageous Greek patriots in cultural, economic and political of a deal you already made,’’ said fought against tremendous odds to se- terms. Frank Maisano, a lobbyist who rep- cure the liberty of their homeland. On The founders of the American repub- resents several MTBE producers. ‘What this same date 30 years ago the mili- lic were ardent students of the classics, the Senate does at this point is irrele- tary junta, which had seized power in and they looked to the wisdom and ex- vant. This is just a vehicle to get to 1967 and for 7 long years suppressed perience of ancient Greece as they conference.’’’ MTBE lobbyists—and democratic institutions and civil shaped our nascent political order. In perhaps our colleagues on the other rights, was brought down, and democ- turn, Greek patriots struggling to win side of the Capitol—believe that what- racy was restored to the land of its in- independence in 1821 turned to the ever the Senate does within the con- vention. These two events, distant in principles of the new American democ- text of a debate on the new energy bill time and nature as they are from one racy as they sought to build their own is ‘‘irrelevant.’’ As the saying goes, another, both mark milestones on the new order. In today’s turbulent world, ‘‘fool us once, shame on you. Fool us road to the vigorous and prosperous de- the strong and enduring ties between twice, shame on us.’’ mocracy that is Greece today. the two countries are momentous So Mr. President, in view of the ex- Nearly 200 years ago, the United achievements. They give us cause for isting gridlock on comprehensive en- States and Greece were two young re- reflection and celebration on this inde- ergy legislation, I believe the only re- publics for whom the future was still pendence day. sponsible course is for this body to uncertain. Inspired by democratic ideas Mr. REED. Mr. President, I rise bring up and pass stand-alone electric in a world that was largely today to recognize the 183rd anniver- reliability legislation. I reject the no- uncomprehending and hostile, both sary of Greek Independence and pay tion that passing comprehensive en- took on the formidable challenge of tribute to the contributions of Greece ergy legislation—such as it is—is the building viable democratic institu- and our Greek-American community. sole path to improving the reliability tions. That shared commitment has en- It was on this day in 1821, that Greek of our nation’s electricity grid. We can dured. The United States and Greece patriots rose up against the Ottoman pass stand-alone reliability legislation. have stood together in every major empire and began an 8-year struggle We’ve done it before. We can—and struggle for freedom and democracy: that culminated in a new Greek Repub- must—do it again. Good energy policy through two devastating World Wars, lic. must not be held hostage to the bad, and through the long decades of the It is fitting that we take this day to and I am pleased to begin the process Cold War. reflect on the enormous contributions

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.057 S25PT1 S3176 CONGRESSIONAL RECORD — SENATE March 25, 2004 the Greek people have made to the willingness to include Senator LEVIN’s Though changes to the Great Lakes modern world. Our own democratic request and my request to ensure that are not seen immediately, we know we principles have their very foundation this bill addresses the needs of the can impact the Lakes, for better or for in the practices of the ancient Greek Great Lakes. worse, through our management poli- republic. Indeed, the ancient Greeks The Great Lakes are the largest cies. As the Director of the Great developed the concept of democracy, in freshwater bodies on earth, holding ap- Lakes Environmental Research Lab which the supreme power to govern proximately 20 percent of the world’s said, ‘‘The one thing that we can pre- was vested in the people. Our own freshwater. While we all know that dict with near certainty is that the Founding Fathers modeled the Amer- water is essential for our survival, sci- Great Lakes ecosystem will continue ican government on the principles of entists are only just beginning to ap- to change and the challenges for effec- Greek democracy. Thomas Jefferson preciate the connection between tive use and management will only in- studied the Greek classics in his youth human health and our waters. It takes crease.’’ and was inspired by their philosophy approximately 198 years for the lakes Because of the many challenges throughout his life, most dramatically to flush themselves. So a pollutant threatening the health of the Great when he crafted the Declaration of dropped into Lake Superior in Duluth- Lakes and the health of the people who Independence. When formulating his Superior Harbor in 1805—during the use the Lakes for their drinking water, vision for this country, Jefferson spe- time of the Lewis and Clark expedition, fishing, or swimming, it is important cifically referred to the integrated as- Thomas Jefferson’s presidency, and the to understand the link between our wa- organization of the Michigan Terri- sertions, theories, and aims of the clas- ters and human health. That is why we tory—would just now be exiting the sic Greek world. introduced the Oceans and Human water system this year. That means Today, our admiration for Greece Health Act. It would authorize the es- that these large bodies of water are continues. Greece and the United tablishment of a coordinated Federal holding much of what we have put into States, partners in NATO, are at the research program to aid in under- them following the Industrial Revolu- forefront of the effort for freedom, de- standing and responding to the role of tion. mocracy, peace, stability, and human Industrial development in the Great oceans in human health. The bill would rights, forging a close bond between Lakes region resulted in bacterial con- establish a Federal interagency Oceans the two nations. We look forward to tamination and floating debris, as well and Human Health initiative and cre- working closely with Greece in the as the release of persistent organic pol- ate an Oceans and Human Health pro- coming years as we examine ways to lutants, such as PCBs. By the 1950s, gram at the Department of Commerce bring full peace, stability, and pros- Lake Erie showed signs that there was National Oceanic and Atmospheric Ad- perity to all the nations of Europe and a great imbalance in the Lake with ministration, NOAA. The bill also the world. massive algal blooms and depleted oxy- would direct the Secretary of Com- As we celebrate Greek independence, gen. These problems resulted in con- merce to establish a coordinated public we must also remember the history of taminated drinking water and polluted information and outreach program to those who sacrificed their lives to pre- beaches, which contributed to provide information on potential serve American freedom and democ- epidemics of waterborne diseases, such ocean-related human health risks. racy. Greek Americans have served as typhoid fever. More serious health So, again, I thank Senator HOLLINGS proudly and honorably in every U.S. problems were discovered years later and Senator MCCAIN for their efforts on engagement and war. It is through when scientists began to understand this legislation and for accommodating their efforts and others that we main- that some of the nonbiodegradable my request and the request of my col- tain a Nation committed to fighting chemicals would bio-accumulate in league, Senator LEVIN, to ensure that and winning this war or terrorism. wildlife and in humans. this legislation includes the Great Today, we join the world in antici- During the 1970s, Lake Erie was de- Lakes. It is a good bill and will help us pating the momentous 2004 Summer clared dead. It was at that time that improve the quality of the Lakes and Olympic Games, which will be held in significant legislative measures were protect them for future generations. Athens, the birthplace of the Olympic put in place to control the pollution f tradition. This event not only high- entering the Lakes, and for the last lights the achievements of thousands IN HONOR OF DR. DOROTHY IRENE several years, the region has benefited HEIGHT—A NATIONAL TREASURE of world athletes, but signifies the im- from the great improvements to the portance of working together to pro- quality of our water. Mr. DURBIN. Mr. President, I rise vide greater opportunity and freedom Until recently, many of us thought today to honor Dr. Dorothy Irene for the citizens of the world. that the Great Lakes were well on Height, a great leader in the struggle I am proud to join many of my col- their way to becoming drinkable, fish- for equality, social justice, and human leagues as a cosponsor of S. Res. 308 able, and swimable—goals of the rights for all people, and a true Amer- designating March 25, 2004 as Greek United States/Canadian Great Lakes ican hero. Independence Day: A National Day of Water Quality Agreement. However, A recognized leader in the cause of Celebration of Greek and American De- today, we face new challenges. We now civil and human rights, Dr. Height has mocracy. We value our friendship and understand that our environmental shown her strength and vision through continuing partnership with the gov- problems are more than single-issue, her efforts to promote school desegre- ernment and people of Greece. I would cause and effect problems. Scientists gation, educate others regarding the especially like to offer all Greek Amer- must consider the entire ecosystem. status of women in our society, and icans my best wishes as they celebrate Over this past year, there are reports close our Nation’s racial divide. this day of independence. Finally, I ask of unexplained botulism outbreaks on As a tireless advocate for women’s all citizens to reflect on the many im- the Lakes, a rise in beach closures and rights, Dr. Height was a valued friend portant contributions to freedom, de- swimming bans, and a new ‘‘dead zone’’ of First Lady Eleanor Roosevelt. She mocracy, peace, and stability Greece in Lake Erie. Additionally, the Lakes later encouraged President Eisenhower and Greek Americans have made to are being threatened by extremely to desegregate the Nation’s schools and this country and our world. challenging invasive species. People promoted the appointment of African- f from the Great Lakes region are quite American women to sub-Cabinet posts familiar with the more infamous invad- under President Johnson. THE OCEANS AND HUMAN HEALTH ers like the zebra mussel, sea lamprey, Dr. Height served as the tenth na- ACT and Eurasian milfoil, but there are now tional president of Delta Sigma Theta Mr. DEWINE. Mr. President, I thank over 160 nonindigenous aquatic species Sorority, Inc. from 1947 to 1956 and was Senators MCCAIN and HOLLINGS and the in the Great lakes with many others on responsible for advancing the organiza- members of the Commerce Committee their way. Invasive species are dras- tion’s political and social activism, for their leadership in moving the tically changing the ecosystem and im- both nationally and internationally. Oceans and Human Health Act, S. 1218. periling the health of the Great Lakes Subsequently, as president of the Na- I also express my appreciation for their and the wildlife. tional Council of Negro Women, NCNW,

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.115 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3177 Dr. Height worked ceaselessly to bring cant role for African-Americans in them the best as they continue their attention to the struggle of African- Louisville. The present church was community activism.∑ American women. Some of these inno- built in 1930 by the noted African- f vative programs include: Operation American architect Samuel Plato. In TRIBUTE TO COLONEL JOELLEN de Woman Power, a project to expand August of 1967, with H.W. Jones as pas- BERG, UNITED STATES AIR business ownership by women; the tor, the church hosted a rally for voter FORCE NURSE CORPS Women’s Center for Education and Ca- registration led by Dr. Martin Luther reer Advancement, a facility estab- King. ∑ Mr. INOUYE. Mr. President, I wish to lished to empower minority women in As one of the U.S. Senators from recognize a great American and true nontraditional careers; and the Be- Kentucky, I know how important a military heroine who has honorably thune Museum and Archives, a mu- wonderful center like the Green Street served our country for over 31 years in seum devoted to the history of African- Baptist Church can be to a community. the United States Air Force Nurse American women. One of the more prominent trustees Corps: COL Joellen de Berg. Colonel de Among her other roles, Dr. Height and a treasurer of the church was a Berg began her military career as a re- was the only female member of the man named Ben Duke, who lived to be servist with assignments in Arizona, ‘‘Big Six’’ civil rights leaders, along- 100 years old. I have no doubt that his Pennsylvania, and Ohio. After serving side James Farmer, Roy Wilkins, Whit- rewarding involvement with such a as flight nurse, instructor, and eval- ney Young, A. Philip Randolph, and great organization like the Green uator in C–123 and C–130 aircraft, she Rev. Dr. Martin Luther King, Jr. She Street Baptist Church contributed to entered active duty in July, 1978, at was a mainstay at countless civil and his longevity. Malcolm Grow Medical Center, An- human rights events in the 1960s and I congratulate the Green Street Bap- drews Air Force Base, MD. She quickly organized ‘‘Wednesdays in Mississippi,’’ tist Church on this momentous occa- rose through the ranks and served a program that brought together Black sion of its 160th anniversary. I hoe the throughout the world, including in the and White women from the North and church will continue to serve the Lou- Philippines, Ohio, California, Okla- South to create a dialogue of under- isville community another 160 years homa, Maryland, Illinois, Texas, Wash- standing. and beyond.∑ ington, District of Columbia, and Throughout her years of public serv- f Japan. ice, Dr. Height has received numerous In each assignment, Colonel de Berg LEAGUE OF UNITED LATIN awards for her pursuit of equality in- excelled and was rewarded with greater AMERICAN CITIZENS cluding: the Spingarn Award, the high- responsibilities. In 1983, her perform- est honor given by the National Asso- ∑ Mr. HARKIN. Mr. President, this ances led to a below-the-zone pro- ciation for the Advancement of Colored year marks the 75th Anniversary of the motion to the rank of major 3 years People, NAACP; the Presidential Medal League of United Latino American ahead of her peers. After serving as of Freedom, awarded by President Clin- Citizens, commonly known as LULAC. manager of emergency services at ton; the William L. Dawson Award, This national organization was founded Wright-Patterson AFB, she trans- given by the Congressional Black Cau- in 1929 to fight for the civil rights of all itioned from the clinical arena to med- cus for decades of service to people of Hispanic Americans. The LULAC ical readiness inspector, Air Force In- color and women; the Citizens Medal founders saw a need for an organization spector General, Norton AFB, CA. Once Award for distinguished service, pre- that would strive for equality, fight again, her exemplary performance led sented by President Reagan; and her discrimination and injustice, help His- to a second below-the-zone promotion most recent honor, the Congressional panics to claim their rights as United to lieutenant colonel. After serving as Gold Medal, presented by the 108th States Citizens and to have access to the associate director of nursing at Congress of the United States. the American Dream. Malcolm Grow Medical Center, she Dr. Dorothy Height has been a clear Due to their success in the south- went on to serve as congressional fel- voice in expressing the needs of not west, LULAC continued to open up low, U.S. Senate, Defense Appropria- only African-American women, but of chapters all over the United States. tions Subcommittee. Her service in all women. She is a living legend, a LULAC’s first council was formed in this capacity lead to her appointment catalyst for growth and positive Iowa in 1959 and continues to have a as chief of strategic plans, U.S. Air change in our great country. strong presence today. They have pros- Force Surgeon General’s Office, Bolling I proudly congratulate Dr. Dorothy pered over the past 45 years and con- AFB, Washington, DC. Irene Height on the awarding of the tinue to be a leader in Iowa, fighting With her path to executive leadership Congressional Gold Medal and for her for the rights of Latino Iowans. clearly set, Colonel de Berg served as commitment to equality and civil LULAC has worked to affect national chief nurse at Tinker AFB and An- rights in America. policy so that it better reflects the dif- drews AFB. At Andrews, she assumed ferent cultures living in the United command of the Eighty-ninth Medical f States. They continue to work tire- Operations Squadron. Her remarkable ADDITIONAL STATEMENTS lessly to reduce discrimination, close leadership earned her selection as the achievement gap and improve the group commander, Thirty-fifth Medical immigration laws and system. Group, Misawa, Japan. Colonel de Berg THE GREEN STREET BAPTIST LULAC seeks to reduce disparities in then assumed responsibilities as com- CHURCH political representation. They work to mand nurse and chief, Primary Care ∑ Mr. BUNNING. Mr. President, today I develop leaders among the young Optimization, Office of the Command would like to take the opportunity to Latino men and women in Iowa. Rita Surgeon, Air Mobility Command, Scott honor the 160th birthday of the Green Vargas, a previous member of my staff, AFB, IL. Street Baptist Church in Louisville, was nominated as ‘‘LULAC’s Woman of Colonel de Berg’s last assignment KY. the Year’’ in 2001, and has since been was in the State she considers home. The Green Street Baptist Church is elected to the position of Scott County She returned to Texas, as chief, Nurse one of the oldest and most established Recorder. Utilization and Education Branch, Air African-American churches in Ken- The Latino community is a vital, Force Personnel Center, Randolph tucky. It has served as a spiritual focal growing part of today’s Iowa. In this AFB. In this position, she was respon- point for Louisville since it was found- great country, we find strength in our sible for managing assignments, career ed as the Second African Baptist diversity. Iowa is stronger economi- progression, and sponsored educational Church by nine slaves. On September cally and richer culturally thanks to opportunities for 4,000 Air Force 29, 1844 it was opened as the Green the many contributions of our Latino nurses. Street Baptist Church by pastor Broth- friends, neighbors and colleagues. Colonel de Berg is a meritorious lead- er George Wells. I would like to say thank you to er, administrator, clinician, educator, The Green Street Baptist Church is a LULAC for all their hard work in Iowa and mentor. Throughout her career she historic place that has played a signifi- and throughout the country. I wish has served with valor and profoundly

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\CR\FM\G25MR6.113 S25PT1 S3178 CONGRESSIONAL RECORD — SENATE March 25, 2004 impacted the entire Air Force Medical quent public information campaigns, After spending a short time in a mili- Service. Her performance reflects ex- especially those targeting America’s tary hospital in Denver, CO, Ryan was ceptionally on herself, the United youth, have helped cut smoking rates honorably discharged from the service States Air Force, the Department of drastically over the past two decades. on June 20, 1946. Defense, and the United States of In the hope of addressing a root cause On March 30, 1948, he married and America. I extend my deepest apprecia- of lung disease, the American Lung As- moved to Oregon. Mike worked at a tion to COL Joellen de Berg on behalf sociation has worked tirelessly to im- plywood mill in Lebanon for more than of a grateful Nation for more than 31 prove the quality of the air we breathe. 40 years until it shut down in 1985. years of dedicated military service.∑ This organization played a crucial role Ryan served as the department com- f in the development and implementa- mander of American Ex-prisoners of tion of the 1970 Clean Air Act, and War. Now retired, Ryan enjoys spend- NAVY AIRMAN JUSTIN TEAGUE since then has provided a strong voice ing his time with his wife of 56 years ∑ Mr. BUNNING. Mr. President, today I for improving emissions standards and and his family. He has two sons, four would like to take the opportunity to reducing children’s exposure to poor grandchildren, and four great-grand- honor U.S. Navy Airman Justin Teague air quality in schools. children. of Benton, KY. Eighteen-year-old Jus- Over the years, the American Lung Mike Ryan made many sacrifices by tin Teague shipped out aboard the USS Association has risen time after time entering the military at such a young Enterprise in October of 2003 as a teen- to the task of combating new health age. He never had the opportunity to ager newly graduated from high school challenges. Recognizing the growing finish high school and receive his di- and returned March 28, 2004, as an problem of asthma, the ALA has initi- ploma. Last session, the Oregon Legis- American soldier. ated a number of programs to help lative Assembly passed S. 374 allowing The USS Enterprise was deployed Oc- local officials, parents, and their chil- World War II veterans who left school tober 1, 2003 and visited the northern dren combat and manage this disease. to serve in the war to receive their Arabian Gulf, Afghanistan, Italy, And in 1996, the ALA established their high school diploma. Ryan is hoping he Spain, as well as a few other countries. Asthma Clinical Research Center net- will graduate this year with the Leb- Teague’s job on the flight deck, where work, a program with an annual budget anon, OR class of 2004. he secured planes that had landed and of $3.5 million, consisting of 19 univer- Now 79 years old, Ryan looks back on towed them into position, is vital for sity and hospital centers and a coordi- his life and gratitude, thankful for the the function of the carrier. Justin ad- nating center at the Johns Hopkins opportunity to serve his country. mits his position was stressful but the University. For his selfless service to others, and I commend the ALA for its out- hardest thing he had to endure was los- to the United States in time of war, I standing achievements over the past ing his best friend from home in a car salute Mike Ryan as an Oregon veteran century, and I offer my best wishes for accident while at sea. Despite missing hero.∑ a successful future.∑ the funeral, he remained positive f throughout his journey and hopes to f NOTIFICATION OF THE PRESI- make a career out of the military. OREGON VETERAN HERO Justin Teague’s parents are exceed- DENT’S INTENT TO ENTER INTO ∑ Mr. SMITH. Mr. President, today I A FREE TRADE AGREEMENT ingly proud of their son, and I am rise to honor an Oregon veteran who proud to have him as a fellow Ken- WITH THE GOVERNMENT OF THE went above and beyond the call of duty DOMINICAN REPUBLIC—PM 74 tuckian. In this time of conflict, it is in service to his country. On February important to remember the young peo- 19, 1941, 16-year-old Mike Ryan left The PRESIDING OFFICER laid be- ple who risk their lives to ensure our high school and voluntarily enlisted in fore the Senate the following message freedom. Men like Justin should be the United States Army to serve in from the President of the United commended for their dedication and World War II. States, together with an accompanying hard work in the military. We need to Private Ryan underwent basic train- report; which was referred to the Com- remember to thank our soldiers when- ing at Fort Mills on Corregidor in Ma- mittee on Finance: ever the opportunity arises.∑ nila Bay. Japanese bombing attacks on To the Congress of the United States: f the island intensified and ultimately Consistent with section 2105(a)(1)(A) led to the fall of Corregidor. U.S. forces of the Trade Act of 2002 (Public Law 100TH ANNIVERSARY OF THE 107–210; the ‘‘Trade Act’’), I am pleased AMERICAN LUNG ASSOCIATION surrendered on May 6, 1942. Pvt. Mike Ryan and other troops in the southern to notify the Congress of my intent to ∑ Mr. SARBANES. Mr. President, I part of the Philippines became Japa- enter into a free trade agreement would like to take a moment to extend nese prisoners of war. (FTA) with the Government of the Do- my congratulations to the American Ryan and hundreds of other prisoners minican Republic. Lung Association as it celebrates its were taken to Manila, were paraded This agreement will create new op- 100th anniversary. through the streets and taken to pris- portunities for America’s workers, One of our Nation’s foremost health on, and transported to a prison camp in farmers, businesses, and consumers by advocacy groups, the American Lung Cabanatuan, Philippines. eliminating barriers to trade with the Association was established in 1904 as For the next 3 years, Mike Ryan suf- Dominican Republic, the largest econ- the National Association for the Study fered immensely, enduring hunger, fa- omy in the Caribbean Basin. At the and Prevention of Tuberculosis, a tigue, and sickness in a Japanese same time, it will help bring to the Do- cause to which it remains very much forced labor camp. The conditions were minican Republic expanded economic devoted. From its early years during dismal; food and clothing were scarce freedom and opportunity, and it will which it focused on promoting basic and the heat was intense. After spend- provide an opportunity for regional sanitation measures, the ALA has ing time in a holding area, which was stability, democracy, and economic de- grown into a leader in the fields of nothing more than a cow pasture with velopment through closer ties of com- health education and biomedical re- no sanitary facilities, Ryan was sent merce, investment, and friendship. search, contributing over $11 million in out on work details and later trans- Consistent with the Trade Act, I am 2003 alone to the study of lung disease. ferred to prison. sending this notification at least 90 The American Lung Association has Thirty-seven percent of the prisoners days in advance of entering into an long been at the forefront of efforts to did not survive. Mike says he never agreement with the Dominican Repub- warn the American public of the dan- gave up hope, saying he always knew lic. My administration looks forward gers of smoking. In fact, the ALA pre- he would come back someday. On Sep- to working with the Congress in devel- dated the Surgeon General by 4 years tember 13, 1945, Ryan and his fellow oping appropriate legislation to ap- in establishing a link between tobacco prisoners were released from captivity. prove and implement this free trade use and chronic lung disease, issuing a Mike Ryan had spent a total of 3 years, agreement. public health statement on the risks of 4 months, and 6 days as a prisoner of GEORGE W. BUSH tobacco use as early as 1960. Subse- war. THE WHITE HOUSE, March 24, 2004.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.033 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3179 MESSAGE FROM THE HOUSE MEASURES REFERRED quirement of a Tolerance’’ (FRL#7341–3) re- ceived on March 25, 2004; to the Committee At 12:24 p.m., a message from the The following bills were read the first on Agriculture, Nutrition, and Forestry. House of Representatives, delivered by and the second times by unanimous EC–6763. A communication from the Dep- Ms. Niland, one of its reading clerks, consent, and referred as indicated: uty Associate Administrator, Environmental announced that the House has passed H.R. 1768. An act to amend title 28, United Protection Agency, transmitting, pursuant the following bills, in which it requests States Code, to allow a judge to whom a case to law, the report of a rule entitled ‘‘Bacillus the concurrence of the Senate: is transferred to retain jurisdiction over cer- Thuringiensis Cry3Bb1; Exemption from the H.R. 1768. An act to amend title 28, United tain multidistrict litigation cases for trial, Requirement of a Tolerance’’ (FRL#7350–5) States Code, to allow a judge to whom a case and for other purposes; to the Committee on received on March 25, 2004; to the Committee is transferred to retain jurisdiction over cer- the Judiciary. on Agriculture, Nutrition, and Forestry. tain multidistrict litigation cases for trial, H.R. 3059. An act to designate the facility EC–6764. A communication from the Dep- and for other purposes. of the United States Postal Service located uty Associate Administrator, Environmental H.R. 3059. An act to designate the facility at 304 West Michigan Street in Stuttgart, Protection Agency, transmitting, pursuant of the United States Postal Service located Arkansas, as the ‘‘Lloyd L. Burke Post Of- to law, the report of a rule entitled at 304 West Michigan Street in Stuttgart, fice’’; to the Committee on Governmental ‘‘Rhamnolipid Biosurfactant; Exemption Arkansas, as the ‘‘Lloyd L. Burke Post Of- Affairs. from the Requirement of a Tolerance’’ fice’’. H.R. 3873. An act to amend the Richard B. (FRL#7347–7) received on March 25, 2004; to H.R. 3873. An act to amend the Richard B. Russell National School Lunch Act and the the Committee on Agriculture, Nutrition, Russell National School Lunch Act and the Child Nutrition Act of 1966 to provide chil- and Forestry. Child Nutrition Act of 1966 to provide chil- dren with access to food and nutrition assist- EC–6765. A communication from the Dep- dren with access to food and nutrition assist- ance, to simplify program operations, to im- uty Associate Administrator, Environmental ance, to simplify program operations, to im- prove children’s nutritional health, and to Protection Agency, transmitting, pursuant prove children’s nutritional health, and to restore the integrity of child nutrition pro- to law, the report of a rule entitled ‘‘Time- restore the integrity of child nutrition pro- grams, and for other purposes; to the Com- Limited Exemption from Requirement of a grams, and for other purposes. mittee on Agriculture, Nutrition, and For- Tolerance; Exemption from the Requirement H.R. 3926. An act to amend the Public estry. of a Tolerance’’ (FRL#7350–8) received on Health Service Act to promote organ dona- The following concurrent resolutions March 25, 2004; to the Committee on Agri- tion, and for other purposes. were read, and referred as indicated: culture, Nutrition, and Forestry. The message also announced that the H. Con. Res. 189. Concurrent resolution EC–6766. A communication from the Dep- House has agreed to the following con- celebrating the 50th anniversary of the Inter- uty Associate Administrator, Environmental national Geophysical Year (IGY) and sup- Protection Agency, transmitting, pursuant current resolutions, in which it re- to law, the report of a rule entitled quests the concurrence of the Senate: porting an International Geophysical Year-2 (IGY–2) in 2007–08; to the Committee on Com- ‘‘Zoxamide; Pesticide Tolerance for Emer- H. Con. Res. 189. Concurrent resolution merce, Science, and Transportation. gency Exemptions’’ (FRL#7349–3) received on celebrating the 50th anniversary of the Inter- H. Con. Res. 328. Concurrent resolution rec- March 25, 2004; to the Committee on Agri- national Geophysical Year (IGY) and sup- ognizing and honoring the United States culture, Nutrition, and Forestry. porting an International Geophysical Year-2 Armed Forces and supporting the goals and EC–6767. A communication from the Con- (IGY–2) in 2007–08. objectives of a National Military Apprecia- gressional Review Coordinator, Animal and H. Con. Res. 328. Concurrent resolution rec- tion Month. Plant Health Inspection Service, Department ognizing and honoring the United States of Agriculture, transmitting, pursuant to Armed Forces and supporting the goals and f law, the report of a rule entitled ‘‘Japanese objectives of a National Military Apprecia- MEASURES READ THE FIRST TIME Beetle; Domestic Quarantine and Regula- tion Month. tions’’ (Doc. No. 03–057–2) received on March The message further announced that The following bills were read the first 25, 2004; to the Committee on Agriculture, the House agree to the amendment of time: Nutrition, and Forestry. the Senate to the bill (H.R. 254) to au- H.R. 339. To prevent legislative and regu- EC–6768. A communication from the Con- thorize the President of the United latory functions from being usurped by civil gressional Review Coordinator, Animal and Plant Health Inspection Service, Department States to agree to certain amendments liability actions brought or continued against food manufacturers, marketers, dis- of Agriculture, transmitting, pursuant to to the Agreement between the Govern- tributors, advertisers, sellers, and trade as- law, the report of a rule entitled ‘‘Plant Pro- ment of the United States of America sociations for claims of injury relating to a tection Act; Revisions to Authority Cita- and the Government of the United person’s weight gain, obesity, or any health tions; Technical Amendment’’ (Doc. No. 00– Mexican States concerning the estab- condition associated with weight gain or 063–3) received on March 25, 2004; to the Com- lishment of a Border Environment Co- obesity. mittee on Agriculture, Nutrition, and For- operation Commission and a North H.R. 3717. To increase the penalties for vio- estry. American Development Bank, and for lations by television and radio broadcasters EC–6769. A communication from the Prin- other purposes. of the prohibitions against transmissions of cipal Deputy Under Secretary of Defense for obscene, indecent, and profane material, and Policy, Department of Defense, transmit- The message also announced that for other purposes. ting, pursuant to law, a report relative to pursuant to section 1501(b) of the Na- S. 2236. A bill to enhance the reliability of progress towards achieving militarily sig- tional Defense Authorization Act for the electric system. nificant benchmarks in Kosovo during the Fiscal Year 2004 (38 U.S.C. 1101 note), period of July 1 to December 31, 2003; to the f and the order of the House of December Committee on Armed Services. 8, 2003, the Speaker appoints the fol- EXECUTIVE AND OTHER EC–6770. A communication from the Acting lowing members on the part of the COMMUNICATIONS Under Secretary of Defense for Acquisition, Technology, and Logistics, Department of House of Representatives to the Vet- The following communications were erans’ Disability Benefits Commission: Defense, transmitting, pursuant to law, a re- laid before the Senate, together with port relative to the Defense Federal Acquisi- Mr. Nick B. Bacon of Rosebud, Arkan- accompanying papers, reports, and doc- tion Regulation Supplement; to the Com- sas and Mr. Donald M. Cassiday of Au- uments, and were referred as indicated: mittee on Armed Services. rora, Illinois. EC–6761. A communication from the Con- EC–6771. A communication from the Direc- gressional Review Coordinator, Animal and tor, Defense Procurement and Acquisition f Plant Health Inspection Service, Department Policy, transmitting, pursuant to law, the of Agriculture, transmitting, pursuant to report of a rule entitled ‘‘Memorandum of MEASURES REFERRED law, the report of a rule entitled ‘‘Tuber- Understanding—Sweden’’ (DFARS Case 2003– The following joint resolution pre- culosis in Cattle and Bison; State and Zone D089) received on March 23, 2004; to the Com- viously received from the House of Designations; Delay of Compliance Date’’ mittee on Armed Services. Representatives on February 4, 2004, (Doc. No. 03–072–2) received on March 25, 2004; EC–6772. A communication from the Dep- for concurrence was read the first and to the Committee on Agriculture, Nutrition, uty Chief of Naval Operations for Manpower and Forestry. and Personnel, Department of the Navy, second times by unanimous consent EC–6762. A communication from the Dep- transmitting, pursuant to law, a report rel- and referred as indicated: uty Associate Administrator, Environmental ative to the conversion to contractor per- H.J. Res. 84. Joint Resolution recognizing Protection Agency, transmitting, pursuant formance a function of the Department of the 93d birthday of Ronald Reagan; to the to law, the report of a rule entitled ‘‘Ammo- Defense performed by 176 civilian employees; Committee on the Judiciary. nium Bicarbonate; Exemption from the Re- to the Committee on Armed Services.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.045 S25PT1 S3180 CONGRESSIONAL RECORD — SENATE March 25, 2004 EC–6773. A communication from the Assist- EC–6783. A communication from the Dep- By Mr. CAMPBELL (by request): ant Secretary, Division of Corporation Fi- uty Associate Administrator, Environmental S. 2232. A bill to amend the Indian Gaming nance, Securities and Exchange Commission, Protection Agency, transmitting, pursuant Regulatory Act of 1988 to revise the fee cap transmitting, pursuant to law, the report of to law, the report of a rule entitled ‘‘Re- on National Indian Gaming Commission a rule entitled ‘‘Additional Form 80K Disclo- search, Development, and Demonstration funding and make certain technical amend- sure Requirements and Acceleration of Fil- Permits for Municipal Solid Waste Land- ments; to the Committee on Indian Affairs. ing Date’’ (RIN3235–AI47) received on March fills’’ (FRL#7637–9) received on March 25, By Mr. VOINOVICH (for himself and 23, 2004; to the Committee on Banking, Hous- 2004; to the Committee on Environment and Mr. CARPER): ing, and Urban Affairs. Public Works. S. 2233. A bill to amend the Environmental EC–6774. A communication from the Ad- EC–6784. A communication from the Dep- Research, Development, and Demonstration ministrator and Chief Executive Officer, uty Associate Administrator, Environmental Authorization Act of 1979 to establish in the Bonneville Power Administration, Depart- Protection Agency, transmitting, pursuant Environmental Protection Agency the posi- ment of Energy, transmitting, pursuant to to law, the report of a rule entitled ‘‘Revi- tion of Deputy Administrator for Science law, the Administration’s Annual Report for sions to the California State Implementation and Technology; to the Committee on Envi- Fiscal Year 2003; to the Committee on En- Plan; Yolo-Solano Air Quality Management ronment and Public Works. ergy and Natural Resources. District’’ (FRL#7636–7) received on March 25, By Mr. DASCHLE (for himself, Mr. EC–6775. A communication from the Ad- 2004; to the Committee on Environment and KENNEDY, Mr. REED, Mr. FEINGOLD, ministrator, Energy Information Adminis- Public Works. Mr. KOHL, Mr. DURBIN, Mr. BINGA- tration, Department of Energy, transmit- EC–6785. A communication from the Ad- MAN, Mr. GRAHAM of Florida, Mr. ting, pursuant to law, the Administration’s ministrator, General Services Administra- REID, and Mr. DODD): Annual Energy Outlook 2004; to the Com- tion, transmitting, pursuant to law, a report S. 2234. A bill to amend title XVIII of the mittee on Energy and Natural Resources. relative to the Administration’s Fiscal Year Social Security Act to ensure that prescrip- EC–6776. A communication from the Assist- 2004 Capital Investment and Leasing Pro- tion drug card sponsors pass along discounts ant General Counsel for Regulatory Law, Of- gram; to the Committee on Environment and to beneficiaries under the medicare prescrip- fice of Procurement and Assistance Policy, Public Works. Department of Energy, transmitting, pursu- EC–6786. A communication from the Chair- tion drug discount card and transitional as- ant to law, the report of a rule entitled ‘‘Fi- man, Nuclear Regulatory Commission, trans- sistance program; to the Committee on Fi- nancial Assistance Rules’’ (RIN1991–AB66) re- mitting, a report relative to the Commis- nance. ceived on March 23, 2004; to the Committee sion’s licensing and regulatory duties; to the By Mr. HOLLINGS: on Energy and Natural Resources. Committee on Environment and Public S. 2235. A bill to rename the Department of EC–6777. A communication from the Dep- Works. Commerce as the Department of Trade and uty Associate Administrator, Environmental EC–6787. A communication from the Dep- Commerce and transfer the Office of the Protection Agency, transmitting, pursuant uty Associate Administrator, Environmental United States Trade Representative into the to law, the report of a rule entitled ‘‘Ap- Protection Agency, transmitting, seven Uni- Department, to consolidate and enhance proval and Promulgation of Air Quality Im- form Resource Locators (URLs) issued re- statutory authority to protect American plementation Plans; Illinois; Definition of lated to the Agency’s regulatory programs; jobs from unfair international competition, Volatile Organic Material and Volatile Or- to the Committee on Environment and Pub- and for other purposes; to the Committee on ganic Compound’’ (FRL#7635–5) received on lic Works. Finance. March 25, 2004; to the Committee on Environ- EC–6788. A communication from the Direc- By Ms. CANTWELL (for herself and ment and Public Works. tor, California Bay-Delta Authority, trans- Mr. BINGAMAN): EC–6778. A communication from the Dep- mitting, pursuant to law, the Authority’s S. 2236. A bill to enhance the reliability of uty Associate Administrator, Environmental 2003 Annual Report; to the Committee on En- the electric system; read the first time. Protection Agency, transmitting, pursuant vironment and Public Works. By Mr. LEAHY (for himself and Mr. to law, the report of a rule entitled ‘‘Ap- EC–6789. A communication from the Dep- HATCH): proval and Promulgation of Implementation uty Associate Administrator, Environmental S. 2237. A bill to amend chapter 5 of title Plans; Texas; Control Emission of Oxides of Protection Agency, transmitting, pursuant 17, United States Code, to authorize civil Nitrogen (NOx) from Cement Kilns’’ to law, the report of a rule entitled ‘‘Ap- copyright enforcement by the Attorney Gen- (FRL#7638–5) received on March 25, 2004; to proval and Promulgation of Air Quality Im- eral, and for other purposes; to the Com- the Committee on Environment and Public plementation Plans; Delaware; Amendments mittee on the Judiciary. Works. to Regulation 23, Section 10-Aerospace Coat- By Mr. BUNNING (for himself, Mr. EC–6779. A communication from the Dep- ings’’ (FRL#7639–4) received on March 25, SHELBY, Mr. SARBANES, Mr. SCHUMER, uty Associate Administrator, Environmental 2004; to the Committee on Environment and Mrs. DOLE, and Mr. HAGEL): Protection Agency, transmitting, pursuant Public Works. S. 2238. A bill to amend the National Flood to law, the report of a rule entitled ‘‘Ap- EC–6790. A communication from the Dep- Insurance Act of 1968 to reduce loses to prop- proval and Promulgation of State Implemen- uty Associate Administrator, Environmental erties for which repetitive flood insurance tation Plans; Illinois’’ (FRL#7632–7) received Protection Agency, transmitting, pursuant claim payments have been made; to the on March 25, 2004; to the Committee on Envi- to law, the report of a rule entitled ‘‘Ap- Committee on Banking, Housing, and Urban ronment and Public Works. proval and Promulgation of Implementation Affairs. EC–6780. A communication from the Dep- Plans; Florida: Tampa Bay Area Mainte- By Mrs. BOXER: uty Associate Administrator, Environmental nance Plan Update’’ (FRL#7640–6) received S. 2239. A bill to establish a first responder Protection Agency, transmitting, pursuant on March 25, 2004; to the Committee on Envi- and terrorism preparedness grant informa- to law, the report of a rule entitled ‘‘Ap- ronment and Public Works. tion hotline, and for other purposes; to the proval and Promulgation of State Implemen- EC–6791. A communication from the Dep- Committee on Governmental Affairs. tation Plans; Ohio; Approval and Revision to uty Associate Administrator, Environmental By Mrs. BOXER: Oxides of Nitrogen Regulations’’ (FRL#7632– Protection Agency, transmitting, pursuant 4) received on March 25, 2004; to the Com- to law, the report of a rule entitled ‘‘Deter- S. 2240. A bill to improve seaport security; mittee on Environment and Public Works. mination of Nonattainment as of November to the Committee on Commerce, Science, EC–6781. A communication from the Dep- 15, 1996 and Reclassification of the Beau- and Transportation. uty Associate Administrator, Environmental mont/Port Arthur Ozone Nonattainment Protection Agency, transmitting, pursuant Area; State of Texas; Final Rule’’ f to law, the report of a rule entitled ‘‘Ap- (FRL#7641–2) received on March 25, 2004; to proval and Promulgation of Air Quality Im- the Committee on Environment and Public plementation Plans; Maryland; Nitrogen Ox- Works. SUBMISSION OF CONCURRENT AND SENATE RESOLUTIONS ides Allowance Allocations for 2006–2007 and f Revisions to Set-Aside Requirements’’ The following concurrent resolutions INTRODUCTION OF BILLS AND (FRL#7634–6) received on March 25, 2004; to and Senate resolutions were read, and the Committee on Environment and Public JOINT RESOLUTIONS referred (or acted upon), as indicated: Works. The following bills and joint resolu- EC–6782. A communication from the Dep- By Ms. MIKULSKI (for herself and Mr. uty Associate Administrator, Environmental tions were introduced, read the first BROWNBACK): Protection Agency, transmitting, pursuant and second times by unanimous con- S. Res. 324. A resolution expressing the to law, the report of a rule entitled ‘‘New sent, and referred as indicated: sense of the Senate relating to the extraor- Source Performance Standards and National By Mr. GRASSLEY (for himself and dinary contributions resulting from the Emission Standards for Hazardous Air Pol- Mr. BAUCUS): Hubble Space Telescope to scientific re- lutants; Delegation of Authority to Lou- S. 2231. A bill to reauthorize the Tem- search and education, and to the need to re- isiana’’ (FRL#7638–7) received on March 25, porary Assistance for Needy Families block consider future service missions to the 2004; to the Committee on Environment and grant program through June 30, 2004, and for Hubble Space Telescope; to the Committee Public Works. other purposes; considered and passed. on Commerce, Science, and Transportation.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.047 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3181 ADDITIONAL COSPONSORS sor of S. 1081, a bill to amend section (Mr. LOTT) was added as a cosponsor of S. 333 504(a) of the Higher Education Act of S. 1792, a bill to amend the Internal At the request of Mr. BREAUX, the 1965 to eliminate the 2-year wait out Revenue Code of 1986 to provide the name of the Senator from New Jersey period for grant recipients. same capital gains treatment for art (Mr. LAUTENBERG) was added as a co- S. 1085 and collectibles as for other invest- sponsor of S. 333, a bill to promote At the request of Mr. BINGAMAN, the ment property and to provide that a elder justice, and for other purposes. name of the Senator from South Da- deduction equal to fair market value kota (Mr. JOHNSON) was added as a co- shall be allowed for charitable con- S. 478 sponsor of S. 1085, a bill to provide for tributions of literary, musical, artistic, At the request of Mr. SARBANES, the or scholarly compositions created by name of the Senator from Illinois (Mr. a Bureau of Reclamation program to assist states and local communities in the donor. DURBIN) was added as a cosponsor of S. 478, a bill to grant a Federal charter evaluating and developing rural and S. 1934 Korean War Veterans Association, In- small community water supply sys- At the request of Mr. NICKLES, the corporated, and for other purposes. tems, and for other purposes. name of the Senator from Illinois (Mr. S. 1217 ITZGERALD S. 486 F ) was added as a cosponsor At the request of Mr. ENZI, the names of S. 1934, a bill to establish an Office At the request of Mr. DOMENICI, the of the Senator from Mississippi (Mr. name of the Senator from Colorado of Intercountry Adoptions within the COCHRAN) and the Senator from New Department of State, and to reform (Mr. CAMPBELL) was added as a cospon- Jersey (Mr. LAUTENBERG) were added as sor of S. 486, a bill to provide for equal United States laws governing inter- cosponsors of S. 1217, a bill to direct coverage of mental health benefits country adoptions. the Secretary of Health and Human with respect to health insurance cov- S. 1946 Services to expand and intensify pro- erage unless comparable limitations At the request of Mr. CORZINE, the grams with respect to research and re- are imposed on medical and surgical name of the Senator from New Jersey lated activities concerning elder falls. benefits. (Mr. LAUTENBERG) was added as a co- S. 1287 S. 525 sponsor of S. 1946, a bill to establish an At the request of Mr. DOMENICI, the independent national commission to At the request of Mr. LEVIN, the name of the Senator from Colorado name of the Senator from Massachu- examine and evaluate the collection, (Mr. CAMPBELL) was added as a cospon- analysis, reporting, use, and dissemina- setts (Mr. KERRY) was added as a co- sor of S. 1287, a bill to amend section sponsor of S. 525, a bill to amend the tion of intelligence related to Iraq and 502(a)(5) of the Higher Education Act of Operation Iraqi Freedom. Nonindigenous Aquatic Nuisance Pre- 1965 regarding the definition of a His- S. 1980 vention and Control Act of 1990 to re- panic-serving institution. authorize and improve that Act. At the request of Mr. GRAHAM of S. 1344 S. 693 Florida, the name of the Senator from At the request of Mr. CORZINE, the At the request of Mr. ALLARD, the New Jersey (Mr. LAUTENBERG) was name of the Senator from New York added as a cosponsor of S. 1980, a bill to name of the Senator from Virginia (Mr. (Mrs. CLINTON) was added as a cospon- ALLEN) was added as a cosponsor of S. amend the Help America Vote Act of sor of S. 1344, a bill to amend the Elec- 2002 to require a voter-verified perma- 693, a bill to amend the Omnibus Crime tronic Fund Transfer Act to require ad- Control and Safe Streets Act of 1968 to nent record or hardcopy under title III ditional disclosures relating to ex- of such Act, and for other purposes. make volunteer members of the Civil change rates in transfers involving S. 1992 Air Patrol eligible for Public Safety international transactions, and for Officer death benefits. other purposes. At the request of Mr. KENNEDY, the name of the Senator from New Mexico S. 875 S. 1549 (Mr. BINGAMAN) was added as a cospon- At the request of Mr. KERRY, the At the request of Mrs. DOLE, the sor of S. 1992, a bill to amend the Medi- name of the Senator from Louisiana name of the Senator from Illinois (Mr. care Prescription Drug, Improvement, (Ms. LANDRIEU) was added as a cospon- DURBIN) was added as a cosponsor of S. and Modernization Act of 2003 to elimi- sor of S. 875, a bill to amend the Inter- 1549, a bill to amend the Richard B. nate privatization of the medicare pro- nal Revenue Code of 1986 to allow an Russell National School Lunch Act to gram, to improve the medicare pre- income tax credit for the provision of phase out reduced price lunches and scription drug benefit, to repeal health homeownership and community devel- breakfasts by phasing in an increase in savings accounts, and for other pur- opment, and for other purposes. the income eligibility guidelines for poses. S. 884 free lunches and breakfasts. S. 2002 At the request of Ms. LANDRIEU, the S. 1684 name of the Senator from Mississippi At the request of Ms. LANDRIEU, the At the request of Mr. BAUCUS, the (Mr. COCHRAN) was added as a cospon- name of the Senator from South Da- names of the Senator from Wyoming sor of S. 884, a bill to amend the Con- kota (Mr. JOHNSON) was added as a co- (Mr. ENZI), the Senator from New Mex- sumer Credit Protection Act to assure sponsor of S. 1684, a bill to amend the ico (Mr. BINGAMAN) and the Senator meaningful disclosures of the terms of Public Health Service Act and Em- from Connecticut (Mr. DODD) were rental-purchase agreements, including ployee Retirement Income Security added as cosponsors of S. 2002, a bill to disclosures of all costs to consumers Act of 1974 to require that group and improve and promote compliance with under such agreements, to provide cer- individual health insurance coverage international intellectual property ob- tain substantive rights to consumers and group health plans provide cov- ligations relating to the Republic of under such agreements, and for other erage for a minimum hospital stay for Cuba, and for other purposes. purposes. mastectomies and lymph node dissec- S. 2054 S. 976 tions performed for the treatment of At the request of Mr. JOHNSON, the At the request of Mr. WARNER, the breast cancer. name of the Senator from South Da- names of the Senator from Pennsyl- S. 1755 kota (Mr. DASCHLE) was added as a co- vania (Mr. SPECTER) and the Senator At the request of Mr. LEAHY, the sponsor of S. 2054, a bill to require the from Texas (Mr. CORNYN) were added as name of the Senator from New York Federal forfeiture funds be used, in cosponsors of S. 976, a bill to provide (Mr. SCHUMER) was added as a cospon- part, to clean up methamphetamine for the issuance of a coin to commemo- sor of S. 1755, a bill to amend the Rich- laboratories. rate the 400th anniversary of the ard B. Russell National School Lunch S. 2059 Jamestown settlement. Act to provide grants to support farm- At the request of Mr. FITZGERALD, S. 1081 to-cafeteria projects. the name of the Senator from Ohio At the request of Mr. DOMENICI, the S. 1792 (Mr. VOINOVICH) was added as a cospon- name of the Senator from Colorado At the request of Mr. DOMENICI, the sor of S. 2059, a bill to improve the gov- (Mr. CAMPBELL) was added as a cospon- name of the Senator from Mississippi ernance and regulation of mutual funds

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.050 S25PT1 S3182 CONGRESSIONAL RECORD — SENATE March 25, 2004 under the securities laws, and for other of 1958, through May 15, 2004, and for Internal Revenue Code of 1986 to com- purposes. other purposes. ply with the World Trade Organization S. 2065 At the request of Mr. EDWARDS, his rulings on the FSC/ETI benefit in a At the request of Mr. JOHNSON, the name was added as a cosponsor of S. manner that preserves jobs and produc- name of the Senator from Nevada (Mr. 2186, supra. tion activities in the United States, to REID) was added as a cosponsor of S. At the request of Mr. KERRY, the reform and simplify the international 2065, a bill to restore health care cov- name of the Senator from Indiana (Mr. taxation rules of the United States, erage to retired members of the uni- BAYH) was added as a cosponsor of S. and for other purposes. formed services, and for other pur- 2186, supra. AMENDMENT NO. 2858 poses. S. 2193 At the request of Mrs. FEINSTEIN, the At the request of Mr. NELSON of Flor- At the request of Mr. EDWARDS, his names of the Senator from New Jersey ida, his name was added as a cosponsor name was added as a cosponsor of S. (Mr. LAUTENBERG), the Senator from of S. 2065, supra. 2193, a bill to improve small business New Mexico (Mr. BINGAMAN), the Sen- S. 2076 loan programs, and for other purposes. ator from California (Mrs. BOXER), the At the request of Ms. SNOWE, the At the request of Mr. BAUCUS, the Senator from Massachusetts (Mr. KEN- name of the Senator from Florida (Mr. name of the Senator from Virginia (Mr. NEDY) and the Senator from New Jer- ALLEN) was added as a cosponsor of S. GRAHAM) was added as a cosponsor of S. sey (Mr. CORZINE) were added as co- 2076, a bill to amend title XI of the So- 2193, supra. sponsors of amendment No. 2858 pro- At the request of Mr. BAYH, his name cial Security Act to provide direct con- posed to H.R. 1997, a bill to amend title was added as a cosponsor of S. 2193, gressional access to the office of the 18, United States Code, and the Uni- supra. Chief Actuary in the Centers for Medi- form Code of Military Justice to pro- care & Medicaid Services. S.J. RES. 28 tect unborn children from assault and At the request of Mr. CAMPBELL, the murder, and for other purposes. S. 2089 name of the Senator from Montana AMENDMENT NO. 2859 At the request of Mr. CHAMBLISS, the (Mr. BAUCUS) was added as a cosponsor At the request of Mrs. MURRAY, the name of the Senator from Georgia (Mr. of S.J. Res. 28, a joint resolution recog- name of the Senator from Louisiana MILLER) was added as a cosponsor of S. nizing the 60th anniversary of the Al- (Ms. LANDRIEU) was added as a cospon- 2089, a bill to allow aliens who are eli- lied landing at Normandy during World sor of amendment No. 2859 proposed to gible for diversity visas to be eligible War II. H.R. 1997, a bill to amend title 18, beyond the fiscal year in which they S. CON. RES. 90 United States Code, and the Uniform applied. At the request of Mr. LEVIN, the Code of Military Justice to protect un- S. 2099 names of the Senator from Maryland born children from assault and murder, At the request of Mr. MILLER, the (Ms. MIKULSKI) and the Senator from and for other purposes. name of the Senator from Arkansas Iowa (Mr. HARKIN) were added as co- f (Mrs. LINCOLN) was added as a cospon- sponsors of S. Con. Res. 90, a concur- STATEMENTS ON INTRODUCED sor of S. 2099, a bill to amend title 38, rent resolution expressing the Sense of BILLS AND JOINT RESOLUTIONS United States Code, to provide entitle- the Congress regarding negotiating, in ment to educational assistance under the United States-Thailand Free Trade By Mr. CAMPBELL (by request): the Montgomery GI Bill for members of Agreement, access to the United States S. 2232. A bill to amend the Indian the Selected Reserve who aggregate automobile industry. Gaming Regulatory Act of 1988 to re- more than 2 years of active duty serv- S. RES. 313 vise the fee cap on National Indian ice in any five year period, and for Gaming Commission funding and make At the request of Mr. FEINGOLD, the other purposes. names of the Senator from Minnesota certain technical amendments; to the S. 2100 Committee on Indian Affairs. (Mr. DAYTON), the Senator from Con- Mr. CAMPBELL. Mr. President, at At the request of Mr. MILLER, the necticut (Mr. DODD) and the Senator the request of the administration, name of the Senator from Arkansas from Illinois (Mr. DURBIN) were added today I am introducing the Indian (Mrs. LINCOLN) was added as a cospon- as cosponsors of S. Res. 313, a resolu- Gaming Regulatory Act Amendments sor of S. 2100, a bill to amend title 10 tion expressing the sense of the Senate of 2004 to amend and update the act. United States Code, to increase the encouraging the active engagement of These amendments are proposed by amounts of educational assistance for Americans in world affairs and urging the administration to update the In- members of the Selected Reserve, and the Secretary of State to coordinate dian Gaming Regulatory Act by: clari- for other purposes. with implementing partners in cre- fying how vacancies in the National In- S. 2158 ating an online database of inter- dian Gaming Commission (NIGC) are At the request of Ms. COLLINS, the national exchange programs and re- filled; expanding the NIGC’s regulatory name of the Senator from Arkansas lated opportunities. responsibilities; revising the NIGC (Mrs. LINCOLN) was added as a cospon- AMENDMENT NO. 2690 statutory rates of pay to correspond sor of S. 2158, a bill to amend the Pub- At the request of Mrs. FEINSTEIN, the lic Health Service Act to increase the with other current Federal rates of name of the Senator from Connecticut pay; and expanding the NIGC’s report- supply of pancreatic islet cells for re- (Mr. DODD) was added as a cosponsor of search, and to provide for better co- ing requirements to Congress. amendment No. 2690 intended to be pro- I ask unanimous consent that the ordination of Federal efforts and infor- posed to S. 1637, a bill to amend the In- text of the bill be printed in the mation on islet cell transplantation. ternal Revenue Code of 1986 to comply RECORD. S. 2183 with the World Trade Organization rul- There being no objection, the bill was At the request of Mr. BINGAMAN, the ings on the FSC/ETI benefit in a man- ordered to be printed in the RECORD, as name of the Senator from Connecticut ner that preserves jobs and production follows: (Mr. LIEBERMAN) was added as a co- activities in the United States, to re- S. 2232 sponsor of S. 2183, a bill to amend the form and simplify the international Be it enacted by the Senate and House of Rep- Child Nutrition Act of 1966 to create taxation rules of the United States, resentatives of the United States of America in team nutrition networks to promote and for other purposes. Congress assembled, the nutritional health of school chil- AMENDMENT NO. 2698 SECTION 1. SHORT TITLE. dren. At the request of Mrs. FEINSTEIN, the This Act may be cited as the ‘‘Indian Gam- ing Regulatory Act Amendments of 2004’’. S. 2186 names of the Senator from Maine (Ms. SEC. 2. DEFINITIONS. At the request of Mr. HARKIN, his COLLINS), the Senator from Maine (Ms. Section 4 of the Indian Gaming Regulatory name was added as a cosponsor of S. SNOWE) and the Senator from Michigan Act (25 U.S.C. 2703) is amended— 2186, a bill to temporarily extend the (Mr. LEVIN) were added as cosponsors (1) by redesignating paragraphs (3), (4), (5), programs under the Small Business Act of amendment No. 2698 intended to be (6), (7), (8), and (10), as paragraphs (6), (7), (8), and the Small Business Investment Act proposed to S. 1637, a bill to amend the (3), (4), (5), and (11), respectively; and

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.051 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3183

(2) by inserting after paragraph (9) the fol- SEC. 5. POWERS OF THE COMMISSION. ‘‘(4) DURATION.—The regulatory plan shall lowing: Section 7 of the Indian Gaming Regulatory cover a period of not less than 5 fiscal years, ‘‘(10) REGULATED PERSON OR ENTITY.—The Act (25 U.S.C. 2706) is amended— beginning with the fiscal year in which the term ‘regulated person or entity’ means— (1) in subsection (a)(5), by striking ‘‘perma- plan is developed. ‘‘(A) an Indian tribe; nent’’ and inserting ‘‘final’’; ‘‘(5) REVISION.—The regulatory plan shall ‘‘(B) a tribal operator of an Indian gaming (2) in subsection (b)— be revised biennially.’’. operation; (A) in paragraphs (1), (2), and (4), by insert- SEC. 6. COMMISSION STAFFING. ‘‘(C) a management contractor engaged in ing ‘‘and class III gaming’’ after ‘‘class II Indian gaming; gaming’’; Section 8 of the Indian Gaming Regulatory ‘‘(D) any person that is associated with— (B) in paragraph (9), by striking ‘‘and’’ at Act (25 U.S.C. 2707) is amended— ‘‘(i) a gaming operation, or any part of a the end; (1) in subsection (a), by striking ‘‘basic pay gaming operation, of an Indian tribe; or (C) in paragraph (10), by striking the period payable for GS–18 of the General Schedule ‘‘(ii) a gaming-related contractor of an In- at the end and inserting ‘‘; and’’; and under section 5332 of title 5’’ and inserting dian tribe; and (D) by adding at the end the following: ‘‘pay payable for level IV of the Executive ‘‘(E) any person that— ‘‘(11) may, in case of contumacy by, or re- Schedule under section 5315 of title 5, United ‘‘(i) agrees, by contract or otherwise, to fusal to obey any subpoena issued to, any States Code, as adjusted under section 5318 of provide a tribal gaming operation with sup- person, request the Attorney General to in- that title’’; plies, a service, or a concession with an esti- voke the jurisdiction of any court of the (2) in the second sentence of subsection (b), mated value in excess of $25,000 annually United States, within the geographical juris- by striking ‘‘basic pay payable for GS–17 of (not including a contract for a legal or ac- diction of which a person to whom the sub- the General Schedule under section 5332 of counting service, commercial banking serv- poena was directed is an inhabitant, is domi- that title’’ and inserting ‘‘pay payable for ice, or public utility service); or ciled, is organized, has appointed an agent level IV of the Executive Schedule under sec- ‘‘(ii) requests a suitability determination for service of process, transacts business, or tion 5315 of title 5, United States Code, as ad- by the Commission, or by an Indian tribe or is found, to compel compliance with the sub- justed under section 5318 of that title’’; and State, as part of an effort— poena to require the attendance and testi- (3) in subsection (c), by striking ‘‘basic pay ‘‘(I) to acquire a direct financial interest mony of witnesses and the production of payable for GS–18 of the General Schedule’’ in, or management responsibility for, a man- records; and and inserting ‘‘pay payable for level IV of agement contract for operation of a tribal ‘‘(12) subject to subsection (c), may accept the Executive Schedule under section 5315 of gaming facility; or gifts on behalf of the Commission.’’; and title 5, United States Code, as adjusted under ‘‘(II) to participate in a gaming-related ac- (3) by striking subsection (c) and inserting section 5318 of that title’’. tivity that requires a licensing decision by the following: SEC. 7. TRIBAL GAMING ORDINANCES. an Indian tribe or State.’’. ‘‘(c) GIFTS.— Section 11 of the Indian Gaming Regu- SEC. 3. NATIONAL INDIAN GAMING COMMISSION. ‘‘(1) IN GENERAL.—The Commission shall latory Act (25 U.S.C. 2710) is amended— Section 5 of the Indian Gaming Regulatory not accept a gift— (1) in subsection (b)(2)(F)(i)— Act (25 U.S.C. 2704) is amended— ‘‘(A) that attaches a condition that is in- (A) by inserting ‘‘tribal gaming commis- (1) in subsection (b)(2)— consistent with any applicable law (includ- sioners, key tribal gaming commission em- (A) in subparagraph (A), by striking ‘‘(A)’’; ing a regulation); or ployees, and’’ after ‘‘conducted on’’; and ‘‘(B) that is conditioned on, or will require, (B) by inserting ‘‘primary management of- (B) by striking subparagraph (B); the expenditure of appropriated funds that ficials and key employees’’ after ‘‘oversight (2) by striking subsection (c) and inserting are not available to the Commission. of’’; and the following: ‘‘(2) REGULATIONS.—The Commission shall (C) by striking ‘‘such officials and their ‘‘(c) VACANCIES.— promulgate regulations specifying the cri- management’’; and ‘‘(1) IN GENERAL.—A vacancy on the Com- teria to be used to determine whether the ac- (2) in subsection (d)(9), by striking ‘‘the mission shall be filled in the same manner as ceptance of a gift would— provisions of subsections (b), (c), (d), (f), (g), the original appointment. ‘‘(A) adversely affect the ability of the and (h) of’’. ‘‘(2) SERVICE AFTER EXPIRATION OF TERM.— Commission or any employee of the Commis- A member may serve after the expiration of sion to carry out the duties of the Commis- SEC. 8. MANAGEMENT CONTRACTS. the member’s term at the pleasure of the of- sion in a fair and objective manner; or Section 12(a)(1) of the Indian Gaming Reg- ficer of the United States who appointed the ‘‘(B) compromise the integrity or the ap- ulatory Act (25 U.S.C. 2711(a)(1)) is amended member.’’; and pearance of the integrity of any official in- by inserting ‘‘or a class III gaming activity (3) in the second sentence of subsection (e), volved in a program of the Commission. that the Indian tribe may engage in under by striking ‘‘during meetings of the Commis- ‘‘(d) REGULATORY PLAN.— section 11(d)’’ after ‘‘section 11(b)(1)’’. sion in the absence of the Chairman’’ and in- ‘‘(1) IN GENERAL.—The Commission shall serting ‘‘in the absence of, or during any pe- develop a nonbinding regulatory plan for use SEC. 9. CIVIL PENALTIES. riod of disability of, the Chairman’’. in carrying out activities of the Commission. Section 14 of the Indian Gaming Regu- SEC. 4. POWERS OF CHAIRMAN. ‘‘(2) TREATMENT.—In developing the regu- latory Act (25 U.S.C. 2713) is amended— Section 6 of the Indian Gaming Regulatory latory plan, the Commission shall not be (1) by striking the section heading and all Act (25 U.S.C. 2705) is amended— bound by chapter 6 of title 5, United States that follows through ‘‘provide such tribal op- (1) in subsection (a)— Code. erator or management contractor’’ in sub- (A) by striking ‘‘, on behalf of the Commis- ‘‘(3) CONTENTS.—The regulatory plan shall section (a)(3) and inserting the following: sion,’’; include— (B) in paragraph (3), by striking ‘‘and’’ at ‘‘(A) a comprehensive mission statement ‘‘SEC. 14. CIVIL PENALTIES. the end; describing the major functions and oper- ‘‘(a) IN GENERAL.— (C) in paragraph (4), by striking the period ations of the Commission; ‘‘(1) LEVY AND COLLECTION.—Subject to at the end and inserting ‘‘; and’’; and ‘‘(B) a description of the goals and objec- such regulations as the Commission may (D) by adding at the end the following: tives of the Commission; promulgate, the Chairman shall have author- ‘‘(5) to issue to a regulated person or entity ‘‘(C) a description of the general means by ity to— an order that— which those goals and objectives are to be ‘‘(A) levy and collect appropriate civil ‘‘(A) requires an accounting and achieved, including a description of the oper- fines, not to exceed $25,000 per violation, per disgorgement, with interest; ational processes, skills, and technology and day; ‘‘(B) reprimands or censures; or the human resources, capital, information, ‘‘(B) issue orders requiring accounting and ‘‘(C) places a limitation on a gaming activ- and other resources required to achieve disgorgement, including interest; and ity or gaming function.’’; and those goals and objectives; ‘‘(C) issue orders of reprimand, censure, or (2) by adding at the end the following: ‘‘(D) a performance plan for achievement the placement of limitations on gaming ac- ‘‘(c) DELEGATION.—The Chairman may del- of those goals and objectives, including pro- tivities and functions of any regulated per- egate to any member of the Commission, on vision for a report on the actual performance son or entity for any violation of any provi- such terms and conditions as the Chairman of the Commission as measured against the sion of this Act, Commission regulations, or may determine, any power of the Chairman goals and objectives; tribal regulations, ordinances, or resolutions under subsection (a). ‘‘(E) an identification of the key factors approved under section 11 or 13. ‘‘(d) MANNER OF EXERCISE.—Authority that are external to, or beyond the control ‘‘(2) APPEAL.—The Commission shall by under subsection (a) shall be exercised in a of, the Commission that could significantly regulation provide an opportunity for an ap- manner that is consistent with— affect the achievement of those goals and ob- peal and hearing before the Commission of ‘‘(1) due process of law; jectives; and an action taken under paragraph (1). ‘‘(2) this Act; and ‘‘(F) a description of the program evalua- ‘‘(3) COMPLAINT.—If the Commission has ‘‘(3) the rules, findings, and determinations tions used in establishing or revising those reason to believe that a regulated person or made by the Commission in accordance with goals and objectives, including a schedule for entity is engaged in activities regulated by applicable law.’’. future program evaluations. this Act (including regulations promulgated

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.054 S25PT1 S3184 CONGRESSIONAL RECORD — SENATE March 25, 2004 under this Act), or by tribal regulations, or- Demonstration Authorization Act of current Deputy Administrator and dinances, or resolutions approved under sec- 1979 to establish in the Environmental would report directly to the Adminis- tion 11 or 13, that may result in the imposi- Protection Agency the position of Dep- trator. The new Deputy would be re- tion of a fine under subsection (a)(1), the per- uty Administrator for Science and sponsible for coordinating scientific re- manent closure of a game, or the modifica- tion or termination of a management con- Technology; to the Committee on Envi- search and application between the sci- tract, the Commission shall provide the reg- ronment and Public Works. entific and regulatory arms of the ulated person or entity.’’; Mr. VOINOVICH. Mr. President, I Agency. This will ensure that sound (2) in subsection (b)— rise today to introduce legislation with science is the basis for regulatory deci- (A) in paragraph (1), by striking ‘‘game’’ my friend and colleague, Senator CAR- sions. The new Deputy’s focus on and inserting ‘‘gaming operation, or any part PER, which will strengthen the use of science could also change how environ- of a gaming operation,’’; and science at the Environmental Protec- mental decisions are made. (B) in paragraph (2)— tion Agency. By improving science at Assistant Administrator for Research (i) in the first sentence, by striking ‘‘per- manent’’ and inserting ‘‘final’’; and the Agency, we will be improving the and Development, currently the top (ii) in the second sentence, by striking framework of our regulatory decisions. science job at the EPA, will be ap- ‘‘order a permanent closure of the gaming It is important that these regulations pointed for 6 years versus the current 4 operation’’ and inserting ‘‘make final the be effective, not onerous and ineffi- years political appointment. Histori- order of closure’’; and cient. To make government regulations cally, this position is recognized to be (3) in subsection (c), by striking ‘‘perma- efficient, they must be based on a solid one of the EPA’s weakest and most nent closure’’ and inserting ‘‘closure, ac- foundation of scientific understanding transient administrator positions ac- counting, disgorgement, reprimand, or cen- and data. cording to NRC’s report, even though sure or placement of a limitation on a gam- In 2000, the Nation Research Council ing activity or function’’. in my view, the position addresses released a report, ‘‘Strengthening SEC. 10. SUBPOENA AND DEPOSITION AUTHOR- some of the Agency’s more important ITY. Science at the U.S. Environmental topics. By lengthening the term of this Section 16 of the Indian Gaming Regu- Protection Agency: Research Manage- Assistant Administrator position and latory Act (25 U.S.C. 2715) is amended— ment and Peer Review Practices’’ removing it from the realm of politics, (1) by striking subsection (c) and inserting which outlined current practices at the I believe there will be more continuity the following: EPA and made recommendations for in the scientific work of the Agency ‘‘(c) JUDICIAL ENFORCEMENT.—On applica- improving science within the agency. tion of the Attorney General, a district court across administrations and allow the of the United States shall have jurisdiction The bill we are introducing today, the Assistant Administrator to focus on to issue a writ of mandamus, injunction, or ‘‘Environmental Research Enhance- science conducted at the Agency. order commanding any person to comply ment Act,’’ builds on the NRC report. In 1997, we learned the problems that with this Act.’’; When the Environmental Protection can arise when sound science is not (2) by redesignating subsections (d), (e), Agency was created in 1970 by Presi- used in making regulatory decisions. and (f) as subsections (e), (f), and (g), respec- dent Nixon, its mission was set to pro- Following EPA’s ozone and particulate tively, and inserting after subsection (c) the tect human health and safeguard the matter regulations there was great un- following: environment. In the 1960s, it had be- ‘‘(d) FAILURE TO OBEY SUBPOENA.— certainty on the scientific side. ‘‘(1) IN GENERAL.—In case of a failure to come increasingly clear that ‘‘we need- When intitally releasing the Ozone/ obey a subpoena issued by the Commission ed to know more about the total envi- PM regulations, the EPA greatly over or the Chairman and on request of the Com- ronment—land, water, and air.’’ The estimated the impacts for both ozone mission or Chairman, the Attorney General EPA was part of President Nixon’s re- and PM, and they had to publicly may apply to the United States District organizational efforts to effectively en- change their figures later on. Addition- Court for the District of Columbia or any sure the protection, development and ally, they selectively applied some United States district court within the geo- enhancement of the total environment. study results while ignoring others in graphical jurisdiction of which a person to For the EPA to reach this mission, whom the subpoena was directed is an inhab- their calculations. For example, the itant, is domiciled, is organized, has ap- establishing rules and priorities for majority of the health benefits for pointed an agent for service of process, clean land, air and water require a fun- ozone are based on one PM study by a transacts business or is found, to compel damental understanding of the science Dr. Moogarkar, even though the Agen- compliance with the subpoena. behind the real and potential threats cy ignored the PM results of that study ‘‘(2) REMEDIES.—On application under para- to public health and the environment. because it contradicted their position graph (1), the court shall have jurisdiction Unfortunately, many institutions, citi- on PM. to— zens and groups believe that science The legislation that Senator CARPER ‘‘(A) issue a writ commanding the person has not always played a significant to comply with the subpoena; or and I are introducing will ensure that ‘‘(B) punish a failure to obey the writ as a role in the decision-making process at science no longer takes a ‘‘back seat’’ contempt of court. the EPA. at the Environmental Protection Agen- ‘‘(3) PROCESS.—Process to a person in any In NRC’s 2002 report, it was con- cy in terms of policy making. I call on proceeding under this subsection may be cluded that, while the use of sound my colleagues to join us in cospon- served wherever the person may be found in science is one of the Environmental soring this bill. the United States or as otherwise authorized Protection Agency’s goals, the EPA I ask unanimous consent that the by law or by rule or order of the court.’’. needs to change its current structure text of the bill be printed in the SEC. 11. COMMISSION FUNDING. to allow science to play a more signifi- RECORD. Section 18(a)(2) of the Indian Gaming Reg- cant role in decisions made by the Ad- There being no objection, the bill was ulatory Act (25 U.S.C. 2717(a)(2)) is amended ministrator. by striking subparagraph (B) and inserting ordered to be printed in the RECORD, as the following: The legislation we are introducing follows: ‘‘(B) LIMITATION.—The total amount of all today looks to address those short- S. 2233 fees imposed during any fiscal year under the comings at the EPA by implementing Be it enacted by the Senate and House of Rep- schedule established under paragraph (1) portions of the report that require con- resentatives of the United States of America in shall not exceed 0.080 percent of the gaming gressional authorization. Congress assembled, revenues of all gaming operations subject to Under our bill, a new position, Dep- SECTION 1. SHORT TITLE. regulation by the Commission.’’. uty Administrator for Science and This Act may be cited as the ‘‘Environ- SEC. 12. PRESERVATION OF EXISTING STATUS. Technology will be established at the mental Research Enhancement Act’’. Nothing in this Act or any amendment EPA. This individual will oversee the SEC. 2. ENVIRONMENTAL PROTECTION AGENCY made by this Act expands, limits, or other- Office of Research and Development; RESEARCH ACTIVITIES. wise affects any immunity that an Indian (a) IN GENERAL.—Section 6 of the Environ- tribe may have under applicable law. the Environmental Information Agen- cy; the Science Advisory board; the mental Research, Development, and Dem- onstration Authorization Act of 1979 (42 By Mr. VOINOVICH (for himself Science Policy Council; and the sci- U.S.C. 4361c) is amended by adding at the end and Mr. CARPER): entific and technical activities in the the following: S. 2233. A bill to amend the Environ- regulatory program at the EPA. This ‘‘(e) DEPUTY ADMINISTRATOR FOR SCIENCE mental Research, Development, and new position is equal in rank to the AND TECHNOLOGY.—

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.054 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3185

‘‘(1) ESTABLISHMENT.—There is established ‘‘(2) APPLICABILITY.—Paragraph (1) applies comprehensive and detailed inventory of all in the Environmental Protection Agency (re- to each appointment that is made on or after scientific activities conducted by Agency ferred to in this section as the ‘Agency’) the the date of enactment of this subsection. units outside the Office, which inventory position of Deputy Administrator for Science ‘‘(g) SENIOR RESEARCH APPOINTMENTS IN should include information such as— and Technology. OFFICE OF RESEARCH AND DEVELOPMENT LAB- ‘‘(I) project goals, milestones, and sched- ‘‘(2) APPOINTMENT.— ORATORIES.— ules; ‘‘(A) IN GENERAL.—The Deputy Adminis- ‘‘(1) ESTABLISHMENT.—The head of the Of- ‘‘(II) principal investigators and project trator for Science and Technology shall be fice, in consultation with the Science Advi- managers; and appointed by the President, by and with the sory Board and the Board of Scientific Coun- ‘‘(III) allocations of staff and financial re- advice and consent of the Senate. selors of the Office, shall establish a program sources; and ‘‘(B) CONSIDERATION OF RECOMMENDA- to recruit and appoint to the laboratories of ‘‘(ii) use the results of the inventory to en- TIONS.—In making an appointment under the Office senior researchers who have made sure that activities described in clause (i) subparagraph (A), the President shall con- distinguished achievements in environ- are properly coordinated through the Agen- sider recommendations submitted by— mental research. cy-wide science planning and budgeting proc- ‘‘(i) the National Academy of Sciences; ‘‘(2) AWARDS.— ess and are appropriately peer reviewed; and ‘‘(ii) the National Academy of Engineering; ‘‘(A) IN GENERAL.—The head of the Office ‘‘(C) change the peer-review policy of the and shall make awards to the senior researchers Agency to more strictly separate the man- ‘‘(iii) the Science Advisory Board estab- appointed under paragraph (1)— agement of the development of a work prod- lished by section 8 of the Environmental Re- ‘‘(i) to support research in areas that are uct from the management of the peer review search, Development, and Demonstration rapidly advancing and are related to the mis- of that work product, thereby ensuring Authorization Act of 1978 (42 U.S.C. 4365). sion of the Agency; and greater independence of peer reviews from ‘‘(ii) to train junior researchers who dem- ‘‘(3) RESPONSIBILITIES.— the control of program managers, or the po- onstrate exceptional promise to conduct re- ‘‘(A) OVERSIGHT.—The Deputy Adminis- tential appearance of control by program trator for Science and Technology shall co- search in such areas. managers, throughout the Agency.’’. ordinate and oversee— ‘‘(B) SELECTION PROCEDURES.—The head of (b) DEPUTY ADMINISTRATOR FOR POLICY AND the Office shall establish procedures for the ‘‘(i) the Office of Research and Develop- MANAGEMENT.— selection of the recipients of awards under ment of the Agency (referred to in this sec- (1) IN GENERAL.—The position of Deputy this paragraph, including procedures for con- tion as the ‘Office’); Administrator of the Environmental Protec- sultation with the Science Advisory Board ‘‘(ii) the Office of Environmental Informa- tion Agency is redesignated as the position and the Board of Scientific Counselors of the tion of the Agency; of ‘‘Deputy Administrator for Policy and Office. ‘‘(iii) the Science Advisory Board; Management of the Environmental Protec- ‘‘(C) DURATION OF AWARDS.—Awards under ‘‘(iv) the Science Policy Council of the tion Agency’’. this paragraph shall be made for a 5-year pe- Agency; and (2) REFERENCES.—Any reference in a law, riod and may be renewed. ‘‘(v) scientific and technical activities in map, regulation, document, paper, or other ‘‘(3) PLACEMENT OF RESEARCHERS.—Each the regulatory program and regional offices record of the United States to the Deputy laboratory of the Office shall have not fewer Administrator of the Environmental Protec- of the Agency. than 1 senior researcher appointed under the tion Agency shall be deemed to be a ref- ‘‘(B) OTHER RESPONSIBILITIES.—The Deputy program established under paragraph (1). Administrator for Science and Technology erence to the Deputy Administrator for Pol- ‘‘(4) AUTHORIZATION OF APPROPRIATIONS.— icy and Management of the Environmental shall— There are authorized to be appropriated such Protection Agency. ‘‘(i) ensure that the most important sci- sums as are necessary to carry out this sub- entific issues facing the Agency are identi- (c) EXECUTIVE SCHEDULE LEVEL III.—Sec- section. tion 5314 of title 5, United States Code, is fied and defined, including those issues em- ‘‘(h) OTHER ACTIVITIES OF OFFICE OF RE- amended by striking the item relating to the bedded in major policy or regulatory pro- SEARCH AND DEVELOPMENT.— Deputy Administrator of the Environmental posals; ‘‘(1) ACTIVITIES OF THE OFFICE.—The Office Protection Agency and inserting the fol- ‘‘(ii) develop and oversee an Agency-wide shall— lowing: strategy to acquire and disseminate nec- ‘‘(A) make a concerted effort to give re- ‘‘Deputy Administrator for Policy and essary scientific information through intra- search managers of the Office a high degree Management of the Environmental Protec- mural efforts or through extramural pro- of flexibility and accountability, including tion Agency. grams involving academia, other govern- empowering the research managers to make ‘‘Deputy Administrator for Science and ment agencies, and the private sector in the decisions at the lowest appropriate manage- Technology of the Environmental Protection United States and in foreign countries; ment level consistent with the policy of the Agency.’’. ‘‘(iii) ensure that the complex scientific Agency and the strategic goals and budget outreach and communication needs of the priorities of the Office; By Mr. DASCHLE (for himself, Agency are met, including the needs— ‘‘(B) maintain, to the maximum extent ‘‘(I) to reach throughout the Agency for practicable, an even balance between core re- Mr. KENNEDY, Mr. REED, Mr. credible science in support of regulatory of- search and problem-driven research; FEINGOLD, Mr. KOHL, Mr. DUR- fice, regional office, and Agency-wide policy ‘‘(C) develop and implement a structured BIN, Mr. BINGAMAN, Mr. GRAHAM deliberations; and strategy for encouraging, and acquiring and of Florida, Mr. REID, and Mr. ‘‘(II) to reach out to the broader United applying the results of, research conducted DODD): States and international scientific commu- or sponsored by other Federal and State S. 2234. A bill to amend title XVIII of nity for scientific knowledge that is relevant agencies, universities, and industry, both in to Agency policy or regulatory issues; the Social Security Act to ensure that the United States and in foreign countries; prescription drug card sponsors pass ‘‘(iv) coordinate and oversee scientific and quality-assurance and peer-review activities ‘‘(D) substantially improve the documenta- along discounts to beneficiaries under throughout the Agency, including activities tion and transparency of the decisionmaking the medicare prescription drug dis- in support of the regulatory and regional of- processes of the Office for— count card and transitional assistance fices; ‘‘(i) establishing research and technical-as- program; to the Committee on Fi- ‘‘(v) develop processes to ensure that ap- sistance priorities; nance. propriate scientific information is used in ‘‘(ii) making intramural and extramural Mr. DASCHLE. Mr. President, the decisionmaking at all levels in the Agency; assignments; and Medicare Prescription Drug, Improve- and ‘‘(iii) allocating funds. ‘‘(vi) ensure, and certify to the Adminis- ment, and Modernization Act of 2003 ‘‘(2) ACTIVITIES OF THE ADMINISTRATOR.— created a temporary drug discount card trator of the Agency, that the scientific and The Administrator of the Agency shall— technical information used in each Agency ‘‘(A) substantially increase the efforts of program. We expect that program to go regulatory decision and policy is— the Agency— into effect this summer. Under the new ‘‘(I) valid; ‘‘(i) to disseminate actively the research law, it is the only prescription drug as- ‘‘(II) appropriately characterized in terms products and ongoing projects of the Office; sistance seniors will see until 2006. And of scientific uncertainty and cross-media ‘‘(ii) to explain the significance of the re- it isn’t much. This program has a lot of issues; and search products and projects; and problems and I am very skeptical that ‘‘(III) appropriately applied. ‘‘(iii) to assist other persons and entities it will provide meaningful assistance ‘‘(f) ASSISTANT ADMINISTRATOR FOR RE- inside and outside the Agency in applying to most beneficiaries. SEARCH AND DEVELOPMENT.— the results of the research products and Today, the administration announced ‘‘(1) TERM OF APPOINTMENT.—Notwith- projects; standing any other provision of law, the As- ‘‘(B)(i) direct the Deputy Administrator for which private companies have been se- sistant Administrator for Research and De- Science and Technology to expand the lected to receive beneficiary enroll- velopment of the Agency shall be appointed science inventory of the Agency by con- ment fees and provide the cards to for a term of 6 years. ducting, documenting, and publishing a more beneficiaries. The applicants included

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.059 S25PT1 S3186 CONGRESSIONAL RECORD — SENATE March 25, 2004 big pharmaceutical companies, phar- ample, the article notes that since that By Mr. HOLLINGS: maceutical benefit managers, and time, the price of Lescol, a cholesterol S. 2235. A bill to rename the Depart- HMOs. And the list of approved compa- drug, has increased by more than a ment of Commerce as the Department nies is a who’s who of the insurance in- third. Similarly, the price for Celebrex, of Trade and Commerce and transfer dustry. a popular drug for arthritis pain, has the Office of the United States Trade One of the most glaring problems risen 23 percent since the administra- Representative into the Department, with the program is that the Medicare tion proposed the cards. to consolidate and enhance statutory legislation fails to ensure that these The administration is claiming the authority to protect American jobs private companies pass along the dis- discount cards will result in bene- from unfair international competition, counts they negotiate to beneficiaries. ficiary savings of between 10 and 25 and for other purposes; to the Com- Today, I am introducing legislation to percent. But the pharmaceutical indus- mittee on Finance. remedy that failure. My bill would re- try’s price hikes negate what little sav- Mr. HOLLINGS. Mr. President, I ask quire card sponsors to pass at least 90 ings the administration optimistically unanimous consent that a copy of an percent of the discounts along to bene- predicts. Unfortunately, the discount article I wrote for the Washington Post ficiaries. It seems like common sense, cards are just one example of the new Outlook section be printed and that but, true to form, the Republican Medi- law’s failure to address drug prices. the text of the bill be printed in the care bill allows the private companies The Boston University School of Public RECORD. to keep the discounts as profits. And Health recently found that the new There being no objection, the mate- the administration’s regulations only Medicare law could lead to an addi- rial was ordered to be printed in the require that they pass along a ‘‘share’’ tional $139 billion in profits for the RECORD, as follows: of the discounts they negotiate. Well, I drug companies. The new law actually S. 2235 think that’s giving them too much lee- prohibits Medicare from using its nego- Be it enacted by the Senate and House of Rep- way. tiating power to obtain lower drug resentatives of the United States of America in The administration is promising sen- Congress assembled, prices for seniors. And the reimporta- SECTION 1. SHORT TITLE. iors discounts in order to convince tion provisions are meaningless. We This Act may be cited as the ‘‘Domestic them to pay private companies a $30 know from experience that seniors can Workforce Protection Act’’. fee. My bill would ensure that these save much more than 10 to 25 percent SEC. 2. COMMERCE DEPARTMENT RENAMED AS private companies pass the discounts by getting their drugs from Canada. DEPARTMENT OF TRADE AND COM- along to those seniors. It’s only fair. As Families USA points out on its MERCE. The sponsors will still have plenty of (a) IN GENERAL.—The Department of Com- website, the drug cards actually create merce is hereby redesignated the Depart- room for benefitting from participating an incentive for the drug companies to ment of Trade and Commerce, and the Sec- in the program—they get the $30 en- raise their prices: ‘‘Neither the new law retary of Commerce or any other official of rollment fee and they will be able to nor the regulations specify the ‘base the Department of Commerce is hereby re- retain up to 10 percent of the nego- prices’ to which discounts will be ap- designated the Secretary or official, as ap- tiated price concessions. plied. Any discount will be meaningless propriate, of Trade and Commerce. Despite all the hoopla, the cards if the base price is undefined—espe- (b) REFERENCE TO DEPARTMENT, SEC- RETARY, ETC. OF COMMERCE DEEMED REF- themselves are nothing new. Some low- cially if the base price continues to rise income beneficiaries will see $600 in as- ERENCE TO DEPARTMENT, SECRETARY, ETC. OF very substantially. It would be like a TRADE AND COMMERCE.—Any reference to the sistance on their cards, and that is real department store marking up prices on Department of Commerce, the Secretary of help. Unfortunately, the process for products so that it can later offer them Commerce, or any other official of the De- gaining access to that money is so ‘on sale’ at tremendous ‘savings.’’’ partment of Commerce in any law, rule, reg- cumbersome, I worry that many will The bill I am introducing addresses ulation, certificate, directive, instruction, or not get it. And I have serious doubts only one flaw in a program riddled with other official paper in force on the effective about whether the cards will add any problems. I feel that it is a critical date of this Act shall be deemed to refer and other meaningful assistance. The Gen- step. At the very least, we should en- apply to the Department of Trade and Com- eral Accounting Office has found that merce or the Secretary of Trade and Com- sure that if this program does offer merce, respectively. similar cards now available on the some sort of price concession, that SEC. 3. TRANSFER OF THE OFFICE OF THE market offer discounts on average of Medicare beneficiaries—not private UNITED STATES TRADE REPRESENT- less than 10 percent—that’s about what companies like HMOs—are the ones to ATIVE TO WITHIN THE DEPARTMENT seniors could save by comparison shop- profit from the results. OF COMMERCE AND TRADE. Section 141(a) of the Trade Act of 1974 (19 ping at local pharmacies. I ask unanimous consent that the Worse, under the Medicare drug pro- U.S.C. 2171(a)) is amended by striking ‘‘Exec- text of the bill be printed in the utive Office of the President’’ and inserting gram, seniors will only be able to use RECORD following my remarks. ‘‘Department of Trade and Commerce’’. one Medicare-endorsed card. Before the There being no objection, the bill was SEC. 4. TERMINATION OF DEFERRAL TO ELIMI- program, people could use as many ordered to be printed in the RECORD, as NATE TAX BENEFITS FOR OFFSHORE cards as they wanted and compare dis- follows: PRODUCTION. (a) GENERAL RULE.—Paragraph (1) of sec- counts. And the real kicker is that S. 2234 once seniors pay a fee to participate, tion 951(a) of the Internal Revenue Code of Be it enacted by the Senate and House of Rep- 1986 (relating to amounts included in gross they’re locked into that card for a resentatives of the United States of America in income of United States shareholders) is year. But the card sponsor isn’t locked Congress assembled, amended— into anything. It can change every- SECTION 1. SHORT TITLE. (1) by striking ‘‘and’’ after the semicolon thing whenever it wants—even the This Act may be cited as the ‘‘Drug Dis- in subparagraph (A)(iii); amount of the discount or whether a count Card Improvement Act of 2004’’. (2) by striking ‘‘959(a)(2).’’ in subparagraph discount is offered on a particular SEC. 2. ENSURING THAT PRESCRIPTION DRUG (B) and inserting ‘‘959(a)(2); and’’; and drug. CARD SPONSORS PASS ALONG DIS- (3) by adding at the end thereof the fol- And here’s the worst part, this drug COUNTS TO BENEFICIARIES. lowing: (a) IN GENERAL.—Section 1860D– card program may already be harming ‘‘(C) the amount determined under section 31(e)(1)(A)(ii) of the Social Security Act (42 956A with respect to such shareholder for all American drug consumers. As the U.S.C. 1395w–141(e)(1)(A)(ii)), as added by sec- such year (but only to the extent not ex- Wall Street Journal noted just yester- tion 101 of the Medicare Prescription Drug, cluded from gross income under section day, recent drug price increases are Improvement, and Modernization Act of 2003 959(a)(3)).’’. eroding even the meager savings the (Public Law 108–173; 117 Stat. 2071), is amend- (b) AMOUNT OF INCLUSION.—Subpart F of administration predicts. What’s more, ed by striking ‘‘take into account’’ and in- part III of subchapter N of chapter 1 of the all Americans are already paying high- serting ‘‘reflect at least 90 percent of all’’. Internal Revenue Code of 1986 is amended by er drug prices. According to the Wall (b) EFFECTIVE DATE.—The amendment inserting after section 956 the following new made by this section shall take effect as if section: Street Journal, since the Bush admin- included in the enactment of section 101 of ‘‘SEC. 956A. EARNINGS OF CONTROLLED FOREIGN istration proposed a Medicare drug the Medicare Prescription Drug, Improve- CORPORATIONS. card in 2001, the prices of many drugs ment, and Modernization Act of 2003 (Public ‘‘(a) GENERAL RULE.—In the case of any the elderly use have ‘‘surged.’’ For ex- Law 108–173; 117 Stat. 2066). controlled foreign corporation, the amount

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.060 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3187 determined under this section with respect be treated as attributable first to earnings ‘‘(3) to recharacterize transactions, and to any United States shareholder for any described in subsection (c)(2), and then to ‘‘(4) to disregard any transaction, trust, or taxable year is the lesser of— earnings described in subsection (c)(3), and other legal entity, ‘‘(1) the excess (if any) of— ‘‘(B) amounts that would be included under determined by the Secretary to be necessary ‘‘(A) such shareholder’s pro rata share of subparagraph (C) of section 951(a)(1) (deter- to prevent the use by a corporation of a tax the amount of the controlled foreign cor- mined without regard to this section) shall haven to avoid liability for tax under this poration’s assets for such taxable year, over be treated as attributable first to earnings chapter. ‘‘(B) the amount of earnings and profits de- described in subsection (c)(2) to the extent ‘‘(b) TAX HAVEN DEFINED.—In this section, scribed in section 959(c)(1)(B) with respect to the earnings so described were accumulated the term ‘tax haven’ means any country that such shareholder, or in taxable years beginning after February 29, meets the tax haven criteria established by ‘‘(2) such shareholder’s pro rata share of 2004, and then to earnings described in sub- the Organization for Economic Co-operation the applicable earnings of such controlled section (c)(3).’’; and and Development.’’. foreign corporation determined after the ap- (ii) by striking ‘‘section 951(a)(1)(B)’’ in (b) CONFORMING AMENDMENT.—The sub- plication of section 951(a)(1)(B). paragraph (2) and inserting ‘‘subparagraphs chapter analysis for subchapter B of chapter ‘‘(b) APPLICABLE EARNINGS.—For purposes (B) and (C) of section 951(a)(1)’’. 78 of the Internal Revenue Code of 1986 is of this section, the term ‘applicable earn- (3) CONFORMING AMENDMENT.—Subsection amended by adding at the end the following: ings’ means, with respect to any controlled (b) of section 989 of the Internal Revenue ‘‘6725. Authority to frustrate use of corporate foreign corporation, the sum of— Code of 1986 is amended by striking ‘‘section tax havens’’. ‘‘(1) the amount referred to in section 951(a)(1)(B)’’ and inserting ‘‘subparagraph (B) SEC. 7. ASSISTANT ATTORNEY GENERAL FOR 316(a)(1) to the extent such amount was accu- or (C) of section 951(a)(1)’’. TRADE. mulated in taxable years beginning after (d) EFFECTIVE DATE.—The amendments (a) POSITION ESTABLISHED.—The Attorney February 29, 2004, and made by this section shall apply to taxable General shall appoint an Assistant Attorney ‘‘(2) the amount referred to in section years of foreign corporations beginning after General for Trade. 316(a)(2), February 29, 2004, and to taxable years of (b) DUTIES.—The Assistant Attorney Gen- eral for Trade shall— reduced by distributions made during the United States shareholders in which or with which such taxable years of foreign corpora- (1) investigate anticompetitive conduct by taxable year and reduced by the earnings and foreign companies that has an adverse im- profits described in section 959(c)(1) to the tions end. (e) TECHNICAL AND CONFORMING CHANGES.— pact on the economy of the United States extent that the earnings and profits so de- The Secretary of the Treasury shall, within (including manufacturing, agriculture, and scribed were accumulated in taxable years 90 days after the date of enactment of this employment) or the global competitiveness beginning after February 29, 2004. Act, submit to the Committee on Ways and of United States companies; ‘‘(c) SPECIAL RULE WHERE CORPORATION Means of the House of Representatives and (2) investigate violations of international CEASES TO BE CONTROLLED FOREIGN COR- to the Committee on Finance of the Senate, trade agreements to which the United States PORATION DURING TAXABLE YEAR.—If any for- a draft of any technical and conforming is a party that have an adverse impact on eign corporation ceases to be a controlled changes in the Internal Revenue Code of 1986 the economy of the United States (including foreign corporation during any taxable that are necessary to reflect throughout manufacturing, agriculture, and employ- year— such Code the changes in the substantive ment) or the global competitiveness of ‘‘(1) the determination of any United provisions of law made by this section. United States companies and take appro- States shareholder’s pro rata share shall be priate action to seek redress or punishment made on the basis of stock owned (within the SEC. 5. DISALLOWANCE OF DEDUCTIONS FOR CERTAIN OFFSHORE ROYALTY PAY- for those violations; and meaning of section 958(a)) by such share- MENTS. (3) investigate and initiate appropriate ac- holder on the last day during the taxable (a) IN GENERAL.—Part IX of subchapter B tion against other activities throughout the year on which the foreign corporation is a of chapter 1 of the Internal Revenue Code of world that have an adverse impact on the controlled foreign corporation, 1986 is amended by adding at the end the fol- economy of the United States (including ‘‘(2) the amount of such corporation’s as- lowing: manufacturing, agriculture, and employ- sets for such taxable year shall be deter- ‘‘SEC. 280I. CERTAIN OFFSHORE ROYALTY PAY- ment) or the global competitiveness of mined by only taking into account quarters MENTS. United States companies. ending on or before such last day, and ‘‘(a) IN GENERAL.—In the case of a corpora- (c) AUTHORITY ISINADDITION TO OTHER AU- ‘‘(3) in determining applicable earnings, tion, no deduction shall be allowed for the THORITIES.—The authority granted to the As- the amount taken into account by reason of payment of a royalty to an affiliated entity sistant Attorney General for Trade by this being described in paragraph (2) of section organized and operated outside the United section is in addition to, and not in deroga- 316(a) shall be the portion of the amount so States in exchange for the use of rights to a tion or in lieu of, any authority provided by described which is allocable (on a pro rata copyrighted or trademarked product if those law to any other officer or agency of the basis) to the part of such year during which rights were transferred by the corporation or United States charged with enforcement of the corporation is a controlled foreign cor- a related party to that entity. the trade laws of the United States or of poration. ‘‘(b) EXCEPTION.—Subsection (a) does not international agreements to which the ‘‘(d) REGULATIONS.—The Secretary shall apply to the payment of a royalty if the tax- United States is a party. prescribe such regulations as may be nec- payer establishes, to the satisfaction of the (d) COMPENSATION.—Section 5315 of title 5, essary to carry out the purposes of this sec- Secretary, that— United States Code, is amended by striking tion, including regulations to prevent the ‘‘(1) the transfer of the rights to the entity ‘‘(10)’’ in the item relating to Assistant At- avoidance of the provisions of this section was for a sound business reason (other than torney General and inserting ‘‘(11)’’. through reorganizations or otherwise.’’. the reduction of liability for tax under this SEC. 8. EMPLOYMENT OF ADDITIONAL CUSTOMS (c) PREVIOUSLY TAXED INCOME RULES.— chapter); and INSPECTORS FOR ILLEGAL TRANS- SHIPMENTS OF TEXTILES. (1) IN GENERAL.—Subsection (a) of section ‘‘(2) the amounts paid or incurred for such The Secretary of Homeland Security shall 959 of the Internal Revenue Code of 1986 (re- royalty payments are reasonable under the lating to exclusion from gross income of pre- hire, train, and deploy 1,000 customs agents circumstances.’’. in addition to the number of customs agents viously taxed earnings and profits) is amend- (b) CLERICAL AMENDMENT.—The part anal- otherwise authorized by law or otherwise ed by striking ‘‘or’’ at the end of paragraph ysis for such part is amended by adding at employed by the Department of Homeland (1), by adding ‘‘or’’ at the end of paragraph the end the following: Security for the purpose of detecting and (2), and by inserting after paragraph (2) the ‘‘280I. Certain offshore royalty payments.’’. preventing illegal transshipments of textiles following: (c) EFFECTIVE DATE.—The amendments to avoid textile import quotas and in viola- ‘‘(3) such amounts would, but for this sub- made by this section apply to taxable years tion of trade agreements to which the United section, be included under section 951(a)(1)(C) beginning after December 31, 2003. States is a party. in the gross income of,’’. SEC. 6. INCREASE IN AUTHORITY OF THE INTER- SEC. 9. INCREASED DOMESTIC PRODUCTION OF (2) ALLOCATION RULES.— NAL REVENUE SERVICE TO THWART NATIONAL DEFENSE CRITICAL (A) Subsection (a) of section 959 of the In- USE OF TAX HAVENS BY CORPORA- GOODS. ternal Revenue Code of 1986 is amended by TIONS. (a) IN GENERAL.—The Secretary of Com- striking ‘‘paragraph (2)’’ in the last sentence (a) IN GENERAL.—Subchapter B of chapter merce, in consultation with the Secretary of and inserting ‘‘paragraphs (2) and (3)’’. 78 of the Internal Revenue Code of 1986 is Defense, the Director of the Central Intel- (B) Section 959(f) of the Internal Revenue amended by adding at the end the following: ligence Agency, the Secretary of State, the Code of 1986 is amended— ‘‘SEC. 7625. AUTHORITY TO FRUSTRATE USE OF Secretary of Homeland Security, and the Ad- (i) by striking paragraph (1) and inserting CORPORATE TAX HAVENS. ministrator of the Small Business Adminis- the following: ‘‘(a) IN GENERAL.—The Secretary is author- tration shall develop a program to encourage ‘‘(1) IN GENERAL.—For purposes of this sec- ized— and support increased domestic production tion— ‘‘(1) to deny any otherwise allowable de- of goods and products that are essential or ‘‘(A) amounts that would be included under duction or credit under chapter 1, critical to national security in order to de- subparagraph (B) of section 951(a)(1) (deter- ‘‘(2) to recharacterize, reallocate, and re- crease the United States’ dependence upon mined without regard to this section) shall source income, imports of such goods and products.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.074 S25PT1 S3188 CONGRESSIONAL RECORD — SENATE March 25, 2004

(b) SUPPORT PROGRAM.—The Secretary of willing to fight for it. And the entity to fight words, to bug off. He said, we are not going Commerce shall implement the program de- for free trade is the U.S. Congress. to remain your colony shipping you our nat- veloped under subsection (a) to the max- Instead, Congress—whose members are ural resources—rice, cotton, indigo, timber, imum extent feasible through existing pro- shouting ‘‘fair trade’’ and ‘‘level the playing iron or—and importing your manufactured grams, including programs administered by field’’—is the very group tilting the playing products. We are going to build our own the Small Business Administration. The Sec- field when it comes to trade. manufacturing capacity. By piling items onto the cost of doing busi- retary shall transmit to the Congress a re- The second bill ever adopted by Congress, port, within 18 months after the date of en- ness here, Congress has helped end the posi- tive trade balance that the United States ran on July 4, 1789, was a 50 percent tariff on nu- actment of this Act, describing the program merous articles. This policy of protec- and making such recommendations, includ- right up until the early 1980s. Over the past 40 years, the minimum wage went up, the tionism, endorsed by James Madison and ing legislative recommendations, as the Sec- Thomas Jefferson, continued under Presi- retary deems necessary for expanding the Environmental Protection Agency was es- tablished, and the Occupational Safety and dent Lincoln when he launched America’s scope or improving the efficacy of the pro- steel industry by refusing to import from gram. The Secretary may submit the report Health Administration was set up. Law- makers added the Equal Pay Act, the Age England the steel for the Transcontinental in both classified and redacted form. Railroad. President Franklin Roosevelt pro- (c) AUTHORIZATION OF APPROPRIATIONS.— Discrimination in Employment Act and the Employment Retirement Income Security tected agriculture, President Eisenhower There are authorized to be appropriated to protected oil and President Kennedy pro- the Secretary of Commerce such sums as Act. Then came the sharp increase in payroll taxes for Social Security in 1983, measures tected textiles. This economic and industrial may be necessary to carry out the program. giant, the United States, was built on pro- SEC. 10. SENSE OF THE SENATE CONCERNING AP- requiring plant closing notice and parental leave, and the Americans With Disabilities tectionism and, for more than a century, fi- PROPRIATIONS FOR CERTAIN PRO- nanced it with tariffs. And it worked. GRAMS. Act. Health costs increased, too, making it It is the sense of the Senate that the Con- $500 a car cheaper in health costs alone for The Washington mantra of ‘‘retrain, re- gress should appropriate the full amount au- General Motors to make Pontiacs in Canada. train’’ comes up short. For example, Oneita thorized by law to carry out the Regional All this helped give us a trade deficit that Industries closed its T-shirt plant in An- Centers for the Transfer of Manufacturing hit a record $43.1 billion in January alone. drews, SC, back in 1999. The plant had 487 Technology program under section 25 of the Even if wages were equalized, it would still employees averaging 47 years of age. Let’s National Institute of Standards and Tech- pay for U.S. companies to move operations assume they were ‘‘retrained’’ and became nology Act (15 U.S. C. 278k) and the Ad- to places such as China, which requires none 487 skilled computer operators. Who is going vanced Technology Program authorized by of these aspects of America’s high standard to hire a 47-year-old operator over a 21-year- section 28 of that Act (15 U.S. C. 278n). of living. Recently, columnist George Will old operator? No one is going to take on the wrote: ‘‘The export of jobs frees U.S. workers SEC. 11. TRANSFER OF INTERNATIONAL TRADE retirement and health costs of the 47-year- COMMISSION FUNCTIONS. for tasks where America has a comparative old. Moreover, that computer job probably advantage.’’ But in global competition, what (a) ABOLISHMENT OF ITC.—Effective on the just left for Bangalore, India. matters is not the comparative advantage of first day of the seventh month beginning In global competition there is a clash be- our ability so much as the comparative dis- after the date of enactment of this Act, the tween standards of living. I supported free United States International Trade Commis- advantage of our living standard. To really level the playing field in trade trade with Canada because we have rel- sion established by section 330 of the Tariff would require lowering our living standard, atively the same standard of living. But I op- Act of 1930 (19 U.S.C. 1330) as in effect on the which is not going to happen. We value our posed free trade with Mexico, and therefore last day of the sixth month beginning after clean air and water, our safe factories and voted against the North American Free the date of enactment of this Act is abol- machinery, and our rights and benefits. Both Trade Agreement (NAFTA), preferring to ished. Republicans and Democrats overwhelmingly raise the standards in Mexico, as Europe did (b) TRANSFER OF FUNCTIONS.—Except as support this living standard and many are with Portugal, Spain and Greece before ad- otherwise provided in this Act, all functions prepared to raise its. The only course pos- mitting them to Europe’s common market. that on the last day of the sixth month be- sible, then, is to protect the standard. To be eligible for a tree trade agreement you ginning after the date of enactment of this To talk in these terms raises cries of ‘‘pro- should first have a free market, labor rights, Act are authorized to be performed by the tectionism.’’ But the business of government ownership of property, contract rights of ap- United States International Trade Commis- is protection. The oath of the public servant peal and a respected judiciary. Mexico sion are transferred to the Department of is ‘‘to preserve, protect and defend.’’ We have lacked these, and after NAFTA there was an Commerce effective on the first day of the the Army to protect us from enemies with- immediate flow of jobs out of the United seventh month beginning after the date of out and the FBI to protect us from enemies States because of Mexico’s lesser standards. enactment of this Act and shall be performed within. We have Medicare and Medicaid to Australia, on the other hand, has labor by the Assistant Secretary of Commerce for protect us from ill health, and Social Secu- rights, environmental rights and an open Import Administration. rity to protect us from poverty in old age. market, so the trade agreement reached with (c) DETERMINATION OF CERTAIN FUNC- We have the Securities and Exchange Com- Australia this month should be approved. TIONS.—If necessary, the Office of Manage- mission to protect us from stock fraud; We must engage in competitive trade. To ment and Budget shall make any determina- banking laws to protect us from usurpers; eliminate a barrier, raise a barrier. Then tion of the functions that are transferred truth in lending laws to protect us from eliminate them both. under this section. charlatans. Our trouble is that we have treated trade SEC. 12. INCIDENTAL TRANSFERS. When it comes to trade, however, multi- as aid. After World War II, we were the only The Director of the Office of Management national corporations contend that we do country with industry, and in order to pros- and Budget, in consultation with the Sec- not need to protect, but to educate and to per we needed to spread prosperity. Through retary of Commerce, shall make such deter- improve skills; productivity is the problem, the Marshall Plan, we sent money, equip- minations as may be necessary with regard they say. But the United States is the most ment and expertise to Europe and the Pacific to the functions, offices, or portions thereof productive industrial nation in the world, Rim. And it worked. Capitalism defeated transferred by this Act, and make such addi- with skills galore. BMW is producing better- communism in the Cold War. Our hope in tional incidental dispositions of personnel, quality cars in South Carolina than in Mu- crying ‘‘free trade’’ was that markets would assets, liabilities, grants, contracts, prop- nich. There are other obstacles that need ad- remain open for our exports. But our cries erty, records, and unexpended balances of ap- dressing. For 50 years we have tried to pene- went unheeded, and now our Nation’s secu- propriations, authorizations, allocations, trate the Japanese market, but have barely rity is in jeopardy. and other funds held, used, arising from, done so. To sell textiles in Korea, U.S. firms available to, or to be made available in con- must first obtain permission from the pri- National security is like a three-legged nection with such functions, offices, or por- vate Korean textile industry. If you want to stool. The first leg—values—is solid. Our tions thereof, as may be necessary to carry sell in China, it’s a lot easier if you produce stand for freedom and democracy is re- out this Act. The Director shall provide for in China. spected around the world. The second leg of the termination of the affairs of all entities ‘‘But we will start a trade war,’’ is the cry. military strength is unquestioned. But the terminated by this Act and, in consultation Wake up! We have been in a trade for more third leg, economic leg, is fractured and with the Administrator, for such further than 200 years. And it’s the United States needs repair. We are losing jobs faster than measures and dispositions as may be nec- that started it! Just after the colonies won we can create them. Some time ago the late essary to effectuate the purposes of this Act. their freedom, the mother country suggested Akio Morita, founder of Sony Corp., was lec- [From the Washington Post, March 21, 2004] that the United States trade what we pro- turing leaders of third-world countries, ad- duced best and, in exchange, Britain would monishing them to develop their manufac- PROTECTIONISM HAPPENS TO BE CONGRESS’S trade back with what it produced best—as turing capacity to become nation states. JOB economist David Ricardo later described in Then, pointing at me in the audience, he (By Ernest F. Hollings) this theory of ‘‘comparative advantage.’’ Al- stated, ‘‘That world power that loses its Free trade is like world peace—you can’t exander Hamilton, in his famous ‘‘Report on manufacturing capacity will cease to be a get there by whining about it. You must be Manufactures,’’ told the Brits, in so many world power.’’

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.074 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3189 What should we do? First, we need to stop presented by digital content distribu- able to the copyright owner in a pri- financing the elimination of jobs. Tax bene- tion. Today I am pleased that Senator vate suit. Rather, it allows the govern- fits for offshore production must end. Roy- HATCH is joining me in sponsoring the ment to bring its resources to bear on alty deductions allowed for offshore activi- ‘‘Protecting Intellectual Rights this immense problem, and to ensure ties must be eliminated, and tax havens for that more creative works are made corporations must be closed down. Against Theft and Expropriation (PI- Next, we need an assistant attorney gen- RATE) Act of 2004,’’ which will respond available online, that those works are eral to enforce our trade laws and agree- to one such challenge. It will bring the more affordable, and that the people ments. At present, enforcement is largely resources and expertise of the United who work to bring them to us are paid left to an injured party. It can take years to States Attorneys’ Offices to bear on for their efforts. jump over legal hurdles. Then at the end, wholesale copyright infringers. The challenges presented by digital based on national security, the president can The very ease of duplication and dis- content are multifaceted, and no single refuse to implement a court order. Rather tribution that is the hallmark of dig- response will resolve all of them. We than waste time and money, corporate ital content has meant that piracy of must, and we will, offer a broad array America has moved offshore. of solutions that taken together will We need to organize government to that content is just as easy. The very produce and protect jobs, rather than export real—and often realized—threat that help ensure the protection of intellec- them. The Commerce Department recently creative works will simply be dupli- tual property, encourage the deploy- co-sponsored a New York seminar, part of cated and distributed freely online has ment of digital content, and allow which advised companies on how to move restricted, rather than enhanced, the technology to develop unimpeded. This jobs offshore. This aid for exporting jobs amount and variety of creative works bill is just one step in this process. I must stop. The Department of Commerce one can receive over the Internet. Part am working with colleagues, members should be reconstituted as a Department of of the private sector, and officials from Trade and Commerce, with the secretary as of combating piracy includes offering a legal alternative to it. Another impor- the Executive Branch, to craft careful czar over the U.S. trade representative. The and effective responses to other such tant part is enforcing the rights of department’s International Trade Adminis- challenges in the intellectual property tration should determine not only whether copyright owners. Senator HATCH and I arenas. goods have been dumped on the U.S. market, have been working with artists, au- but how big the ‘‘injury’’ is to U.S. industry. I hope that my colleagues support thors, and software developers to cre- the ‘‘Protecting Intellectual Rights The International Trade Commission should ate an environment in which copyright be eliminated. Against Theft and Expropriation (PI- While it is illegal to sell foreign-made is protected, so that we can all enjoy RATE) Act of 2004,’’ and I ask unani- goods below cost in the U.S. market (a prac- American creativity, and so that copy- mous consent that the text of this bill tice called dumping), we refuse to enforce right owners can be paid for their be printed in the RECORD. such violations. The Treasury Department work. There being no objection, the bill was reports $2 billion worth of illegal trans- For too long, Federal prosecutors ordered to be printed in the RECORD, as shipments of textiles into the United States have been hindered in their pursuit of follows: each year. Customs agents charged with drug pirates, by the fact that they were lim- enforcement and homeland security are S. 2237 ited to bringing criminal charges with Be it enacted by the Senate and House of Rep- hard-pressed to stop these transshipments. high burdens of proof. In the world of We need at lead at 1,000 additional Customs resentatives of the United States of America in agents. copyright, a criminal charge is unusu- Congress assembled, It won’t be easy. A culture of free trade has ally difficult to prove because the de- SECTION 1. SHORT TITLE. developed. The big banks that make most of fendant must have known that his con- This Act may be cited as the ‘‘Protecting their money outside the country, as well as duct was illegal and he must have will- Intellectual Rights Against Theft and Expro- the Business Roundtable, the Conference fully engaged in the conduct anyway. priation Act of 2004’’. Board, the National Association of Manufac- For this reason prosecutors can rarely SEC. 2. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY ATTORNEY GEN- turers, the U.S. Chamber of Commerce, the justify bringing criminal charges, and National Retail Federation (whose members ERAL. make bigger profits on imported articles) copyright owners have been left alone (a) IN GENERAL.—Chapter 5 of title 17, and the editorial writers of newspapers that to fend for themselves, defending their United States Code, is amended by inserting make most of their profits from retail ads— rights only where they can afford to do after section 506 the following: all these descend on Washington promoting so. In a world in which a computer and ‘‘§ 506a. Civil penalties for violations of sec- ‘‘free trade’’ to members of Congress. Mem- an Internet connection are all the tools tion 506 bers looking for contributions shout the you need to engage in massive piracy, ‘‘(a) IN GENERAL.—The Attorney General loudest. this is an intolerable predicament. may commence a civil action in the appro- Not just jobs, but also the middle class and Some steps have already been taken. priate United States district court against the strength of our very democracy are in any person who engages in conduct consti- jeopardy. As Lincoln said, ‘‘The dogmas of The Allen-Leahy Amendment to the tuting an offense under section 506. Upon the quiet past, are inadequate to the stormy Foreign Operations Appropriations proof of such conduct by a preponderance of present. . . . As our case is new, so we must Bill, on Combating Piracy of U.S. In- the evidence, such person shall be subject to think anew, and act anew. We must tellectual Property in Foreign Coun- a civil penalty under section 504 which shall disenthrall ourselves, and then we shall save tries, provided $2.5 million for the De- be in an amount equal to the amount which our country.’’ partment of State to assist foreign would be awarded under section 3663(a)(1)(B) Today’s dogma is the belief that protec- countries in combating piracy of U.S. of title 18 and restitution to the copyright owner aggrieved by the conduct. tionism will mean trade war and economic copyright works. By providing equip- stagnation. But we are already in a trade ‘‘(b) OTHER REMEDIES.— war, one from which the president and the ment and training to law enforcement ‘‘(1) IN GENERAL.—Imposition of a civil pen- Congress are AWOL. officers, it will help those countries alty under this section does not preclude any that are not members of OECD (Organi- other criminal or civil statutory, injunctive, By Mr. LEAHY (for himself and zation for Economic Cooperation & De- common law or administrative remedy, Mr. HATCH): velopment) to enforce intellectual which is available by law to the United S. 2237. A bill to amend chapter 5 of property protections. States or any other person; title 17, United States Code, to author- The PIRATE Act will give the Attor- ‘‘(2) OFFSET.—Any restitution received by a copyright owner as a result of a civil ac- ize civil copyright enforcement by the ney General civil enforcement author- tion brought under this section shall be off- Attorney General, and for other pur- ity for copyright infringement. It also set against any award of damages in a subse- poses; to the Committee on the Judici- calls on the Justice Department to ini- quent copyright infringement civil action by ary. tiate training and pilot programs to that copyright owner for the conduct that Mr. LEAHY. Mr. President, the ad- ensure that Federal prosecutors across gave rise to the civil action brought under vent of the digital age promises the ef- the country are aware of the many dif- this section.’’. ficient distribution of music, films, ficult technical and strategic problems (b) DAMAGES AND PROFITS.—Section 504 of books, and software on the Internet, title 17, United States Code, is amended— posed by enforcing copyright law in the (1) in subsection (b)— and an easily-accessed, unprecedented digital age. (A) in the first sentence— variety of content online. Unfortu- This new authority does not supplant (i) by inserting ‘‘, or the Attorney General nately, to see this promise realized, we either the criminal provisions of the in a civil action,’’ after ‘‘The copyright must overcome some of the challenges Copyright Act, or the remedies avail- owner’’; and

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.081 S25PT1 S3190 CONGRESSIONAL RECORD — SENATE March 25, 2004 (ii) by striking ‘‘him or her’’ and inserting (B) the number of defendants involved in stitution. But many of us remain con- ‘‘the copyright owner’’; and those matters; cerned that using criminal law enforce- (B) in the second sentence by inserting ‘‘, (C) the number of civil actions filed and ment remedies to act against these in- or the Attorney General in a civil action,’’ the number of defendants involved; fringers could have an overly-harsh ef- after ‘‘the copyright owner’’; and (D) the number of civil actions resolved or fect, perhaps, for example, putting (2) in subsection (c)— terminated; (A) in paragraph (1), by inserting ‘‘, or the (E) the number of defendants involved in thousands of otherwise law-abiding Attorney General in a civil action,’’ after those civil actions; teenagers and college students in jail ‘‘the copyright owner’’; and (F) the disposition of those civil actions, and branding them with the lifelong (B) in paragraph (2), by inserting ‘‘, or the including whether the civil actions were set- stigma of a felony criminal conviction. Attorney General in a civil action,’’ after tled, dismissed, or resolved after a trial; The bill I join Senator LEAHY in ‘‘the copyright owner’’. (G) the dollar value of any civil penalty sponsoring today will allow the Depart- (c) TECHNICAL AND CONFORMING AMEND- imposed and the amount remitted to any ment of Justice to supplement its ex- MENT.—The table of sections for chapter 5 of copyright owner; and isting criminal-enforcement powers title 17, United States Code, is amended by (H) other information that the Attorney inserting after the item relating to section through the new civil-enforcement General may consider relevant to inform mechanism. As a result, the Depart- 506 the following: Congress on the effective use of the civil en- ‘‘506a. Civil penalties for violation of section forcement authority; ment will be able to impose stiff pen- 506.’’. (2) a description of the training program alties for violating copyrights, but can SEC. 3. AUTHORIZATION OF FUNDING FOR TRAIN- and the number of personnel who partici- avoid criminal action when warranted. ING AND PILOT PROGRAM. pated in the program; and In advancing this measure, I must (a) TRAINING AND PILOT PROGRAM.—Not (3) the locations of the United States At- note that I view this civil-enforcement later than 180 days after enactment of this torneys Offices designated to participate in authority as another tool, hopefully a Act, the Attorney General shall develop a the pilot program. transitional tool at that. In the long program to ensure effective implementation (c) AUTHORIZATION OF APPROPRIATIONS.— and use of the authority for civil enforce- run, I believe that we must find better There are authorized to be appropriated mechanisms to ensure that our most ment of the copyright laws by— $2,000,000 for fiscal year 2005 to carry out this (1) establishing training programs, includ- section. vulnerable citizens—our children—are ing practical training and written materials, not being constantly tempted to in- Mr. HATCH. Mr. President, I rise to for qualified personnel from the Department fringe the copyrights that have made join Senator LEAHY in sponsoring the of Justice and United States Attorneys Of- America a world leader in the produc- Protecting Intellectual Rights Against fices to educate and inform such personnel tion of creative works. about— Theft and Expropriation Act—the ‘‘PI- Only recently has America faced the (A) resource information on intellectual RATE Act’’—a measure that will pro- property and the legal framework estab- specter of widespread copyright-en- vide the Department of Justice with forcement actions against individual lished both to protect and encourage cre- tools to combat the rampant copyright ative works as well as legitimate uses of in- users of copyrighted works. For nearly formation and rights under the first amend- piracy facilitated by peer-to-peer 200 years, copyright enforcement was ment of the United States Constitution; filesharing software. rarely directed against the millions of (B) the technological challenges to pro- Let me underscore at the outset that ordinary American citizens who use tecting digital copyrighted works from on- our bill does not expand the scope of and enjoy copyrighted works. Instead, line piracy; the existing powers of the Department creators and distributors of copy- (C) guidance on and support for bringing of Justice to prosecute persons who in- copyright enforcement actions against per- righted content worked together to ne- fringe copyrights. Instead, our proposal gotiate the complex licensing agree- sons engaging in infringing conduct, includ- will assist the Department in exer- ing model charging documents and related ments and technological protections litigation materials; cising existing enforcement powers needed to distribute copyrighted works (D) strategic issues in copyright enforce- through a civil enforcement mecha- in ways that accommodated both the ment actions, including whether to proceed nism. After considerable study, we expectations of users and the copy- in a criminal or a civil action; have concluded that this is the most rights of artists. (E) how to employ and leverage the exper- appropriate mechanism. But recently, some unscrupulous cor- tise of technical experts in computer Peer-to-peer file sharing software has porations may have exploited new forensics; created a dilemma for law-enforcement technologies and discovered that the (F) the collection and preservation of elec- agencies. Millions of otherwise law- narrow scope of civil contributory li- tronic data in a forensically sound manner abiding American citizens are using for use in court proceedings; ability for copyright infringement can (G) the role of the victim copyright owner this software to create and redistribute be utilized so that ordinary consumers in providing relevant information for en- infringing copies of popular music, and children become, in effect, ‘‘human forcement actions and in the computation of movies, computer games and software. shields’’ against copyright owners and damages; and Some who copy these works do not law enforcement agencies. Unscrupu- (H) the appropriate use of injunctions, im- fully understand the illegality, or per- lous corporations could distribute to poundment, forfeiture, and related authori- haps the serious consequences, of their children and students a ‘‘piracy ma- ties in copyright law; infringing activities. This group of chine’’ designed to tempt them to en- (2) designating personnel from at least 4 filesharers should not be the focus of gage in copyright piracy or pornog- United States Attorneys Offices to partici- federal law-enforcement efforts. Quite pate in a pilot program designed to imple- raphy distribution. ment the civil enforcement authority of the frankly, the distributors of most Unfortuantely, piracy and pornog- Attorney General under section 506a of title filesharing software have failed to ade- raphy could then become the corner- 17, United States Code, as added by this Act; quately educate the children and young stones of a ‘‘business model.’’ At first, and people who use their software about its children and students would be tempt- (3) reporting to Congress annually on— legal and illegal uses. ed to infringe copyrights or redis- (A) the use of the civil enforcement au- A second group of filesharers consists tribute pornography. Their illicit ac- thority of the Attorney General under sec- of those who copy and redistribute tivities then generate huge advertising tion 506a of title 17, United States Code, as copyrighted works even though they do revenues for the architects of piracy. added by this Act; and know that doing so violates federal (B) the progress made in implementing the Those children and students then be- training and pilot programs described under law. In many cases, these are college come ‘‘human shields’’ against enforce- paragraphs (1) and (2) of this subsection. students or young people who think ment efforts that would disrupt the (b) ANNUAL REPORT.—The report under sub- that they will not get caught. Many of flow of those revenues. Later, large section (a)(3) may be included in the annual these filesharers are engaging in acts user-bases and the threat of more pi- performance report of the Department of that could now subject them to federal racy would become levers to force Justice and shall include— criminal prosecution for copyright pi- American artists to enter licensing (1) with respect to civil actions filed under section 506a of title 17, United States Code, racy. agreements in which they pay the ar- as added by this Act— It is critical that we bring the moral chitects of piracy to distribute and pro- (A) the number of investigative matters re- force of the government to bear against tect their works on the Internet. ceived by the Department of Justice and those who knowingly violate the fed- Federal enforcement action is surely United States Attorneys Offices; eral copyrights enshrined in our Con- warranted if such ‘‘business models’’

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.062 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3191 are driving the increasing ease of pi- tual Rights Against Theft and Expro- SUBMITTED RESOLUTIONS racy on peer-to-peer filesharing net- priation Act. works. Such business models exploit SENATE RESOLUTION 324—EX- children, cheat artists, and threaten By Mrs. BOXER: the future development of commerce PRESSING THE SENSE OF THE S. 2240. A bill to improve seaport se- on the Internet. SENATE RELATING TO THE EX- Indeed, our government recognizes curity; to the Committee on Com- TRAORDINARY CONTRIBUTIONS that its enforcement powers are appro- merce, Science, and Transportation. RESULTING FROM THE HUBBLE priate when protecting intellectual Mrs. BOXER. Mr. President, at the SPACE TELESCOPE TO SCI- property and public safety. Recently, end of 2002, the Maritime Transpor- ENTIFIC RESEARCH AND EDU- in a speech to the United States Cham- tation Security Act became law. CATION, AND TO THE NEED TO RECONSIDER FUTURE SERVICE ber of Commerce, Deputy Attorney I was a member of the conference General James B. Comey, Jr. asserted MISSIONS TO THE HUBBLE committee on that bill, and I think it SPACE TELESCOPE that the Department of Justice should was a good first step in improving secu- Ms. MIKULSKI (for herself and Mr. assist private enforcement of intellec- rity at our nation’s ports. tual property rights if any of three cri- BROWNBACK) submitted the following teria are met: (1) the level of piracy be- It had many good provisions, such as resolution; which was referred to the comes particularly egregious; (2) public the creation of national and regional Committee on Commerce, Science, and health and safety are put at risk; or (3) maritime transportation/port security Transportation: private civil remedies fail to ade- plans to be approved by the Coast S. RES. 324 quately deter illegal conduct. Guard; better coordination of federal, Whereas discoveries from the Hubble Space In the case of peer-to-peer state, local, and private enforcement Telescope have dominated space science filesharing, all three criteria may be agencies; and the establishment of a news over the last 10 years; met. The level of piracy on these net- grant program for port authorities, wa- Whereas the Hubble Space Telescope has terfront facilities operators, and state provided proof of black holes, insights into works is not merely egregious, it is un- the birth and death of stars, spectacular precedented. Public health and safety and local agencies to provide security views of Comet Shoemaker-Levy 9’s collision are also directly threatened by busi- infrastructure improvements. with Jupiter, the age of the Universe, and ness models that tempt children to- The problem was that the bill had no evidence that the expansion of the Universe ward piracy and pornography and then guaranteed funding mechanism. As a is accelerating; use them as ‘‘human shields’’ against Whereas the inspiring scientific discoveries result, we are underfunding port secu- from the Hubble Space Telescope reach mil- law enforcement. rity. Since the passage of the Maritime Finally, the recording industry and lions of students each year and have been Transportation Security Act, the De- important in encouraging students to study other affected rights holders have partment of Homeland Security has re- the sciences; tried—so far largely unsuccessfully—to leased $517 million in port security Whereas the inspiring scientific discoveries use civil remedies to halt the oper- grants. This is not enough. According from the Hubble Space Telescope reach mil- ations of those who would profit by to the Coast Guard, it is estimated lions of students each year and have been turning teenagers and college students that the ports directly need $1.4 billion important in encouraging students to study the sciences; into copyright pirates or pornography this year and $6 billion over the next distributors. Whereas the 2000 National Academy of ten years. Yet, the Administration Sciences Decadal Survey endorsed a plan to As a result, our creative industries’ only requested $46 million in its fiscal only remaining option to deter piracy maintain the Hubble Space Telescope until year 2005 budget. 2010; is to bring enough civil enforcement Last year, I visited many of Califor- Whereas the Hubble Space Telescope has actions against users of filesharing been the National Aeronautics and Space Ad- software. Tens of thousands of con- nia’s ports including Crescent City in ministration’s most scientifically productive tinuing civil enforcement actions the north down through Stockton to mission, accounting for 35 percent of all Na- might be needed to generate the nec- Los Angeles/Long Beach in the south. I tional Aeronautics and Space Administra- essary deterrence. I doubt that any have seen what the ports are con- tion discoveries in the last 20 years; nongovernmental organization has the fronting. They need more funding for Whereas the demand for research time on resources or moral authority to pursue homeland security. the Hubble Space Telescope in 2003 was ap- proximately 8 times that available; such a campaign. And, with over 40 percent of the na- Whereas approximately $200,000,000 worth If enforcement actions against end- tion’s goods imported through Califor- of instruments have largely been built, in- users were really the best or only way nia’s ports, freight rail is extremely cluding scientific instruments that would to enforce copyrights on the Internet, important to the nation’s commerce. A provide significant improvements in then civil enforcement authority would terrorist attack at a California port Hubble’s scientific power and including re- be necessary. But there may be other would not only be tragic but would be placement gyroscopes and batteries, which ways to combat this piracy at the root, devastating for our nation’s economy. could keep the telescope in operation until not at the branch. I thus invite the De- 2011 or 2012 and make the Hubble Space Tele- So, today, I am introducing the Sen- scope’s final years its most scientifically ca- partment of Justice and other federal ate version of a bill introduced by Rep- pable and productive; law enforcement agencies to work with resentative MILLENDER-MCDONALD. Whereas the distinguished panel that stud- me, Senator LEAHY and other members This legislation will provide more ied scientific priorities for ultraviolet and of the Judiciary Committee to deter- funding to the ports. Specifically, it optical astronomy in 2003 considered the con- mine how the enforcement powers of tinued operation of the Hubble Space Tele- will: create a Port Security Grant Pro- the federal government can best be de- scope by means of the SM–4 servicing mis- gram in the Department of Homeland ployed to solve the problems arising sion to be its highest priority; and Security; provide $800 million per year from piracy and pornography on peer- Whereas the American Astronomical Soci- for five years in grant funding; and— ety, the largest professional scientific asso- to-peer filesharing networks. ciation for astronomers and astrophysicists, I also understand that others may be this is very important to California’s ports—allow the federal government to believes a panel of experts should review the developing proposals to increase crimi- decision to limit prematurely the lifespan of nal enforcement authority against pi- make multiyear grants to help finance larger projects similar to what is done the Hubble Space Telescope: Now, therefore, racy, and I hope to work with them on be it such proposals. Today, I stand with with many of our airports for aviation Resolved, That the Senate— security. Senator LEAHY to buttress the enforce- (1) recognizes the extraordinary contribu- ment of copyrights by enabling the De- I hope that the Senate will act on tions resulting from the Hubble Space Tele- this bill. Now is not the time to slow scope to scientific research and education; partment of Justice to proceed with a (2) strongly recommends that the Adminis- robust program of civil enforcement. down or delay our efforts to increase trator of the National Aeronautics and Space For the reasons I have just delin- and improve transportation security. Administration appoint an independent eated, I urge my colleagues to join us The job is not done, and it must be panel of expert scientists and engineers in- in supporting the Protecting Intellec- done. side and outside of the National Aeronautics

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.070 S25PT1 S3192 CONGRESSIONAL RECORD — SENATE March 25, 2004 and Space Administration to examine all are traveling to the Space Station or AMENDMENTS SUBMITTED AND possible options for safely carrying out the fixing Hubble. Putting safety first PROPOSED planned servicing mission to the Hubble means that NASA must fully imple- SA 2936. Mr. LEVIN submitted an amend- Space Telescope and assess alternative serv- ment all of the recommendations of icing methods; and ment intended to be proposed by him to the (3) expresses its strong sentiment that the the Columbia Accident Investigation bill S. 1637, to amend the Internal Revenue National Aeronautics and Space Administra- Board as soon as possible. As the Rank- Code of 1986 to comply with the World Trade tion should continue all planning, prepara- ing Member of the Appropriations Sub- Organization rulings on the FSC/ETI benefit tion, and astronaut training activities for committee that funds NASA, working in a manner that preserves jobs and produc- the SM–4 servicing mission without interrup- on a bi-partisan basis with my distin- tion activities in the United States, to re- tion until the expert panel issues its report guished colleague from Missouri, Sen- form and simplify the international taxation and until the National Aeronautics and rules of the United States, and for other pur- ator BOND, we are committed to pro- poses; which was ordered to lie on the table. Space Administration provides a timetable viding whatever resources are needed of compliance with recommendation R6.4–1 to ensure that safety of our astronauts of the Columbia Accident Investigation f Board report, which calls for ‘‘a fully auton- and the safety of the Space Shuttle. omous capability for all missions to address Before an irrevocable decision is the possibility that an International Space made about Hubble’s future, I want the TEXT OF AMENDMENTS Station mission fails to achieve the correct best minds in science and engineering SA 2936. Mr. LEVIN submitted an orbit, fails to dock successfully, or is dam- to tell us what are the risks and how amendment intended to be proposed by aged during or after undocking’’, since Na- can we reduce them. him to the bill S. 1637, to amend the In- tional Aeronautics and Space Administra- I know many of my colleagues share ternal Revenue Code of 1986 to comply tion compliance with the recommendation these concerns. That’s why Senator will allow both a Hubble servicing mission with the World Trade Organization rul- and missions to the International Space Sta- BROWNBACK and I are submitting this ings on the FSC/ETI benefit in a man- tion to be carried out safely. resolution today. The decision to ter- ner that preserves jobs and production Ms. MIKULSKI. Mr. President, I rise minate the Hubble servicing mission activities in the United States, to re- to submit a Senate Resolution with my represents a major change in our form and simplify the international distinguished colleague from Kansas, science and space policies. Congress, taxation rules of the United States, Senator BROWNBACK. This Resolution the American people and the world de- and for other purposes; which was or- expresses the desire of the Senate for serve nothing less than a rigorous and dered to lie on the table; as follows: NASA to undertake a comprehensive independent review so we can fully un- At the end of title IV add the following: derstand all of the issues surrounding a independent review of the decision to Subtitle G—Provisions Designed To Restrict terminate the final servicing mission servicing mission. Use of Abusive Tax Shelters and Offshore for the Hubble Space Telescope and Finally, I want to thank the out- Tax Havens standing employees of the Goddard that all planning and preparation ac- SEC. 499. PENALTY FOR PROMOTING ABUSIVE tivities continue during this period. Space Flight Center and Space Tele- TAX SHELTERS. On January 14, 2004, the NASA Ad- scope Science Institute. Without their (a) PENALTY FOR PROMOTING ABUSIVE TAX ministrator announced that he was ter- hard work and dedication to the cause SHELTERS.—Section 6700 (relating to pro- minating the final servicing mission of science, exploration and discovery, moting abusive tax shelters, etc.) is amend- ed— for the Hubble Telescope that was Hubble would not be what it is today, the greatest scientific instrument (1) by redesignating subsections (b) and (c) scheduled to be launched in 2007. as subsections (d) and (e), respectively, When the NASA Administrator an- mankind has ever created. Mr. BROWNBACK. Mr. President, I (2) by striking ‘‘a penalty’’ and all that fol- nounced his decision, I was shocked. lows through the period in the first sentence Hubble has been the most successful recognize the significant scientific ac- of subsection (a) and inserting ‘‘a penalty de- NASA program since Apollo. In fact, it complishments of the Hubble Space termined under subsection (b)’’, and is arguably the greatest scientific in- Telescope. Space telescopes such as (3) by inserting after subsection (a) the fol- strument since Galileo’s telescope. Hubble are an important part of our fu- lowing new subsections: Pictures from Hubble have helped ture space program and the President’s ‘‘(b) AMOUNT OF PENALTY; CALCULATION OF scientists prove that the universe is ex- vision for revitalized human explo- PENALTY; LIABILITY FOR PENALTY.— ‘‘(1) AMOUNT OF PENALTY.—The amount of panding, that black holes exist, and ration of space. Several months ago NASA made a de- the penalty imposed by subsection (a) shall how stars are born and how stars die. not exceed 150 percent of the gross income Earlier this month, the Space Tele- cision to forego planned Space Shuttle derived (or to be derived) from such activity scope Science Institute released what servicing missions for the Hubble by the person or persons subject to such pen- may be considered the greatest photo- Space Telescope. This is a difficult and alty. graph ever taken of the universe. It is complicated issue and technical ex- ‘‘(2) CALCULATION OF PENALTY.—The pen- a picture showing what the universe perts reasonably differ on the best ap- alty amount determined under paragraph (1) was like almost 12 billion years ago. proach. I believe that NASA might ben- shall be calculated with respect to each in- stance of an activity described in subsection Galaxies and stars never seen before efit from the counsel of the best ex- perts the nation can muster inside and (a), each instance in which income was de- are shown in extraordinary detail that rived by the person or persons subject to will usher in a new era of discovery for outside of the Government. Cor- such penalty, and each person who partici- years to come. respondingly, I’ve joined my colleague pated in such an activity. With the scientific value of Hubble Senator MIKULSKI in urging NASA to ‘‘(3) LIABILITY FOR PENALTY.—If more than undisputed, I was shocked that there sponsor a comprehensive study on the 1 person is liable under subsection (a) with was no report, analysis or study that full range of options and risks associ- respect to such activity, all such persons supported the Administrator’s deci- ated with various approaches for main- shall be jointly and severally liable for the sion. taining the Hubble Space Telescope penalty under such subsection. It is imperative that we have a full and its capabilities. I would also hope ‘‘(c) PENALTY NOT DEDUCTIBLE.—The pay- ment of any penalty imposed under this sec- understanding of all the issues, includ- that this study would include imagina- tion or the payment of any amount to settle ing the potential risks, scientific bene- tive new concepts for robotic servicing. or avoid the imposition of such penalty shall fits and alternative servicing methods As we fulfill the promise of space ex- not be considered an ordinary and necessary for a Hubble servicing mission. This de- ploration the President has outlined, expense in carrying on a trade or business cision is too important to be left to the enormous success of the Hubble for purposes of this title and shall not be de- just one person. We need the best ad- Space Telescope and other NASA suc- ductible by the person who is subject to such vice from the best minds to determine cesses such as the recent Mars Rover penalty or who makes such payment.’’. Hubble’s future. Program provide us with a sound basis (b) EFFECTIVE DATE.—The amendments Let me be clear. I want to stand up upon which to build. NASA can count made by this section shall apply to activities after the date of the enactment of this Act. for Hubble. I will always stand up for on my continued support of their en- (c) PRIOR SECTION TO HAVE NO EFFECT.— the safety of our astronauts. We must deavors to provide unlimited oppor- Notwithstanding section 415(b) of this Act, do everything possible to ensure the tunity to future generations of Ameri- such section, and the amendment made by safety of our astronauts, whether they cans. such section, shall not take effect.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.063 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3193 SEC. 499A. PENALTY FOR AIDING AND ABETTING ‘‘(A) $200,000, or such section, and the amendment made by THE UNDERSTATEMENT OF TAX LI- ‘‘(B) 100 percent of the gross income de- such section, shall not take effect. ABILITY. rived by such person for providing aid, as- SEC. 499D. PENALTY FOR FAILING TO DISCLOSE (a) IN GENERAL.—Section 6701(a) (relating sistance, procurement, advice, or other serv- POTENTIALLY ABUSIVE TAX SHEL- to imposition of penalty) is amended— ices with respect to the listed transaction TER. (1) by inserting ‘‘the tax liability or’’ after before the date the return including the (a) IN GENERAL.—Part I of subchapter B of ‘‘respect to,’’ in paragraph (1), transaction is filed under section 6111. chapter 68 (relating to assessable penalties) (2) by inserting ‘‘aid, assistance, procure- is amended by inserting after section 6707 Subparagraph (B) shall be applied by sub- ment, or advice with respect to such’’ before the following new section: ‘‘portion’’ both places it appears in para- stituting ‘150 percent’ for ‘100 percent’ in the case of an intentional failure or act de- ‘‘SEC. 6707A. PENALTY FOR FAILURE TO INCLUDE graphs (2) and (3), and POTENTIALLY ABUSIVE TAX SHEL- scribed in subsection (a). (3) by inserting ‘‘instance of aid, assist- TER INFORMATION WITH RETURN ‘‘(c) CERTAIN RULES TO APPLY.—The provi- ance, procurement, or advice or each such’’ OR STATEMENT. sions of section 6707A(d) allowing the Com- before ‘‘document’’ in the matter following ‘‘(a) IMPOSITION OF PENALTY.—Any person missioner of Internal Revenue to rescind a paragraph (3). who fails to include on any return or state- penalty under certain circumstances shall (b) AMOUNT OF PENALTY.—Subsection (b) of ment any information with respect to a po- section 6701 (relating to penalties for aiding apply to any penalty imposed under this sec- tentially abusive tax shelter which is re- and abetting understatement of tax liability) tion. quired under section 6011 to be included with ‘‘(d) POTENTIALLY ABUSIVE TAX SHELTERS is amended to read as follows: such return or statement shall pay a penalty AND LISTED TRANSACTIONS.—The terms ‘po- ‘‘(b) AMOUNT OF PENALTY; CALCULATION OF in the amount determined under subsection tentially abusive tax shelter’ and ‘listed PENALTY; LIABILITY FOR PENALTY.— (b). transaction’ have the respective meanings ‘‘(1) AMOUNT OF PENALTY.—The amount of ‘‘(b) AMOUNT OF PENALTY.— given to such terms by section 6707A(c). the penalty imposed by subsection (a) shall ‘‘(1) IN GENERAL.—Except as provided in ‘‘(e) PENALTY NOT DEDUCTIBLE.—The pay- not exceed 150 percent of the gross income paragraphs (2) and (3), the amount of the ment of any penalty imposed under this sec- derived (or to be derived) from such aid, as- penalty under subsection (a) shall be $50,000. tion or the payment of any amount to settle sistance, procurement, or advice provided by ‘‘(2) LISTED TRANSACTION.—Except as pro- or avoid the imposition of such penalty shall the person or persons subject to such pen- vided in paragraph 3, the amount of the pen- not be considered an ordinary and necessary alty. alty under subsection (a) with respect to a expense in carrying on a trade or business ‘‘(2) CALCULATION OF PENALTY.—The pen- listed transaction shall be $100,000. for purposes of this title and shall not be de- alty amount determined under paragraph (1) ‘‘(3) INCREASE IN PENALTY FOR INTENTIONAL ductible by the person who is subject to such shall be calculated with respect to each in- NONDISCLOSURE.—In the case of an inten- penalty or who makes such payment.’’. stance of aid, assistance, procurement, or ad- tional failure by any person under subsection (b) CLERICAL AMENDMENT.—The item relat- (a), the penalty under paragraph (1) shall be vice described in subsection (a), each in- ing to section 6707 in the table of sections for $100,000 and the penalty under paragraph (2) stance in which income was derived by the part I of subchapter B of chapter 68 is shall be $200,000. person or persons subject to such penalty, amended by striking ‘‘regarding tax shel- and each person who made such an under- ‘‘(c) DEFINITIONS.—For purposes of this sec- ters’’ and inserting ‘‘on potentially abusive tion— statement of the liability for tax. tax shelter or listed transaction’’. ‘‘(1) POTENTIALLY ABUSIVE TAX SHELTER.— ‘‘(3) LIABILITY FOR PENALTY.—If more than (c) EFFECTIVE DATE.—The amendments The term ‘potentially abusive tax shelter’ 1 person is liable under subsection (a) with made by this section shall apply to returns means any transaction with respect to which respect to providing such aid, assistance, the due date for which is after the date of information is required to be included with a procurement, or advice, all such persons the enactment of this Act. return or statement, because the Secretary shall be jointly and severally liable for the (d) PRIOR SECTION TO HAVE NO EFFECT.— penalty under such subsection.’’. Notwithstanding section 408(c) of this Act, has determined by regulation or otherwise (c) PENALTY NOT DEDUCTIBLE.—Section 6701 such section, and the amendments made by that such transaction has a potential for tax is amended by adding at the end the fol- such section, shall not take effect. avoidance or evasion. ‘‘(2) LISTED TRANSACTION.—Except as pro- lowing new subsection: SEC. 499C. PENALTY FOR FAILING TO MAINTAIN ‘‘(g) PENALTY NOT DEDUCTIBLE.—The pay- CLIENT LIST. vided in regulations, the term ‘listed trans- ment of any penalty imposed under this sec- (a) IN GENERAL.—Subsection (a) of section action’ means a potentially abusive tax shel- tion or the payment of any amount to settle 6708 (relating to failure to maintain lists of ter which is the same as, or substantially or avoid the imposition of such penalty shall investors in potentially abusive tax shelters) similar to, a transaction specifically identi- not be considered an ordinary and necessary is amended to read as follows: fied by the Secretary as a tax avoidance expense in carrying on a trade or business ‘‘(a) IMPOSITION OF PENALTY.— transaction for purposes of section 6011. for purposes of this title and shall not be de- ‘‘(1) IN GENERAL.—If any person who is re- ‘‘(d) AUTHORITY TO RESCIND PENALTY.— ductible by the person who is subject to such quired to maintain a list under section ‘‘(1) IN GENERAL.—The Commissioner of In- penalty or who makes such payment.’’. 6112(a) fails to make such list available upon ternal Revenue may rescind all or any por- (d) EFFECTIVE DATE.—The amendments written request to the Secretary in accord- tion of a penalty imposed by this section made by this section shall apply to activities ance with section 6112(b)(1)(A) within 20 busi- with respect to any violation if— after the date of the enactment of this Act. ness days after the date of the Secretary’s ‘‘(A) the violation is with respect to a po- SEC. 499B. PENALTY FOR FAILURE TO REGISTER request, such person shall pay a penalty of tentially abusive tax shelter other than a TAX SHELTER. $10,000 for each day of such failure after such listed transaction, (a) IN GENERAL.—Section 6707 (relating to 20th day. If such person makes available an ‘‘(B) the person on whom the penalty is im- failure to furnish information regarding tax incomplete list upon such request, such per- posed has a history of complying with the re- shelters) is amended to read as follows: son shall pay a penalty of $100 per each omit- quirements of this title, ‘‘SEC. 6707. FAILURE TO FURNISH INFORMATION ted name for each day of such omission after ‘‘(C) it is shown that the violation is due to ON POTENTIALLY ABUSIVE TAX such 20th day. an unintentional mistake of fact, SHELTER OR LISTED TRANSACTION. ‘‘(2) GOOD CAUSE EXCEPTION.—No penalty ‘‘(D) imposing the penalty would be ‘‘(a) IN GENERAL.—If a person who is re- shall be imposed by paragraph (1) with re- against equity and good conscience, and quired to file a return under section 6111 spect to the failure on any day if, in the ‘‘(E) rescinding the penalty would promote with respect to any potentially abusive tax judgment of the Secretary, such failure is compliance with the requirements of this shelter— due to good cause.’’. title and effective tax administration. ‘‘(1) fails to file such return on or before (b) PENALTY NOT DEDUCTIBLE.—Section ‘‘(2) DISCRETION.—The exercise of authority the date prescribed therefor, or 6708 is amended by adding at the end the fol- under paragraph (1) shall be at the sole dis- ‘‘(2) files false or incomplete information lowing new subsection: cretion of the Commissioner and may be del- with the Secretary with respect to such shel- ‘‘(c) PENALTY NOT DEDUCTIBLE.—The pay- egated only to the head of the Office of Tax ter, ment of any penalty imposed under this sec- Shelter Analysis. The Commissioner, in the such person shall pay a penalty with respect tion or the payment of any amount to settle Commissioner’s sole discretion, may estab- to such return in the amount determined or avoid the imposition of such penalty shall lish a procedure to determine if a penalty under subsection (b). not be considered an ordinary and necessary should be referred to the Commissioner or ‘‘(b) AMOUNT OF PENALTY.— expense in carrying on a trade or business the head of such Office for a determination ‘‘(1) IN GENERAL.—Except as provided in for purposes of this title and shall not be de- under paragraph (1). paragraph (2), the penalty imposed under ductible by the person who is subject to such ‘‘(3) NO APPEAL.—Notwithstanding any subsection (a) with respect to any failure penalty or who makes such payment.’’. other provision of law, any determination shall be not less than $50,000 and not more (c) EFFECTIVE DATE.—The amendments under this subsection may not be reviewed in than $100,000. made by this section shall apply to requests any administrative or judicial proceeding. ‘‘(2) LISTED TRANSACTIONS.—The penalty made by the Secretary of the Treasury after ‘‘(4) RECORDS.—If a penalty is rescinded imposed under subsection (a) with respect to the date of the enactment of this Act. under paragraph (1), the Commissioner shall any listed transaction shall be an amount (d) PRIOR SECTION TO HAVE NO EFFECT.— place in the file in the Office of the Commis- equal to the greater of— Notwithstanding section 409(b) of this Act, sioner the opinion of the Commissioner or

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00075 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.071 S25PT1 S3194 CONGRESSIONAL RECORD — SENATE March 25, 2004 the head of the Office of Tax Shelter Anal- ‘‘(1) information identifying and describing ‘‘Sec. 6112. Material advisors of potentially ysis with respect to the determination, in- such shelter, abusive tax shelters must keep cluding— ‘‘(2) information describing any potential client lists.’’. ‘‘(A) the facts and circumstances of the tax benefits expected to result from the shel- (3)(A) The heading for section 6708 is transaction, ter, and amended to read as follows: ‘‘(B) the reasons for the rescission, and ‘‘(3) such other information as the Sec- ‘‘SEC. 6708. FAILURE TO MAINTAIN CLIENT LISTS ‘‘(C) the amount of the penalty rescinded. retary may prescribe. WITH RESPECT TO POTENTIALLY A copy of such opinion shall be provided Such return shall be filed not later than the ABUSIVE TAX SHELTERS.’’. upon written request to the Committee on date which is 30 days before the date on (B) The item relating to section 6708 in the Ways and Means of the House of Representa- which the first sale of such shelter occurs or table of sections for part I of subchapter B of tives, the Committee on Finance of the Sen- on any other date specified by the Secretary. chapter 68 is amended to read as follows: ate, the Joint Committee on Taxation, or ‘‘(b) DEFINITIONS.—For purposes of this sec- ‘‘Sec. 6708. Failure to maintain client lists the General Accounting Office. tion— with respect to potentially abu- ‘‘(5) REPORT.—The Commissioner shall ‘‘(1) MATERIAL ADVISOR.— sive tax shelters.’’. each year report to the Committee on Ways ‘‘(A) IN GENERAL.—The term ‘material ad- (c) REQUIRED DISCLOSURE NOT SUBJECT TO and Means of the House of Representatives visor’ means any person— CLAIM OF CONFIDENTIALITY.—Section and the Committee on Finance of the Sen- ‘‘(i) who provides any material aid, assist- 6112(b)(1), as redesignated by subsection ate— ance, or advice with respect to designing, or- (b)(2)(B), is amended by adding at the end the ‘‘(A) a summary of the total number and ganizing, managing, promoting, selling, im- following new flush sentence: aggregate amount of penalties imposed, and plementing, or carrying out any potentially rescinded, under this section, and ‘‘For purposes of this section, the identity of abusive tax shelter, and ‘‘(B) a description of each penalty re- any person on such list shall not be privi- ‘‘(ii) who directly or indirectly derives scinded under this subsection and the rea- leged.’’. gross income in excess of the threshold sons therefor. (d) EFFECTIVE DATE.— ‘‘(e) PENALTY REPORTED TO SEC.—In the amount for such aid, assistance, or advice. (1) IN GENERAL.—Except as provided in case of a person— ‘‘(B) THRESHOLD AMOUNT.—For purposes of paragraph (2), the amendments made by this ‘‘(1) which is required to file periodic re- subparagraph (A), the threshold amount is— section shall apply to transactions with re- ports under section 13 or 15(d) of the Securi- ‘‘(i) $50,000 in the case of a potentially abu- spect to which material aid, assistance, or ties Exchange Act of 1934 or is required to be sive tax shelter substantially all of the tax advice referred to in section 6111(b)(1)(A)(i) consolidated with another person for pur- benefits from which are provided to natural of the Internal Revenue Code of 1986 (as poses of such reports, and persons, and added by this section) is provided after the ‘‘(2) which— ‘‘(ii) $100,000 in any other case. date of the enactment of this Act. ‘‘(A) is required to pay a penalty under this ‘‘(2) POTENTIALLY ABUSIVE TAX SHELTER.— (2) NO CLAIM OF CONFIDENTIALITY AGAINST section with respect to a listed transaction, The term ‘potentially abusive tax shelter’ DISCLOSURE.—The amendment made by sub- ‘‘(B) is required to pay a penalty under sec- has the meaning given to such term by sec- section (c) shall take effect as if included in tion 6662A with respect to any potentially tion 6707A(c). the amendments made by section 142 of the abusive tax shelter at a rate prescribed ‘‘(c) REGULATIONS.—The Secretary may Deficit Reduction Act of 1984. under section 6662A(c), or prescribe regulations which provide— (e) PRIOR SECTION TO HAVE NO EFFECT.— ‘‘(C) is required to pay a penalty under sec- ‘‘(1) that only 1 person shall be required to Notwithstanding section 407(d) of this Act, tion 6662B with respect to any noneconomic meet the requirements of subsection (a) in such section, and the amendments made by substance transaction, cases in which 2 or more persons would oth- such section, shall not take effect. the requirement to pay such penalty shall be erwise be required to meet such require- SEC. 499F. EXTENSION OF STATUTE OF LIMITA- disclosed in such reports filed by such person ments, TIONS FOR UNDISCLOSED TAX SHEL- TER. for such periods as the Secretary shall speci- ‘‘(2) exemptions from the requirements of (a) IN GENERAL.—Section 6501(c) (relating fy. Failure to make a disclosure in accord- this section, and ance with the preceding sentence shall be ‘‘(3) such rules as may be necessary or ap- to exceptions) is amended by adding at the treated as a failure to which the penalty propriate to carry out the purposes of this end the following new paragraph: under subsection (b)(2) applies. section.’’. ‘‘(10) POTENTIALLY ABUSIVE TAX SHEL- ‘‘(f) PENALTY IN ADDITION TO OTHER PEN- (b) CONFORMING AMENDMENTS.— TERS.—If a taxpayer fails to include on any ALTIES.—The penalty imposed by this section (1) The item relating to section 6111 in the return or statement for any taxable year any shall be in addition to any other penalty pro- table of sections for subchapter B of chapter information with respect to a potentially vided by law. 61 is amended to read as follows: abusive tax shelter (as defined in section ‘‘(g) PENALTY NOT DEDUCTIBLE.—The pay- 6707A(c)) which is required under section 6011 ment of any penalty imposed under this sec- ‘‘Sec. 6111. Disclosure of potentially abusive to be included with such return or state- tion or the payment of any amount to settle tax shelters.’’. ment, the time for assessment of any tax im- or avoid the imposition of such penalty shall (2)(A) So much of section 6112 as precedes posed by this title with respect to such not be considered an ordinary and necessary subsection (c) thereof is amended to read as transaction shall not expire before the date expense in carrying on a trade or business follows: which is 2 years after the earlier of— for purposes of this title and shall not be de- ‘‘SEC. 6112. MATERIAL ADVISORS OF POTEN- ‘‘(A) the date on which the Secretary is ductible by the person who is subject to such TIALLY ABUSIVE TAX SHELTERS furnished the information so required; or penalty or who makes such payment.’’. MUST KEEP CLIENT LISTS. ‘‘(B) the date that a material advisor (as (b) CONFORMING AMENDMENT.—The table of defined in section 6111) meets the require- sections for part I of subchapter B of chapter ‘‘(a) IN GENERAL.—Each material advisor (as defined in section 6111) with respect to ments of section 6112 with respect to a re- 68 is amended by inserting after the item re- quest by the Secretary under section 6112(b) lating to section 6707 the following: any potentially abusive tax shelter (as de- fined in section 6707A(c)) shall maintain, in relating to such transaction with respect to ‘‘Sec. 6707A. Penalty for failure to include such manner as the Secretary may by regu- such taxpayer.’’. potentially abusive tax shelter lations prescribe, a list— (b) EFFECTIVE DATE.—The amendment information with return or ‘‘(1) identifying each person with respect to made by this section shall apply to taxable statement.’’. whom such advisor acted as such a material years with respect to which the period for as- (c) EFFECTIVE DATE.—The amendments advisor with respect to such shelter, and sessing a deficiency did not expire before the made by this section shall apply to returns ‘‘(2) containing such other information as date of the enactment of this Act. (c) PRIOR SECTION TO HAVE NO EFFECT.— and statements the due date for which is the Secretary may by regulations require. after the date of the enactment of this Act. Notwithstanding section 416(b) of this Act, (d) PRIOR SECTION TO HAVE NO EFFECT.— This section shall apply without regard to such section, and the amendment made by Notwithstanding section 402(c) of this Act, whether a material advisor is required to file such section, shall not take effect. such section, and the amendments made by a return under section 6111 with respect to SEC. 499G. PENALTY FOR FAILING TO REPORT IN- such section, shall not take effect. such transaction.’’. TERESTS IN FOREIGN FINANCIAL SEC. 499E. IMPROVED DISCLOSURE OF POTEN- (B) Section 6112 is amended by redesig- ACCOUNTS. TIALLY ABUSIVE TAX SHELTERS. nating subsection (c) as subsection (b). (a) IN GENERAL.—Section 5321(a)(5) of title (a) IN GENERAL.—Section 6111 (relating to (C) Section 6112(b), as redesignated by sub- 31, United States Code, is amended to read as registration of tax shelters) is amended to paragraph (B), is amended— follows: read as follows: (i) by inserting ‘‘written’’ before ‘‘request’’ ‘‘(5) FOREIGN FINANCIAL AGENCY TRANS- ‘‘SEC. 6111. DISCLOSURE OF POTENTIALLY ABU- in paragraph (1)(A), and ACTION VIOLATION.— SIVE TAX SHELTERS. (ii) by striking ‘‘shall prescribe’’ in para- ‘‘(A) PENALTY AUTHORIZED.—The Secretary ‘‘(a) IN GENERAL.—Each material advisor graph (2) and inserting ‘‘may prescribe’’. of the Treasury may impose a civil money with respect to any potentially abusive tax (D) The item relating to section 6112 in the penalty on any person who violates, or shelter shall make a return (in such form as table of sections for subchapter B of chapter causes any violation of, any provision of sec- the Secretary may prescribe) setting forth— 61 is amended to read as follows: tion 5314.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00076 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.071 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3195

‘‘(B) AMOUNT OF PENALTY.— ties having a joint financial interest in the ‘‘(9) DISCLOSURE OF RETURNS AND RETURN ‘‘(i) IN GENERAL.—Except as provided in subject of the advice. INFORMATION FOR USE IN FINANCIAL AND AC- subparagraph (C), the amount of any civil ‘‘(3) Avoidance of conflicts of interest COUNTING FRAUD INVESTIGATIONS.— penalty imposed under subparagraph (A) which would impair auditor independence. ‘‘(A) WRITTEN REQUEST.—Upon receipt by shall not exceed $10,000. ‘‘(4) For written advice issued by a firm, the Secretary of a written request which ‘‘(ii) REASONABLE CAUSE EXCEPTION.—No standards for reviewing the advice and en- meets the requirements of subparagraph (B) penalty shall be imposed under subparagraph suring the consensus support of the firm for from the head of the United States Securi- (A) with respect to any violation if— positions taken. ties and Exchange Commission or the Public ‘‘(I) such violation was due to reasonable ‘‘(5) Reliance on reasonable factual rep- Company Accounting Oversight Board, a re- cause, and resentations by the taxpayer and other par- turn or return information shall be disclosed ‘‘(II) the amount of the transaction or the ties. to such requestor’s officers and employees balance in the account at the time of the ‘‘(6) Appropriateness of the fees charged by who are personally and directly engaged in transaction was properly reported. the practitioner for the written advice.’’. an investigation, examination, or proceeding ‘‘(C) WILLFUL VIOLATIONS.—In the case of (c) PRIOR SECTION TO HAVE NO EFFECT.— by such requester to evaluate the accuracy any person willfully violating, or willfully Notwithstanding section 414(a)(2) of this Act, of a financial statement or report or to de- causing any violation of, any provision of such section, and the amendments made by termine, require a restatement, penalize, or section 5314, the amount of the civil penalty such section, shall not take effect. deter conduct by an issuer, investment com- imposed under subparagraph (A) shall be— SEC. 499I. INFORMATION SHARING FOR EN- pany, or public accounting firm, or associ- ‘‘(i) not less than $5,000, FORCEMENT PURPOSES. ated person, in connection with a potential ‘‘(ii) not more than 50 percent of the (a) PROMOTION OF PROHIBITED TAX SHEL- or actual violation of auditing standards or amount determined under subparagraph (D), TERS OR TAX AVOIDANCE SCHEMES.—Section prohibitions against false or misleading and 6103(h) (relating to disclosure to certain Fed- statements or omissions in financial state- eral officers and employees for purposes of ‘‘(iii) subparagraph (B)(ii) shall not apply. ments or reports. Such disclosure shall be tax administration, etc.) is amended by add- ‘‘(D) AMOUNT.—The amount determined solely for use by such officers and employees ing at the end the following new paragraph: under this subparagraph is— in such investigation, examination or pro- ‘‘(7) DISCLOSURE OF RETURNS AND RETURN ‘‘(i) in the case of a violation involving a ceeding. INFORMATION RELATED TO PROMOTION OF PRO- transaction, the amount of the transaction, ‘‘(B) REQUIREMENTS.—A request meets the HIBITED TAX SHELTERS OR TAX AVOIDANCE or requirements of this subparagraph if it sets SCHEMES.— ‘‘(ii) in the case of a violation involving a forth— ‘‘(A) WRITTEN REQUEST.—Upon receipt by failure to report the existence of an account ‘‘(i) the nature of the investigation, exam- the Secretary of a written request which or any identifying information required to be ination, or proceeding, meets the requirements of subparagraph (B) provided with respect to an account, the bal- ‘‘(ii) the statutory authority under which from the head of the United States Securi- ance in the account at the time of the viola- such investigation, examination, or pro- ties and Exchange Commission, an appro- tion.’’. ceeding is being conducted, priate Federal banking agency as defined (b) EFFECTIVE DATE.—The amendment ‘‘(iii) the name or names of the issuer, in- under section 1813(q) of title 12, United made by this section shall apply to viola- vestment company, or public accounting States Code, or the Public Company Ac- tions occurring after the date of the enact- firm to which such return information re- counting Oversight Board, a return or return ment of this Act. lates, information shall be disclosed to such re- (c) PRIOR SECTION TO HAVE NO EFFECT.— ‘‘(iv) the taxable period or periods to which questor’s officers and employees who are per- Notwithstanding section 412(b) of this Act, such return information relates, and sonally and directly engaged in an investiga- such section, and the amendment made by ‘‘(v) the specific reason or reasons why tion, examination, or proceeding by such re- such section, shall not take effect. such disclosure is, or may be, relevant to questor to evaluate, determine, penalize, or such investigation, examination or pro- SEC. 499H. CENSURE, CIVIL FINES, AND TAX deter conduct by a financial institution, ceeding.’’. OPINION STANDARDS FOR TAX issuer, or public accounting firm, or associ- PRACTITIONERS. ated person, in connection with a potential (c) EFFECTIVE DATE.—The amendments (a) CENSURE; IMPOSITION OF MONETARY PEN- or actual violation of section 6700 (promotion made by this section shall apply to disclo- ALTY.— of abusive tax shelters), 6701 (aiding and sures and to information and document re- (1) IN GENERAL.—Section 330(b) of title 31, abetting understatement of tax liability), or quests made after the date of the enactment United States Code, is amended— activities related to promoting or facili- of this Act. (A) by inserting ‘‘, or censure,’’ after ‘‘De- tating inappropriate tax avoidance or tax SEC. 499J. CERTAIN DISCLOSURES BY SUBPOENA partment’’, and evasion. Such disclosure shall be solely for NOT SUBJECT TO PENALTY. (B) by adding at the end the following new use by such officers and employees in such (a) IN GENERAL.—Section 7216(b)(1) (relat- flush sentence: investigation, examination, or proceeding. ing to disclosure) is amended by striking ‘‘The Secretary may impose a monetary pen- ‘‘(B) REQUIREMENTS.—A request meets the ‘‘or’’at the end of subparagraph (A), by strik- alty on any representative described in the requirements of this subparagraph if it sets ing the period at the end of subparagraph (B) preceding sentence. If the representative was forth— and inserting ‘‘, or’’, and by adding at the acting on behalf of an employer or any firm ‘‘(i) the nature of the investigation, exam- end the following new subparagraph: or other entity in connection with the con- ination, or proceeding, ‘‘(C) pursuant to a subpoena which is duct giving rise to such penalty, the Sec- ‘‘(ii) the statutory authority under which issued in the performance of its duties by retary may impose a monetary penalty on such investigation, examination, or pro- any Federal agency or Congress (including such employer, firm, or entity if it knew, or ceeding is being conducted, any committee or subcommittee thereof).’’. reasonably should have known, of such con- ‘‘(iii) the name or names of the financial (b) EFFECTIVE DATE.—The amendments duct. Such penalty may be in addition to, or institution, issuer, or public accounting firm made by this section shall apply to disclo- in lieu of, any suspension, disbarment, or to which such return information relates, sures made after the date of the enactment censure of the representative.’’. ‘‘(iv) the taxable period or periods to which of this Act. (2) EFFECTIVE DATE.—The amendments such return information relates, and SEC. 499K. CONTINGENT FEE PROHIBITION. made by this subsection shall apply to ac- ‘‘(v) the specific reason or reasons why tions taken after the date of the enactment such disclosure is, or may be, relevant to (a) IN GENERAL.—Section 6701, as amended of this Act. such investigation, examination or pro- by this Act, is amended— (b) TAX OPINION STANDARDS.—Section 330 ceeding. (1) by redesignating subsections (f) and (g) as subsections (g) and (h), respectively, of such title 31 is amended by adding at the ‘‘(C) FINANCIAL INSTITUTION.—For the pur- end the following new subsection: poses of this paragraph, the term ‘financial (2) by striking ‘‘subsection (a).’’ in para- ‘‘(d) The Secretary of the Treasury shall institution’ means a depository institution, graphs (2) and (3) of subsection (g) (as redes- impose standards applicable to the rendering foreign bank, insured institution, industrial ignated by paragraph (1)) and inserting ‘‘sub- of written advice with respect to any poten- loan company, broker, dealer, investment section (a) or (f).’’, and tially abusive tax shelter or any entity, plan, company, investment advisor, or other enti- (3) by inserting after subsection (e) the fol- arrangement, or transaction which has a po- ty subject to regulation or oversight by the lowing new subsection: tential for tax avoidance or evasion. Such United States Securities and Exchange Com- ‘‘(f) CONTINGENT FEE PROHIBITION.— standards shall address, but not be limited mission or an appropriate Federal banking ‘‘(1) IN GENERAL.—Any person who makes to, the following issues: agency.’’. an agreement for, charges, or collects a fee ‘‘(1) Independence of the practitioner (b) FINANCIAL AND ACCOUNTING FRAUD IN- which is for services provided in connection issuing such written advice from persons VESTIGATIONS.—Section 6103(i) (relating to with the internal revenue laws, and which is promoting, marketing, or recommending the disclosure to Federal officers or employees contingent upon the actual or projected subject of the advice. for administration of Federal laws not relat- achievement of— ‘‘(2) Collaboration among practitioners, or ing to tax administration) is amended by ‘‘(A) Federal tax savings or benefits, or between a practitioner and other party, adding at the end the following new para- ‘‘(B) losses which can be used to offset which could result in such collaborating par- graph: other taxable income,

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.071 S25PT1 S3196 CONGRESSIONAL RECORD — SENATE March 25, 2004 shall pay a penalty with respect to each such pay (upon notice and demand by the Sec- such jurisdiction has been identified as an fee activity in the amount determined under retary and in the same manner as tax) an uncooperative tax haven under section subsection (b). amount equal to 20 percent of the amount of 6038D(c), and ‘‘(2) REGULATIONS.—The Secretary may such transfer. ‘‘(B) subsections (a), (b), (c), and (d) of sec- issue rules to carry out the purposes of this ‘‘(e) SIMPLIFIED REPORTING.—The Sec- tion 904 and sections 902 and 960 shall be ap- subsection and may provide for exceptions retary may by regulations provide for sim- plied separately with respect to all income of for fee arrangements that are in the public plified reporting under this section for a taxpayer attributable to periods described interest.’’. United States persons making large volumes in subparagraph (A) with respect to all such (b) EFFECTIVE DATE.—The amendments of similar payments. jurisdictions. made by this section shall apply to fee agree- ‘‘(f) REGULATIONS.—The Secretary shall ‘‘(2) TAXES ALLOWED AS A DEDUCTION, ETC.— ments, charges, and collections made after prescribe such regulations as may be nec- Sections 275 and 78 shall not apply to any tax the date of the enactment of this Act. essary or appropriate to carry out the pur- which is not allowable as a credit under sub- SEC. 499L. DISCLOSING PAYMENTS TO PERSONS poses of this section.’’. section (a) by reason of this subsection. IN UNCOOPERATIVE TAX HAVENS. (b) CLERICAL AMENDMENT.—The table of ‘‘(3) REGULATIONS.—The Secretary shall (a) IN GENERAL.—Subpart A of part III of sections for such subpart A is amended by in- prescribe such regulations as may be nec- subchapter A of chapter 61 is amended by in- serting after the item relating to section essary or appropriate to carry out the pur- serting after section 6038C the following new 6038C the following new item: poses of this subsection, including regula- section: ‘‘Sec. 6038D. Deterring uncooperative tax tions which treat income paid through 1 or ‘‘SEC. 6038D. DETERRING UNCOOPERATIVE TAX havens through listing and re- more entities as derived from a foreign juris- HAVENS THROUGH LISTING AND RE- porting requirements.’’. diction to which this subsection applies if PORTING REQUIREMENTS. such income was, without regard to such en- ‘‘(a) IN GENERAL.—Each United States per- (c) EFFECTIVE DATE.—The amendments tities, derived from such jurisdiction.’’. son who transfers money or other property made by this section shall apply to transfers (c) EFFECTIVE DATE.—The amendments directly or indirectly to any uncooperative after the date which is 180 days after the date of the enactment of this Act. made by this section shall apply to taxable tax haven, to any financial institution li- years beginning after the date of the enact- SEC. 499M. DETERRING UNCOOPERATIVE TAX HA- censed by or operating in any uncooperative ment of this Act. tax haven, or to any person who is a resident VENS BY RESTRICTING ALLOWABLE of any uncooperative tax haven shall furnish TAX BENEFITS. f (a) LIMITATION ON DEFERRAL.— to the Secretary, at such time and in such NOTICES OF HEARINGS/MEETINGS manner as the Secretary shall by regulation (1) IN GENERAL.—Subsection (a) of section prescribe, such information with respect to 952 (defining subpart F income) is amended COMMITTEE ON ENERGY AND NATURAL such transfer as the Secretary may require. by striking ‘‘and’’ at the end of paragraph RESOURCES ‘‘(b) EXCEPTIONS.—Subsection (a) shall not (4), by striking the period at the end of para- Mr. DOMENICI. Mr. President, I apply to a transfer by a United States person graph (5) and inserting ‘‘, and’’, and by in- would like to announce for the infor- if the amount of money (and the fair market serting after paragraph (5) the following new mation of the Senate and the public value of property) transferred is less than paragraph: ‘‘(6) an amount equal to the applicable that the following hearing has been $10,000. Related transfers shall be treated as scheduled before the Committee on En- 1 transfer for purposes of this subsection. fraction (as defined in subsection (e)) of the ‘‘(c) UNCOOPERATIVE TAX HAVEN.—For pur- income of such corporation other than in- ergy and Natural Resources: poses of this section— come which— The hearing will be held on Tuesday, ‘‘(1) IN GENERAL.—The term ‘uncooperative ‘‘(A) is attributable to earnings and profits April 27, at 10 a.m. in Room SD–366 of tax haven’ means any foreign jurisdiction of the foreign corporation included in the the Dirksen Senate Office Building in which is identified on a list maintained by gross income of a United States person under Washington, DC. the Secretary under paragraph (2) as being a section 951 (other than by reason of this The purpose of the hearing is to re- jurisdiction— paragraph or paragraph (3)(A)(i)), or ceive testimony regarding sustainable, ‘‘(B) is described in subsection (b).’’. ‘‘(A) which imposes no or nominal taxation low emission, electricity generation. either generally or on specified classes of in- (2) APPLICABLE FRACTION.—Section 952 is come, and amended by adding at the end the following Because of the limited time available ‘‘(B) has corporate, business, bank, or tax new subsection: for the hearing, witnesses may testify secrecy or confidentiality rules and prac- ‘‘(e) IDENTIFIED TAX HAVEN INCOME WHICH by invitation only. However, those tices, or has ineffective information ex- IS SUBPART F INCOME.— wishing to submit written testimony change practices which, in the judgment of ‘‘(1) IN GENERAL.—For purposes of sub- for the hearing record should send two the Secretary, effectively limit or restrict section (a)(6), the term ‘applicable fraction’ copies of their testimony to the Com- the ability of the United States to obtain in- means the fraction— mittee on Energy and Natural Re- ‘‘(A) the numerator of which is the aggre- formation relevant to the enforcement of sources, United States Senate, SD–364 this title. gate identified tax haven income for the tax- Dirksen Senate Office Building, Wash- ‘‘(2) MAINTENANCE OF LIST.—Not later than able year, and November 1 of each calendar year, the Sec- ‘‘(B) the denominator of which is the ag- ington, DC 20510–6150. retary shall issue a list of foreign jurisdic- gregate income for the taxable year which is For further information, please con- tions which the Secretary determines qualify from sources outside the United States. tact Dr. Pete Lyons at 202–224–5861 or as uncooperative tax havens under paragraph ‘‘(2) IDENTIFIED TAX HAVEN INCOME.—For Shane Perkins at 202–224–7555. purposes of paragraph (1), the term ‘identi- (1). f ‘‘(3) INEFFECTIVE INFORMATION EXCHANGE fied tax haven income’ means income for the PRACTICES.—For purposes of paragraph (1), a taxable year which is attributable to a for- AUTHORITY FOR COMMITTEES TO jurisdiction shall be deemed to have ineffec- eign jurisdiction for any period during which MEET tive information exchange practices if the such jurisdiction has been identified as an COMMITTEE ON ARMED SERVICES Secretary determines that during any tax- uncooperative tax haven under section able year ending in the 12-month period pre- 6038D(c). Mr. DEWINE. Mr. President, I ask ceding the issuance of the list under para- ‘‘(3) REGULATIONS.—The Secretary shall unanimous consent that the Com- graph (2)— prescribe regulations similar to the regula- mittee on Armed Services be author- ‘‘(A) the exchange of information between tions issued under section 999(c) to carry out ized to meet during the session of the the United States and such jurisdiction was the purposes of this subsection.’’. Senate on March 25, 2004, at 9:30 a.m., inadequate to prevent evasion or avoidance (b) DENIAL OF FOREIGN TAX CREDIT.—Sec- in open and closed session to receive of United States income tax by United tion 901 (relating to taxes of foreign coun- testimony on the role of U.S. Northern tries and of possessions of United States) is States persons or to enable the United Command and U.S. Special Operations States effectively to enforce this title, or amended by redesignating subsection (l) as ‘‘(B) such jurisdiction was identified by an subsection (m) and by inserting after sub- Command in defending the homeland intergovernmental group or organization of section (k) the following new subsection: and in the global war on terrorism, in which the United States is a member as un- ‘‘(l) REDUCTION OF FOREIGN TAX CREDIT, review of the defense authorization re- cooperative with international tax enforce- ETC., FOR IDENTIFIED TAX HAVEN INCOME.— quest for fiscal year 2005. ment or information exchange and the ‘‘(1) IN GENERAL.—Notwithstanding any The PRESIDING OFFICER. Without United States concurs in the determination. other provision of this part— objection, it is so ordered. ‘‘(d) PENALTY FOR FAILURE TO FILE INFOR- ‘‘(A) no credit shall be allowed under sub- COMMITTEE ON BANKING, HOUSING, AND URBAN MATION.—If a United States person fails to section (a) for any income, war profits, or ex- AFFAIRS furnish the information required by sub- cess profits taxes paid or accrued (or deemed section (a) with respect to any transfer with- paid under section 902 or 960) to any foreign Mr. DEWINE. Mr. President, I ask in the time prescribed therefor (including ex- jurisdiction if such taxes are with respect to unanimous consent that the Com- tensions), such United States person shall income attributable to a period during which mittee on Banking, Housing, and

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00078 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.071 S25PT1 March 25, 2004 CONGRESSIONAL RECORD — SENATE S3197 Urban Affairs be authorized to meet ized to meet during the session of the MEASURES READ THE FIRST during the session of the Senate on Senate on March 25, 2004 at 2:30 p.m. to TIME—H.R. 339, H.R. 3717, and S. March 25, 2004, at 2 p.m., to conduct a hold a closed hearing on intelligence 2236, EN BLOC hearing on ‘‘The Administration’s Pro- matters. Mr. FRIST. Mr. President, I under- posed Fiscal Year 2005 Budget for the The PRESIDING OFFICER. Without stand there are three bills at the desk, Federal Transit Administration.’’ objection, it is so ordered. and I ask that they be read for the first The PRESIDING OFFICER. Without SUBCOMMITTEE ON ECONOMIC POLICY time en bloc. objection, it is so ordered. Mr. DEWINE. Mr. President, I ask The PRESIDING OFFICER. Without COMMITTEE ON COMMERCE, SCIENCE, AND unanimous consent that the Sub- objection, the clerk will read the titles TRANSPORTATION committee on Economic Policy of the of the bills for the first time. Mr. DEWINE. Mr. President, I ask Committee on Banking, Housing, and The assistant legislative clerk read unanimous consent that the Com- Urban Affairs be authorized to meet as follows: mittee on Commerce, Science, and during the session of the Senate on A bill (H.R. 339) to prevent legislative and Transportation be authorized to meet Thursday, March 25, 2004, at 10 a.m. to regulatory functions from being usurped by on Thursday, March 25, 2004, at 9:30 conduct a hearing on ‘‘National Flood civil liability actions brought or continued a.m., on Cable Rates. Insurance Repetitive Losses.’’ against food manufacturers, marketers, dis- The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without tributors, advertisers, sellers, and trade as- objection, it is so ordered. objection, it is so ordered. sociations for claims of injury relating to a person’s weight gain, obesity, or any health COMMITTEE ON STRATEGIC FORCES COMMITTEE ON HEALTH, EDUCATION, LABOR, condition associated with weight gain or AND PENSIONS Mr. DEWINE. Mr. President, I ask obesity. Mr. DEWINE. Mr. President, I ask unanimous consent that the Sub- A bill (H.R. 3717) to increase the penalties unanimous consent that the Com- committee on Strategic Forces of the for violations by television and radio broad- mittee on Health, Education, Labor, Committee on Armed Services be au- casters of the prohibitions against trans- and Pensions, Subcommittee on Em- thorized to meet during the session of missions of obscene, indecent, and profane ployment, Safety, and Training be au- the Senate on March 25, 2004, at 2:30 material, and for other purposes. p.m., in open session to receive testi- A bill (S. 2236) to enhance the reliability of thorized to meet for a hearing on Haz- the electric system. ard Communication in the Workplace mony on National security space pro- Mr. FRIST. Mr. President, I now ask during the session of the Senate on grams, and management, in review of for their second reading, and in order Thursday, March 25, 2004 at 10 a.m. in the defense authorization request for to place the bills on the calendar under SD–430. fiscal year 2005. rule XIV, I object to further pro- The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without ceedings on these matters en bloc. objection, it is so ordered. objection, it is so ordered. The PRESIDING OFFICER. Objec- SUBCOMMITTEE ON WATER AND POWER COMMITTEE ON FOREIGN RELATIONS tion is heard. The bills will be read a Mr. DEWINE. Mr. President, I ask Mr. DEWINE. Mr. President, I ask second time on the next legislative unanimous consent that the Sub- unanimous consent that the Com- day. mittee on Foreign Relations be author- committee on Water and Power of the f ized to meet during the session of the Committee on Energy and Natural Re- Senate on Thursday, March 25, 2003 at sources be authorized to meet during EXECUTIVE SESSION 9:30 a.m. to hold a hearing on AGOA the session of the Senate on Thursday, III: the United States Africa Partner- March 25 at 2:30 p.m. to receive testi- PROTOCOL AMENDING TAX CON- ship Act of 2003. mony regarding the following bills: S. VENTION WITH SRI LANKA— The PRESIDING OFFICER. Without 1085, a bill to provide for a bureau of TREATY DOCUMENT NO. 108–9 objection, it is so ordered. reclamation program to assist states COMMITTEE ON FOREIGN RELATIONS and local communities in evaluating and developing rural and small commu- Mr. DEWINE. Mr. President, I ask INCOME TAX CONVENTION WITH unanimous consent that the Com- nity water supply systems, and for SRI LANKA—TREATY DOCUMENT mittee on Foreign Relations be author- other purposes; S. 1732, a bill to direct NO. 99–10 the Secretary of the Interior to estab- ized to meet during the session of the Mr. FRIST. Mr. President, I ask Senate on Thursday, March 25, 2004 at lish a rural water supply program in the reclamation states to provide a unanimous consent that the Senate 2:30 p.m. to hold a hearing on Nomina- proceed to executive session to con- tions. clean, safe, affordable, and reliable water supply to rural residents: S. 2218, sider the following treaties on today’s The PRESIDING OFFICER. Without Executive Calendar: Nos. 14 and 15. I objection, it is so ordered. a bill to direct the Secretary of the In- terior to establish a rural water supply further ask unanimous consent that COMMITTEE ON VETERANS’ AFFAIRS program in the reclamation states to the treaties be considered as having Mr. DEWINE. Mr. President, I ask provide a clean, safe, affordable, and passed through their various par- unanimous consent that the Com- reliable water supply to rural residents liamentary stages, up to and including mittee on Veterans’ Affairs be author- and establish guidelines for projects the presentation of the resolutions of ized to meet during the session of the and for other purposes; S. 1727, a bill to ratification; that any statements relat- Senate on Thursday, March 25, 2004, for authorize additional appropriations for ing to the treaties be printed in the a joint hearing with the House of Rep- the Reclamation Safety of Dams Act of CONGRESSIONAL RECORD as if read; and resentatives’ Committee on Veterans’ 1978; and S. 1791, a bill to amend the that the Senate take one vote on the Affairs, to hear the legislative presen- Lease Lot Conveyance Act of 2002 to resolutions of ratification, to be con- tations of the National Association of provide that the amounts received by sidered as separate votes; further, that State Directors of Veterans Affairs, the United States under that act shall when the resolutions of ratification are AMVETS, American Ex-Prisoners of be deposited in the reclamation fund, voted on, the motion to reconsider be War, the Vietnam Veterans of America, and for other purposes. laid upon the table, the President be and the Military Officers Association The PRESIDING OFFICER. Without notified of the Senate’s action, and of America. objection, it is so ordered. that following the disposition of the The hearing will take place in room treaties, the Senate return to legisla- f 345 of the Cannon House Office Building tive session. at 10 a.m. ORDER FOR STAR PRINT—S. 2201 The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without Mr. FRIST. Mr. President, I ask objection, it is so ordered. The treaties objection, it is so ordered. unanimous consent that S. 2201 be star will be considered to have passed SELECT COMMITTEE ON INTELLIGENCE printed with the change which is at the through their various parliamentary Mr. DEWINE. Mr. President, I ask desk. stages, up to and including the presen- unanimous consent that the Select The PRESIDING OFFICER. Without tation of the resolutions of ratifica- Committee on Intelligence be author- objection, it is so ordered. tion.

VerDate jul 14 2003 03:08 Mar 26, 2004 Jkt 029060 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 E:\CR\FM\A25MR6.072 S25PT1 S3198 CONGRESSIONAL RECORD — SENATE March 25, 2004 The resolutions of ratification are as voted in the affirmative, the resolu- ate will begin consideration of the wel- follows: tions of ratification are agreed to. fare authorization bill. The chairman [Protocol Amending Tax Convention with f and ranking member of the Finance Sri Lanka (Treaty Doc. 108–9) and Income Committee will be here on Monday to Tax Convention with Sri Lanka (Treaty LEGISLATIVE SESSION begin the amendment process on the Doc. 99–10)] The PRESIDING OFFICER. Under bill. I do encourage all Senators who Resolved (two-thirds of the Senators present the previous order, the Senate will now have amendments to contact the bill concurring therein) That the Senate advise return to legislative session. managers as soon as possible. and consent to the ratification of the Con- As announced earlier, there will be vention between the Government of the f United States of America, and the Govern- no rollcall votes on Monday, but Sen- ment of the Democratic Socialist Republic of ORDERS FOR FRIDAY, MARCH 26, ators are encouraged to come to the Sri Lanka for the Avoidance of Double Tax- 2004 floor on Monday in order to make ation and the Prevention of Fiscal Evasion progress on the bill. Mr. FRIST. I ask unanimous consent with Respect to Taxes on Income, signed at I again want to congratulate Sen- that when the Senate completes its Colombo on March 14, 1985 (Treaty Doc. 99– ators DEWINE and GRAHAM of South 10), and the Protocol amending the Conven- business today, it adjourn until 9:30 a.m. on Friday, March 26. I further ask Carolina and all of the Members who tion, together with an Exchange of Notes, participated in today’s debate on the signed at Washington on September 20, 2002 that following the prayer and pledge, (Treaty Doc. 180–9), subject to the under- the morning hour be deemed expired, Unborn Victims of Violence bill. I con- standing that the authorities to which infor- the Journal of proceedings be approved gratulate all of them on the passage of mation may be disclosed under Article 27 in- to date, the time for the two leaders be the bill which will go to the President’s clude appropriate congressional committees reserved for their use later in the day, desk for his signature. and the General Accounting Office. Mr. FRIST. Mr. President, I ask for a and that there then be a period for f division vote on the resolutions of rati- morning business with Senators to ADJOURNMENT UNTIL 9:30 A.M. fication. speak for up to 10 minutes each. The PRESIDING OFFICER. A divi- The PRESIDING OFFICER. Without TOMORROW sion vote is requested. Senators in objection, it is so ordered. Mr. FRIST. If there is no further favor of the resolutions of ratification f business to come before the Senate, I will rise and stand until counted. ask that the Senate stand in adjourn- Those opposed will rise and stand PROGRAM ment under the previous order. until counted. Mr. FRIST. The Senate will be in ses- There being no objection, the Senate, On a division vote, two-thirds of the sion tomorrow. However, no rollcall at 7:31 p.m., adjourned until Friday, Senators present and voting having votes will occur. On Monday, the Sen- March 26, 2004, at 9:30 a.m.

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