[Pages S1556-S1593]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CPSC REFORM ACT

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 2663, which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 2663) to reform the Consumer Product Safety
Commission to provide greater protection for children's
products, to improve the screening of noncompliant consumer
products, to improve the effectiveness of consumer product
recall programs, and for other purposes.

Pending:

Pryor amendment No. 4090, of a technical nature.
Cornyn amendment No. 4094, to prohibit State attorneys
general from entering into contingency fee agreements for
legal or expert witness services in certain civil actions
relating to Federal consumer product safety rules,
regulations, standards, certification, or labeling
requirements, or orders.
DeMint amendment No. 4096, to strike section 21, relating
to whistleblower protections.
Feinstein amendment No. 4104, to prohibit the manufacture,
sale, or distribution in commerce of certain children's
products and childcare articles that contain specified
phthalates.

The PRESIDING OFFICER. The Senator from Arkansas is recognized.
Mr. PRYOR. Madam President, I wish to notify our colleagues that I
think we are making great progress on this legislation. Senator Cornyn
is here to talk about one of his amendments. We know there are a few
other amendments that are being discussed right now, maybe in the
cloakrooms or in Senators' offices. That is very encouraging. The
feedback we have received has been very positive. It looks as if there
are some amendments that will require votes.
I encourage all Senators who would like to come and speak to make
plans to do that at some point today. I encourage anyone who has any
amendments that they would like to have

[[Page S1557]]

considered to run those down to the floor as quickly as possible, if
they have not already. We are really making good progress. I was
encouraged yesterday by the vote we had at 5:30.
Here, again, we find that the Consumer Product Safety Commission is
an agency that needs our reform. They need us to come in and to not
just give them more resources--it is not a matter of just throwing
money at the problem. They need more tools in their tool box and more
resources and a little bit of restructuring. It has, again, been the
goal of this legislation to make sure the American marketplace is safe,
make sure that when people go to a store and buy a product, they can
rely on the fact that there are safety standards, that it doesn't have
materials in it that are dangerous or harmful. Really, this is an
effort for us to accomplish something great in this Congress, in this
election year, for the people of this country. So I thank all my
colleagues on both sides of the aisle for their diligence in trying to
get this done.
I ask any colleagues who would like to speak or anyone who has an
amendment, please let us know because I am starting to get this sense
that there are many who would like to wrap this bill up as quickly as
we can.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Madam President, I again congratulate the Senator from
Arkansas and the Senator from Alaska for working on an important piece
of bipartisan legislation, this reform of the Consumer Product Safety
Commission. This is very important to all Americans.
I agree that we ought to be able to move through the amendments that
are being offered. I have tried to offer amendments early so we don't
backload them and create problems later in the week. I appreciate what
the Senator from Arkansas had to say.
I have one amendment pending. In a moment, I intend to offer another
amendment, so it will be pending. I have told Senator Pryor that I am
more than happy to agree to a short time agreement and a time for a
vote after a debate and everybody has had a chance to be heard. These
are not complicated amendments, but they are important. I hope we can
move through this and vote on the amendments and complete our work
shortly.
I told Senator Pryor that I do have another amendment I would like to
call up and get pending.

Amendment No. 4108

Mr. CORNYN. Madam President, at this time, I ask unanimous consent to
set aside the pending amendment and call up amendment No. 4108 and ask
for its immediate consideration.
The PRESIDING OFFICER. Is there objection?
Mr. PRYOR. Reserving the right to object, once the Senator finishes
his presentation, we will go back to the pending amendment.
Mr. CORNYN. I agree.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Texas [Mr. Cornyn] proposes an amendment
numbered 4108.

Mr. CORNYN. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To provide appropriate procedures for individual actions by
whistleblowers, to provide for the appropriate assessment of costs and
expenses in whistleblower cases, and for other purposes)

On page 63, strike line 6 and all that follows through page
64, line 6, and insert the following:
in an amount not to exceed $15,000 for costs and expenses
(including attorneys' and expert witness fees) reasonably
incurred, as determined by the Secretary, by the complainant
for, or in connection with, the bringing of the complaint
upon which the order was issued.
``(C) If the Secretary finds that a complaint under
paragraph (1) is frivolous or has been brought in bad faith,
the Secretary may award to the prevailing employer a
reasonable attorneys' fee, not exceeding $15,000, to be paid
by the complainant.
``(4)(A) If the Secretary has not issued a final decision
within 210 days after the filing of the complaint, or within
90 days after receiving a written determination, the
complainant may bring an action at law or equity for review
in the appropriate district court of the United States with
jurisdiction, which shall have jurisdiction over such an
action without regard to the amount in controversy, and which
action shall, at the request of either party to such action,
be tried by the court with a jury. The proceedings shall be
governed by the same legal burdens of proof specified in
paragraph (2)(B).
``(B) In an action brought under subparagraph (A), the
court may grant injunctive relief and compensatory damages to
the complainant. The court may also grant any other monetary
relief to the complainant available at law or equity, not
exceeding a total amount of $50,000, including consequential
damages, reasonable attorneys and expert witness fees, court
costs, and punitive damages.
``(C) If the court finds that an action brought under
subparagraph (A) is frivolous or has been brought in bad
faith, the court may award to the prevailing employer a
reasonable attorneys' fee, not exceeding $15,000, to be paid
by the complainant.

Mr. CORNYN. Madam President, I will explain to my colleagues what the
amendment does.
Under the bill as offered, it creates, unfortunately, a bounty, so to
speak, for alleged whistleblowers up to $250,000 in attorney's fees and
penalties, which I think, rather than creating a level playing field
and trying to address the legitimate concern that I happen to agree
with, that people who disclose or identify illegal conduct need to be
protected against arbitrary termination of their jobs when they are
just trying to make sure the law is complied with and help contribute
to the public safety. I think this bill, as currently written, tilts
the playing field too far in favor of whistleblower complainants and
has the unintended effect of encouraging frivolous and bad-faith
allegations against employers.
So what my amendment would try to do would be to level that playing
field while protecting legitimate whistleblowers but not actually
encouraging people who have, perhaps, engaged in other misconduct and
giving them a bounty, so to speak, to sue for under this statute.
Under the bill, an alleged whistleblower may file a complaint with
the Secretary of Labor, and if the Secretary of Labor fails to act,
then with the Federal district court. If the complainant prevails at a
hearing or action, he or she can receive an unlimited amount of costs
and expenses, including attorney's fees and expert witness fees. If the
Secretary finds that the complaint is frivolous or brought in bad
faith, the amount the employer can recover is limited to $1,000.
Let me make sure my colleagues understand that. If the employee
prevails in the action, they can recover unlimited damages and costs,
including attorney's fees and expert witness fees. If the Secretary of
Labor finds at the administrative level that it is frivolous or brought
in bad faith, the employer can only recover $1,000--obviously an
unequal playing field and one that will have the unintended impact of
encouraging bad conduct. If the case goes to district court, the
employer cannot recover attorney's fees at all.
I submit that the rules ought to be fair for both parties and that
$1,000 is not a significant deterrent to frivolous and bad-faith suits.
If the complaint process is going to have any integrity, there have to
be consequences for abusing the process with frivolous and bad-faith
complaints.
What is more, the $1,000 limit on attorney's fees in the bill is
inadequate to compensate an employer for the cost of defending against
a frivolous or bad-faith complaint. An employer who is a target of such
a suit will almost certainly incur more than $1,000 in fees just to
have a lawyer review the file, file a brief, and attend a hearing. If
the case goes to district court, the attorney's fees will be even
greater but will not be recoverable at all under the bill as written.
This amendment levels the playing field by capping the costs and fees
recoverable for both parties.
I might just add that I have to raise the question of whether a
whistleblower provision is necessary. We are still researching the
matter. Under most State laws, including the law in the State of Texas,
an employer cannot fire an employee for reporting unlawful conduct.
There are already remedies in place under State law, and I have to
question whether it is necessary to create an additional remedy under
Federal law. Assuming there is, I think we should, I hope, agree that
there ought to be a level playing field.

[[Page S1558]]

My amendment strikes a reasonable balance between the interests of
punishing retributive employer conduct and of discouraging frivolous
and bad-faith claims. The amendment punishes wrongdoers and makes
victims whole without creating incentives for employees to sue
employers for frivolous or harassing reasons.
The amendment is fair to complainants, who can recover costs and fees
whenever they prevail, as opposed to employers, who can recover only
when the whistleblower complaint is shown to be frivolous or brought in
bad faith. My amendment fully compensates complainants who prevail.
Complainants can still get unlimited injunctive and compensatory
relief. In other words, they can get their job back and recover backpay
to be made whole. In addition, complainants can receive consequential
and punitive damage that are not available to the employer, which is
why the amendment allows complainants to recover up to $50,000 in total
costs and fees and consequential and punitive damages, while employers
can receive only $15,000 in attorney's fees.
I believe this is a reasonable amendment offered in the spirit of
compromise, and I hope the other side will take a look at it and agree
to accept the amendment. If not, I am willing, as I said earlier, to
agree to some reasonable time agreement so we can debate it further and
then have a vote on it.
I thank the Presiding Officer, and I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas is recognized.
Mr. PRYOR. Madam President, before the Senator from Texas leaves, I
wish to thank him publicly. He has been very constructive in this
process. He has offered a couple of amendments that he feels very
strongly about, and we met with him and his staff on them. So I have
talked to him about them. He is being very constructive in the process.
I thank my colleague from Texas.
The other thing I noticed, Madam President, is that Senator Collins
of Maine just walked on the floor. This bill has been called the Pryor-
Stevens bill, but I could not exaggerate the amount of contribution
Senator Collins has made to this effort as well. I have found her, in
the last 5 years, to be a wonderful colleague to work with. She has
made this bill better in some very fundamental ways--maybe not very
exciting ways, but she really focused on one of the major problems we
have with the CPSC today, and that is that the CPSC, with all due
respect to the people who work there, has been almost incapable of
dealing with imports in the way they should.
Senator Collins, I believe, had four amendments. We accepted all
four. We have worked with her office and with her personally to make
sure the language is right, to make sure the policy is right, to make
sure it is smart law, which I think it is, and also to make sure it is
a big improvement over the present situation; I don't think anybody can
look at her sections of the bill and ever say she is not greatly
improving our ability to protect our shores from dangerous and unsafe
products. I am certainly glad she is here this morning to help manage
this legislation.
The other point I wish to add is, Senator Collins has a lot of
respect on both sides of the aisle. The fact that people know she
worked on the legislation gives a comfort level on both sides of the
aisle, but certainly on the Republican side, because they have seen how
she has conducted her business since she has been in the Senate, but
also the fact that she has had hearings in her committee on CPSC and
some import problems. She has been a key player, a key architect in
this legislation. I thank her.
I know we are going to have a lot of amendments today and a lot going
on in this Chamber. We are going to try to clear a lot of amendments.
Again, I encourage colleagues to come to the floor if they do have
amendments or wish to speak. We are going to try to be in that process
today of clearing amendments, putting a managers' package together, and
having votes.
Before the day got crazy and confusing, I wanted to thank Senator
Collins for her leadership.
The PRESIDING OFFICER. The Senator from Florida is recognized.
Mr. MARTINEZ. Madam President, I ask unanimous consent that I be
allowed to speak for up to 15 minutes in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Congratulations to Senator John Mc Cain

Mr. MARTINEZ. Madam President, before I begin my remarks regarding
the very difficult situation that has arisen in South America between
Colombia and some of its neighbors, I wish to take a moment this
morning to congratulate our colleague and dear friend, Senator John
McCain, on his outstanding achievement last night, becoming the nominee
of the Republican Party for the Presidential election and going forward
as the nominee of our party for these upcoming elections.
Senator McCain is an example of resiliency in his life story but also
particularly in this election. I am extremely proud to call him a
friend, and I certainly wish him the very best as he goes forward. I
know all of us in the Senate take great pride in the fact that he is
going to be the nominee of one of our major parties. I wanted to note
that event and give him my best wishes and congratulations on this very
important achievement for him.

Venezuela-Colombia Conflict

Madam President, I know many of us in this Chamber, across the
country, and, frankly, across the Western Hemisphere and the world are
watching with concern the reports about the situation developing
between Colombia and Ecuador and the complicating elements to it
brought on by Venezuela.
This past Saturday, Colombia conducted an antiterrorist operation.
The Government of Colombia does this on an ongoing basis because
Colombia has been attacked and under siege by a group of people who
seek the overthrow by violence of that Government. So as they often do,
this Saturday, they conducted an operation which required an airplane
flying within the Colombian airspace to fire into Ecuadorian territory
by only a few feet. Then Colombian troops entered that area to clean
out what appeared to be a permanent base camp of the FARC, the
Revolutionary Armed Forces of Colombia which has ravaged Colombia for
now over 25, 30 years as an illegitimate terrorist organization bent on
killing, kidnapping, and maiming. The result of that action was the No.
2 leader of the FARC was killed.
The FARC is the oldest, largest, and best equipped insurgency. As a
result of the actions of the Colombian military, with assistance and
training from the United States, this insurgency has been lowered in
its numbers from the times when it was many thousands. Today it is
believed to be between 6,000 and 9,000 strong. It has for decades
aggressively sought to disrupt and destabilize the Colombian
Government. Its stated goal is none other than ``the violent overthrow
of the Colombian Government.''
Let there be no doubt that this is a terrorist organization. They
kill, they kidnap, they hold innocent people for ransom while funding
all of its violence by actively engaging in narcotics trafficking. We
now have learned they do have other sources of funding, and I will get
to that in a moment.
Just as Hamas and Hezbollah, the FARC operates by using ruthless
terrorist tactics. According to the State Department's most recent
Report on Terrorism, the FARC is known to routinely conduct crossborder
operations. What they do is they will attack in Colombia. They will
kill. They will throw bombs. They will kidnap in Colombia and then
retreat conveniently to their borders in friendlier countries, such as
Ecuador and Venezuela. Unfortunately, this new development has emerged
because Ecuador has allowed its border with Colombia to be a sanctuary
for the FARC.
As we continue to receive updates on this situation, we cannot lose
sight of the fact that the FARC has repeatedly and violently infringed
on Colombia's efforts at stability and democracy and is operating from
a neighboring country using it as a sanctuary.
It is the FARC that has declared war against the Colombian people. It
is the FARC that has killed and kidnapped thousands of civilians. They
have kidnapped teachers, journalists, religious leaders, union members,
human rights activists, members of the Colombian Congress, and
Presidential candidates.
This organization today is known to be holding as many as possibly
700 hostages. During their reign of terror,

[[Page S1559]]

they have held at times as many as 100 American citizens. Today, they
are currently holding three American citizens: Mark Gonsalves, Keith
Stansell, and Thomas Howes. They have been held hostage by the FARC for
over 5 years, living in subhuman conditions in the jungle, chained to
trees. This is the fate of three Americans at the hands of the FARC.

In December of 2007, the Senate approved a resolution condemning the
kidnaping of these three United States citizens and demanded their
immediate and unconditional release. It is time that these three
Americans be released. Their families have suffered long enough. It is
time that the FARC be called by the international community to end
their reign of terror.
I believe Colombia has had no choice but to continue to confront this
aggression led by the FARC by military means. The antiterrorist strike
of this past Saturday resulted in the death of Raul Reyes, a well-known
senior leader of the FARC--No. 1, maybe No. 2.
So who was Raul Reyes? He was a notorious and ruthless criminal who
had been long sought by our Government and the Government of Colombia.
He is on the FBI's most wanted list. He is on Interpol's most wanted
list. Since May of 2007, Reyes has been listed on the U.S. Department
of the Treasury's foreign narcotics kingpin designation list, and in
March of 2006, Reyes was among 50 FARC members indicted by the
Department of Justice on drug and terrorism charges. So until his
death, he was a fugitive of American justice. He was wanted by the
Colombian Government on more than 100 criminal charges, including more
than 50 homicides, and his actions should be condemned by all of us and
by the international community.
Among the items retrieved by Colombia during the antiterrorist
strike, among other things, was Reyes's laptop. What a trove of
information it appears to have yielded. I have received copies of some
of the documents recovered from the laptop, and they show a consistent
pattern of communication and cooperation among Venezuela and the FARC,
among the Government of Ecuador and the FARC, President Correa sending
personal communications and his foreign minister to meet with Mr.
Reyes; this avowed terrorist, this criminal of international justice
meeting with a foreign minister, dealing as if he were a head of state.
A copy of one letter recovered from a senior leader of the FARC to
Chavez states that ``it is important for his government and the FARC to
maintain close ties'' to ensure the success of their efforts. And part
of the report obtained from these computer files indicates that the
FARC may have received or was in the process of receiving as much as
$300 million in financial support from Venezuela.
We know that the Government of Venezuela, while its people are
suffering shortages of goods, while the people are having to endure
rationing and lines to get foodstuff for their children, this
Government, now awash in petrodollars, is utilizing its funds, as we
have now seen through indictments in the Southern District of Florida,
to meddle in the elections of other countries by sending cash, and now
to meddle in the peaceful pursuit of Colombia's democracy by giving
$300 million to a terrorist organization attempting to overthrow by
violence the Government of Colombia.
I wish to address the confrontational behavior of Venezuela regarding
this situation which happened between Ecuador and Colombia. I am not
sure what Venezuela's business is in this matter. Venezuela's leader
Hugo Chavez has decided to take an aggressive stance. He has threatened
Colombia with military action and has amassed troops along the
Venezuela-Colombia border. That is at the complete opposite end of the
country. The Venezuela border has nothing to do with the Ecuador and
Colombia border. He is attempting to divert international attention
from the very embarrassing facts that are being yielded from the
computer files that have been found. He is trying to divert national
and international attention from the suffering of his own people as a
result of his mismanagement of their economy, as a result of his
mismanagement of the wealth he is obtaining through oil.
He has no role in this bilateral matter between Ecuador and Colombia,
and yet he is attempting to derail any efforts of resolution, including
the ongoing negotiations of the Organization of American States. In
fact, my colleague Senator Dodd clearly stated yesterday that
Venezuela's ``recent troop buildup in the region is an irresponsible
and clearly provocative act aimed at inciting further hostility.''
It is good to note that the Government of Colombia has used
restraint. They have not deployed troops. They have simply been going
through computer files learning the truth about the relationship
between these governments and this illegitimate terrorist group.
It is clear that Venezuelans are growing increasingly disenchanted
with their Government's unfulfilled promises and Chavez is trying to
exploit the situation with Colombia and Ecuador to distract the world
from the shortcomings of his Government's policies. This is an old
trick, tried and failed repeatedly in Latin America and elsewhere in
the world. It is not working and will not work.
This January, Chavez began calling for removal of the FARC from the
terror lists of Canada and the European Union. Chavez has stated that
the FARC is not a terrorist group, claiming incomprehensively that they
are a ``real army.'' he says they are a ``Bolivarian'' army that
follows the spirit of the South American liberator Simon Bolivar.
Nothing could be further from the truth. These claims are completely
divorced from the reality of what the FARC is and what they represent
to the Colombian people and to the region.
In recent testimony, the Director of National Intelligence Mike
McConnell told us that ``. . . since 2005, Venezuela has been a major
departure point for South American--predominantly Colombian--cocaine
destined for the United States market and its importance as a
transshipment center continues to grow.''
It is clear that Venezuela is not a part of the solution; it is a
part of the regional narcotrafficking problem.
Venezuelan ports are increasingly becoming the departure points of
choice for Colombian traffickers. According to both the National
Intelligence Center and Office of National Drug Control Policy, private
aircraft are increasingly choosing to route cocaine shipments from
Venezuela to the island of Hispanola rather than relying on go-fast
boats from Colombia because Venezuelan complicity makes it safer to do
it that way.
It is also well known that both trafficking groups and guerrilla
groups enjoy safe haven inside Venezuela along the border with
Colombia.
Chavez has acknowledged his sympathy and support for the FARC,
despite the fact that they are also currently holding upwards of 200
Venezuelan nationals as hostages. The Colombian people are well aware
of the barbaric practices of the FARC, and yet they are resilient
people.
On February 4, a few weeks ago, millions of Colombians peacefully
took to the streets in Colombia to demonstrate against FARC's violence
and terrorism, demanding ``No more FARC.''
Countless others joined similar peaceful demonstrations in the United
States and around the world. An example of their resolve in the face of
ruthless FARC violence is Colombia's Foreign Minister, Fernando Araujo.
I have had the privilege of meeting the Foreign Minister. He has been
serving his nation capably for now almost a year, after bravely
enduring 6 years of captivity at the hands of the FARC and surviving a
miraculous escape in February of 2007. Minister Araujo is a symbol of
freedom and hope for a better future without terrorism.
The killing of Raul Reyes is another success of the Colombian
Government's increased efforts to combat terrorism, investigate
terrorist activities inside and outside Colombia, seize ill-gotten
assets, and bring terrorists to justice.
This operation is a testament to Colombian Armed Forces'
professionalism and competence and a success for the Colombian
Government's efforts to combat terrorism, investigate terrorist
activities inside and outside Colombia and to seize assets and to bring
terrorists to justice.
President Uribe is a committed leader and our country will and should
continue to support his mission. This

[[Page S1560]]

President was reelected overwhelmingly by his people and today enjoys
an 80-percent approval rating among the Colombian people.
President Bush could not have been clearer yesterday when he stated
that:

America fully supports Colombia's Democracy [and that we
will] firmly oppose any acts of aggression that could
destabilize the region.

In the Congress, the best way we can show our support for democracy
and the need for stability in Colombia is by ensuring the passage of
the Colombian Free Trade Agreement.
President Uribe has consistently made clear that passage of that
agreement will show the Colombian people democracy and free enterprise
will, in fact, lead to a better life for all Colombians.
The Colombian people and President Uribe have made clear their
commitment to a hopeful future of a stable democratic and economically
thriving Western Hemisphere. The FARC is our common enemy, and we owe
our continued support to Colombia as it carries this shared fight
against terrorists and drug traffickers.
The Colombian Ambassador was clear in his comments at the OAS
yesterday. His country ``has not sent troops to their borders.''
He further stated their goal is to resolve this situation with
continued discussion and cooperation.
As we are ourselves fighting a global war on terror, we have to
understand terrorism anywhere is terrorism that we need to be against.
Groups that rely on violence and terror are not acceptable in the world
in which we live. The FARC's time has come. It is over. It is time for
us to clear the cobwebs of confusion about this group, to not allow
Chavez to make this group into something other than what they are, a
group of terrorist killers, kidnapping and maiming people for the sake
of their misguided political aims, which are to destabilize the
democratically elected Government of Colombia.
I yield the floor.
The PRESIDING OFFICER (Mr. Casey.) The Senator from Kansas is
recognized.
Mr. BROWNBACK. Mr. President, I ask unanimous consent to speak for 5
minutes as in morning business on an issue that is very important to my
State.
The PRESIDING OFFICER. Without objection, it is so ordered.

AIR FORCE TANKER CONTRACT

Mr. BROWNBACK. Mr. President, I thank my colleagues for allowing me a
few minutes to speak about the tanker contract going to the Airbus-
Northrop Grumman consortium. I am still worked up about this; I am
going to be worked up about this for some period of time. This is a big
impact contract. I want my colleagues to think for a minute about this,
about us subcontracting out the building of our ships, our ships to the
lowest bidder around the world.
If we said: OK. We are going to start building our ships wherever we
can get the cheapest hulls for them, do you think we would be building
them in the United States?
OK. I think other countries or other countries' governments would
say: Well, now, here is a good deal. We want to be in shipbuilding, and
so we are going to subsidize our way into this.
Do you not think we probably would end up building these ships in
other places overseas? What we have taking place in this country is
Airbus, which is subsidized with aid by European governments, is going
to build basically these tanker planes and is going to fly them over
here and then they are going to be fitted or militarized in this
country. That is what is going to take place.
They are going to fly the whole plane over here and then militarize
it. Now, is this a European plane or is this an American plane? This is
an Airbus plane. It is going to be Airbus components. It is going to be
built, it is going to be manufactured, it is going to be done there.
I ask my colleagues to think about this. Is this the right thing we
want to do? Do we want our tankers and then our AWACS and our ships and
our submarines, bid them out to the lowest bidder? In this process, my
guess is we will have a lot built in Asia and South America and Europe
and subsidized by governments.
I do not think this is the way we want to go. So before we move
forward on this issue, I think we need to ask and have answered several
questions. No. 1, what is the economic impact to our Treasury of
outsourcing our military construction? These jobs are going overseas.
That has an impact to our Treasury of the jobs being overseas instead
of here.
Let's have a real, true economic picture of this taking place. I
think we ought to have that. No. 1, I think we need to know the direct
and indirect amount of the subsidization Airbus is giving to this plane
to be able to get this contract. Because here we have a 40-percent
bigger plane being produced by Airbus, at a substantially lower price
than the Boeing aircraft, and they are not beating us on labor costs.
They are certainly not beating us on exchange ratios, given the dollar
to the Euro ratio.
There is no way to do this without heavy subsidization, either direct
or indirect. You cannot do this without some subsidization. OK. Fine,
let's find out what the number is, and then let's start where I guess
we are going to have to compete on a subsidy, we compete on
subsidization. But I think we need to know that number before we go
forward with a multidecade, $40 billion contract of made-in-Europe
tankers.
No. 3, I think we need to know our security vulnerability before we
make those tankers overseas. I think there is a very real prospect that
in the future, if we are involved in supporting the Israelis, and
the Europeans do not like it, they want to go more with the neighbors
in the neighborhood, they say: OK, we are not going to give America
flyover rights over Europe, and also we are not going to sell them
spare parts on these tankers. I think we need know what the security
vulnerability is before we go forward with this as well, and that needs
to be appraised.

Finally, I would urge and we are starting to look at ``Buy American''
provisions in our military contracts. I am a free-trade person, but I
think you ought to compete on an equitable playing ground, and that if
they are going to subsidize, then we have to subsidize if they are;
otherwise, we force them not to subsidize.
Also, on defense, we should not be dependent upon foreign governments
for our Defense bill's military construction, particularly when they
depend upon us for a lot of the security, and then they get the big
contract to build the equipment.
I do not think this is fair at all. I do not think it is the right
way for us to go. I think we have several vulnerabilities. I think if
you look at a full economic picture of shooting these jobs overseas, of
what that does to our Treasury versus buying a cheaper, subsidized
European plane versus buying an American plane, where you are having
your full costs, but your workers are here and they are paying taxes
here, my guess is to the Federal Treasury it is a net positive for us
to build them here, even if the plane costs us a bit more because we do
not subsidize the price of the plane such as the Europeans are.
I have been in this fight previously on civil aviation, where the
Europeans subsidized their way into that business. Now they are doing
it in the military contract area. I do not think we ought to do it,
particularly on a contract that is going to last decades.
So these are several questions we are going to be working on along
with my other colleagues. I would hope we ask these big questions and
get them answered before this big contract is let.
Are we are starting to build our defense industry in Europe rather
than in the United States? I wish to thank my colleagues for allowing
me to speak on this issue.
I yield the floor.
Mr. PRYOR. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4105, as Modified

Ms. KLOBUCHAR. Mr. President, I ask unanimous consent to set aside
the

[[Page S1561]]

pending amendment and call up my amendment, No. 4105, as modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the amendment.
The bill clerk read as follows:

The Senator from Minnesota [Ms. Klobuchar], for herself and
Mr. Menendez, proposes an amendment numbered 4105, as
modified.

Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment, as modified, is as follows:

On page 3, beginning with line 16, strike through line 3 on
page 4, and insert the following:
``(a)(1) There are authorized to be appropriated to the
Commission for the purpose of carrying out the provisions of
this Act and any other provision of law the Commission is
authorized or directed to carry out--
``(A) $88,500,000 for fiscal year 2009;
``(B) $96,800,000 for fiscal year 2010;
``(C) $106,480,000 for fiscal year 2011;
``(D) $117,128,000 for fiscal year 2012;
``(E) $128,841,000 for fiscal year 2013;
``(F) $141,725,000 for fiscal year 2014; and
``(G) $155,900,000 for fiscal year 2015.
``(2) From amounts appropriated pursuant to paragraph (1),
there shall shall be made available, for each of fiscal years
2009 through 2015, up to $1,200,000 for travel, subsistence,
and related expenses incurred in furtherance of the official
duties of Commissioners and employees with respect to
attendance at meetings or similar functions, which shall be
used by the Commission for such purposes in lieu of
acceptance of payment or reimbursement for such expenses from
any person--
``(A) seeking official action from, doing business with, or
conducting activities regulated by, the Commission; or
``(B) whose interests may be substantially affected by the
performance or nonperformance of the Commissioner's or
employee's official duties.

Ms. KLOBUCHAR. Mr. President, as a member of the Commerce Committee,
I appreciate the leadership of Senator Pryor on this bill and the work
all of us did, as well as Senator Durbin and Senator Nelson. I believe
this is landmark legislation. I have been to this floor many times to
talk about this bill, how important it is to have that Federal
mandatory lead standard, as well as the recall provision our office was
instrumental in writing.
I think it is a very good bill. There is one change that I think
would make it even better. This is an amendment Senator Menendez and I
have.
The Consumer Product Safety Commission Reform Act is not just about
increasing staffing, funding, and oversight of the Consumer Product
Safety Commission, it is also about making the Commission more
accountable to the public.
The Commission must make consumer safety an absolute priority. But it
must also perform its duty outside the influence of the people whom it
is supposed to regulate, outside the influence of the manufacturers,
the retailers, the lobbyists, and the lawyers.
In November 2007, however, an appalling picture of the CPSC came to
light. What you have to understand is when we found out about this
travel, hundreds of trips and thousands of dollars of travel that had
been paid for by the industry that this Commission was supposed to
regulate, we were in the midst of this bill, we were in the midst of
looking at recalls, now up to 29 million toys that have been recalled.
We were in the midst of finding out about kids who went into a coma
from swallowing an Aqua Dot that turned out was laced with the date
rape drug. That is what we were doing when we found out that for years
the head of the Consumer Product Safety Commission had been traveling
on the consumer dime, on the dime of the industries they are supposed
to be regulating.
Through an article in the Washington Post, we learned that thousands
of dollars' worth of travel had been taken by the current Consumer
Product Safety Commission Chairwoman Nord and her predecessor, Hal
Stratton.
Since 2002, Chairwoman Nord and former Chairman Stratton took 30
trips--30 trips--on the trade associations', manufacturers', lobbyists'
or lawyers' dime, totaling nearly $60,000. So that is 30 trips
totalling nearly $60,000.
In one particularly egregious instance, the Consumer Product Safety
Commission Chairman accepted $11,000 from the fireworks industry for a
10-day trip to China. The claim was the industry had no pending
regulatory requests but had a safety standard proposal before the
Commission. Now, you try to tell this to the moms whom we were with
yesterday, of those kids who were swallowing toys, one that was laced
with lead and one had morphed into the date rape drug. You tell them
they had the proposals before them--and they were not pending
regulatory requests but they were proposals pending--they would see
through this.
This kind of abusive Government practice must end. With this
amendment, the amendment that Senator Menendez and I have offered, no
Commissioner or employee of the Consumer Product Safety Commission can
accept payment or reimbursement for travel or lodging from any entity
with interests in their regulations. So it simply means people and the
companies the Consumer Product Safety Commission is regulating cannot
pay for their trips to China or their trips to Florida or to
California. It is that simple.
Now, what is interesting about this is that many agencies, including
the Securities and Exchange Commission, the Food and Drug
Administration, the Federal Communications Commission, and the Federal
Trade Commission, have similar rules restricting industry-sponsored
travel. CPSC doesn't have that rule. As the Senate considers this
sweeping reform in consumer product safety, we believe we should be
free of any appearance of impropriety or undo influence of regulated
industries on the CPSC.
Senator Menendez has a bill, a very good bill--and I am a cosponsor;
many people are cosponsors--that extends this to all agencies. And I
hope very much the Senate will consider this bill very soon. I am so
pleased we are working together on this amendment, which is focused on
the Consumer Product Safety Commission. Leaving the Commission
vulnerable to charges of impropriety is simply unacceptable, especially
at a time when the public has completely lost faith in the CPSC's
ability to regulate the industries they are supposed to be watching.
Ethics is at the core of government and democracy. Without ethical
leaders, our entire system fails. Ethics is woven into the very fabric
of how government works, and ethics reform goes to the very heart of
our democracy, to the public trust and respect that is essential to the
health of our Constitution.
Like you, Mr. President, I came to Washington to bring ethical
government back to the city, and I am so proud that shortly after we
joined the Senate, the most sweeping ethics reform legislation since
Watergate passed the Senate and became law. But as seen by the actions
of the Consumer Product Safety Commission, our job does not stop with
one law. We must be resolute that ethical government is not optional,
it is not voluntary, and it is not limited to elected officials.
With this amendment, we will send a signal to the Commission that
their priority is keeping consumers safe. Their priority is not going
on trips financed by the people they are supposed to regulate. Their
priority is looking out for those two kids who almost died from those
toys, or the family of little Jarnell Brown, that is still watching
what is happening here today--this little 4-year-old boy who died when
he swallowed a charm that was 99 percent lead. That is their job, not
going on trips paid for by the fireworks industry.
It is my hope that my colleagues will support a travel ban amendment
to the Consumer Product Safety Reform Act of 2008. I am very pleased to
be sponsoring this amendment with my colleague from New Jersey, Senator
Menendez.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, I am proud to stand here with the
distinguished Senator from Minnesota to offer an amendment that
prohibits members of the Consumer Product Safety Commission from taking
trips paid for by the industries they regulate.
Not long ago, this body overwhelmingly voted to prohibit Members of
Congress--Members of this body--from taking trips sponsored by
lobbyists--

[[Page S1562]]

from taking trips sponsored by lobbyists. That is what there was an
overwhelming bipartisan vote for. There is absolutely no reason members
of the Consumer Product Safety Commission should not be held to the
same high standard, particularly given the outstanding number of
products that were recalled last year because they were deemed unsafe
for American consumers to use after they were placed on the shelves in
our stores, bought by our families, and used by our children.
Perhaps most disturbing, the most common victims of these regulatory
failures were children--children who played with toys and slept in
cribs that the Consumer Product Safety Commission allowed to come to
market, children who were seriously injured as a result.
Last year, we saw a toxic toy shipped in from China laced with lead
paint that could cause permanent neurological damage or death. We saw
car seats dump out the kids who sat in them. We saw beads that
contained a chemical that could put children into a coma if swallowed.
We saw cribs that would fall apart if an infant pulled on their pieces.
This year is shaping up to be just as tragic. In January, there was a
recall of toys with magnets that could cause fatal intestinal blockages
if swallowed. Last month, we had a scare about children's sketchbooks
coated with potentially fatal levels of lead paint.
So the question Americans are asking themselves is, isn't somebody
supposed to be watching to make sure this doesn't happen? And the
answer is, absolutely. That is the very mission of the Consumer Product
Safety Commission, to make sure products sold in the United States are
safe for American consumers, safe for our families. But members of the
Consumer Product Safety Commission were busy doing other things.
There are a lot of problems plaguing the Commission, and I will
return to the floor to talk in detail about many of them another time.
I certainly appreciate the work that has been done by the distinguished
chair of the committee and the ranking member in moving a bill that I
think goes a very long way towards achieving the goals of knowing that
in America our families will be safe from the products that are put on
our shelves, and for this I commend them. However, despite the progress
we have made under the leadership of Senator Pryor, there are still
issues to be resolved. Most notably, we see that officials of the
Consumer Product Safety Commission, tasked with protecting American
consumers, were too busy taking trips sponsored by the very companies
they were supposed to keep an eye on.
Mr. President, we should never again have to worry that our children
are playing with lead-filled toys while the people who should be
looking out for them are hopscotching around the world with corporate
bigwigs. This is toxic travel, and we have to put an end to it. The
American people deserve to have objective, professional safety
inspectors, not wined and dined, pampered corporate houseguests. We
need to make sure these product gatekeepers are looking out for one
interest, and one interest only: the well-being of the American people.
That is why Senator Klobuchar and I are offering this amendment: to
prohibit product regulators from taking trips sponsored by the industry
they regulate. I think Americans listening across the landscape of our
country would say that is just common sense. Regulators should never be
indebted to those they regulate. They should never be compelled to let
a product slip by as thanks to the great golfing they shared or the
fabulous trip they took, while children suffer as a result.
So let me close by thanking my colleague, Senator Klobuchar, a member
of the committee, for taking the lead in the committee to improve the
safety of the products that end up in the hands of our children. It has
been a privilege to work with her on this amendment. And I certainly
hope our colleagues will join us in saying, as they did in setting the
high standard for every Member of the Senate in prohibiting travel paid
for by lobbyists, that those who are there to protect the very essence
of our safety and our lives and those of our families should live to no
less a standard.
I urge my colleagues to support the amendment.
With that, Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, let me begin by commending the Senators
from Minnesota and New Jersey for bringing forward this amendment. Many
of us, I think all of us, were troubled by the press reports last fall
that suggested that the current and previous Chairman of the Consumer
Product Safety Commission accepted reimbursement from entities that
they were regulating when they were traveling. For example, trade
associations, manufacturers of products, and other entities paid for
trips that totaled nearly $60,000.
The Klobuchar-Menendez amendment is intended to make clear that
taxpayer money should be used for that travel in order to remove the
appearance of a conflict of interest that arises when the members of
the Commission receive reimbursement for travel from regulated
entities.
I do want to make clear that the Commission's ethics officers
reviewed these trips and found that there was no conflict of interest.
But the fact is, there is an appearance of a conflict of interest.
Receiving reimbursement from regulated entities creates the appearance
that the decisions that are subsequently made by the Commission members
may be tainted by a conflict of interest. The fact is, this kind of
appearance of a conflict of interest shakes the consumers' confidence
in the impartiality of decisions that are made by regulatory agencies.
Now, I do want to emphasize that these trips may well have been
justified. Governmental officials cannot and should not make all of
their decisions within the confines of their offices. They can learn a
lot about the issues by taking official travel, by going out into the
field, by reviewing a manufacturer's procedures, by traveling to a
port, by undertaking completely legitimate travel. But at least the
appearance, and in some cases an actual conflict of interest, arises
when this travel is subsidized or paid for totally by the regulated
entity. So I view this as a good government amendment, an amendment
that will help to restore the confidence of consumers, of the public,
in the regulatory process.
I also want to make clear to some of my colleagues, particularly on
my side of the aisle, that the amendment put forth by the two Senators
does not increase the budget of the Consumer Product Safety Commission
beyond the amounts authorized in the underlying bill. Instead, what
their amendment would say is that up to $1.2 million of the budget of
the amount appropriated can be used for the Commissioners' travel in
lieu of the Commissioners' accepting payment or reimbursement for
travel from any person or entity that is seeking official action from,
doing business with, conducting activities regulated by, or whose
interests may be substantially affected by decisions made by the
Commission.
This is a commonsense amendment. It will advance the public's
confidence in the decisions that are made by this important regulatory
Commission. It is very much in keeping with the bill that we put forth,
and I believe we will be able to work out something on this amendment
later in the day.
I do want to point out to my friends on the other side of the aisle
that there is also an amendment pending by the Senator from Texas, and
I believe it is the managers' intent to try to package a series of
amendments at the same time. But for my part, I think this amendment
makes a great deal of sense, and I commend the two Senators for
bringing it forward.
Mr. President, let me also take this opportunity to thank the manager
and author of the bill, Senator Pryor, for his thoughtful comments
earlier this morning about my contributions to the bill. It has been a
great pleasure to work with Senator Pryor on this bill. We have worked
together on a host of issues, and I commend him for his leadership in
helping to ensure that the toys and other consumer products that reach
our store shelves are as safe as they can be. In particular, his
commitment to making sure the children of America are receiving safe
products is commendable.
So I thank him for his kind words, and it has been an honor to work
with him on this bill.

[[Page S1563]]

I thank the Chair.
Mr. PRYOR. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ENZI. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. I ask unanimous consent to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Fiscal Security

Mr. ENZI. Mr. President, I rise to discuss my concerns with the
fiscal security of our country. This week we are considering the fiscal
year 2009 congressional budget resolution in the Budget Committee. As
stewards of the public trust, the Congress needs to make hard choices
necessary to leave a fiscally and economically sound country to our
children and grandchildren. Unfortunately, the easy road is where we
have already trod. The budget we will be working on today is another
slip of paper in a trail leading this country to financial ruin. We
simply cannot sustain the current level of spending which is spiraling
out of control. I know that crafting an annual budget is a difficult
task, but it is important. This document is a vital part of the
operation of Congress. It sets a fiscal blueprint that Congress will
follow for the year and establishes procedural hurdles when these
guidelines are ignored. As stewards of the public trust, we owe to it
all American taxpayers to use the funds they provide us in the most
effective and efficient means possible. If we do that, we provide
future generations with a strong and secure U.S. economy. If we don't,
then the children of America's future will be waking up to something
very unpleasant.
As an accountant, I particularly enjoy this opportunity to look at
the overall spending priorities of our Nation. Fiscal year 2009 will be
another tight year for spending. It will not be good enough to have
another pass-the-buck Democratic budget like the one we saw last year,
which I did not support. If we consider another budget this year that
is tax and spend, more and more taxes to pay for more and more
spending, I will vote against it again. We must begin this year's
debate on a fiscal year 2009 congressional budget resolution with a
clear understanding of our responsibilities. We cannot accept a repeat
of last year's empty promises, of reducing the debt and reforming
entitlements.
What actually happened is disgraceful. Last year's budget raised
taxes $736 billion, the largest tax increase ever, hitting 116 million
people. If we follow this year's proposed budget, many of our
constituents will have to dig into their pockets starting in 2011 and
find an additional $2,000 to pay Uncle Sam on top of what they pay in
taxes now. That ought to be a wake-up call. I travel around Wyoming
most weekends. I can easily take a poll of my constituents. I am not
running into anybody who thinks they are paying too little in taxes. If
they think their taxes are going to go up, knowing that the Federal
Government is receiving more in revenues than it ever has in the
history of the United States, they are upset. So looking at a $736
billion tax increase will upset them. We are going to be discussing
this as it gets closer and closer to April 15. That is the day they are
particularly cognizant of what they are paying in taxes.
Last year's budget increased spending by $205 billion. Last year's
budget grew our national debt by $2.5 trillion. Last year's budget
ignored entitlement reform. There was no attempt to tackle the $66
trillion in unsustainable long-term entitlement obligations that face
us. Well, not us; it is our children and grandchildren. But we will be
the beneficiaries of that. That is not fair. Americans want to know
what we can do to help them, not hurt them. Empty promises can no
longer be made.
I want to highlight a recent editorial from the Wall Street Journal
that talks about spending promises being made right now. I ask
unanimous consent that the editorial be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Government Showdown

(By Kimberley A. Strassel)

Hillary Clinton and Barack Obama were midway through a
joint ode to big government in their last debate when a
disbelieving Wolf Blitzer interrupted. Were they both really
going into a general election proposing ``tax increases on
millions of Americans,'' inviting the charge of tax-and-spend
liberals?
``I'm not bashful about it,'' said Mr. Obama. ``Absolutely,
absolutely,'' chimed in Mrs. Clinton.
In the middle of an election that is supposed to be about
``change,'' the country is instead being treated to the most
old-fashioned of economic debates. The fun of it is that
neither side is being shy about where it stands, which has
only sharpened the old choice: higher taxes and bigger
government, or more economic freedom and reform. With health
care, entitlements and education all on the agenda, the
stakes are huge.
We don't have a Democratic nominee yet, but in terms of
this battle it matters little. Mrs. Clinton and Mr. Obama
both dropped major economic addresses this week, and their
most distinguishing feature was that they were nearly
indistinguishable. Just ask Mrs. Clinton, whose campaign
complained that Mr. Obama had copied her best ideas (even as
it simultaneously complained he offered no ``solutions''--go
figure).
Republican frontrunner John McCain certainly sees no
differences, and his frontrunner status has allowed him to
begin training his economic guns on the Clintbama approach.
The battle lines are, as a result, already taking shape.
This is going to be an old-fashioned fight over taxes.
Whatever they may have said on CNN, Mr. Obama and Mrs.
Clinton aren't fool-hardy enough to embrace wholesale tax
hikes. Like John Kerry and congressional Democrats before
them, both are instead proposing raising taxes on only ``the
rich.'' Both campaigns made an early bet that the
Republicans'' broad tax-cutting message had gone stale, and
that Americans were frustrated enough with rising healthcare
and education costs that they'd embrace redistributionist tax
policies.
Maybe. But the economic landscape has changed from last
year and even frustrated Americans have grown jittery of tax-
hike talk. Mr. Obama has already shifted, and started placing
more emphasis on his promise to return some of his tax-hike
booty to ``middle-class'' Americans via tax credits. Both
Democrats are already justifying their hikes by pointing out
that Mr. McCain voted against the Bush tax cuts in the past.
Mr. McCain's challenge--which he's already embraced--is to
keep the tax focus on the future. His campaign is going to
play off polls that show the majority of Americans are still
convinced that political promises to soak the rich translate
into higher taxes for all. He will use gobs of other proposed
Democratic tax * * * Grand Canyon proportions. Democrats have
presented themselves as the party of fiscal responsibility of
late, a message that contrasted well with spendthrift
Republicans in the 2006 elections. The Democratic
presidential candidates will struggle to make that case,
given both are inching toward the $900-billion-in-proposed-
new-spending mark.
Mr. Obama's wish list for just one term? Some $260 billion
over four years for health care. Another $60 billion for an
energy plan. A further $340 billion for his tax plan. A $14
billion national service plan. A $72 billion education
package. Also, $25 billion in foreign assistance funding, $2
billion for Iraqi refugees and $1.5 billion for paid-leave
systems. (I surely forgot some.) Mr. Obama says he'll pay for
these treasures by stopping the Iraq war and taxing the rich.
But both Democrats have already spent the tax hikes several
times over, and even a Ph.D, would struggle with this math.
Making a message of fiscal responsibility harder is Mr.
McCain's reputation as a fiscal tightwad, and his role as one
of the fiercest critics of his own party's spending blowout.
Watch him also expand this debate to earmarks, as he's
already done with an ad ripping into Mrs. Clinton for her $1
million request for a Woodstock museum. Mr. McCain's earmark
requests last year? $0.
Mr. Obama's and Mrs. Clinton's economic speeches this week
were noteworthy for sweeping government initiatives, straight
out of FDR-land. Both propose a federally backed
``infrastructure bank'' that would finance projects with
subsidies, loan guarantees and bonds. Both are vowing to
``create'' five million ``green-collar'' jobs in the
environmental sector. These are in addition to giving
government a huge new health-care role.
This is the area where Mr. McCain has the most work to do
in drawing distinctions. He is already hitting both Democrats
for their desire for ``bigger government.'' But the
Arizonan's challenge will be explaining to voters why more
government-run health care is bad for their pocketbook, why
school choice will do more than more education dollars.
Further, he's going to have to work through his own hit-and-
miss instincts, which in the past have led him toward big
government initiatives like a climate-change program.
This will be an old-fashioned debate about the role of
business in America, whether it will be a federal cash cow
and punching bag, or its tax rates lowered so it can compete
with the rest of the globe. This will be an old-fashioned
debate about trade, which will, with any luck, finally
explore the vagaries of

[[Page S1564]]

the growing ``fair trade'' movement. This will be an old-
fashioned debate about the minimum wage, and its ability to
kill jobs.
None of this is to say this economic battle won't encompass
``change.'' If a Democrat wins the general election, things
will certainly look different, starting with your tax bill.
And if * * *

Mr. ENZI. The majority should be held responsible for its actions. We
need to prepare a budget for our Nation that reduces national debt,
promotes honest budgeting, and encourages true economic growth by
reducing energy costs, reducing taxes, and reducing health care costs.
I do believe that the first priority of any nation must be the health
of its people. Every American should have access to high quality health
care at affordable prices, and Congress must work with State
governments and the private sector to achieve that goal. One way
Congress can curtail this rapid rise in health care costs is to use
health information technology as a cost-saving measure. I hope we can
work across party lines to enact health IT legislation this year and to
aid in addressing the fiscal challenges associated with spiraling costs
and unacceptable levels of medical errors.
I wonder if the American people realize that when the baby boomers
are fully retired and receiving benefits, the cost of supporting that
generation through Medicare, Medicaid, Social Security will be so high
we will have no money available for our Federal Government to do
anything else. We will have no money for national defense, no money for
education, no money for transportation infrastructure, not to mention a
whole bunch of other things we are intricately expecting. That is
unacceptable. Our country's future cannot sustain the cost.
This year, again, the President's budget proposes to reduce the rate
of growth in one of our most expensive entitlements, which is Medicare.
The President has sent a legislative proposal to Congress to meet the
requirements laid out in the Medicare Modernization Act passed in 2003,
thus providing more funding for the general fund that pays for other
government programs such as defense, education, and infrastructure.
What reception did it get from our friends in the majority?
Unfortunately, we have heard that the proposal sent by the
administration is dead on arrival and the administration has trumped up
a phony crisis in Medicare. A phony crisis? There is nothing phony
about it. We are standing at the edge of a tsunami as the huge baby
boomer generation, my generation, reaches Medicare and Social Security
eligibility.
The President's Medicare proposal is a good starting point; $34
trillion of unfunded liability is certainly not a phony crisis in
Medicare. We must address this serious funding constraint head on.
Last year the majority also promised to abide by pay-go rules and
actually pay for all the new spending to get America on the right track
economically. As far as I can see, this has not happened. In fact, pay-
go enforcement rules have been so weakened and thwarted through a
variety of different mechanisms and smoke and mirrors that we ended up
with billions and billions in new spending that is not offset. It is
time to bite the bullet. We need to limit increases in discretionary
spending by Federal Government agencies. This is necessary while we are
also taking extreme care to keep our Nation safe and secure. I
reiterate that we must take seriously the warnings we have heard from
the General Accounting Office and the Congressional Budget Office about
Federal expenditures spiraling out of control. We need to make the
budget procedural and process changes to directly address this problem.
One of the many procedural reforms I believe would promote fiscal
responsibility and safeguard the Nation's economic health is a 2-year
budget process. In fact, in his budget for fiscal year 2009, the
President once again proposed commonsense budget reforms to restrain
spending. He has several recommendations, including earmark reforms and
the adoption of a 2-year budget for all executive branch agencies in
order to give Congress more time for program review. While we may
negotiate on the details, we should implement these overall
recommendations. The budget process takes up a considerable amount of
time each year and is drenched in partisan politics while other
important issues are put on the back burner. It should not be this way.
The current Federal system, frankly, is broken. No, it is smashed. It
is in shambles. We only have to look at the mammoth spending bills that
nobody has time to fully read or understand before they are glibly
passed into law and the hammer comes down on another nail in the coffin
of good budgeting.
Last year's omnibus appropriations bill is Exhibit A in my
prosecution of a system that promotes fiscal recklessness. It is a
serious problem that must be fixed. The current budget and
appropriations system lends itself to spending indulgences this country
cannot afford. It should be scrapped for a system that is a proven
winner.
To divert slightly and remind us of some of what happened last year
as we were going through the process, we passed authorization bills
around here which are supposed to set the grand parameters for what we
are doing. One of those grand parameters involved the AIDS bill, passed
unanimously through this body and through the other body and signed by
the President. We set up a formula for AIDS help. That formula said the
money will follow the patient. Good concept, good enough for everybody
to agree it was the way to go. Then last year we had to vote on a $6
million proposal for San Francisco that stole money from 42 other
cities in large amounts and smaller amounts from many other cities. We
defeated that because we had set up a formula through authorization.
But when the final omnibus bill came out, it had that same $6 million
with the same theft put in it. We didn't have an opportunity then
because $6 million out of $767 billion is not enough to worry about
voting on, I guess. And we don't vote on it. But it still wound up in
there.
We need to do something with our system of budgeting, and we need to
do something about earmarks as well. There is a crucial need to enact
procedural and process changes that will enable us to get this country
on the right budgetary track. We simply cannot risk the economic
stability of future generations by continuing to get by with the status
quo. The risks are far too great.
Make no mistake: A change to a new budget process will not be easy.
There are very strong feelings on both sides of this issue. But as
responsible legislators, we need to come together to begin the
difficult but necessary process of change. I, for one, intend to
continue to work with my colleagues who are also committed to make the
hard choices to safeguard our economic and fiscal future.

A nation that cannot pay its bills is a nation that is in trouble. If
it is a repeat of last year, the fiscal year 2009 congressional budget
resolution could mortgage the future of our children and grandchildren
and require huge tax increases for all Americans. I welcome the
opportunity to consider our Nation's spending priorities, keeping in
mind we need to make tough choices and sacrifices in order to keep our
country strong and healthy.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Mr. President, I would like to talk about a provision in
the Consumer Product Safety Commission Reform Act that deals with a
database to make sure information about dangerous products is available
to the public.
Here again, this has changed through the process. We have tried to
build in safeguards. I want to talk about those. We have tried to find
something that is balanced, that provides information, but also has
some filtering so we make sure erroneous information is not
disseminated. But the goal of this provision is that the public has the
right to know when products are dangerous.
We have many examples--and I will go through some of these right now.
But I promise you, for every one example I am going to give, there are
probably 100 others I could talk about--we have many examples of
dangerous products that are being sold and used while the company and
the CPSC know of the risks of the product. But because of the inability
for CPSC to get a mandatory recall or the inability of them to work out
the terms with the manufacturer in many cases, the public does

[[Page S1565]]

not know about these dangerous products. So what happens is that the
product continues to be sold and continues to be used when the
Government and the manufacturer know it is a dangerous product.
Let me start with this one statement. This is from OMB Watch. It
says: ``CPSC estimates the number of toy-related injuries''--just toy-
related injuries--``jumped from about 130,000 in 1996 to about 220,000
in 2006--more than 600 injuries every day.''
Now, this is over a 10-year period: to go from 130,000 injuries--we
are not talking about incidents; we are talking about injuries--130,000
in 1996 to 220,000 in 2006. We are not talking about isolated incidents
where there might be the occasional toy or the occasional product that
might cause a problem. We are talking about 600 injuries every day--600
injuries, not incidents--to children. This is just in toys. This
statistic is just for toys. So, again, we are not talking about things
that are in isolation that do not matter in the real world. This bill
matters in the real world.
The next chart I wanted to show you is the recall process. This is a
flow chart about recalls. My colleagues can see how complicated and how
long and how many steps there are in the recall process. Listen, it is
not that important about what each and every step is. But this is how
it works. You can see, for a product to be recalled, there are a lot of
hoops that have to be jumped through. Those hoops take time.
There again, as I mentioned just a moment ago, we know of many
instances. I will give you one right here. There was a product called
Stand & Seal, which was a product that, apparently, you spray on tile
to seal the tile. That product was dangerous, was actually killing
people, and definitely injuring people. The company knew about it, the
CPSC knew about it, but the public did not know about it.
What happened was, in the one incident I am most familiar with--
again, there are many others--in the one incident I am most familiar
with, Home Depot continued to sell this product not knowing that it was
a dangerous product, not knowing it was injuring people, not knowing it
violated U.S. safety standards. They were selling it to the public.
Well, at the end of the process, guess what happens. Home Depot gets
sued. They get sued for selling a product for which they had no
knowledge of the problem. The CPSC knew, the Government agency knew
about the problem, but the general public did not. The retailer did not
know. So part of the reason we get into that situation is because of
this long recall process.
Now, we are going to address a lot of this in the legislation. We are
going to give the CPSC the ability to move through this process much
quicker. We are going to give them the leverage they need to make
decisions. Right now, the manufacturers, unfortunately, in many
instances, have the leverage, not the CPSC. So we are going to try to
address some of this.
But that is not even what I am talking about because I want to talk
about the database. The database provision that is in the legislation,
we believe, is a very important provision. It is very balanced. We have
tried to find that right balance.
Let me, if I can, talk about one specific toy which has actually
received a lot of attention nationally because of some of the egregious
injuries and the serious problems. This is a toy made by Rose Art,
which is a company that makes a lot of toys and crayons and art
supplies and lots of other things--a lot of craft kinds of stuff. Rose
Art makes a toy called Magnetix. This is the ``Xtreme Combo Flashing
Lights Castle.'' Well, you can understand why this would have a lot of
appeal to parents and children. Just look at the box. It looks like
something that would be fun to play with.

If you can notice on this picture, there are these little silver
dots, these little silver balls. Those are magnets. That is how you put
this together. You can see right here in the picture, in someone's
hand, that little dot. I hope it shows up on television for the folks
watching around the country. That is one of those little dots.
The problem with these little magnets is they fall off. They can come
loose. In 2007, over 1,500 incidents were reported before the 4 million
units of Magnetix were recalled. So we have 1,500 examples of these
either falling off or, in some cases, children swallowing pieces with
the magnet still attached. The reported incidents included 28 injuries
and 1 death.
I do not want to go into the details of this on the Senate floor, but
the medical issues that children have to go through when they ingest
one of these is not pretty. Again, I do not want to go through that on
the Senate floor and turn this debate into a gory example. But,
nonetheless, trust me when I say these toys, this Magnetix set--there
are many varieties--has caused a lot of hardships for parents and
children.
But what do kids like to do? They like to put things in their mouths.
They eat things. They suck on things. We know how it is. But this is
why we need a database so that people can know what is going on out
there. We have 4 million units of this toy that were eventually
recalled, but there were over 1,500 incidents reported before the
recall. That is 1,500 incidents where parents and grandparents, et
cetera--day care centers--had no way of knowing this was a dangerous
product. So the database solves that problem.
Again, this is just a chart to run through the timetable. We do not
have to spend a lot of time on the details. But in 2003, Rose Art
introduced these building sets. They were very popular. By the way,
they were on lists for a couple of holiday seasons about the best toy
for kids, et cetera, et cetera, et cetera. The retailers loved them
because they just flew off the shelves.
We could go through this long process, but you can see the first
attempted recall was in March of 2006. That is almost 3 years later.
They later had to do another recall, a more comprehensive, clearer
recall. They did that in mid-2007. So these were on the shelves for a
long time. But I am telling you right now, the parents have no way of
knowing these are dangerous until the CPSC does their recall.
One of the things I want my colleagues to understand is that, again,
this is not an isolated incident. We mentioned Magnetix. We are not
trying to pick on Rose Art. We are just reporting the facts as they
exist. But here is Magnetix shown on the chart. There were 1,500
incidents before it was recalled, before the public knew of the
problem.
Again, we are not going to go through this, but you can see this next
particular product had 679 incidents, this one had 400, this one 278,
and on down the line.
My fellow Senators, we could print 10 or 20 or 30 of these charts and
go down the numbers. You can see the different types of hazards we are
talking about. I am telling you, the evidence is overwhelming that in
the legislation we need to fix the CPSC.
So what is the best way for the public to know? Well, I would say the
best way for the public to know is to inform the public, give the
public some information, let them look at it. I must be candid right
now to say we have had a few people--not all. I want to be fair. Not
all, but a few people--a few companies in the business community, a few
associations that have been opposed to this database idea. They think
it will create a hardship. They think it will smear companies. They are
concerned about the uncontrolled nature of that.
Well, we keep pointing them to the NHTSA Web site. What we are
proposing is not novel. It is not new. It is tested. We have seen it in
action for years, and that is the NHTSA Web site, the National Highway
Transportation Safety Administration Web site. It looks like
safercar.gov might be at least one of the ways to get there. But this
is actually a copy of the NHTSA Web site.
When you go to safercar.gov or nhtsa.gov, I guess, you can come up
with this page. You can see, it has ``Defects & Recalls.'' You can
click on this and find out about the defects and recalls.
Let me walk the Senate through this, if I may, for just 1 minute.
Here again, you click on something; you go to this page, you click on
``Search Complaints.'' Here again, we are talking about complaints from
consumers and from third parties such as hospitals, day care centers,
et cetera, who can put their information on a Web site. You put your
information on the Web

[[Page S1566]]

site. If you are a parent or grandparent or day care center operator,
and you are searching on a Web site, you would come to a place like
this one or two or three screens later--and it is probably a little bit
hard to tell on television, but right here it says ``To use the `Drill
Down' search method'':
What they do is walk you through these tabs--1, 2, 3, 4, 5 steps--and
you put in information about the product that you are curious about.
What happens is, you go through these steps. I did it yesterday in my
office. I am going to tell you, you can look up a product in about 1
minute. It just takes that long. It is easy to use. It is very user
friendly.
NHTSA has been doing this for years and years. This is the kind of
thing, we would hope, when this legislation passes, that the CPSC would
set up. It could be very useful for people all over this country. But
you go through the tabs, and you set up what you want to set up. You
search the items you want to search. You finally come to this page.
This is the page that is the page that most Americans would love to see
the Consumer Product Safety Commission offer. They would love to see
this type of information.
This is a ``Complaints'' page. This information was filed by a
consumer. In many cases, it is done online. It does not have to be, but
in many cases it is done online. It is real easy, very inexpensive to
do--not a lot of manhours for most of this. It has a ``Report Date,''
which in this case is March of 2008. That is when we ran this. It has
the ``Search Type,'' and you see we typed in: ``child safety seat.'' We
typed in the name: ``Fisher-Price.'' And for the ``Model,'' we just put
the generic child safety seat model. This is all on little pop-up menus
and little scroll-down-type menus. It is very easy to use. So we looked
at Fisher Price. Crash: No. Fire: No. Number of injuries: One.

We come down here to this child seat: Tether, or strap.
Here is the summary, and this is pretty much what the consumer wrote,
right here. It says: The consumer states that the harness strap of the
child seat snapped from the back, causing the child to fall out of the
seat, and there were some minor injuries.
You will see it has an ID number so they can track each record.
Here again--this is important. Part of the compromise we reached with
Senator Stevens and Senator Collins on this issue is that we don't
provide information about the complainant. In other words, some in the
business community--again, not all, but some--were concerned if we
provided information about who is filling these out, then they get a
letter from a trial lawyer and all of a sudden you have a lawsuit. We
are putting the safeguard in to make sure that doesn't happen. The CPSC
under our bill cannot provide that type of information.
Another thing we require of the CPSC is to remove any incorrect
information that may be offered by the consumer, by the complaining
person. We also allow manufacturers the opportunity to comment on
information in the database. For example, they may offer a comment
which said: Be sure you follow the instructions because if you don't
get it buckled in right, you may have a problem, or whatever; I don't
know what their comment may be. But these comments can actually be very
useful to people who are searching this. So we built in these
safeguards to make sure this NHTSA-type database will work with the
CPSC. This is the goal we are trying to get to. We are trying to get to
providing that information. While the CPSC is going through this long
recall process or working through whatever they have to work through,
at least the public has the right to know.
I know I have at least one colleague here who wishes to speak, so let
me wrap up on this one final point.
There is a girl who was 14 months old. Her name is Abigail Hartung.
She is from New Jersey. When Abigail was 14 months old, she was trapped
by a crib. The crib collapsed and her hand was trapped in it. She was
14 months old. It turned out she didn't have a very serious injury, but
certainly it was upsetting to the parents and to the child. When the
father, Mr. Hartung, called the manufacturer to ask them about this and
to tell them about it, the manufacturer told him on the phone: Well,
this is amazing. We have never heard of this before. Are you sure you
had it set up right? Are you sure the child wasn't somehow abusing the
crib, Et cetera, et cetera, et cetera. Come to find out, the company
told him they had never heard of this happening before. Come to find
out, the company had already received 80 complaints about this
happening--80.
This database will build in the accountability for some of these
companies that are going to do that. Some of these companies--again,
not all; I don't want to paint with a broad brush here, because many of
these companies are very responsive. They take these consumer
complaints very seriously. They are trying to do the right thing;
others, not so much. So for those who are not going to respect the
safety and the welfare of their customers, this database will help
level the playing field. It will provide information to families and
consumers of all sorts to know that there is another place they can go
and check and find out if this product has a problem, so companies
won't treat others as the Hartungs were treated.
Mr. President, I see I have a wonderful colleague who wants to say a
few words, so I will yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. SANDERS. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

The Budget

Mr. SANDERS. Let me begin by thanking my friend the Senator from
Arkansas and my friend the Senator from Maine for their fine work on
this very important issue in trying to protect the needs of our kids. I
thank them very much.
What I wish to talk about for a short period of time is the budget
situation. I am a member of the Budget Committee. The Budget Committee,
I believe, will be marking up the budget in committee tomorrow. I
believe it will be on the floor sometime next week. This entire process
of determining a budget is enormously important, because it reflects
the priorities of the American people and it reflects our values. It is
no different than any family budget. It has everything to do with where
we choose to spend our resources and how we raise our resources. So it
is an issue of enormous importance.
As a member of the Budget Committee, I am going to be looking at this
budget within a context of four major concerns. No. 1, as I go around
my State of Vermont and, in fact, America and talk to a whole lot of
people, I think the American people understand, even as Congress and
the White House may not, that the middle class in this country today is
in the midst of a collapse, and I use that word advisedly. Despite a
huge increase in worker productivity, great strides forward in
technology, there are tens of millions of American workers today who
are working longer hours for lower wages. Poverty in America is
increasing. I think of most concern is that moms and dads all over this
country are worried that for the first time in the modern history of
our country, their kids are going to have a lower standard of living
than they do. That is the first sense of reality I look at as we
prepare the budget.

The second reality I look at is that while the middle class is
shrinking and poverty is increasing, the people on top have not had it
so good since the 1920s. I understand we are not supposed to talk about
those things. Not too many people talk about the fact that we have the
most unequal distribution of wealth and income of any major country on
Earth. The rich are getting much richer, while everybody else virtually
is seeing the decline in their standard of living. It is not something
we are supposed to talk about. I talk about it. I think it should be
talked about. I think it is an issue that must be addressed as we look
at the budget, because we are going to have to ask a question about how
we raise more revenue in order to address many of the unmet needs in
our country.
The third issue is just that. The reality is that there are enormous
unmet needs in this country. When people say Government shouldn't be
involved, I don't know to whom they are talking. Our infrastructure is
collapsing. The civil engineers tell us that we have over $1 trillion
in unmet needs in terms

[[Page S1567]]

of our roads, our bridges, our tunnels, our wastewater systems. We need
to fund those. It isn't going to get any better if we don't improve
them, and we will create jobs as we do that.
But it is not only our physical infrastructure. We have the highest
rate of childhood poverty of any major Nation on Earth. This is a
national disgrace. Eighteen percent of our kids are in poverty. We have
other seriously unmet needs. So looking at the budget, we have to look
at not only the general collapse of the middle class, the fact that the
rich are getting richer and everybody else is getting poorer; we have
to understand with regard to our children, our infrastructure, there
are huge unmet needs.
The fourth issue we have to deal with is that in the midst of all
that, our national debt is soaring. It is now over $9 trillion.
So I look at those four areas as issues that must be dealt with as we
move into this new budget.
Since President Bush has been in office, median household income for
working-age Americans has declined by almost $2,500. That is part of
the collapse of the middle class. The reality is we have lost some 3
million good-paying manufacturing jobs in Pennsylvania, in Ohio, and in
the State of Vermont. We are losing good-paying jobs, in my view,
because of a disastrous trade policy which simply encourages corporate
America to throw American workers out on the street, move to China, and
then bring their products back into this country. So we are losing
good-paying jobs.
Since President Bush has been in office, over 8.5 million Americans
have lost their health insurance. We are now up to 47 million Americans
without any health insurance. Meanwhile, health care premiums have
increased by 78 percent.
Under George W. Bush's watch, for the first time since the Great
Depression, the personal savings rate has fallen below zero. This
simply means that because of dire economic conditions, we are actually
as a people spending more money than we are earning. There are millions
of people right now who, when they go to the grocery store, don't buy
their Wheaties and don't buy their rice and don't buy their milk with
cash. They buy it with a credit card. By the way, they are often
charged 25, 28 percent for that credit card. We are looking at a
foreclosure crisis which is certainly the highest on record, turning
the American dream of home ownership into an American nightmare for
millions of our people.
So that is No. 1: The middle class is collapsing. There is tremendous
economic pressure. People go to the gas station to fill up their gas
tank and pay $3.20 for a gallon of gas, while ExxonMobil makes $40
million last year.
People can't afford home heating oil. The price of food is going up.
Everywhere you turn there is enormous pressure on working families and
on the middle class. That is a reality we must address as we look at
this budget.
But as I mentioned earlier, not everybody is in that boat. Let's be
honest about it. The wealthiest people in this country have not had it
so good since the 1920s. According to the latest figures from the IRS,
the top 1 percent--1 percent--earned significantly more income in 2005
than the bottom 50 percent. That means the 300,000 Americans on the top
earn more income than do the bottom 150 million Americans. It is the
most unequal distribution of income and of wealth in our country of any
major country on Earth. That is a reality that must be addressed as we
look at the budget.
According to Forbes Magazine, the collective net worth of the
wealthiest 400 Americans--400--increased by $290 billion last year, to
$1.54 trillion. Incredibly, the top 1 percent now owns more wealth than
the bottom 90 percent. That is an issue we have to deal with.
In terms of our national debt, our national debt is now at $9.2
trillion. I think the history books will be pretty clear in that among
many other negative characteristics, President Bush will go down in
history as being the most financially and fiscally irresponsible
President in the history of this country. The national debt is soaring,
and clearly, one of the reasons for that is we spend $12 billion every
single month on the war in Iraq which, according to some people, is
going to go on forever, I guess--$12 billion a month. And who is paying
for it? Our kids and our grandchildren are paying for it, because it is
easier to pass the cost of that war on to them than tell the American
people today there is a cost of war, and you have to make some choices.
Twelve billion dollars a month.

There are people here in the Senate, and the President of the United
States, who think we should repeal the estate tax. One trillion dollars
worth of benefits go to the wealthiest three-tenths of 1 percent. And
how do they propose to make up the difference? They don't. Just pass it
on to the kids and our grandchildren and let the millionaires and
billionaires of this country have a huge tax break. No problem at all,
just: That is what we will do.
I wish to talk about something else that also is not talked about
very much, and that is the terrible situation of unmet social needs
that exists in this country, and the President's budget. At a time when
we have a major health care crisis, the President wants to make major
cuts in Medicare and Medicaid. As a member of the Budget Committee, I
am going to do everything I can to make sure we do not make the health
care crisis in this country even worse. We have, as any mother or
father knows--it is true in Vermont and it is true virtually all over
this country--a horrendous crisis in terms of affordable childcare. The
President has said in his budget that he wants to reduce the number of
children receiving childcare assistance by 200,000. We have a major
crisis, and the President's response is let's make it even worse.
Embarrassingly, in this great country, many of our citizens are going
hungry.
I know in Vermont, our emergency food shelters are running out of
food. This is true all over the country. We need to address that issue.
The President's response is to deny food stamps to 300,000 families and
children, and so forth and so on. It is a crisis among low-income
working people. The President's response is to cut those programs so we
can give tax breaks to the wealthiest people in this country.
It seems to me that at a time when our country has so many serious
problems, at a time when the American people know in their souls that
we are moving in the wrong direction in so many areas, with fundamental
problems in this country, we have to have the courage to have a serious
debate about moving this country in a new direction.
There was an article in the papers recently--last week--and it
brought forth a fact that many of us had known, but it is important to
repeat: In the United States of America, we have the largest number of
people behind bars of any country on Earth. People say, well, China is
much larger than America and is an authoritarian, Communist country, so
surely they have more people--I am not talking per capita, I am talking
collectively, in total--behind bars than we do. Wrong.
Is there a correlation between the fact that we have more people in
jail than any other country and the fact that we have the highest rate
of childhood poverty of any major country on Earth? I think there is a
direct correlation. I think you either pay now or you pay later. Either
you give kids the opportunity for decent childcare, nutrition, and
education, and keep an eye on them so that in fourth grade they don't
mentally drop out, and in the tenth grade they don't really drop out of
school and get involved in destructive activity--you either do it--and
it costs money--or you ignore that reality.
When these kids go to jail and commit crimes, we spend $50,000 a year
keeping them behind bars. That is our choice. If people want to ignore
the crisis and the reality we have, which is the highest rate of
childhood poverty, that we are underfunding Head Start, and so on, you
can ignore it, but you are going to pay the price at the other end by
locking up many people in jail.
I also want to mention to my colleagues that I will be bringing
amendments to the floor during the budget process. They are simple.
What they say is that at a time when the wealthiest people in this
country have never had it so good, when the President has given these
same people huge tax breaks, the time is now that we rescind

[[Page S1568]]

the tax breaks that go to millionaires and billionaires and use some of
that money to reduce our national debt, and use others of those sums to
start protecting the middle-class working families and the kids in this
country.
A budget is about priorities, about choices. I intend to provide some
choices to the Members of the Senate. I hope they will support me and
those amendments in moving this country in a fundamentally different
direction.
I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Mr. VITTER. Mr. President, I ask unanimous consent to set aside the
pending amendment and to call up my amendment, No. 4097.
The PRESIDING OFFICER. Is there objection?
Mr. PRYOR. Reserving the right to object, to make sure, we will go
back on the pending amendment as soon as he completes his presentation.
Mr. VITTER. Yes. Mr. President, I wish to modify my unanimous consent
request to include that.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Louisiana (Mr. Vitter) proposes an
amendment numbered 4097.

Mr. VITTER. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To allow the prevailing party in certain civil actions
related to consumer product safety rules to recover attorney fees)

On page 58, strike lines 4 through 7 and inserting the
following:
``(g) Attorney Fees.--The prevailing party in a civil
action under subsection (a) may recover reasonable costs and
attorney fees.''.

Mr. VITTER. Mr. President, the amendment is simple and
straightforward. It establishes a ``loser pays'' rule for actions by
attorneys general under the law. It doesn't make it mandatory, it makes
it discretionary, or up to the court. But the court would be allowed to
award costs and attorney's fees from the losing party to be paid by the
losing party to the winning party. I think that is fair and reasonable.
That essentially is the present law. It is also essentially the sort of
provision that is in the House bill.
In the Senate bill, the availability of fees and costs and attorney's
fees is only available to the winner, if the winner is the attorney
general. If the attorney general loses in those suits, if the private
party prevails, the private party cannot get those costs and attorney's
fees. I think that is unfair. Perhaps more important than it being
unfair, I think it creates an imbalance that might encourage clogging
the system, clogging the courts--perhaps most important, clogging the
workload of the Consumer Product Safety Commission with unnecessary
lawsuits that are not fully thought through. I think this reasonable
provision--loser pays, whoever the loser is, up to the discretion of
the courts, not mandatory, simply allowable, if the court decides--is
the fair and balanced approach.
In offering this, let me make clear that we need to do more to
increase product safety. This bill does many good things in that
regard. The House bill does many good things in that regard. I support
that move. But as we do that, I don't want to create an imbalance or
actually clog up the system, whether it is the court system or the CPSC
workload, clog it up with unnecessary, perhaps frivolous, suits and
litigation, and prevent us from getting to that goal.
We should make sure we don't overburden the Consumer Product Safety
Commission. One of the problems we have now that this bill and the
House bill attempts to address is that of overburdening an inadequate
staff and resources. So we need to make sure that as we fix those
problems with one hand, we don't use the other hand to make them worse
by creating incentives to increase the workload unnecessarily with
lawsuits that are not thought through and that are frivolous.
Again, I look forward to supporting and promoting greater consumer
safety. I supported the amendment on the floor recently that embodied
the House bill, because I think the House bill does that in a
substantial way, without having some of the shortcomings--including
this one--of the Senate bill. We do need to do more. One thing we don't
need to do is create more lawsuits than actually accomplish the
objective of safety or to encourage lawsuits that are not thought
through, to encourage actions that can be frivolous. This is a
reasonable, balanced way to prevent that.
In closing, let me be clear that this doesn't mandate ``loser pays''
in every case. This says to the court that you can award costs and
attorney's fees from the loser to the winner in whatever direction that
works, no matter who the winners and losers are, but it is not
mandatory. That is broadly consistent with present law and broadly
consistent with the House bill, which I believe is a fairer, more
balanced approach, which will avoid clogging up the system yet again,
even as we try to give the system more resources.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that Senators
Chuck Schumer and Barack Obama be added as cosponsors to amendment No.
4105 to the Consumer Product Safety Commission Reform Act. This is the
amendment Senator Menendez and I have introduced to ban industry-
sponsored travel by those who regulate them.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Mental Health Parity

Ms. KLOBUCHAR. Mr. President, I rise to commend the House for
bringing today before the House a step that will bring our Nation
closer to achieving long overdue fairness for people suffering from
mental illness and chemical dependency.
We are now one step closer as the House considers this important
mental health parity bill today, one step closer to realizing the dream
of my friend, the late Senator Paul Wellstone, who championed equality
for those with mental health needs, until his untimely death in 2002.
If this law passes, as it should, we can thank the persistence of
leaders such as Representatives Jim Ramstad and Patrick Kennedy; we can
thank Senators Pete Domenici and Ted Kennedy; and we can thank the
Wellstone sons, particularly David, who continues to carry the torch
lit by his father.
While Federal law may not alleviate the stigma that surrounds mental
illness, it can bring us closer to ending insurance discrimination and
easing the unfair financial burden borne by patients and their
families.
Most health care plans currently have barriers to mental health and
chemical dependency treatment. Individuals seeking treatment for these
health problems face higher copayments and higher deductibles, as well
as arbitrary limits on the number of office visits or inpatient days
covered. These people pay the same premiums as everybody else, but when
they get sick, their insurance doesn't cover them.

The House and Senate proposals build upon the Mental Health Parity
Act of 1996 by mandating that if an insurer offers mental health and
chemical dependency coverage, the treatment limitations can be no more
restrictive than for medical benefits.
Minnesota is proud to have one of the strongest mental health parity
laws in the country. But this law only goes so far. Federal action will
expand mental health parity protections to those covered by self-
insured plans--117 million people--and move us toward real equity for
those needing vital services.
It is appropriate that this legislation in the House is named in
honor of Paul Wellstone--an inspiring figure whose ceaseless motion and
tireless pursuit of a better world was brought to a stop only by that
tragic plane crash.
Many in this body, including myself, counted Paul as a friend. We all
know Paul was a crusader and a man with many passions. But anybody who
ever met or talked with him quickly found out that he had a special
place in his heart for helping those with mental illness. This deep and
abiding concern was shaped by the suffering of his own

[[Page S1569]]

brother. Paul's brother Steven suffered from mental illness. As a young
child, Paul watched his brother's traumatic dissent into mental
illness. As a freshman in college, he suffered a severe mental
breakdown and spent the next 2 years in mental hospitals. Eventually,
he recovered and graduated from college with honors. But it took his
immigrant parents years to pay off the hospital bills.
Writing about this, Paul recalled the years that his brother was
hospitalized. For 2 years, he said, the house always seemed dark, even
when the lights were on. It was such a sad home. Decades later, Paul
knew there were far too many sad homes in our great Nation--too many
families devastated by the physical and financial consequences of
mental illness.
Paul knew that we can and should do better. For years, he fought to
allocate funding for better care, better services, and better
representation for the mentally ill, and for years he fought for mental
health parity and insurance coverage. For Paul, this was always a
matter of civil rights, of justice, and of basic human decency. Of
course, on this issue, as with every other issue, Paul and Sheila, his
wife, worked together.
We should all care about securing mental health and chemical
dependency treatment equity for the same reasons that Paul did. We
should care because of the suffering and stigma that individuals and
families endure due to mental illness and addiction. We should care
because it is cruel when people with mental health or addiction
problems receive lesser care than those with physical health problems.
We should care because of the enormous financial cost of these diseases
for our society and because the economic research shows how cost
effective good treatment can be.
I saw this firsthand as a county prosecutor. I cannot tell you the
number of violent crime cases I remember where the right treatment
could have prevented a horrible crime, and the later costs of
imprisonment, or maybe the right medication would have stopped someone
from spiraling downward to a point where they committed a crime. This
is not to excuse the crime, and it doesn't mean that we didn't
prosecute them aggressively and that they didn't go to prison; it just
means if we can prevent the crimes with appropriate treatment and
medication, then we must do it.
Untreated mental illness and substance abuse adds an enormous burden
to the criminal justice system every day. That is why we created a
mental health court in Hennepin County, where I prosecuted, which has
had many successes, as well as a drug court. But it would be better to
prevent people from getting into the system in the first place. That is
why this legislation is so important.

Finally, we should care because we know that people who are suffering
need help. Mr. President, 54 million Americans suffer from mental
illness or substance abuse. Almost 15 million suffer from depression.
Over 2 million suffer from schizophrenic disorders. Over 20 million
Americans need treatment for alcohol or drug abuse. These numbers are
staggering, but ultimately what convinces anyone of the importance of
this issue is when we see how real people close to us suffer, whether
it is a son or a daughter, a mother or father, or, as in Paul's case, a
brother or a sister, a neighbor or a coworker.
Patrick Kennedy and Jim Ramstad have been brave enough to talk about
their own struggles, and that really adds some moral compass to their
leadership in the House. I have seen it in my own family with my dad,
who suffers from alcoholism, a larger-than-life dad who could climb the
highest mountains, whom also I have seen plunge to the lowest valleys
with his battle of alcoholism. My dad finally got the treatment he
needed, and I have never seen him so happy as in the past 10 years.
Other families need to be, as my dad puts it, ``pursued by grace.''
This legislation offers crucial support for people in need.
Several months ago, our Senate unanimously voted in support of mental
health parity. The House is now passing its own legislation. I will say
that the House bill is stronger, and I prefer the House bill over the
Senate version, but I trust these two bills will be reconciled and
signed into law, and I hope my Senate colleagues involved in the
conference committee will get us and bring us back the strongest bill
possible. This will be a victory for millions of Americans living with
mental illness who face unfair discrimination in their access to
affordable health care treatment.
Again, I thank my colleagues, Senator Kennedy and Senator Domenici,
for their leadership on this issue. I thank Patrick Kennedy and Jim
Ramstad for their continued leadership. But in the end, I am here today
with respect to Paul Wellstone, who led this fight for so many years. I
know he is looking down on us today and looking down at the House of
Representatives that is passing this bill with his name in his honor.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.

Amendment No. 4094

Mr. LEAHY. Mr. President, I realize we earlier thought we might vote
at 12:30 p.m. That has been put off to a little later. I wish to talk
about the pending amendment to the Consumer Product Safety Commission
Reform Act. I am very worried about it. It would tie the hands of State
attorneys general who seek to protect their citizens from harmful
products.
I see the distinguished chairman on the floor. He was an attorney
general. He knows what is involved in these areas. I applaud his
efforts for including in the legislation the power for State attorneys
general to enforce consumer product safety violations. As a former
prosecutor and as one who watches how carefully anything such as this
is done in my home State of Vermont, I certainly do not want us to gut
that important enforcement provision by immunizing corporate bad actors
for the reasonable costs and fees it takes State attorneys general to
bring these actions. States are not rolling in money, but they expect
their attorneys general to protect them. If wrongdoers have to pay part
of that cost, so be it.
If we strike line 5, 6, and 7 of the pending bill, we immunize
corporate bad actors. I don't think any of us should have to go home
and tell our legislatures: Boy, we just gutted the ability of our State
attorney general to do something, and if he does do something, we want
to hit you with a higher bill than you would have paid otherwise.
I understand Senator Cornyn's floor statement in support of his
amendment mentioned nothing about reasonable fees and costs incurred by
the offices of State attorneys general. Rather, he focused on
contingency fee agreements that some attorneys general have decided to
make with private lawyers to enforce laws.
Setting aside the contingency fee argument for a moment, I wish to
highlight that his amendment would do more than just micromanage the
types of staffing decisions State attorneys general enter into. I am
always somewhat nonplused to hear Members say how we have to get the
Federal Government off our backs and let our States make the
determination, that Washington doesn't know best, that our State
capitals, legislatures, and Governors have a better idea how to do
things, and then all of a sudden bring in amendments that would just
run roughshod over our 50 States, would relegate our State Governors
and legislators to the dustbin.
We should not strike the lines of this bipartisan legislation that
make corporations found liable for violating consumer laws responsible
for reasonable costs and fees incurred by States. We do this in private
litigation all the time. If you have somebody who has violated the law,
they ought to pay the costs and not ask the taxpayers to pay the costs
for the violators.
The purpose of Senator Cornyn's amendment is to tie the hands of
State attorneys general by prohibiting them from entering into certain
types of contracts with private lawyers. I have been here long enough
to remember a time when principles of federalism and deferring to State
governments meant something in this great Chamber. State elected
officials are accountable to their citizens. If the State voters do not
like the way a State attorney general is staffing cases, that is easy--
just don't reelect him or her. But Senator Cornyn's amendment would
make the staffing decision for all State attorneys general, whether it
is in Vermont or

[[Page S1570]]

New Hampshire or Arkansas or Texas or anywhere else. What he is asking
us to do, the 100 Members of this body, is to stand up and say we have
greater wisdom than all the legislatures in this country and we are
going to tell individual States how they should conduct their business.
I believe that is unwise, especially in the context of unsafe products
that have the potential to harm consumers. So I oppose this amendment.
It undermines the important enforcement role of State attorneys
general, and it runs roughshod--it runs roughshod--over any State where
their legislature, their Governor, their attorney general wants to
protect the people of their State from unsafe consumer products.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PRYOR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. Mr. President, it looks as if we have a couple Senators
who are preparing to speak. I wish to follow up on the comments, very
briefly, that the distinguished chairman of the Senate Judiciary
Committee made about the attorneys general.
This idea of allowing State attorneys general to assist Federal
agencies with enforcement of Federal decisions is not new in this bill.
This has been around for a long time. I have nine examples I want to
mention very quickly.
In the Fair Credit Reporting Act, the Telephone Disclosure and
Dispute Resolution Act, the Children's Online Privacy Protect Act, the
Telemarketing and Consumer Fraud and Abuse Prevention Act, the Credit
Repair Organizations Act, the Controlling the Assault of Nonsolicited
Pornography and Marketing Act, and one section of the Truth in Lending
Act all provide for State attorneys general to have a role in
enforcement.
My last point--and this is the ninth one I want to mention--a few
years ago, the FTC's telemarketing sales rule went into effect. They
said at one point:

The commission believes that the joint Federal-State
enforcement model under the Telemarketing Act provides a
practical framework for coordinating our efforts with those
of States and results in an efficient and effective law
enforcement program.

We are utilizing a model that other Federal agencies that had this
model before recognize is an effective and efficient use of resources.
My last point on adding the attorneys general to the enforcement of
the CPSC rules, regulations, and decisions is that it is a very
efficient way to do it. If we wanted to, the Congress could add another
$5 million, $10 million, $20 million, $50 million--whatever it may be--
in appropriations to this Federal agency to put people out there around
the various States to do the very same work the State attorneys general
offices can do without any Federal taxpayers' dollars involved.
I thank the distinguished chairman of the Senate Judiciary Committee
for his comments.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CASEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Menendez). Without objection, it is so
ordered.

Amendment No. 4109

Mr. CASEY. Mr. President, I ask unanimous consent that the pending
amendment be set aside so I can call up amendment No. 4109.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The assistant legislative clerk read as follows:

The Senator from Pennsylvania [Mr. Casey], for himself, Mr.
Brown, and Ms. Landrieu, proposes an amendment numbered 4109.

Mr. CASEY. Mr. President, I ask unanimous consent that the reading be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require the Consumer Product Safety Commission to study
the use of formaldehyde in the manufacturing of textiles and apparel
articles and to prescribe consumer product safety standards with
respect to such articles)

On page 103, after line 12, add the following:

SEC. 40. CONSUMER PRODUCT SAFETY STANDARDS USE OF
FORMALDEHYDE IN TEXTILE AND APPAREL ARTICLES.

(a) Study on Use of Formaldehyde in Manufacturing of
Textile and Apparel Articles.--Not later than 2 years after
the date of the enactment of this Act, the Consumer Product
Safety Commission shall conduct a study on the use of
formaldehyde in the manufacture of textile and apparel
articles, or in any component of such articles, to identify
any risks to consumers caused by the use of formaldehyde in
the manufacturing of such articles, or components of such
articles.
(b) Consumer Product Safety Standard.--Not later than 3
years after the date of the enactment of this Act, the
Consumer Product Safety Commission shall prescribe a consumer
product safety standard under section 7(a) of the Consumer
Product Safety Act (15 U.S.C. 2056(a)) with respect to
textile and apparel articles, and components of such
articles, in which formaldehyde was used in the manufacture
thereof.
(c) Rule To Establish Testing Program.--
(1) In general.--Not later than 3 years after the date of
the enactment of this Act, the Consumer Product Safety
Commission shall prescribe under section 14(b) of such Act
(15 U.S.C. 2063(b)) a reasonable testing program for textile
and apparel articles, and components of such articles, in
which formaldehyde was used in the manufacture thereof.
(2) Independent third party.--In prescribing the testing
program under paragraph (1), the Consumer Product Safety
Commission shall require, as a condition of receiving
certification under subsection (a) of section 14 of such Act
(15 U.S.C. 2063), that such articles or components are tested
by an independent third party qualified to perform such
testing program in accordance with the rules promulgated
under subsection (d) of such section, as added by section
10(c) of this Act.
(d) Preemption.--Nothing in this section or section
18(b)(1)(B) of the Federal Hazardous Substances Act (15
U.S.C. 1261 note) shall preclude or deny any right of any
State or political subdivision thereof to adopt or enforce
any provision of State or local law that--
(1) protects consumers from risks of illness or injury
caused by the use of hazardous substances in the manufacture
of textile and apparel articles, or components of such
articles; and
(2) provides a greater degree of such protection than that
provided under this section.
``(e) Sense of the Congress.--Congress finds that:
``(1) Formaldehyde has been a known health risk since the
1960s;
``(2) As international trade in textiles has grown an
number of countries have recently recalled a number of
textile products for excessive levels of formaldehyde;
``(3) The Federal Emergency Management Agency and the
Centers for Diseases Control released formaldehyde testing
results from trailers in Louisiana and Mississippi on
February 14, 2008:
``(A) Results of these tests showed levels of toxic
formaldehyde that were on average five times as high as
normal;
``(B) Formaldehyde in textiles is a known contributor to
increased indoor air concentrations of formaldehyde; and
``(C) The Centers for Disease Control has recommended
residents of the 2005 hurricanes living in Federal Emergency
Management Agency trailers immediately move out due to health
concerns.''

The PRESIDING OFFICER. The Senator is recognized.
Mr. CASEY. Mr. President, I wish to first of all commend the work of
several colleagues on this Consumer Product Safety Commission
legislation, and in particular the Senator from Arkansas, Senator
Pryor, for long overdue changes of the law that pertain to how we
protect consumers, families, across America from unsafe products from
around the world that come into Pennsylvania and come into America and
can do harm to our families. So I am grateful for the work that went
into this legislation.
Today, I wish to raise with this amendment a particular concern I
have, and I think it is shared by a lot of people in this body, and
that is the threat posed by formaldehyde. I am going to put up a
definition so people have a sense of what we are talking about.
Formaldehyde is a colorless, strong-smelling gas, and when present in
the air at levels above 0.1 parts per million, it can cause watery
eyes, burning sensations in the eyes, nose, and throat, nausea,
coughing, and all the things you see here, but it has also been shown
to cause cancer in scientific studies using laboratory animals and may
cause cancer in humans.

[[Page S1571]]

So we are talking about something that is a threat to families across
this country, and it is something that this legislation should deal
with.
Our amendment is very simple. And I should note for the record this
amendment is being offered not only by me but by Senator Brown of Ohio
and Senator Landrieu of Louisiana. It is very simple what we do. We set
forth in this amendment to have the Consumer Product Safety Commission,
first of all, study the use of formaldehyde in the manufacturing of
textile and apparel articles. That study would be conducted within 2
years, and basically we would want that study to identify risks to
consumers caused by the use of formaldehyde in the manufacturing of
articles that may be clothing articles or components of such articles.
So, first of all, the study. Secondly, not later than 3 years after
the date of the enactment of the amendment, the Consumer Product Safety
Commission should set forth a safety standard, which is something this
Commission can do and should do with regard to formaldehyde.
Thirdly, we say that the Consumer Product Safety Commission shall
prescribe a testing program, a reasonable testing program for textile
and apparel articles and components of such articles. Basically, what
we are talking about is to test for the presence of formaldehyde and
the threat it poses.
Now, what are we talking about? Some of the news articles over the
last couple of years point to very basic articles in the life of any
family in this country--blankets. There was a problem not too long ago
with the presence of formaldehyde in blankets. We have seen examples
where toys and other products that impact children, but especially when
it comes to clothing in this case, there have been examples of baby
clothing where there is a threat posed by the presence of formaldehyde.
Some might say: Well, why would the Consumer Product Safety
Commission have to have a regulation such as this and to have a program
to deal with this? Well, for some reason, it has been left off the
list. Because in terms of the Government agencies already that have
regulated the use of or exposure to formaldehyde, the list is long. The
Occupational Safety and Health Administration, OSHA, has it; the
Environmental Protection Agency, EPA, has it; the Food and Drug
Administration; the Housing and Urban Development agency has it. So
these are agencies already in the Federal Government that have
regulated the use of and exposure to formaldehyde, and what we are
asking in this amendment is that yet another critical agency in our
Government, the Consumer Product Safety Commission, be charged with the
responsibility of studying, setting forth rules and regulations, and
also making sure we are doing everything possible to prevent this from
becoming an even larger threat to American families.
I would conclude with one chart: the Consumer Product Safety
Commission regulations of formaldehyde. And after that, the entire
chart is blank because that is exactly what the Consumer Product Safety
Commission is doing right now on formaldehyde--nothing, not a single
thing, not a single rule that deals with this, despite the threat posed
to young children, to babies when they wear baby clothing, or the
threat it poses to all Americans when it comes to what we wear.
This is long overdue, and I hope colleagues on both sides of the
aisle would not only support, as I think they will, strongly, the
elements of this Consumer Product Safety Commission legislation but in
particular that they would support this amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I ask unanimous consent that the pending
amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4122

Mr. DORGAN. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 4122.

Mr. DORGAN. Mr. President, I ask unanimous consent that the amendment
be considered as read.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To strike the provision allowing the Commission to certify a
proprietary laboratory for third party testing)

On page 25, beginning with line 21, strike through line 13
on page 29 and insert the following:
``(3) Third party laboratory.--
``(A) In general.--The term `third party laboratory' means
a testing entity that--
``(i) is designated by the Commission, or by an independent
standard-setting organization to which the Commission
qualifies as capable of making such a designation, as a
testing laboratory that is competent to test products for
compliance with applicable safety standards under this Act
and other Acts enforced by the Commission; and
``(ii) is a non-governmental entity that is not owned,
managed, or controlled by the manufacturer or private
labeler.
``(B) Testing and certification of art materials and
products.--A certifying organization (as defined in appendix
A to section 1500.14(b)(8) of title 16, Code of Federal
Regulations) meets the requirements of subparagraph (A)(ii)
with respect to the certification of art material and art
products required under this section or by regulations issued
under the Federal Hazardous Substances Act.
``(C) Provisional certification.--
``(i) In general.--Upon application made to the Commission
less than 1 year after the date of enactment of the CPSC
Reform Act, the Commission may provide provisional
certification of a laboratory described in subparagraph (A)
of this paragraph upon a showing that the laboratory--

``(I) is certified under laboratory testing certification
procedures established by an independent standard-setting
organization; or
``(II) provides consumer safety protection that is equal to
or greater than that which would be provided by use of an
independent third party laboratory.

``(ii) Deadline.--The Commission shall grant or deny any
such application within 45 days after receiving the completed
application.
``(iii) Expiration.--Any such certification shall expire 90
days after the date on which the Commission publishes final
rules under subsections (a)(2) and (d).
``(iv) Anti-gap provision.--Within 45 days after receiving
a complete application for certification under the final rule
prescribed under subsections (a)(2) and (d) of this section
from a laboratory provisionally certified under this
subparagraph, the Commission shall grant or deny the
application if the application is received by the Commission
no later than 45 days after the date on which the Commission
publishes such final rule.
``(D) Decertification.--The Commission, or an independent
standard-setting organization to which the Commission has
delegated such authority, may decertify a third party
laboratory if it finds, after notice and investigation, that
a manufacturer or private labeler has exerted undue influence
on the laboratory.''.

Mr. DORGAN. Mr. President, I ask unanimous consent that the pending
amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4098

Mr. DORGAN. Mr. President, I send another amendment to the desk and
ask for its consideration; amendment No. 4098.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 4098.

Mr. DORGAN. Mr. President, I ask unanimous consent the amendment be
considered read.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To ban the importation of toys made by companies that have a
persistent pattern of violating consumer product safety standards)

On page 103, after line 12, add the following:

SEC. 40. BAN ON IMPORTATION OF TOYS MADE BY CERTAIN
MANUFACTURERS.

Section 17 (15 U.S.C. 2066) is amended--
(1) in subsection (a), as amended by section 10(f) of this
Act--
(A) in paragraph (5), by striking ``; or'' and inserting a
semicolon;
(B) in paragraph (6), by striking the period at the end and
inserting ``; or''; and
(C) by adding at the end the following:
``(7) is a toy classified under heading 9503, 9504, or 9505
of the Harmonized Tariff Schedule of the United States that
is manufactured by a company that the Commission has
determined--
``(A) has shown a persistent pattern of manufacturing such
toys with defects that constitute substantial product hazards
(as defined in section 15(a)(2)); or
``(B) has manufactured such toys that present a risk of
injury to the public of such a magnitude that the Commission
has determined that a permanent ban on all imports of such
toys manufactured by such company is equitably justified.'';
and

[[Page S1572]]

(2) by adding at the end the following:
``(i) Whenever the Commission makes a determination
described in subsection (a)(7) with respect to a
manufacturer, the Commission shall submit to the Secretary of
Homeland Security information that appropriately identifies
the manufacturer.
``(j) Not later than March 31 of each year, the Commission
shall submit to Congress an annual report identifying, for
the 12-month period preceding the report--
``(1) toys classified under heading 9503, 9504, or 9505 of
the Harmonized Tariff Schedule of the United States that--
``(A) were offered for importation into the customs
territory of the United States; and
``(B) the Commission found to be in violation of a consumer
product safety standard; and
``(2) the manufacturers, by name and country, that were the
subject of a determination described in subsection (a)(7)(A)
and (B).''.

Mr. DORGAN. Mr. President, this issue of imported products from
abroad in an increasingly globalized world is a very significant and
serious issue. I am not one who suggests we can retreat from the global
economy. Clearly, the global economy exists. I would say the rules for
the global economy have not nearly kept pace with the galloping
movement of this global economy and, as a result of it, we have some
very serious trade issues, we have imbalances in trade, we have the
largest trade deficit in human history, we have the loss of American
jobs being shipped overseas, and then we have, in addition to all that,
we have products that are now made overseas, shipped into this country,
that we have discovered are dangerous products.
My colleague from Arkansas, Senator Pryor, under his leadership, and
with others, have brought a bill to the floor of the Senate. I am on
the Senate Commerce Committee, and I was pleased to work with them and
play a very small role in helping create this legislation, but I wish
to commend my colleague and others for bringing a bill to the floor
that gives the Consumer Product Safety Commission some additional
authority.
Now, the Consumer Product Safety Commission is headed by somebody who
didn't want the authority; didn't seem to think it was necessary,
unfortunately. We need someone at the Consumer Product Safety
Commission who is very interested, very alert, and very engaged on
these issues. Because the fact is, these can be life-or-death issues.
That is a plain fact.
Now, the amendment I have offered, the second amendment, is
relatively simple. I wish to describe it. It is an amendment that says
the Consumer Product Safety Commission should have the authority to
permanently ban imports from certain producers, foreign producers, that
have shown a persistent pattern of shipping unsafe products to our
shores. Let me repeat. This simply gives the Consumer Product Safety
Commission the authority to ban imported toys from unsafe producers.
Under this amendment, the Consumer Product Safety Commission would
have the full discretion to decide whether a particular case warrants
such a ban. I think it would shock most Americans to learn that there
is no such authority that exists at the moment. We can have a company
that sends us once, twice, 4 times, 5 times, 10 times or 20 times
unsafe products into this country, and there is no authority for anyone
to ban that company from shipping products into the U.S. marketplace.
That is wrong.
So let's say that a company, in this case let me say China--and I
don't mean to pick on the Chinese, but the fact is 85 percent of the
toys that come into this country are coming in from China--let's say a
manufacturer has a complete and persistent record of painting their
toys with lead paint. How often should we allow that company to be
caught sending toys into this country with lead paint; lead paint that
has a significant capacity to provide injury to children? How long
should we allow that to happen? Under current law, the answer is, there
is no limit.
Hopefully, we will find the toys and prevent them from being on the
store shelves. But at the present time, there is no limit, and no one
has the capability to ban the producers from sending those products
into this country.
There are Chinese companies producing for U.S. brands that have had
many repeated problems. In September, Mattel, Incorporated, announced
the third massive recall in a 5-week period. At that point, Mattel
found 848,000 Chinese-made Barbie and Fisher-Price toys that had
excessive amounts of lead paint. Toys were pulled from the store
shelves at that point, and that included Barbie kitchens, furniture
items, Fisher-Price train toys, and Bongo Band drums, among others. The
surface paints on these toys contained excessive levels of lead, which
is prohibited under Federal law because, frankly, it is unsafe for
children.
Now, in addition to those recalls, Mattel has recalled nearly 9
million Chinese-made toys coated with toxic lead paint and other safety
problems. The plastic preschool toys sold under the Fisher-Price brand
in the United States include the popular Big Bird, Elmo, Dora, and the
Diego characters.
In June of last year, RC2 Corporation recalled 1.5 million wooden
railroad toys and set parts from its Thomas & Friends. Most parents of
young children will recognize Thomas & Friends, the wooden railway
product line, which was made by Hansheng Wood Products factory using
lead paint. So 1.5 million of these toys were headed to the store
shelves in this country.
Now, the question: Why would a producer anywhere use lead paint?
Well, because lead paint is bright, it is durable, it is flexible, it
is fast drying, and most of all, it is cheap. China mass produces lead
paint and coloring agents such as lead chromate because they are
generally cheaper than organic pigments.
But lead is dangerous even in small quantities. We have known that
for a long while in this country. Going back to 1978, the U.S. Consumer
Product Safety Commission made it illegal to use any paint containing
more than 0.06 percent of lead for residential structures, hospitals,
and children's products.
We have known about lead for so long that Ben Franklin wrote about
the dangers of lead. Ben Franklin wrote a letter about the bad effects
of lead taken inwardly. Some 19th century paint companies advertised
their paint in newspaper ads bragging it was lead free. So this isn't
some new discovery, that lead is a problem and a potential human health
problem. And it is no accident that some of these toys are containing
excessive levels of lead paint. Because, as I said, lead is cheap, the
contractors that are making these products are trying to lower costs,
and they are not spending a lot of time wondering about human health
issues.
Now, let me describe this silver chain. This is a Chinese-made charm.
This charm is an example of a heartbreaking case. This happened in
March 2006 when a 4-year-old Minnesota boy died of lead poisoning after
swallowing this small, heart-shaped charm that came as a gift with a
purchase of Reebok tennis shoes. A little 4-year-old boy swallowed
this, and this was 99 percent lead. The fact is, these kinds of
circumstances can kill. Unsafe toys can kill.
Jarnell died because a trinket, made of 99 percent lead, was included
with a shoe, and that trinket was swallowed by a young child, and he is
dead.
Ann Brown, who headed the Consumer Product Safety Commission from
1994 to 2001--and by the way, I might say, she was an extraordinary
public servant, did a wonderful job. She said there should be an
outright ban on any lead in any toy product. She said: If I were at the
CPSC now, the Consumer Product Safety Commission, I would say that
trying to recall tainted products is like picking sand out of the
beach: it is just not possible. I agree with that.
The only way to make certain our products on our store shelves are
safe, and especially toy products that are going to be used by our
children, is to give the officials who are supposed to be monitoring
this and regulating this the authority to permanently ban unsafe
producers. Short of that, we are going to continue to see these
problems. Then we are going to scratch our heads and wonder: Why do
these still exist? The reason they still exist is the same companies
are shipping us tainted products and unsafe products. This is not
rocket science. We have seen the products, we have read about the
products, we have heard about the products. They include, yes, a
trinket with a tennis shoe; they include a small wooden toy painted
with lead paint; they include toothpaste; they include cat food,
contaminated shrimp, car tires--you name it.

[[Page S1573]]

The question is, Who is going to stand up for and support the
interest of American consumers? I think it has been the case that when
these problems came to light and people lost their lives because of
them, many of the producers, particularly some in China, said: None of
this is true. These are problems that are exaggerated, and our products
are safe.
Then, in June, when there was a tremendous outcry here in the United
States, regulators in China finally said they had closed 180 food
plants and that inspectors had uncovered more than 23,000 food safety
violations. China Daily, the nation's English-language newspaper, said
industrial chemicals, including dyes, mineral oils, paraffin wax, and
formaldehyde, had been found in everything from candy to pickles to
biscuits to seafood. China announced on July 9 of last year that it had
actually executed the former head of its food and drug safety agency
for accepting bribes in excess of $800,000 in exchange for approving
substandard medicines.
Well, we know the problem. That is why we have a bill on the floor of
the Senate. We know at least a part of this solution. The bill on the
floor of the Senate is a good bill. But I have an amendment that would
improve it, so that when you have a company that has a persistent and
consistent and relentless problem of shipping unsafe products to this
country, we can say: Stop, you cannot do it anymore.
I read a while back about a guy in my home State who was picked up 13
or 14 times for drunk driving. Our State said: Stop. You cannot drive
any more. It is over. We are not putting up with this.
We ought to do the same thing with companies--not only in China but
elsewhere--that send unsafe or tainted products that are unsafe for
American consumers and especially children. We ought to do the same
thing to companies that do that over and over again. If they are not
willing to abide by the regulatory processes and by the standards we
set and adopt in this country, then they are not welcome any longer to
ship products to our store shelves. So I offer an amendment that would
allow us at least the authority--not the requirement, the authority--to
outright ban products from companies that have a record of persistent
problems in sending unsafe or tainted products to our store shelves.
Again, I wanted to say that as all of this has played out, this is
all part of the global economy these days. You know, you produce
somewhere and ship it somewhere else, and someone consumes it. I have
spoken extensively about this, this issue of the global economy that
has galloped forward, but the rules have not kept pace. This is one
more area where the rules have not kept pace, and this underlying piece
of legislation is an attempt to establish better rules.
Now, the fact is, we cannot force this to work unless we have people
in agencies who are hired and paid by the Federal Government who want
to do their job. The fact is, we have had abysmal leadership at one of
the agencies that ought to have been involved in stopping this. It is
unbelievable to me that someone collects a paycheck and has a sense of
self-worth if they are not interested in standing up for what their
agency should stand up for, but that has been the case.
So we bring a piece of legislation to the floor that is a good piece
of legislation, that establishes new rules, rules that will provide for
safety for American consumers. But we need better management and better
leadership as well at some of these agencies who have decided they are
going to stand up for consumers too.

Amendment No. 4122

I wish to mention the second amendment I have offered, which is one
about which I will not speak at great length. I wish to visit with the
manager of the bill at some point. That is an amendment which would
strike the provision that allows the Commission to certify a
proprietary laboratory for third-party testing. I would like to see
independent testing. Let me hasten to say I accept the good intentions,
the good will of those who wish to test themselves, but in my judgment,
when you have proprietary testing, it is a step or several steps away
from independent testing. I wanted to talk to the manager of the bill
about this amendment to see if we can find a way to at least make sure
all testing that is done represents truly independent testing.

Strategic Petroleum Reserve

Mr. President, I wish to finish my comments with another point.
Yesterday, I came to the floor, and I was going to offer an
amendment, but there was an objection because my amendment is
admittedly not germane. I will not attempt to offer it today. I
understand others are not offering the nongermane amendments, so I will
certainly not offer mine, except to say I intend to offer it every
chance I get. I will find a crevice someplace on an authorization bill
or I will do it on the Energy and Water appropriations bill that I
write because writing the chairman's mark gives me an opportunity to
simply write it in.
It deals with this question of today, on Wednesday, we are sticking
60,000 to 70,000 barrels of oil underground in one of our domes to save
it for the future, at a point when the price of gasoline is at $3,
$3.50, going to $4 a gallon and oil is rocketing up around $103 a
barrel and the Strategic Petroleum Reserve, where we store oil
underground for a rainy day, is 97 percent full. We have the
administration taking oil from the Gulf of Mexico as royalty-in-kind
from oil wells, and instead of putting it into the supply and
converting it to money for the Federal Government, they are sticking it
underground and saving it for a rainy day. This is, by the way, a
subset of oil called sweet light crude. What that does is put upward
pressure on oil and gas prices at exactly the wrong time.
This is not rocket science either. Why would you pick the highest
price of oil and say: By the way, the Federal Government has decided,
in addition to all of the other issues out there with respect to energy
policy, we have decided to see if we cannot put some upward pressure on
gas prices, and they have. Government witnesses testified before the
Energy Committee yesterday and admitted that this puts upward pressure
on gas prices. So why on Earth would we stick 60,000 or 70,000 barrels
of oil a day underground? That is unbelievable to me. It is going to
double. There are going to be 125,000 barrels a day in the second half
of this year, sticking it in the Strategic Petroleum Reserve.
I now have a piece of legislation that would say: You cannot do that.
There has to be a 1-year pause unless the price of oil goes back below
$75. But if it does not, there has to be a 1-year pause, that the oil
has to go into the supply, not underground.
The Federal Government ought not be making things worse for
consumers, you know. There are a lot of interests here that are causing
American drivers to be burned at the stake, but the Federal Government
is carrying the wood when it is putting oil underground. That makes no
sense at all. We have OPEC, all of these other issues. We have
unbelievable speculation in the market, with hedge funds and investment
banks knee-deep in a carnival of speculation.
We had a witness testify that the oil futures market has become like
a 24/7 casino--never closes. The result of all of this speculation by
people who are trading in oil--and they will never have the oil and
never get oil, yet they are trading futures contracts and driving up
the price every time as all of that speculation goes on. I think that
deserves and needs an investigation.
Our Federal Government has decided on a policy of taking oil out of
the supply and sticking it underground. There is only one word for
that; that is, ``nuts.'' We have to stop it.
I was not able to offer this amendment on this bill yesterday, but I
will be back with this amendment. In my judgment, we will have a vote
on it in the Senate because we have the votes to pass it and say to
this administration: Stop it. Put an end to it. Put that oil in the
supply and put downward pressure on gas prices and downward pressure on
oil prices.
Mr. President, I yield the floor.
Mr. PRYOR. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KOHL. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S1574]]

Mr. KOHL. Mr. President, I have an amendment I would like to offer at
some point. I will not do so at this time, but I would like to make
some general comments on the subject.
The PRESIDING OFFICER. The Senator is recognized.
Mr. KOHL. Mr. President, the bipartisan amendment I am talking about
addresses the troubling use of court secrecy. Far too often, our courts
permit vital information that is discovered in litigation, which bears
directly on public health and safety, to be covered up. Our amendment
is a narrowly targeted measure that will make sure court-endorsed
secrecy does not prevent the public from learning about health and
safety dangers.
This amendment is a good amendment because it is a complement to this
bill, and we know private lawsuits are often a critical source of
information about dangerous products. Court secrecy often hinders
regulatory agencies in their efforts to protect the public.
Under the amendment, judges would have to consider public health and
safety before granting a protective order for sealing court records and
settlement agreements. Judges have the discretion to grant or deny
secrecy based on a balancing test that weighs the public's interest and
public health and safety hazards and legitimate interests in secrecy
such as trade secrets. The amendment does not place an undue burden on
our courts. It simply states that in a limited number of cases, judges
would have to take a closer look at requests for secrecy.
We know there are appropriate uses for these orders and we are
confident that our judges will protect information that truly deserves
it.
We are all familiar with well-known cases where protective orders
and secret settlements prevented the public from learning about the
dangers of silicone breast implants, IUDs, prescription drugs,
exploding gas tanks, dangerous playground equipment, collapsing baby
cribs, and defective heart valves and tires. Had information about
these harmful products not been sealed, injuries could have been
prevented and lives could have been saved.
At a December hearing, we learned that while some judges may be more
aware of the issue, this problem continues, and we have examples to
prove it. Johnny Bradley told us the chilling details of a car accident
caused by tire tread separation that killed his wife and left him and
his son severely injured. During his lawsuit against Cooper Tire, he
learned that information about similar accidents had been kept secret
for years through court orders and secret settlements. Today, details
about this tire defect remain protected by court orders while Cooper
Tire continues to aggressively fight attempts to make them public.
We also heard from Judge Joe Anderson, a Federal district court
judge in South Carolina. He supports the bill as a balanced approach to
address ``a discernable and troubling trend'' for litigants to ask for
secrecy in cases where public health and safety might be adversely
affected. He told us about a local rule in South Carolina, one that
goes even further than our amendment, and how it has been a great
success. The number of trials has not increased and cases continue to
settle even though secrecy is no longer an option in that court.
I have heard concerns about national security and personally
identifiable information so I have included language to ensure that
this information is protected. I have also heard concerns about
protecting trade secrets. I would like to make it very clear that our
amendment protects trade secrets. We are confident that judges, as they
are already required to do, will give ample consideration to them as
part of the balancing test. However, we will not permit trade secrets
that pose a threat to public health and safety--such as defective tire
design--to justify secrecy.
Some people argue that there is no evidence that protective orders or
sealed settlements present a significant problem. Just ask the
thousands of people who took the prescription drug Zyprexa without
knowing the harmful side effects that were concealed by a secret
settlement. Or ask the parents whose children were injured or killed by
dangerous playground equipment, collapsing baby cribs, ATVs, and over-
the-counter medicines.
If information about these products had not been sealed, we may have
known about the dangers and lives could have been saved. So I hope my
colleagues will support the efforts we are trying to bring to bear to
pass this long overdue legislation.

Thank you so much, Mr. President.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. McCASKILL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4096

Mrs. McCASKILL. Mr. President, I want to talk a little bit about an
amendment that has been offered by Senator DeMint to remove a very
important provision of this bill--a very important provision because it
deals with whistleblowers.
Now, why do we need to protect whistleblowers? Well, let's be honest
about this. I think Senator Pryor has done a masterful job of laying
out the reality of the Consumer Product Safety Commission and, frankly,
the tawdry way it has met its responsibilities over the last 7 years.
We obviously need to do many of the things that are included in this
legislation, and I thank Senator Pryor for his work on this
legislation, along with Senator Inouye, Senator Stevens, and Senator
Collins, because this is important.
We are talking about the lives and health and safety of people who
think we are on the job. They think their Government is, in fact,
looking out for their safety and protection in terms of consumer
products, and the safety of those products.
So why do we need whistleblower provisions? Because frankly that is
our best line of defense. It is, in fact, the people who work at this
important agency who have been most offended at some of the practices
of this administration in terms of undermining and gutting the work
that has been done by the brave, talented, and competent people who
work there. So I do not know why we would be reluctant to give them
whistleblower protection.
This is not a new concept. Whistleblower protection is not a new
concept. This Congress has enacted and this President has signed many
whistleblower protection laws into being over the last several years.
Let's review them. These are the same commonsense protections that were
already passed by the Senate and signed into law as part of the 9/11
Implementation Act and Defense Authorization Act.
Since 2000, Congress has passed the following same kind of
commonsense whistleblower protections: We have done AIR-21 in 2000 for
airline industry workers. We have done Sarbanes-Oxley in 2002 for
employees of publicly traded companies. We have done the Pipeline
Safety Act in 2002 for oil pipeline employees. We have done the Energy
Policy Act in 2005 for nuclear workers. We have done, as I said, the
Implementing Recommendations of the 9/11 Commission Act in 2007 for
railroad and public transportation workers. And, of course, we have
done the Defense Authorization Act in 2008 for Department of Defense
contractors.
Now, why would we want to protect the contractors' employees at the
Defense Department and not protect the employees in the Consumer
Product Safety Commission? That does not even make sense. Of course, we
want to protect them.
Let me give you some examples of what some of the employees have said
publicly about some of the pressures they face and about the atmosphere
in which they work. Then you realize the kind of protection they need.
One CPSC safety employee said his boss, his superior:

. . . hijacked the presentation. . . . He distorted the
numbers in order to benefit industry and defeat the petition.
It was almost like he still worked for them, not us.

And by ``them,'' he meant the industry that was supposed to be
regulated and supposed to be made accountable.
Another CPSC safety employee said:

Buyer beware--that is all I have to say.

Another one:

So much damage has been done.

Another one:

It's a complete disaster.

[[Page S1575]]

All of these employees were talking about what they know and what
they see in terms of this agency's failings to do the bare minimum, the
basic necessities of protecting consumers.
In March 2005, CPSC called together the Nation's top safety experts
to confront an alarming statistic: 44,000 children riding ATV vehicles
were injured the previous year, nearly 150 of them killed. Subsequent
to an alarming presentation by CPSC employees of the dangers and risks,
the agency's director of compliance then presented a public view that
was unsubstantiated by the research that had been done.
The head of the poison prevention unit resigned when the efforts to
require inexpensive child-resistant caps on hair care products that had
burned toddlers were delayed, and delayed so industry costs could be
weighed against the potential benefit to unsuspecting children.
These whistleblower protections will not shield bad employees. It
does not protect disgruntled employees who make false claims, and it
does not prevent an employer from firing a whistleblower for unrelated
reasons, such as poor performance.
Let's get to the meat of the matter. The President does not like the
whistleblower protections. I wish I were surprised. The claim is that
the administration thinks this provision of the bill extends new
whistleblower protections in ways that are unnecessary. This
administration being hostile to a provision protecting whistleblowers
is a little bit like the Sun coming up. It has gone out of its way to
lobby against every whistleblower law that has been enacted.
This is a very secretive administration, and they are simply hostile
to the concept of whistleblowing because it sheds light--it sheds
light--and public scrutiny on abusive conduct that betrays the public
trust.
Another claim made by the administration: These provisions are likely
to result in serious problems for the CPSC in carrying out its mission
and will cause a serious increase in the number of frivolous claims
brought against employers.
Yes, the specter of frivolous claims. We always need to be worried
about the specter of frivolous claims and frivolous lawsuits. It is not
real, this worry from the administration. This provision is designed to
help the dramatically understaffed CPSC enforce the law. It is a
necessary enforcement cornerstone for this vital reform to be realized
most effectively.
With only 400 employees, we cannot expect this agency to find every
single consumer hazard or product that makes its way to consumers. We
need to empower the employees to help. We need to protect them if they
want to bring the public's attention to the work they have done.
There have been numerous concerns expressed about the increased
burden to be placed on employers because of litigation. Frankly, these
shrill predictions have been made every single time--every time we have
considered one of the 35 other corporate whistleblower laws that
Congress has passed.
The CPSC whistleblower language retains preexisting effective
structural checks against litigation abuses. And this is important; let
me underline this. There is not one case--not one case--since 1974
where the CPSC has had to use the structural checks against litigation
abuses. In other words, this is a complete paper tiger.
Let's do what is right here. We should be celebrating whistleblowers,
we should be thanking whistleblowers, and, by all means, we should be
protecting whistleblowers.
I urge the Senate to reject the DeMint amendment that would gut one
of the important ways we have in this bill to actually protect the
innocent consumer from, in fact, having a toy with lead paint or
another dangerous product that could do real and irreversible harm to
members of their family.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. KLOBUCHAR. Mr. President, I wish to address one point related to
the amendment that the Presiding Officer and I have, amendment No.
4105, which is coming up for a vote shortly.
I received an e-mail communication from the Consumer Product Safety
Commission which pledged Chairman Nord's support for our amendment. I
am pleased she is supporting our amendment which basically bans
industry from financing travel when it involves industries the Consumer
Product Safety Commission regulates.
They also clarified in the amendment that there were, in fact, I
think 29 instead of 30 trips that were taken in the last 7 years but
also that Chairman Nord herself took only 3 of these trips and that the
rest of the trips were her predecessor who went on trips to places such
as China. I would point out that one of the trips she took, which they
call mundane in this e-mail, was to New York that was financed by the
toy industry itself. As my colleagues know, we are now dealing with
these toxic toys. Another one she took which wasn't mentioned in her e-
mail, but I am getting out of the Washington Post article, was $2,000
in travel from the Defense Research Institute to attend its meetings in
New Orleans on product litigation trends. Her predecessor had attended
the same group's meeting in Barcelona.
My point is to clarify the record. We are pleased to have Chairman
Nord's support for our amendment. But I would note the issue that
doesn't seem to be grappled with in this e-mail is the consumers who
have to deal with this--the families with whom Senator Pryor and I met,
including the mother of the little boy who swallowed the Aqua Dot that
morphed into the date rape drug--they were not able to finance the
travel. They were not able to spend 2 days with the head of the
Consumer Product Safety Commission to make their case.
That is why I believe it is very important, as we look at the ethical
accountability issues related to the Consumer Product Safety
Commission, that this amendment pass.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland is recognized.

Amendment No. 4103

Mr. CARDIN. Mr. President, I ask unanimous consent to set aside the
pending amendment and call up amendment No. 4103.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Maryland [Mr. Cardin] proposes an
amendment numbered 4103.

Mr. CARDIN. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require the Consumer Product Safety Commission to develop
training standards for product safety inspectors)

On page 5, between lines 21 and 22, insert the following:
(c) Training Standards.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Consumer Product Safety
Commission shall--
(A) develop standards for training product safety
inspectors and technical staff employed by the Commission;
and
(B) submit to Congress a report on such standards.
(2) Consultations.--The Commission shall develop the
training standards required under paragraph (1) in
consultation with a broad range of organizations with
expertise in consumer product safety issues.

Mr. CARDIN. Mr. President, this amendment would require that new
hires of the Consumer Product Safety Commission be adequately trained
by making sure a study is done on adequate training.
First, I wish to take some time, if I might, for one moment to thank
my colleagues for bringing the Consumer Product Safety Commission
Reform Act to the floor of the Senate. It is long overdue. There are
many important provisions in this act, including dealing with an issue
that has been very dear to me, coming from Baltimore, which has been a
city actively involved in trying to deal with lead poisoning. I am
pleased this legislation will ban lead in our children's toys and set
up independent testing to make sure we have an effective way to deal
with lead in toys, particularly those that are imported.

[[Page S1576]]

There are many other important provisions of this act. The amendment
I called up is an amendment to make sure that as the new hires come to
the Commission, these individuals are adequately trained so we can make
sure they are doing their work appropriately. I believe we will have
support on both sides of the aisle, and I hope that amendment can be
cleared.
I also anticipate offering two additional amendments which have not
yet been cleared for introduction, and I hope I have a chance to do
that on behalf of Senator Obama. One amendment would include the right
to know for products that are recalled, so the public would know the
exact information they need so the recall notices are effective. It
would include the manufacturer. It would include where the product came
into our market. It would include a lot more information, consumer
information, as to how they can get relief. I hope I have a chance to
offer that amendment at a later point.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PRYOR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Cardin). Without objection, it is so
ordered.
Mr. PRYOR. Mr. President, I ask unanimous consent that the Senate
proceed to a vote immediately in relation to Klobuchar amendment No.
4105, as modified, with 2 minutes of debate prior to the vote, equally
divided; further, that no second-degree amendments be in order prior to
the vote; that following the vote in relation to the Klobuchar
amendment, there be 1 hour of debate on Cornyn amendment No. 4094, as
modified, with the time equally divided between Senators Cornyn and
Pryor, or their designees; further, that a vote in relation to the
Cornyn amendment occur at a time to be determined by the two leaders;
that no second-degree amendments be in order prior to the vote, and
there be an additional 10 minutes of debate prior to the vote in
relation to the Cornyn amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

Amendment No. 4105

We now have 2 minutes of debate on the Klobuchar amendment. Who
yields time?
Ms. KLOBUCHAR. Mr. President, I will divide my time with Senator
Menendez. We feel strongly about this amendment. This is an amendment
that basically says the Chairman of the Consumer Product Safety
Commission and other employees cannot finance their travel from the
industry they are regulating. This was a major scandal this fall, right
in the middle of the time that we found out that 29 million toys had
been recalled, that employees of the CPSC were taking travel paid for
by the industry they are supposed to regulate. It is not consistent
with what SEC and other agencies do. We believe this amendment is very
important. We heard from the chairman of the Commission that she
doesn't oppose this amendment. Thank you.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. MENENDEZ. Mr. President, I join my colleague from Minnesota in
advocating that all Members of the Senate support the amendment. The
Senate overwhelmingly voted to do the same as it related to this
institution, this body, in terms of not taking travel from lobbyists.
The CPSC should have no less a standard. Consumers should feel safe
that, ultimately, those products are going on the market not because of
the influence of some trips a Commissioner took.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Mr. STEVENS. I yield back our time.
The PRESIDING OFFICER. The question is on agreeing to the Klobuchar
amendment.
Ms. KLOBUCHAR. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from New York (Mrs. Clinton), and the Senator from
Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 96, nays 0, as follows:

[Rollcall Vote No. 38 Leg.]

YEAS--96

Akaka
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden

NOT VOTING--4

Byrd
Clinton
McCain
Obama
The amendment (No. 4105), as modified, was agreed to.
Ms. KLOBUCHAR. I move to reconsider the vote, and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 4094

The PRESIDING OFFICER. There is now 60 minutes equally divided on the
Cornyn amendment. Who yields time?

Amendment No. 4124

Mr. DeMINT. Mr. President, I have an agreement with the chairman and
the next speaker to bring up an amendment and then yield the floor. I
ask unanimous consent to set aside the pending amendment and send an
amendment to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report the amendment.
The assistant legislative clerk read as follows:

The Senator from South Carolina [Mr. DeMint] proposes an
amendment numbered 4124.

Mr. DeMINT. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To strike section 31, relating to garage door opener
standards)

Beginning on page 85, strike line 22 and all that follows
through page 86, line 8.

Mr. DeMINT. I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.

Amendment No. 4094

Mr. CORNYN. Mr. President, the managers of this legislation, Senator
Pryor and Senator Stevens, have introduced what I think is, by and
large, a very good bill designed to protect consumers. As a matter of
fact, I support the expansion of enforcement authority not only to
include the Department of Justice, Federal law enforcement authorities,
but also to deputize State attorneys general to seek injunctions for
violations of the act. That comes from my experience as serving as the
attorney general of my State for 4 years.

I think the State attorneys general can provide additional resources
in their capacity as the chief consumer protection officer of their
State to make sure that consumers are protected. Although in talking to
my colleagues, the question was raised, well, if there is only an
injunction sought, then why do we need a prohibition against
contingency fees that might be paid to outside lawyers to whom this job
would be outsourced? And the answer to that is, lawyers can get pretty
creative sometimes and figure out a

[[Page S1577]]

way to pay an outside lawyer a contingency fee even when all the relief
that is granted is an injunction.
I want to be clear about what this amendment is and what this
amendment is not. This amendment has no bearing whatsoever on the right
of an individual if they can't afford any other way to hire a lawyer
than based on a contingency fee arrangement. Historically, since the
days of England, or Anglo-American jurisprudence, we have recognized
the contingency fee as the poor person's key to the courthouse; being
able to sign a piece of their recovery, whether it is a settlement or a
judgment of a court, as a way to get into court, to sort of level the
playing field.
But this is not a case of a person who cannot afford to hire a lawyer
unless they hire them using a contingency fee. We are talking about the
Federal Government. We are talking about the State governments. And I
think there are important reasons to make sure the people who represent
the sovereign State of Texas and the other 49 States or the U.S.
Government are accountable to the public and are not only in it as
bounty hunters seeking to maximize their recovery without any sort of
political accountability. That lack of political accountability happens
when lawyers for the Government outsource their responsibilities, or at
least the job of suing, to private lawyers but without any political
accountability associated with it.
I would point out there are tragic examples of what I am talking
about. It is not a hypothetical. Before I was elected as attorney
general of my State in 1998, my predecessor hired outside lawyers to
pursue tobacco companies in the much ballyhooed tobacco litigation. The
justification for that was supposed to be that the money was going to
be used to stop underage smoking and to try to make sure the public was
well educated about the dangers of tobacco. Well, I am sorry to say, as
a result of that litigation, the private lawyers hired by the then-
attorney general of Texas received more than $3 billion--billion
dollars--in attorney's fees that I believe should have gone to the
State of Texas to help in those targeted sorts of programs.
There is no accountability. There is no reason the State or the
Federal Government should have to outsource its responsibilities to
private lawyers. And my amendment is designed to make sure that does
not happen under the context of consumer protection.
We found out, though, what is being circulated by an organization
that used to be called the American Trial Lawyers Association, now
called the American Association for Justice--interesting selection of
names--that is opposed to my amendment. It makes clear the concerns I
had that ultimately this bill, which would provide only for the
attorneys general to seek injunctions, is perhaps to be used as a
vehicle to expand that to allow private lawyers, acting under the
authority of the State attorneys general, to seek money judgments
against any business they are big enough and bad enough to sue.
As you can see, in the fourth paragraph of this document, it says:

Proponents of the Cornyn amendment are desperate to prevent
an even playing field for consumers. Prohibiting the use of
contingency fees will result--as the proponents of the
amendment know it will result--in State attorneys general
being wholly unable to utilize private attorneys in those
very cases where litigation expenses and complexity make the
assistance of private attorneys essential.

It is ironic, that it is the very outside lawyers--the trial
lawyers--who hope to be hired by the State attorneys general to pursue
that litigation who are opposing this amendment, even though they know
that under the consumer product safety laws that are currently on the
books it provides for the computation of a reasonable attorney's fee in
the recovery and pursuit of a claim. As a matter of fact, it provides
an attorney's fee based on actual time expended by the attorney in
providing the advice and other legal services in connection with
representing a person in an action brought under this law, such
reasonable expenses as may be incurred by the attorney in the provision
of such services, which is computed at the rate prevailing for the
provision of similar services with respect to actions brought in the
court which is awarding such fee.
So it is, unfortunately, clear this provision, in this otherwise good
piece of legislation, is being used as a Trojan horse not just to
protect consumers but to benefit outside lawyers and to have a lack of
political accountability that is, I believe, required to make sure the
lawyers who represent the United States of America in the Department of
Justice or the State attorneys general conduct themselves in an
appropriate and accountable sort of fashion.
I mentioned this before, and I will mention it again, that there are
examples where this very arrangement has resulted in corrupt bargains.
My predecessor's attorney general has just recently left a Federal
penitentiary, having served time in prison because he used this outside
fee arrangement basically to funnel money to a friend. So this is a
very real and present problem.
It is clear the provisions that have been negotiated between the
distinguished Senator from Arkansas and the distinguished Senator from
Alaska, which would limit it to just seeking injunctions, that perhaps
there is a design or plan or the possibility that this will be expanded
in conference to include authorizing private lawyers to then sue small
businesses and large businesses across the country and authorize the
delegation or outsourcing of those responsibilities that the Department
of Justice or these attorneys general have to outside counsel, with no
accountability, and the very real prospect that there will be abuse
and, in some cases perhaps, even corruption.
So I hope my colleagues will learn from the experience of the past,
the sad experience of the past, where these sorts of arrangements have
been entered into in a way that has resulted in not only not
accomplishing the goals sought by the legislation but also outright
corruption.

Amendment No. 4094, as Modified

Mr. President, I ask unanimous consent that my amendment be modified,
with the changes at the desk, and I reserve the remainder of my time.
The PRESIDING OFFICER. The amendment is modified under the order.
The amendment, as modified, is as follows:

On page 58, strike lines 4 through 7 and insert the
following:
``(g) If the attorney general of a State obtains a
permanent injunction in any civil action under this section,
that State can recover reasonable costs and a reasonable
attorney's fees from the manufacturer, distributor, or
retailer, in accordance with section 11(f).
``(h)(1) An attorney general of a State may not enter into
a contingency fee agreement for legal or expert witness
services relating to a civil action under this section.
``(2) For purposes of this subsection, the term
`contingency fee agreement' means a contract or other
agreement to provide services under which the amount or the
payment of the fee for the services is contingent in whole or
in part on the outcome of the matter for which the services
were obtained.''.

The PRESIDING OFFICER. Who yields time?
Mr. PRYOR. Mr. President, I suggest the absence of a quorum, and I
ask unanimous consent that the time run equally.
The PRESIDING OFFICER. Is there objection?
Mr. CORNYN. Reserving the right to object, I did not hear the
request.
Mr. PRYOR. I suggested the absence of a quorum and that the time run
equally on both sides.
Mr. CORNYN. Mr. President, if I may, I will object only for the
purpose of asking unanimous consent that the document that was depicted
in the chart be made a part of the record following my remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Oppose the Cornyn Contingency Fees Amendment--Don't Let Opponents of
Stronger Consumer Protections Change the Subject and Weaken Enforcement

(By the American Association for Justice (formerly ATLA))

Despite what the bill's opponents wish the Senate to
believe, the CPSC Reform Act is not about plaintiffs'
attorneys and it is not about allowing state officials to
reward their friends or pursue a political agenda. Those are
entirely spurious attacks by the bill's opponents,
deliberately designed to change the subject and undermine the
Senate's will to enact the bill's tough, new standards for
manufacturers.
Congress has no business (and no constitutional authority!)
telling state governments they may not enter into contracts
that are perfectly legal under state law. Prohibiting

[[Page S1578]]

state attorney generals from entering into lawful contracts
with private attorneys is designed for one purpose only: to
discourage the use of the very enforcement tools that the
CPSC Reform Bill sets out to enact.
Opponents of the bill know that occasionally state
governments will lack the necessary financial resources or
the requisite expertise to themselves handle complicated
civil actions. In such cases, Congress has no constitutional
authority whatsoever to deny these governments their right to
enter into lawful contracts under state law.
Proponents of the Cornyn Amendment are desperate to
prevent an even playing field for consumers. Prohibiting the
use of contingency fees will result--as the proponents of the
amendment know it will result!--in state attorneys general
being wholly unable to utilize private attorneys in those
very cases where litigation expenses and complexity make the
assistance of private attorneys essential. It is ironic that
the defendant corporations backing the Cornyn Amendment
themselves employ dozens of outside counsel to protect their
own interests in every state. State governments need the same
flexibility to bring in additional resources, just as private
corporations do.
Without the availability of the contingency fee system
that has historically allowed state governments to utilize
private attorneys, many successful consumer and environmental
protection actions brought by state attorneys general would
not have been possible. In the past, these actions have led
to much faster removal of unsafe products from the
marketplace and have protected children from extended
exposure to lead paint and protected consumers from unsafe
chemicals like arsenic in food and water and formaldehyde in
homes.

The PRESIDING OFFICER. Without objection, the request of the Senator
from Arkansas is agreed to, and the clerk will call the roll on the
absence of a quorum request.
The assistant legislative clerk proceeded to call the roll.
Mr. WHITEHOUSE. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.

Amendment Nos. 4094 and 4097

Mr. WHITEHOUSE. Madam President, I rise to oppose amendments offered
to the Consumer Product Safety Commission bill by Senators Cornyn and
Vitter. Before speaking about these amendments, I first commend Senator
Pryor for his important work on this bill. I know he has been working
on this a long time and we are, as former State attorneys general,
particularly pleased to see language in this bill granting State
attorneys general the authority to obtain injunctive relief against
entities that violate consumer protection laws. I know Senator Pryor
and other former attorneys general in this body understand that this
authority is an efficient and effective way to enforce consumer
protection laws. Unfortunately, the amendments offered by Senators
Cornyn and Vitter would needlessly undercut these important
protections.
The Cornyn amendment adds the following language to the bill. It
says:

An Attorney General of a State may not enter into a
contingency fee arrangement for legal or expert witness
services related to a civil action under this section.

I oppose inclusion of this language in the bill. As an attorney
general, I was involved in Rhode Island in a very significant piece of
litigation which is now successful. We have won the jury case. It was
filed on behalf of tens of thousands of Rhode Island children who
either had been poisoned by lead in paint or were going to be poisoned
by lead in paint if nothing was done. Without the ability to bring in a
significant law firm to support my office's efforts, we would have been
simply blown out of the litigation by the blizzard of dilatory tactics,
by the paper blizzard that defense attorneys can specialize in. I can
recall being forced to chase down a witness list of 100 witnesses to
take depositions, not one of whom was called as an actual witness. I
believe it was an effort to create a wild goose chase, to stretch our
resources, to try to make these kinds of cases painful to attorneys
general who might dare bring them. The ability of a State to authorize
its attorney general or recognize the inherent authority of the
attorney general to enter into these contingency fee agreements is an
important part of that State's own law. Simply put, Congress has no
business telling elected State attorneys general what kind of contracts
they can or cannot enter into which would be perfectly legal under
State law.
I am especially surprised to see what appears to be significant
Republican support for this amendment since it contradicts a very basic
principle--federalism. Congress ought to let the States, whenever
possible, govern themselves. As a former State attorney general who has
had this experience of taking on powerful corporations with essentially
unlimited resources, I believe strongly that State attorneys general
should not have their hands tied by Congress so that they cannot
aggressively pursue and punish corporate wrongdoing on a level playing
field. That is all they ask for.
I will oppose the Vitter amendment for similar reasons. This
amendment requires State taxpayers to pay the legal fees and costs if a
manufacturer prevails in a consumer protection suit brought by a State
attorney general. This appears to be an effort to weaken this important
bipartisan legislation. First, it would obviously discourage State AGs
from bringing consumer protection cases in the first place. If it looks
as though something went wrong with the case, you would have to find a
way to fund your opponent's legal fees. Second, it places an
unreasonable burden on State taxpayers. Why, for instance, should the
taxpayers of Rhode Island have to cover the legal fees for an out-of-
State, possibly even an out-of-the-United States foreign company that
has been charged with violating our consumer protection laws?
As a former State attorney general, I well understand that these
amendments will have a significant effect, diminishing the ability of
State attorneys general to enforce consumer protection laws. If these
are good consumer protection laws, we want to see them enforced. We
don't want to discourage those officials charged with their
enforcement.
I urge my colleagues to vote against the amendments of my friends
Senators Cornyn and Vitter.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Madam President, before I make my remarks on the pending
amendment, I ask unanimous consent to speak for 4 minutes in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.

911 Calls

Mr. STEVENS. Madam President, 911 calls are a lifeline for those in
danger and essential for our public safety personnel to respond quickly
to emergencies. Public safety communications are a priority for Senator
Inouye and myself as we work together on the Commerce Committee. In
1967, the President's Commission on Law Enforcement and Administration
of Justice recommended that a single number be established to report
emergency situations. AT&T established 911 as the emergency code
throughout the United States.
I come to the Senate today to speak about one of my constituents, a
4-year-old named Tony Sharpe. He is a preschooler in North Pole, AK.
When his mother collapsed and lost consciousness during a gallbladder
attack, Tony knew to call 911 because his grandmother had sent him a
children's book called, ``It's Time To Call 911: What To Do in an
Emergency.'' Tony called 911 and his mother received emergency medical
help. Tony proves that proper education about 911 can help save lives.
As a matter of fact, Tony, again, in another emergency, his mother had
called 911 when they lived at another location. Once again, he had the
privilege of helping his mother.
This week I had the honor of presenting the E-911 Institute's Citizen
in Action Award to Tony. He sets a fine example for young people
throughout the country and Alaskans are very proud of him. Heroic
actions such as Tony's led Senator Clinton and me to introduce S. Res.
468. It designates April of 2008 as the National 911 Education Month to
recognize the need for education about 911 and make people aware of how
the system works with new technologies. Ensuring that 911 is compatible
with new communications technologies is crucial to the safety and
security of all Americans. The E-911 congressional caucus has worked to
pass legislation to improve 911 service. Last week the Senate approved
S. 428, the IP-Enabled Voice Communications and Public Safety Act. This
act will require communications services to provide customers with 911
access and establish a framework for IP-enabled

[[Page S1579]]

voice service providers to coordinate with public safety entities. It
also ensures that the next generation of 911 systems reach rural
America and are available to Americans with disabilities.
The Commerce Committee has worked on this bill for several years. I
look forward to working with the House to send this bill to the
President as soon as possible. We want to continue to ensure that our
911 system keeps up with changing communications technology and that
Americans of all ages know help is only a phone call away.

Amendment No. 4094

If I may, I want to say I am pleased to be here when the statement
was made about the amendment of Senator Cornyn. I have been practicing
law for a few years; as a matter of fact, for well over 50. I do
remember several instances where we had to have counsel and expert
witnesses. The difference here is, what Senator Cornyn is saying is a
contingent fee arrangement as an attorney general enforces Federal law,
a decision of the Consumer Product Safety Commission. We want them to
do that. But if they need expert witnesses or they need outside
counsel, they should make an agreement with them. If they succeed and
get the decision they seek, they will be entitled to recover those
costs under the bill we have before us. Reasonable costs will be
recovered. But a contingent fee to be charged by an outside counsel or
by an expert witness means that if the attorney general is successful
without regard to whether those people are used, they will get one-
third, whatever it is, contingent recovery from the defendant.
This bill does not contemplate that there is going to be an award of
damages in the sense of a normal damage type case. This is an action
authorizing the attorney general to enforce a decision and make that
decision applicable immediately within his or her State. We are seeking
an outreach for enforcement, not an outreach for getting damages,
particularly for utilizing the services of buddy-buddy lawyers or
buddy-buddy expert witnesses to get money from defendants as we seek to
enforce the decisions of the Consumer Product Safety Commission.
I support the Cornyn amendment because I do not like the concept of
contingent fees involved in expert witnesses or outside counsel when it
comes to this type of enforcement of a Federal decision. It is a
decision of the Consumer Product Safety Commission. It should not be
the basis for recovery based on contingent concepts in this matter. I
do want to make certain that everybody understands the Cornyn
amendment. If it is not properly drafted, I urge that it be changed so
that there be no question about the right of an attorney general to
recover the cost of the expert witness or recover the cost of the
outside counsel if it is necessary for the attorney general to have
one. But I do not want to see contingency concepts entered into this
type of arrangement.

I was in private practice involved in plaintiffs' litigation. I
understand full well the concept of contingent fees. They have been
very useful in the sense where an attorney takes on a case and
represents a client and, in effect, will do so without any compensation
at all if they lose. But when they win, they share in that success by
having their fee based upon a contingency rather than upon an agreement
based on an hourly basis or a retainment basis.
But this is not that kind of situation. This is for an attorney
general--an official of the State--giving them, at their request, the
authority to enforce the Consumer Product Safety Commission's decisions
in their State immediately rather than wait for someone to come from
the Consumer Product Safety Commission to their State and take action
against those who should abide by the decisions of the Consumer Product
Safety Commission.
I support this entirely. It broadens the concept of enforcement. That
is what we are seeking, that for decisions of the CPSC, to have
enforcement available in 50 States immediately, if the attorneys
general wish to do so. That will mean taking these toys and other
things off the shelves immediately. But it is not the kind of situation
that requires or should need an expert witness.
Beyond that, why would someone need an outside counsel on a
contingent fee to enforce what has already been decided by the CPSC?
All that is necessary is action within the State giving an order to
give the attorney general the authority to go take stuff off the shelf
or to tell the manufacturer to cease and desist. That is not a
situation that involves a normal plaintiff litigation opportunity.
So I do urge particularly the lawyers in this Senate to understand
what we are doing. We are not creating a contingency-type litigation
field. We are only creating a situation where enforcement of the CPSC's
decisions are capably extended to 50 States immediately upon a
decision, which I think is going to help children. It is going to help
the parents.
It is not a situation that requires the employment of outside counsel
or expert witnesses. But if some situation arises where it is necessary
because of a challenge to the defendant, then the attorney general can
employ them, can recover the amount in terms of both the attorney's
fees and the expert witnesses on an agreement basis, not on a
contingency basis.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Madam President, I thank Senator Stevens for his comments
on the Cornyn amendment.
I oppose the Cornyn amendment for several reasons, although I must
say Senator Cornyn has been very fair in his dealings on this
amendment. We have sat down with him. I have talked to him several
times on the Senate floor. But let me give you a few reasons I oppose
this amendment. I know some other Senators want to come and speak.
First, we have to remember what we are doing in the context of this
legislation. We have drafted a bill that contains a provision where the
State attorneys general can enforce what CPSC says. We made it very
clear in this statute that the State AGs must follow the CPSC. They
cannot get out in front of the CPSC.
One of the concerns by some in the business community, in fairness to
them--not all but some in the business community--is where they have
had the concern that there are going to be 51 standards; that it is
going to be a patchwork, a crazy quilt of AGs running around out there.
That is not what we are doing in this legislation. I believe we drafted
the legislation very clearly, where the attorneys general must follow
the CPSC. The CPSC remains in the driver's seat. That is very
important.
The second limitation on the States in this legislation is that the
State AGs can only pursue injunctive relief. In layman's terms, what
that means is there are no money damages. They can only pursue
injunctive relief. If you think about it, given the nature of what we
are talking about, I think it is going to be the rare exception when a
State would ever want to use outside counsel because by the nature of
what we are talking about, if they found some dangerous product that is
in circulation in their State, they--in my experience as attorney
general--probably will approach that business, and probably that
business will immediately respond by taking corrective action. That is
probably what happens 99 percent of the time because the company does
not want the bad publicity. They do not want the legal headache. Once
you point out to them they are in violation of some Federal law, they
are going to pull those products off the shelves, whatever the case may
be. So it is going to be very seldom used.
But in the event the company does not do that, in every case I have
ever heard of--and I used to be the attorney general of my State of
Arkansas--in every case I have ever heard of, when the attorney general
sues--excuse me, has to hire outside counsel to do it--those are
complicated and expensive and in some cases long-term cases.
This is not one of those kinds of cases. These kinds of cases will be
that when they find some violation in their State, they will want to
act quickly. They will not want to have to go through maybe an RFP
process. Or in our State, we had a statutory process we had to get
signed off on by the legislature, signed off on by the Governor. All
that takes time; you have to negotiate a contract; you have to bid it.
I am going to tell you right now, most

[[Page S1580]]

States are never ever going to use outside counsel when it comes to
trying to enforce CPSC rules.
Another reason--and this is just a practical reason, where the rubber
meets the road--they are not going to pursue outside counsel to help
them because it is injunctive relief only. In injunctive relief cases,
there is no money, so there is no way to pay for the litigation. I
think it is going to be very seldom used.

Now, I have had brought to my attention--at least one and there may
be more--fee agreements that have been negotiated where there is some
sort of contingent fee based on injunctive relief. Again, I have never
heard of that. I do not know how you enforce that. If you do a
contingent fee based on some value of injunctive relief, that money is
going to have to come out of the State's hide. It is not going to come
out of the defendant in the lawsuit.
So there, again, I think people are concerned about this, and I do
not doubt their sincerity but, really, I think you are going to see
this happen very seldom, if ever.
The last couple of things I want to say about the States attorneys
general before a couple of my colleagues come and talk on this bill and
other matters are, we have to remember who the State attorneys general
are. They are elected officials. They were elected by the same people
who elected us. The people in their home States trust them. They like
the fact that the attorney general is out there looking after the
public interest. They like the fact that the attorney general is
looking after public safety issues. I will guarantee you, they like the
fact they are out there making sure unsafe toys are taken off the
shelves. So the people of the States, they have elected the attorneys
general to do things such as this.
My experience in Arkansas and in talking to other AGs around the
country is the people in those States have a high level of trust and
confidence in their attorney general. And they know--we may not always
understand this--they know the attorney general will not abuse this
right they will be gaining under our Senate bill.
This Cornyn amendment smacks of micromanagement. I understand what he
is trying to do. I appreciate it and I respect it. Like I said, I do
not think you are ever going to see any contingent fee cases anyway.
But regardless of that--maybe you will under some circumstances--let's
allow the States to make that decision.
Again, almost all these States have some sort of a legal process they
have to go through before they can hire outside counsel. Let's let the
States do it. These State AGs in most cases are elected by the people
of the State. There are a few who are not. A few are appointed by the
Governor; appointed in one case by the State supreme court. But,
nonetheless, let them make that decision. We do not need to micromanage
this. Let them do what they believe is in the State's best interest.
That is what this bill is all about anyway.
So I oppose the Cornyn amendment. But I certainly appreciate Senator
Cornyn reaching out in the manner he has to work with us on this
legislation.
With that, Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Madam President, I ask unanimous consent to be
recognized to speak for up to 10 minutes and ask that the time not
count against the Cornyn amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. MIKULSKI. Thank you very much, Madam President.
First, I congratulate the manager of the bill, the Senator from
Arkansas, Mr. Pryor, on the outstanding job he has done to develop a
modern framework for consumer product safety.
There was a time when I was the appropriator for the Consumer Product
Safety Commission. Also, the Consumer Product Safety Commission is
located in my State. I know what a consumer product safety agency does,
I know what it should do, and I know what faithful, independent civil
servants would want to do if they had the right leadership and the
right authority.
I believe what the Senator from Arkansas has done is modernize the
consumer product safety framework from when it was originally invented
in the 1970s. Technology has come a long way. Products are more
complex. Imports are on the rise. We know we need to modernize if we
are going to protect Americans.
I view what the Senator from Arkansas has done as an act of homeland
security because what is it homeland security does? It protects the
American people from anyone who has a predatory intent toward the
United States. I believe if you put lead in children's toys, if you
knowingly look the other way when you make the blood thinner called
heparin--that is a lifeline to so many people with heart disease--let
me tell you, if you know you did it, and you know it is coming to the
United States, or you are making something in the United States,
standing up to protect the consumer is exactly an act of homeland
security, and I congratulate the Senator in doing it and the bipartisan
coalition he has put together. So he can count on me to support the
bill.
But like any good idea, it can be improved. That is why I am here
today. I have an amendment I wish to discuss that requires any food
that comes from a cloned animal or progeny to be labeled. In other
words, cloned animals have now been approved by the FDA to be safe for
human consumption, even though most Americans actively oppose cloning
and scientists say we should monitor it.
I have always taken the position that consumers have a right to know,
they have a right to be heard, and they have a right to be represented.
Yet when we talk about cloned food entering the marketplace, if it
enters the marketplace, it has been deemed safe by the FDA, but when it
comes to your table, to the restaurant, to school lunch programs, it
will be unidentified, it will be unlabeled, and it will be unknown to
you. Well, I find that unacceptable.
Here we have a picture of Dolly. Sad, isn't it? But nevertheless,
Dolly is the first cloned animal. Dolly, or cows, or other animals,
have been deemed safe to enter our food supply. So you could walk into
a restaurant and you could have a ``Dolly-burger.'' You could go to a
fast food chain or maybe that local malt shop that has so many fond
memories for you in Missouri and you could have a ``Dolly milkshake.''
You could have ``Dolly in a glass.'' You could have ``Dolly on a bun.''
You could have ``Dolly on the table.'' You could have ``ground Dolly,''
``pattied Dolly,'' ``roast Dolly,'' ``pot roast Dolly.'' But any way
you have Dolly, you would not know you were eating Dolly. I say that is
not acceptable.
What I wish to do, if appropriate, is offer an amendment to the
consumer product safety bill, even though it is regulated by the FDA--
and I acknowledge that--that would label them as being from cloned
animals or their progeny.
Now, in this bill, we look out for toys, strollers, appliances and
all of that is right and I salute my colleague, as I have said. But I
also wish to look out for the food we put on our table.
People say: Well, Senator Mikulski, hey, the FDA approved it. Well,
the FDA used to be the gold standard, but we have heard ``it is safe''
for too long. We were told asbestos was safe, but I have men who worked
in the Baltimore shipyards who traded in their lunch bucket to carry an
oxygen tank because of the lung disease they have. We were told DDT was
safe. Do you want to be sprayed with DDT? Then there were people who
said thalidomide was safe. No pregnant woman would take it today. Then
Vioxx was safe. Would anyone with a heart condition or cholesterol want
to take it?
So there are a lot of flashing yellow lights around FDA. Where are
they the weakest? In postapproval surveillance. But you can't surveil
unless you know there is a problem with a product.
The National Academy of Sciences said cloned food might be safe, but
the science is too new. We need to monitor it. But you can't monitor it
unless you know where it is. That is why I am for labeling. Labeling
would tell us where the food is and we could do that postmarket
surveillance.
I don't know why there is an urgency to do this--to have cloned food
enter the marketplace. What labeling would do is it would give
consumers the right to know that it is there. It would allow scientists
to monitor. Also, it would protect our export markets.

[[Page S1581]]

I have talked about why it would be good science to have labeling so
we can monitor and why consumers want to know, but what about the
export deal? Well, you know what I worry about? I worry about our food
being banned from exports because they don't know if cloned food is
coming into their country.
There are those who already called our genetically altered products
``Frankenfood.'' They call it Frankenfood, and they don't want it to
come in.
Our European trading partners have exhibited consistent concern about
genetically altered products. My State exports food, particularly
chicken. We are a big chicken State and chicken-producing State. We
share that with the Senator from Arkansas. It has helped save our
agricultural interests down there. So I want us to be able to export,
and that is why I want whatever is cloned or its progeny to be labeled.
While we see Dolly in this photograph, I have to wonder what cloned
food accomplishes. We don't have a shortage of food in our country. We
don't have a shortage of milk in this country. For those who want to
produce Dolly, we can't stop it, but we should stop the effort to put
cloned food into the food supply without labeling and without informed
consent. At the appropriate time, I will offer this as an amendment.
At this time, I wish to again thank my colleague for the wonderful
job he has done. I am glad to be part of the effort. We need more fresh
and creative and affordable solutions such as the Senator has done.
I yield the floor.
Mr. PRYOR. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. PRYOR. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. Madam President, I ask unanimous consent that during this
quorum call, the time run equally against both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DeMINT. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4124

Mr. DeMINT. Madam President, I want to speak for a few moments on my
amendment No. 4124, which focuses on section 31 of the underlying bill,
the Consumer Product Safety Commission Reform Act. This section deals
with garage door openers.
It is important, obviously, as the bill that addresses safety, to
look at issues such as garage doors. I remind my colleagues that the
whole reason for the Consumer Product Safety Commission is to evaluate
the safety of various products. When we as a Senate or as a Congress as
a whole take it upon ourselves to determine what is safe and what is
not, we basically violate the principle of what we are trying to do--
particularly when we get into even more detail, where we attempt to
prescribe the particular technology that has to be used on certain
projects before it is deemed safe. That totally goes around the idea of
an expert panel on this commission, with the testing lab that we are
going to fund, using their expertise and resources to determine the
safety of a product.
This particular section, I am afraid, takes one particular technology
that is only used in one product in one State and says that has to be
the technology used on all garage door openers. This is something that,
as a Senate, we all need to stop at this point. The precedent that it
establishes for us to prescribe a particular technology violates
everything we are trying to do here.
Let me talk specifically about it for a few minutes. Section 31
mandates that all garage doors in the United States include a device
that doesn't require contact with an item or person, using
photosensors, while prohibiting the sale of other technologies, namely
the touch technology, in the United States.
Most new garage doors in this country--automatic garage doors--use a
technology where if it touches something on the way down, it stops. It
generally uses the pressure of about 15 pounds.
Specifically, the section states:

Notwithstanding section 203(b) of the Consumer Product
Safety Improvement Act of 1990 . . . or any amendment by the
American National Standards Institute and Underwriters
Laboratories, Inc. of its Standards for Safety-UL 325, all
automatic garage door openers that directly drive the door in
the closing direction that are manufactured more than 6
months after the date of enactment of this Act shall include
an external secondary entrapment protection device that does
not require contact with a person or object for the garage
door to reverse.

Keep in mind that it has been deemed safe to use the technology that
is being eliminated by this bill. The language explicitly says ignore
the experts at the Underwriters Laboratories. This effectively requires
all garage doors to include a photosensor at the bottom of the door
that reverses the door direction.
Why is this a problem? This provision puts Congress in the position
of picking and choosing winners and losers in a highly technical area
of safety regulation. No Senator has the expertise to determine what is
a safe garage door technology. Most of the Members of this body are
lawyers or businessmen, physicians and veterinarians, and we should not
substitute the judgment of Senators who, by and large, have no
technical background for the expertise of the engineers at the
Underwriters Laboratories. By legislatively mandating that only one
technology is safe, we are doing just that--requiring garage door
manufacturers who sell garage doors to include these devices,
increasing the cost to consumers, and it discourages innovation in the
future. If we say this is the technology that has to be used, then the
chances of new technology which improves safety and convenience in the
future are diminished. Legislatively mandating that only one type of
technology is safe enough for us in the United States will also help
certain companies at the expense of others and discourage innovation in
one of the areas where innovation is most important and should be
encouraged, which is consumer product safety.
This will mandate away free market competition. It will boost the
sales of companies that sell this required technology while hurting the
sales of those that do not.
The Door and Access Systems Manufacturers Association, which is an
association representing garage door manufacturers, recently voted on
whether they would support this provision. They voted 14 to 1 to oppose
the provision. I will let you guess who the one vote was that voted
against it. It was Chamberlain, the company that makes the technology
that is required in this legislation.
The inclusion of this provision in the Consumer Product Safety
Commission Reform Act represents why the American people do not trust
Congress. It represents Washington politics as its very worst. After
the experts approved a competing technology for sale in the United
States, this one company, Chamberlain, retained a high-powered lobbying
shop in Washington and paid them in excess of $140,000 to secure
inclusion in this provision. Because of the connections to the lobbying
firm, it was able to secure proposed Federal legislation that would
protect its company from competition.

Is the technology that the bill mandates the only safe technology?
Not at all. According to the experts at Underwriters Laboratories, the
technology the bill mandates is safe, but it is not the only safe
technology. The Underwriters Laboratories, through its standard product
certification process, has certified another technology as safe, which
does not use a photosensor but uses approximately 15 pounds of
resistance to trigger a reverse on the door.
For example, according to the Architect of the Capitol, the doors of
the Senate subway that we all ride on, which carries thousands or maybe
millions of people per year from the Dirksen to the Hart Senate office
buildings, uses touch technology. If it touches an

[[Page S1582]]

object that provides more than 30 pounds of resistance, the doors will
pop back open. The Senate daycare also uses the same technology on its
doors, which reopen if they touch an object with 8 to 15 pounds of
resistance. Thus, the technology that the Underwriters Laboratories
found safe, which this bill deems unsafe, requires less resistance than
the Senate subway doors and approximately the same resistance as the
Senate daycare doors to reverse the course.
The fact is that touch resistance technology is being used all over
our country today very successfully and safely. This bill prohibits its
use in the future. The reason it prohibits it is one of the reasons
people don't trust us here--because it is clearly not there to make
America and American products safer, but to do a specific favor for a
constituent with a lobbying firm that puts pressure here on Congress.
Why do my colleagues need to support striking section 31? As I have
said several times, I think it represents the worst of the legislative
process here, and we all know better. Congress should not use its power
to override the opinions of congressionally designated experts, unless
we have proof they are wrong. We should not promote legislation that
would pick winners and losers in the marketplace. We should not pass
legislation that would discourage innovation, especially when it comes
to ensuring we have the safest technology possible to protect our
children.
By striking section 31 of the Consumer Product Safety Reform Act,
this amendment would give the experts at Underwriters Laboratories the
final say in determining what technologies are safe for sale in the
United States. The amendment would not give a competitive advantage to
any company, and it does not strike any safety provisions. It simply
restores the law to where it is today. It would only require that the
experts decide what technologies are safe in the United States, which
is the purpose of the whole bill. We give more funding to the
Commission. We give them a more sophisticated testing lab to use. We
are empowering the best experts in the country. It is not our job to
come in and try to give one company an advantage because it happens to
be in the State we represent.
Mr. President, I hope all of my colleagues will support the amendment
to strike section 31 from the underlying bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas is recognized.
Mr. PRYOR. Madam President, let me say that, again, I thank the
Senator from South Carolina for being very constructive during this
process and working on this legislation this week. We sat with him and
his staff on a number of occasions to try to work through language in
amendments. He has been a delight to work with on this matter. I
appreciate that.
Let me talk about this garage door provision that is in the Senate
bill. I think it is important for colleagues to understand the history
of why, and why it is in there. You can look at existing law and,
basically, what the Congress did years ago was to more or less allow
Underwriters Laboratories to set the safety standards for garage doors.
For years and years, there was a two-part safety standard. One dealt
with pressure for a motorized garage door that, when it hit a certain
level of pressure, would stop and reverse, and also some sort of
noncontact systems, where if someone were to pass under the garage
door, such as a baby crawling or whatever it may be, it would trigger
these sensors and the door would never come down and touch in the first
place. That has been the standard in this country for a long time.
But what has happened over the last year or so, UL has changed their
standards and they have actually gone, in my view, backward by saying
this pressure sensor is enough. They have updated the standard--and I
may be overgeneralizing that a little, but they are basically saying
you don't need that second safety mechanism. We all probably remember
the years of the 1970s and 1980s when it was common for garage doors to
kill people. It is not as common anymore, and power garage doors are
much more common today than they used to be.
In section 31, we tried to not just restore the old law, but we tried
to enhance it and improve it. This is what it says:

All automatic garage door openers that directly drive the
door in the closing direction that are manufactured more than
6 months after the date of enactment of this Act shall
include an external secondary entrapment protection device
that does not require contact with a person or object for the
garage door to reverse.

This is a technology-neutral provision. Many companies make this
laser technology we have all seen. I used to have one on my garage door
where there is a mechanism that shoots a little beam of light. When you
interrupt that contact somehow--I don't know exactly how it works--it
triggers the door, stops it, and it opens. That is actually a fairly
cheap piece of technology. I have heard estimates of that technology
costing something around $10 per door. I am sure it depends on the
brand, who installs it, where you buy it, et cetera. Roughly, as I
understand, it is about $10 per door. It is very cheap, very
inexpensive, very effective. That is the traditional laser technology.

As we might expect in today's world, there are all kinds of new
emerging technologies. We do not know what the future holds. We do know
that this technology the automakers are putting on their bumpers now,
the reverse indicator, the backup warning--when you are backing up your
car, some cars that have this technology will beep when you get too
close to an object behind. Apparently, as I understand it--do not ask
me to explain it in any detail--apparently, that is some sort of radar
technology. Again, it is pretty cheap and pretty effective. Supposedly,
the garage door people are coming up with some sort of new radar
technology that some believe may be better or may be a good
alternative, at least, to the laser technology. Apparently, there are
other types of motion sensors. Again, I don't know all the technology,
and I don't know how the technology is going to emerge.
What we are trying to do with this provision in this act is, quite
frankly, have a little belt-and-suspenders here. We want to make sure
we have two safety mechanisms on doors. That has really been, again,
what Underwriters Laboratory set as the U.S. standard for years and
years. Now they reversed that standard. I think they are going in the
wrong direction. They are going back to basically one type of safety
device, not having two per door. This is a stronger safety provision
than what is currently under U.S. law.
Another point I wish to mention is there has been some discussion
that this might set a bad precedent for us, the Congress, to set a
safety standard; isn't this what CPSC is supposed to do? The answer is
yes, this is what they are supposed to do, but there are many occasions
where the Congress has specifically laid out safety standards. I will
give a few: lawn mowers; garage door openers; bicycle helmets; a toy
that has been banned called Lawn Darts that was unsafe, and Congress
actually banned it; lead-lined water coolers. There are safety
standards Congress has mandated on refrigerators and other products.
Certainly, we authorize CPSC to come up with a lot of safety standards,
and they should; they are the experts, but there have been many
occasions in the past where Congress has laid out a safety standard for
a specific product or specific item.
Here, again, this approach we are utilizing in section 31 is a little
bit redundant. With safety, it is not all bad to be redundant. It is a
little bit of belt-and-suspenders. Again, it basically would
reestablish a previous standard in the United States that when you have
a power garage door, there would be some sort of pressure mechanism
with the motor, that when it feels the right amount of pressure, it
will stop and reverse.
Also, there will be some, as it says, external secondary entrapment
protection device. In other words, it would be separate from the motor.
This is a very technology-neutral, very vendor-neutral phrase, and we
will let the industry sort out what an ``external secondary entrapment
protection device'' may mean because there may be technology on the
drawing board today we know nothing about, maybe designs of these
garage door systems about which we know nothing. Nonetheless, we want
to make sure we have that double protection.

[[Page S1583]]

Mr. DeMINT. Will the Senator yield?
Mr. PRYOR. Absolutely.
Mr. DeMINT. Madam President, I appreciate the Senator's comments. I
do wish to make it clear that while Congress has set many safety
standards, it is very unusual for us to select and prescribe the
technology that will be used to achieve those standards. For instance,
a bicycle helmet has to take a certain amount of impact, but we do not
prescribe what that helmet is to be made of. We do the same with
automobiles and impact. We need to tell the safety labs, the
manufacturers, what standards they have to achieve, but when we start
picking the technology, we get way out of bounds.
I have the UL standards in front of me. I just need to clarify what
my colleague from Arkansas said because the standard does require a
primary reversing system as well as a secondary reversing system. So
currently, most garage doors are going to have a system in the motor,
and if it senses resistance, it will reverse, and there needs to be a
secondary system. The way that is done today is either by some photo
type of mechanism where if something crosses the path between the door
and the bottom, it stops and reverses. That is one way. The other way
is pressure sensitivity along the bottom of the door itself. But what
the underlying bill does--the UL standard is it has to be an equivalent
secondary safety measure; it has to be the photo type of system or the
touch system. But this bill says it has to be the photo system.
Frankly, from what we understand from talking with some consumers,
there is not necessarily a lot of satisfaction with just the photo
system because a door that goes down can be opened by a leaf blowing
underneath it. But the touch system has been deemed just as safe by the
Underwriters Lab, but it does not have the same inconvenience.
What we are asking is that we stick to the standards that are here,
that we have a primary and a secondary reversing system but we allow
the industry to pick whether it is a photo type of reversing system or
a touch system, and let the UL system we have set up, the Consumer
Product Safety Commission, determine which is safe and which is not.
This bill says that only one way is safe for the secondary reversing
system. Actually, the industry has already proven that there are other
safe ways to do it which we need to continue to allow.
Again, I thank my colleagues for the opportunity to debate. I
appreciate the intent of this amendment, which is to make garage doors
safer, but I think we can leave the technology to the Consumer Product
Safety Commission.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Madam President, I rise today to oppose the DeMint
amendment No. 4124 and explain why the garage door safety provision in
the Consumer Product Safety Reform Act is really important.
Garage doors inherently pose a risk to families, particularly small
children who could be crushed by the doors. The doors often weigh more
than 300 to 400 pounds. Many families open and close them a lot of
times during the course of a day. The 12 inches between closing the
door and the floor, they call it the crush zone. A tremendous amount of
force is generated as gravity pulls this 300- or 400-pound door down
and it starts to come to the floor of the garage. This crush zone is a
real risk for children, particularly small children. Small children
live close to the ground--we all know that--and they are always in the
crush zone when they are near a garage door.
For some time, this has been a serious risk. In the 1970s and 1980s,
67 deaths caused by garage doors were reported to the Consumer Product
Safety Commission, and there were even more serious injuries. Most of
these were caused by entrapment under the door.
Congress stepped in and passed legislation in 1980 that included a
garage door safety standard requiring that doors have what is called an
external secondary entrapment device. We directed Underwriters
Laboratory to modify its standards. We gave it the force of a product
safety rule.
The primary device most often is the drivetrain of the garage door.
When there is an obstruction in the door's path, the drivetrain
reverses. So if the door is coming down and senses something, it goes
back up. In other words, when the door hits a person or object, the
drivetrain will reverse. Unfortunately, this primary device does not
always do the job adequately. That is why Congress required a secondary
device to protect consumers.
The secondary device deployed by garage door installers for the past
15 years has been an optical sensor. This is technology that anyone who
has owned a garage door over the last 15 years is familiar with. If you
do not know it, go home and take a look. When your garage door comes
up, look down at the bottom near the guide on one of the sides of the
garage door, and you will see a tiny little photosensor light. It is
like a beam of light. It is trained on another receptor on the other
side of the garage door opening. It creates this photosensor. If you
walk across that between those two devices, you trip it, and the garage
light usually goes on, and the garage door knows someone is there,
don't let the door come down.
We are trying to make this standard so no matter what kind of
mechanical device you have that brings the door down, you are always
going to have the secondary noncontact sensor. The door does not have
to hit me in the head to turn around. I can trip it by walking through
that doorway and breaking that photosensor light.
Senator DeMint wants to eliminate that safety requirement. He
believes it is unnecessary. First, let's put it in perspective, if we
can.
How much do you think those little light devices cost? The answer?
Five dollars. That is what it costs to buy those two little
photosensors, one on each side of your garage door.
How much does a garage door cost? It is about $200 or $300 for the
device to move it up and down. You can pay up to $1,000 for the whole
door; $5 for the photosensor to save the child who is walking into the
garage versus the $1,000 for the door. Is it worth it? If it is my kid,
it is worth it. If it is my grandson, it is worth it. If it is about
the neighbor's kid whom I dearly love, too, it is worth it.
Well, Senator, you didn't tell us how much it costs to install it. It
turns out it costs $15 to install it--$20 total cost for this safety
device on a $1,000 garage door, and Senator DeMint says we don't need
it.
Underwriters Laboratory that he quotes, in fairness to him, has been
in the midst of deciding whether we move away from the photosensor to
not requiring it. But they come out with a minimum requirement for
safety.
What I am suggesting is, it is worth 20 bucks to every garage door
owner and installer in America and to every family to have the peace of
mind of this safety. Is it worth one kid's life, $20? I think it is
worth a lot more. I think it is worth a lot for us to include it, and I
am glad it is in the bill.
The secondary device deployed by garage door installers, as I said,
for 15 years has been this optical sensor. It is not new, questionable
technology. It works. I have seen it work on my own garage in
Springfield, IL. I wondered why the garage door wouldn't come down.
Finally, I figured it out. The optical sensor lights were not tracking
on one side. A simple little adjustment, and everything worked fine.
The minute I crossed those lights, the garage door mechanism knew not
to close. When an object breaks the beam, the garage door reverses.
Since this requirement has first been put into effect, during the
last 15 years, injury and fatality rates by garage doors have dropped
dramatically--dramatically. An ounce of prevention, that is what we are
talking about here, a $20 expense to make sure a child is not injured
or crushed by a 400-pound garage door coming down.
The Underwriters Laboratory standard for garage doors was modified in
the late 1990s to allow for a new type of technology to serve as the
secondary device. That technology, like the primary device, required
direct contact. The problem with this standard is it relies entirely on
contact when an effective, inexpensive system that does not require
context exists.
Underwriters Laboratory is a fine organization. I have worked with
them over the years, and I really believe they do a good job. But they
do not provide maximum protection. They provide minimum protection.
This bill, asking for another $5 device and $20 total cost, is going to
provide even more protection for families.

[[Page S1584]]

Who supports this bill? Who supports this amendment that Senator
DeMint wants to strike? The Consumer Federation, the Consumers Union,
U.S. PIRG, and Public Citizen. Those four are the leading groups on
consumer safety in America today. None of them work for any companies.
They work for the common good, for families across America, trying to
make sure safety and consumer interests are protected. They joined in a
joint letter saying they support the language that is both appropriate
and protective of consumer safety and that a noncontact sensor is a
valuable safety requirement.

I know my friend has offered this amendment in good faith, but I
would tell him, I believe that requiring this photosensor and
protecting kids who might wander into this crush zone is not too much
to ask. I would rather vote for this and have somebody say it is belt
and suspenders than to have on my conscience that we walked away from
this tiny, almost insignificant cost to the garage door, than lose a
child's life in the process. That would be something which would be
hard for me to reconcile.
So I urge my colleagues to join the leading consumer groups across
America, join the cause of common sense, and be willing to put a $20
cost onto a garage door and possibly protect the life of an innocent
child.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. DeMINT. Madam President, I would like to clarify some of the
facts my colleague is talking about because there is nothing in my
amendment to strike or prohibit the use of this phototechnology. If
that is deemed the safest by the manufacturer, then certainly it can be
used. But the secondary reversing device that uses touch technology has
had no injuries. It has been deemed safe as well. In the future there
are likely to be even better and safer and maybe even more economical
ways to make garage doors safe.
The reason we need to strike this provision is because it limits
consumer safety to one idea--one idea that exists today. It prescribes
for the UL laboratories that it has to be done this particular way
instead of us saying, as a Congress, it has to be safe. If we want to
prescribe those standards, that is fine, but I am afraid we are
distorting the information. We need to allow the opportunity for
innovation in safety in all areas.
There is nothing that says this phototechnology is any safer than the
touch technology we have talked about, which is another option being
used by garage door companies today. So the argument to keep this in is
totally parochial. It is not about safety for children, which has been
spoken about today.
We believe the current standards that have a primary and secondary
reversing system are important and that we need to encourage
manufacturers to innovate on the safest ways to make that happen and
that the labs we have put in charge of determining safety can look at
these different ways to make garage doors safe and tell us which ones
are the safest and tell consumers which ones are the safest. It makes
absolutely no sense, and it is a terrible precedent for us as a Senate
to come in and say: This is the technology that always has to be used
in order to be safe, and we have no standard associated with it. We
say, this is the technology.
Our job is to set the safety standards and say products should be
safe, not to act on behalf of companies that happen to be in our States
and say you use their technology or you don't use any at all. That is
not what my amendment says. My amendment says: Find the very best
technology, make it as safe as possible, but don't prescribe how that
has to be done.
Madam President, I yield back.
Mr. PRYOR. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. PRYOR. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. Madam President, I ask unanimous consent that the vote in
relation to the Cornyn amendment, No. 4094, as modified, occur at 4:45
p.m., with the provisions of the previous order remaining in effect.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. PRYOR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. PRYOR. Mr. President, I wish to address my colleagues here for a
minute and tell them about our status and what we are trying to
accomplish this week. Of course we are on the Consumer Product Safety
Commission reauthorization bill.
Again, I thank all my colleagues on both sides of the aisle for their
spirit of cooperation that we have seen all week. It has been
exemplary. I appreciate it. I have told several of you that privately
and publicly. It has been great.
Our status is right now we are going to have a vote at 4:45 on the
Cornyn amendment. It deals with attorney's fees with regard to
attorneys general. We are going to have a vote on that.
Then we would love to set up more votes tonight. We have several
amendments that have been filed that are pending. It is not a long
list, but we do have several. We would love for Senators, if at all
possible during this vote, to come and talk to me or talk to Senator
Stevens or talk to our staffs about how you wish to see your amendments
sequenced.
I think it is very realistic that we can finish this bill tomorrow.
At some point tonight, we are all going to sit down and begin to work
very diligently on a managers' package. We have had several amendments,
noncontroversial, or that we have made modifications to. There has been
a lot of progress made. I know sometimes when you watch the Senate you
wonder if anything is going on. A lot of progress has been made. Again,
I thank all of my colleagues for that.
So we are going to sit down tonight and work through a managers'
package. If a Senator wishes their amendment included in the managers'
package, please let me or Senator Stevens know. We are going to be
working on that very diligently tonight. That is where we stand.
We encourage people, if they want votes for their amendments, to
please let us know. We encourage people to come in and talk about their
amendments. We encourage Senators to work together and either try to
get their language included in the managers' amendment or have a vote
on it tomorrow or tonight. We would love to have some more votes
tonight. We think there are at least one, two, or three that we may be
able to vote on tonight, realistically. So I wanted to alert Senators
to that fact.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California is
recognized.
Mrs. BOXER. Mr. President, if I can engage the Senator from Arkansas
for a minute to clarify. I do have this amendment that is germane that
deals with a chemical that has shown up in microwave popcorn and has
proved to be fairly deadly to workers; in one case at least that we
know about, in consumers.
I understand we are having a vote in 5 minutes. Would it be amenable
if I spoke about this amendment? I believe it is at the desk. The
amendment is at the desk. If I could speak about it until it is time to
vote. Would that be something you would encourage?
Mr. PRYOR. Yes. I have no objection to that. We have spoken on the
Cornyn amendment extensively.
Mrs. BOXER. Thank you.
The ACTING PRESIDENT pro tempore. The majority's time has expired.
Mrs. BOXER. I have the time.
The ACTING PRESIDENT pro tempore. The Senator from Texas controls the
balance of the time.
Mrs. BOXER. I am confused. Can someone explain that--I had the time.
I was recognized by the Chair--as to why I do not have the time?
The ACTING PRESIDENT pro tempore. There was a previous order
allocating 10 minutes, and the majority's time has expired.

[[Page S1585]]

Mrs. BOXER. I ask unanimous consent that I have 2 minutes before
Senator Cornyn to explain this amendment.
The ACTING PRESIDENT pro tempore. Is there objection?
Mrs. BOXER. I would add 2 minutes, if that is okay, and then I am
done.
Mr. CORNYN. Reserving the right to object, and I will not object, I
am happy to do that as long as I preserve my 5 minutes before the vote.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. BOXER. Of course that was my intent, Mr. President. I mean no
disrespect in any way.

Amendment No. 4127

I wanted an opportunity to talk about an amendment that I have at the
desk. It is germane. It would ban certain uses of a chemical that poses
very serious health risks to the lungs of consumers and workers.
In recent years, scientific evidence has mounted that a chemical
called diacetyl seriously harms the lungs of workers in factories
making microwave popcorn. I am sure you have read about it, because
there is a huge list of stories that appeared in the press about
doctors linking illnesses to this particular chemical.
Also there is documentation that says that the large popcorn
manufacturers have banned this chemical. But we do not have a ban in
law, which means it is simply not fair. We have some companies that
have banned it, but we have not acted to ban it. I think it is so
dangerous. It causes the tissue inside the lungs to get clogged and
creates scar tissue and inflammation and it leaves the victim
struggling to breathe.
That is the reason Senator Kennedy has teamed up with me on this
amendment. The severity of the lung symptoms can range from only a mild
cough to a severe cough, shortness of breath. These symptoms do not
improve when the worker goes home at the end of the day, and severe
symptoms can occur suddenly. The worker may experience fever, night
sweats, and weight loss. Doctors were very puzzled, but they finally
found a link with this chemical.
I am not going to go on. I have a lot more to say on this. I hope it
will not be necessary for us to have an argument about this, since the
large companies have already banned it. It seems to me only right that
we follow their lead and do so in law. My amendment simply levels the
playing field for all microwave popcorn makers, including importers and
small manufacturers, by banning this chemical, diacetyl. I urge my
colleagues at the appropriate moment to please support this.
I will say to the Senator from Arkansas, Mr. Pryor, if it is
possible, I hope this will not be controversial. Perhaps it could be
part of the managers' package.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Texas.

Amendment No. 4094, As Further Modified

Mr. CORNYN. Mr. President, I ask that my amendment be modified with
the changes at the desk. My modification makes clear that the expert
witness fees are part of the recoverable costs and fees that the State
attorneys general can recover. I appreciate Senator Stevens for raising
this concern to me and hope my modification is responsive to his
concerns.
The ACTING PRESIDENT pro tempore. The amendment of the Senator from
Texas has already been authorized.
The amendment, as further modified, is as follows:

On page 58, strike lines 4 through 7 and insert the
following:
``(g) If the attorney general of a State obtains a
permanent injunction in any civil action under this section,
that State can recover reasonable costs, expert witness fees,
and reasonable attorney fees from the manufacturer,
distributor, or retailer, in accordance with section 11(f).
``(h)(1) An attorney general of a State may not enter into
a contingency fee agreement for legal or expert witness
services relating to a civil action under this section.
``(2) For purposes of this subsection, the term
`contingency fee agreement' means a contract or other
agreement to provide services under which the amount or the
payment of the fee for the services is contingent in whole or
in part on the outcome of the matter for which the services
were obtained.''.

Mr. CORNYN. Mr. President, first we are told that the reason why
State attorneys general need to be explicitly authorized under this
statute to pursue these consumer complaints is so there is no risk of
runaway lawsuits, because they will be confined to seeking an
injunction in Federal court. I actually support that provision of the
bill.
Then we are told there is an objection to my amendment, which would
prohibit State attorneys general from entering into contingency fee
arrangements in order to pursue authorized activities under this bill,
that there is no reason for the amendment. Next thing I know, there is
a document circulated by the American Trial Lawyers Association arguing
the only way consumers can get access to the court is by allowing the
outsourcing of the responsibility of the State attorneys general under
a contingency fee arrangement which makes me mighty suspicious whether
this is, in fact, a Trojan horse to allow trial lawyers basically to do
the work elected State attorneys general should be doing and that
currently the Department of Justice is doing. All my amendment is
designed to do is to make sure the purpose for which the State
attorneys general are authorized--that is, to seek an injunction only--
is maintained and that it not be allowed to serve as a Trojan horse to
outsource these responsibilities. There are some very important public
policy reasons for that. No. 1, trial lawyers hired by State attorneys
general are not accountable to the public.
We have seen examples. I mentioned some in the tobacco litigation,
where there were serious abuses that could not be rectified by the
electorate when it came to holding public officials accountable. Those
public officials in some cases left office; some, such as my
predecessor, as attorney general in Texas, went to Federal prison
because of misconduct associated with those kinds of arrangements. This
amendment is prophylactic in nature. But I will tell you I am concerned
it has been mischaracterized. It will not prohibit State attorneys
general from contracting with outside lawyers on an hourly rate
arrangement under the same circumstances under which lawyers can be
reimbursed now. But it will prevent the sort of trophy hunting and the
outlandish attorney's fees that were awarded in the tobacco litigation
through these contingency fee arrangements. It is something that is
within the power of this body to correct. I hope my colleagues will
join me in passing this commonsense amendment which is entirely
consistent with the underlying purposes of the bill. I worry this is
being used as a Trojan horse for other purposes. But if my amendment is
passed, I think we can all lay this matter to rest and realize
consumers will be protected, but it will not be used as a pretext for
enriching private lawyers and political constituencies.
The ACTING PRESIDENT pro tempore. Is all time yielded back?
Mr. CORNYN. My understanding is there was 10 minutes divided. If
there is no other response, I will yield my time back, if the majority
yields back their time.
Mr. PRYOR. I yield back my time.
The ACTING PRESIDENT pro tempore. All time is yielded.
Mr. PRYOR. I move to table the Cornyn amendment and ask for the yeas
and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be.
The question is on agreeing to the motion.
The clerk will call the roll.
The assistant journal clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from New York (Mrs. Clinton), and the Senator from
Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER (Mr. Leahy). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 51, nays 45, as follows:

[Rollcall Vote No. 39 Leg.]

YEAS--51

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Hatch
Inouye
Johnson

[[Page S1586]]

Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Smith
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden

NAYS--45

Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hutchison
Inhofe
Isakson
Kyl
Lugar
Martinez
McConnell
Murkowski
Roberts
Sessions
Shelby
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker

NOT VOTING--4

Byrd
Clinton
McCain
Obama
The motion was agreed to.
Ms. CANTWELL. I move to reconsider the vote, and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.
Mr. PRYOR. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I have had a conversation with the
Republican leader--in fact, several of them. I have talked to the two
managers of the bill, Senator Stevens and Senator Pryor. We have made
very good progress on this bill. As I said when we opened this morning,
I think this is a good way to legislate. We are on this piece of
legislation. It is a bipartisan bill that the Commerce Committee spent
days of their time working on to get to the point where we are now. Is
it a perfect bill? From my perspective, it is really good. Others who
know the issue better than I may not think it is perfect, but I think
it is a pretty good piece of legislation. We have had a number of
amendments offered, and we have voted on several of them.
At this stage, there is nothing that I think we can vote on tonight.
I want the managers to work during the evening to see if there is
something we can do tomorrow constructively to move toward finalizing
this.
The Republican leader and I usually don't agree on issues such as
this, but I think it would be to the benefit of the Senate if--before
we go out tonight, I am going to file a cloture motion, just to protect
us in case it appears we are not going to be able to finish. I have
told Senator Stevens that when I file that tonight, I will say--and I
will say it here--that we can go to third reading anytime tomorrow when
this issue is over with and we, of course, won't do the vote on
cloture. If this doesn't work, then Friday we will have to have a
cloture vote. So I hope everyone understands the good intentions of the
two managers and everyone else who has been involved in this piece of
legislation.
So I will come out later tonight and formally file a cloture motion.
Until then, I hope more progress can be made on the legislation. I
think it is fair to say there will be no more votes tonight.

Amendment No. 4096 Withdrawn

Mr. KYL. Mr. President, I ask unanimous consent that the DeMint
amendment No. 4096 be withdrawn.
The PRESIDING OFFICER (Mr. Reed). Without objection, it is so
ordered.
The Senator from Arkansas is recognized.
Mr. PRYOR. Mr. President, just to reiterate what the leader said a
few moments ago, we are making great progress. Again, I thank my
colleagues on both sides of the aisle. Everyone has been very
reasonable.
My sense is that this body really wants to get this done tomorrow. I
can tell my colleagues right now that our staffs will be working,
burning the midnight oil tonight trying to put together a managers'
package. We made progress during this vote, with one or two amendments
going away.
So thank you to all of my colleagues who have been working so hard to
get us where we are today. We will continue to work. Again, if any
Senator's staff wants to come and talk to us about amendments or
something they would like to see in the managers' package, now is the
time to do it because we are about to work very hard to try to get this
bill done tomorrow.
The PRESIDING OFFICER (Mr. Pryor). The Senator from Connecticut is
recognized.
Mr. DODD. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

The Economy

Mr. DODD. Mr. President, I rose to address the Senate less than a
week ago about this present economic set of circumstances in the
country. Obviously, the foreclosure issue is a major question that is
causing serious problems all over the country. In fact, it is now
becoming more of a global issue than just a domestic issue. I know
there have been serious efforts, and I commend the majority leader and
others who have tried to put together--along with those of us on the
Banking Committee, the Finance Committee, and the Judiciary Committee--
a proposal that would offer some hope and some confidence-building
measures to grapple and deal with the foreclosure issue, which is the
epicenter, obviously, of this economic crisis we are all seeking
answers to.
I thought it might be worthwhile to take a couple of minutes this
afternoon to again urge the minority--I have worked closely with
Senator Shelby, and let me just report on a favorable note that I think
we are fairly close to having an FHA reform bill that we will be able
to adopt very quickly. While that is not going to solve all of the
problems, it is yet another piece in this economic puzzle that deserves
our attention. I am hopeful and confident we will be able to do that in
relatively short order.
I commend the chairman of the Financial Services Committee,
Congressman Frank, Barney Frank of the other body, for his work--the
work they put together on a bipartisan basis in the House--and his
willingness to compromise on this issue so that we can achieve a
proposal that would enjoy broad-based support both here and in the
other body.
This issue we are facing today is a very serious one. I hope all of
my colleagues appreciate that statement. That is not hyperbole; the
realities are there. One cannot pick up a morning newspaper--it is no
longer just in the business section; these issues are now front-page
stories with fears of growing economic dislocation, a slowdown in
our economy that we have not seen in years, with housing values falling
nationally at rates that one has to go back literally to the Great
Depression to find similar national statistics. We have rising
unemployment rates and rising inflation rates. The cost of a barrel of
oil once again is exceeding $100 a barrel. Food prices--my colleague
from Rhode Island, the Presiding Officer, pointed out the other day,
just in terms of bakeries in the country, the rising cost of wheat. The
price of wheat has risen dramatically in the country. These are
examples of what is occurring that contributes, obviously, to a
worsening economic situation in our country.

All we are hoping for here--or I had hoped for before the Easter
Passover break--is that we would be able to adopt a series of measures
that would attract broad-based support that could offer some relief,
some confidence, some optimism to people across the country. I am less
optimistic that it is going to happen in a broad sense, but I am still
hopeful that FHA reform might be adopted before we leave.
We are facing a very serious situation, and we are doing so in a much
weaker position than we were just 7 years ago, the last time that our
nation was on the brink of a recession. This is not a partisan or an
ideological statement. When the Federal Reserve Chairman, Governor
Bernanke, was before the Banking Committee last week, I asked him
whether he thought we were in a worse position today to respond to the
problems we are facing than we were when we last faced a recession in
2001. The Chairman of the Federal Reserve agreed that we are indeed in
a worse position today than we

[[Page S1587]]

were 7 years ago. He specifically said that the standard monetary and
fiscal policy tools we have to confront economic downturns are far more
constrained today than they were 7 years ago. He also said the American
consumer is facing the brunt of this economic downturn.
The incoming economic data show how serious the problem is. The
Nation's economy has slowed to a near standstill in the fourth quarter,
with overall GDP growing by less than 1 percent and private sector GDP
growing by only one-tenth of 1 percent.
The country had a net loss of jobs in January. That is the first time
we have lost jobs in over 4 years. Incoming data on retail sales has
been very weak, and most projections, by the way, by private economists
and by the Federal Reserve for economic growth this year have been
revised down sharply.
The Vice Chairman of the Federal Reserve, testifying before the
Banking Committee yesterday, indicated that the next several quarters
do not offer much hope at all that this economy is going to strengthen.
Credit card delinquencies are on the rise as consumers find themselves
increasingly unable to tap the equity in their homes to help pay down
credit card debt and other financial obligations.
Lastly, as I mentioned a minute ago, inflation has increased by 4.1
percent this year. That is the largest increase in 17 years, driven
mainly by the rising cost of energy, food, and health care. Oil prices
are above $100 a barrel, and the U.S. dollar is at the lowest point in
modern history since we began freely floating our currency in 1973.
This economic decline has been reflected in the falling stock prices,
the falling currency, and the increased volatility in the securities
markets.
Our economy is in trouble, which is to state the obvious, and the
data clearly confirms that, but we don't necessarily help the situation
by just acknowledging that. What are we doing? What steps are we taking
in this body and in the other body? What steps is the administration
taking? What steps is the Federal Reserve taking, and others, to
reverse these trends and to offer some hope?
I don't want to engage in a self-fulfilling prophecy by reciting the
data that is going on here without suggesting that we might not be able
to do some things that could help.
As I said previously, the catalyst of the current economic crisis is
the housing crisis. Overall, 2007 was the first year since data has
been kept that the United States had an annual decline in nationwide
housing prices. A recent Moody's report forecasts that home values will
drop in 2008 by 10 to 15 percent, and others are predicting a similar
decline in 2009. This would be the first time since the Great
Depression that national home prices have dropped in consecutive years.
If the catalyst of the current economic crisis is the housing crisis,
then the catalyst of the housing crisis clearly is the foreclosure
crisis. I have said that over and over again over the last number of
weeks.
What steps have we taken?
Last week, it was reported that foreclosures in the month of January
were up 57 percent compared to a year ago and continue to hit record
levels. When all is said and done, over 2 million Americans will lose
their homes, it is predicted. There are already 1.4 million homes in
foreclosure nationally, including over 14,000 in my home State of
Connecticut, according to RealtyTrac, which publishes these figures, as
a result of what Secretary Paulson himself has called ``bad lending
practices.'' These are lending practices that no sensible banker, no
responsible banker would have engaged in. Yet they did. Reckless and
careless, sometimes unscrupulous actors in the mortgage industry
allowed loans to be made that they knew many people would not be able
to afford, particularly when they reached the fully indexed value and
price. They engaged in practices that the Federal Reserve, under its
prior leadership, did absolutely nothing, in my view, to effectively
stop.
This crisis affects more families who will lose their homes. Property
values for each home located within one-eighth of a square mile will
drop by $5,000. That is another specific decline. Another statistic
which is not often quoted is that when you have neighborhoods that end
up with foreclosed properties, the crime rates go up about 2 percent
automatically. So you get declining value with increased crime rates,
and, of course, declining values and foreclosed properties mean less
property taxes coming in to local counties or communities, which, of
course, affects services, including fire, police, and emergency
services, not to mention social services. So you get a contagion
effect.
We now know it has spilled over into student loans. The State of
Pennsylvania and the State of Michigan have indicated there may be no
student loans available this year. For hard-working, middle-income
families who may be current in their mortgage obligations and who are
managing their finances well, to find out that their students, their
children may not qualify or find student loans available will be yet
another added hardship in this country.
So this matter is spilling out of control. I know from time to time
people say that is excessive language. It is not excessive at all. What
disturbs me deeply is that while I don't claim there is any one silver
bullet answer to this, and I would be the last to suggest there was a
simple package of four or five items that might help cure all of the
housing problems.
I am not saying anything that is not known by others. The troubling
data on the housing market and the economic situation is readily
available. It is being reported on a daily basis in the national media.
The question is, what are we doing, if anything, to try to reverse
these serious trends; to offer some optimism and confidence from this
body, the Senate, the Congress of the U.S., the administration, and the
regulatory bodies? What can we do to act in a responsible and
constructive manner to get the country back on the right track?
Yesterday, I chaired a hearing in the Banking Committee with
representatives of the Federal bank, thrift, and credit union
regulators. The evidence strongly suggests that they were asleep at the
switch as this crisis built and when the alarm went off, they merely
hit the snooze button. The Federal Reserve, in particular, candidly
acknowledged--and I appreciate Don Kohn's testimony--that they failed
to properly assess and address excessive risks that were being taken.
The regulators abandoned proven standards of applying good judgment
and strong supervisory oversight. Instead, they relied on models and
estimates that were being used to justify that there was no housing
bubble. These models and estimates were wrong.
What is so troubling is that questions were raised about them some
years ago, before the bubble burst, by regulators people such as Ned
Gramlich who, when he sat as a Governor of the Federal Reserve, warned
that this problem was growing. The staff at these agencies knew this as
well. Yet nothing was done. The warning flare shot into the sky by him
and others went largely ignored.
Now that this bubble has burst, the regulators are telling us they
are ``studying'' what went wrong. While studying the problem has its
place, and I appreciate that, I must say that conducting studies of the
crisis in the economy and financial markets is, of course, like
firefighters responding to a fire by picking up a book and studying how
to put out a fire rather than going and doing the job.
I think we all know we need action today, not complacency by the
frontline bank regulators. That is why Senator Shelby and I will
continue to press the regulators for the actions they are taking to
address the serious problems that our country is facing. I commend
Senator Shelby, who I thought yesterday had good and strong questions
for the regulators. The answer we got was that people were too
complacent. Many speeches were given and informal conversations took
place, but the job of a regulator, the cop on the beat, is not just to
give speeches and have informal conversations. If the staff at these
agencies knew this bubble could burst, that there were serious
problems, that Governors at the Federal Reserve Bank were warning about
this problem we are facing, giving speeches and having informal
conversations was hardly the kind of action we should have been
expecting from very important agencies charged with the

[[Page S1588]]

responsibility of seeing to it these kinds of problems would be handled
before they became as significant as they are today.
Congress, too, I think should act. Again, I am not suggesting any one
specific action, but the idea that we have no role to play while we are
watching this wave grow of people who are going to lose their homes--by
the way, the estimates are we could be looking at as many as 2 million
to 2.5 million families who could lose their homes, and the effect will
be as many as 44 million to 50 million homes as a result of the value
of homes exceeding, of course, the financial obligations on the
residences. If that is the case, and if it goes on too long, and if
unemployment rates continue to rise and energy costs continue to rise
and student loans become less available, and the cost of education goes
up, and health care continues to go up, families who would have been
able to manage owning a home under normal circumstances will have
serious trouble surviving these economic circumstances. If these
problems increase, for families that have a mortgage in excess of the
value of the property, and the home value continues to decline,
obviously, those families are going to face additional troubles.
Therefore, the problem spreads beyond just--not as if it were just 2,
but 2.5 million who are losing their homes to a much larger
constituency in this country.
So this problem is serious. We are now in another week. I have great
respect for what is going on here and dealing with the legislation at
hand. But as the majority leader said over and over again, this housing
matter is the most serious one in the country. I think the failure to
get some agreement and understanding on a package of proposals that we
could go forward in a bipartisan fashion is tragic. We will be in here
next week on the budget and then we are gone for 2 weeks. While this
may seem like academic issues to some people here, if you are that
American homeowner out there who lost your job and is watching energy
costs go up, with kids you were planning on getting a college
education, and student loans may not be available, then this is not an
academic issue to you at all.
The question is, Where are the people here doing their job? The
majority leader offered and said this is the problem we ought to be
addressing. Yet because of whatever reasons, we are unwilling or unable
to come together to offer some ideas that could offer relief and
optimism. I think it is terribly wrong and I worry about the
consequences of inaction.
I know there have been disagreements about what steps to take. That
is legitimate. Candidly, this issue ought to be addressed in a far more
urgent fashion than is the norm. If there are different ideas on
bankruptcy or tax policy or even on the community development block
grant idea or the counseling ideas that are all part of a package we
had suggested, then let there be a debate about it; let alternatives be
offered. But if we cannot spend a few hours or days talking about an
economic crisis that has as its center a foreclosure crisis and a
housing crisis, then what are we doing here?

This problem is mounting, growing, getting more serious every single
day. The failure of this institution to respond in a more responsible
way I, again, deeply regret. One point I hope we can all agree on is
that doing nothing is not an option. Yet that is what is happening at
this very hour.
We need to work out these differences and provide solutions that will
work. To that end, I will continue to work with my colleague from the
Banking Committee, Senator Shelby, on several key issues. I thank him
again for his willingness to move forward. We are working together with
our counterparts in the House on a final version of the FHA legislation
that I mentioned. That bill passed 93 to 1 just weeks ago. My hope is
that the House and Senate can resolve those differences and present a
final product before we leave next week.
Modernizing the Federal Housing Administration is a critical step in
responding to the housing crisis. Another important step is
comprehensive Government-sponsored enterprise reforms, GSE reforms. I
am committed to that issue. We have another hearing I will be holding
on that tomorrow, in fact, at the Banking Committee level. So we can
hear views from all sides before drafting what I hope will be a
bipartisan bill, that we can bring to the Chamber rather quickly for
its adoption.
As Chairman Bernanke said several days ago in the Banking Committee,
our country is in a worse economic situation today to face a recession
than we were 7 years ago. Traditional monetary and fiscal tools might
not be adequate to face the unprecedented challenges our economy is
facing, with national home prices falling, as I mentioned earlier, for
the first time since the Great Depression. We must hear new ideas and
proposals to address these problems. The strength of our economy 7
years ago is not there today. We don't have the strength of the dollar,
we don't have low inflation, and we don't have low unemployment. Our
fiscal situation is a far cry from where it was 7 years ago. So we are
in a very different situation to rely on traditional market forces to
act as a cushion against a likely recession. We need to think
creatively about ways to avoid what is growing and, quite obviously,
going to come if additional steps are not taken.
Unfortunately, the administration has so far been reluctant to hear
new ideas and take action on proposals to address these problems. At
every single turn of this housing crisis, the administration has been
one step behind, unfortunately: one step behind the 2.2 million
homeowners facing foreclosure last year; one step behind the financial
markets which started tightening credit for student loans and other
consumer needs last summer; one step behind those of us in Congress who
have called for solutions to the foreclosure crisis for more than a
year now; one step behind the regulators at the FDIC who have urged
broad-based modifications for homeowners since last spring.
Sheila Bair, former legal counsel to Senator Bob Dole, deserves great
credit. Almost a year ago, the FDIC, under her leadership, was calling
for actions to be taken. Had we acted then, I think the problem would
have been a lot less severe than it is today.
Now the administration is again one step behind this time, behind the
Federal Reserve who is now calling for more action before the housing
crisis gets worse. I commend Chairman Bernanke again for his candor and
for the speech he gave yesterday in Florida, calling for more creative
action before the problem grows worse, as it does almost hourly.
It took some time for the Federal Reserve to acknowledge the severity
of the housing problem, but they have come around. Days after I
convened the first hearing of the 110th Congress on foreclosures,
Federal Reserve Board Governor Susan Bies said she didn't ``think there
will be a large impact on the prime mortgage industry.'' Last March,
Treasury Secretary Paulson reinforced that benign and incorrect view,
saying that the economic fallout from the housing market would be
``painful to some lenders, but . . . largely contained.''
By the time I held a second hearing on the subprime abuses on March
22 of last year, the Federal Reserve finally acknowledged that the Fed
had acted too slowly to address mortgage lending abuses. The Fed
pledged then to do more to protect homeowners. Unfortunately, the
administration continued to deny the severity of the problem.
Throughout last spring and summer, the Treasury Secretary commented
that ``we are at or near the bottom'' of the housing correction and
there was no risk to the economy overall. When the Treasury sends such
rose-colored messages to the public, it is no surprise that the
administration and the industry were slow to assist homeowners with
broad-based loan modifications.
I organized the first Homeownership Preservation Summit in April of
last year, to bring together the Nation's leading mortgage loan
servicing companies, regulators, and community organizations to discuss
a timetable and a tangible solution to reduce foreclosures. But the
private sector, acting alone, yielded minimal results. Moody's found
that just 1 percent of loans had been modified in the spring and summer
of last year. Instead of taking action throughout these months to help
homeowners, the administration continued its happy talk about the

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housing market and the economy. The Treasury stated in July that
troubles in the housing market were ``largely'' over and ``contained.''
It wasn't until November, just a few months ago, that the
administration convened its own homeownership preservation summit.
Unfortunately, during those 7 months that passed, tens of thousands of
new homeowners became delinquent on their mortgages.
Instead of working with us in the Congress to develop solutions for
homeowners over the summer, the Treasury Secretary said on August 1
that he did not see anything that caused him to reconsider his views,
that the economic damage from the housing correction was ``largely
contained.'' Echoing Secretary Paulson's benign assessment of the
housing market, just days later, President Bush said, ``It looks like
we are headed for a soft landing.''
Later that month, in August, I met with Secretary Paulson and Federal
Reserve Chairman Bernanke, urging them to use all of the tools at their
disposal to address the mortgage market turmoil. I wrote a letter to
the Treasury Department and the Department of Housing and Urban
Development urging them to move expeditiously to make administrative
changes to the Federal Housing Administration single family insurance
program to help borrowers escape abusive mortgages by refinancing into
more affordable FHA loans.
Throughout the fall, FDIC Chair Sheila Bair and I advocated for
systemic loan modifications to help homeowners facing foreclosure.
Instead of using his authority and influence to promote such solutions,
the Treasury Secretary said, ``The idea of across-the-board
modifications is not something that this group [of large subprime
servicers] is looking to do . . . and it's not something we in this
administration are advocating.'' Weeks later, however, the Treasury
Secretary changed his view, saying they saw an ``immediate need to see
more loan modifications and refinancing and other flexibility'' and a
standardization of loss-mitigation metrics to evaluate servicers'
performance goals.
If I have learned one lesson from this housing crisis, a lesson all
of us should have learned, it is that delayed action will cost
families, neighborhoods, the economy of our Nation, and, of course, the
taxpayers more and more money than timely action would have avoided.
Instead of turning a tin ear, we must listen to the growing chorus of
homeowners, lenders, servicers, housing counselors, economic experts,
and regulators who are calling for bold action to prevent this housing
crisis from becoming worse than it is today. I believe bold action must
include financing options for homeowners through FHA, the GSEs, and a
new fund at FHA that I propose to use to preserve home ownership.
We must also do more to slow the tide of foreclosures that are
overwhelming many of our communities. And we need to give our local
officials the tools and resources to cope with these increases in
foreclosed properties. In doing so, we will help break, I believe, the
downward cycle that is pushing our economy toward a recession, if we
are not already in the middle of one.
By acting, we can bring some certainty where today only uncertainty
exists. We can help restore the confidence of consumers and investors
that is indispensable to economic progress for our Nation.
There are some steps we have taken in the housing sphere already.
Working closely, again, with Senator Shelby, ranking member of the
Banking Committee, we have been able to pass FHA reform legislation. As
I mentioned, we have been working with the House to resolve our
differences on that legislation.
I am committed to working with my colleague from Alabama and the
administration to pass a GSE regulatory reform bill so Fannie Mae,
Freddie Mac, and the Federal Home Loan Banks can expand their efforts
to help people keep their homes.
The committee also held extensive oversight hearings on the problems
that plague the housing market, including a hearing on January 31 to
look at the foreclosure issue. We held a hearing on the state of the
economy and financial markets with Secretary of the Treasury Paulson,
Chairman Bernanke, and SEC Chairman Christopher Cox. We held a hearing
with Chairman Bernanke last week to receive the semiannual monetary
policy report, and we held a hearing yesterday on the state of the
banking industry with all the Federal bank regulators. We are holding a
second hearing on GSE reform tomorrow, and there will be more hearings
to come.
I also believe that S. 2636 would help address the problems we are
facing in the housing and mortgage markets in a number of ways by
providing counseling services, dealing with bankruptcy reform,
improving disclosures, increasing availability of mortgage revenue
bonds, and appropriating emergency funds for local communities
struggling with these empty properties. Again, I commend Majority
Leader Reid for his leadership on this issue. I emphasize those ideas I
mentioned are, by and large, noncontroversial, but I know there are
those who disagree with them, as one might expect. That is not a reason
not to try to move forward and allow a debate to occur, amendments to
be offered to modify any of these ideas or additional ones people might
bring to the table.
But, doing nothing at all is inexcusable. The fact that days go by,
despite the growing alarm bells going off about the seriousness of this
problem, as I said a week ago, will be indictable by history if we do
not to step up and offer some ideas to get this right.
At the end of the day, this legislation by itself is not going to
stop foreclosures or restore our communities to economic health. In my
view, we need to do more to bring liquidity to the mortgage markets, to
help establish value for the subprime securities that are clogging up
the system and a way of clearing them out of the markets so capital can
once again flow freely. I continue to work on the details of a home
ownership preservation entity that makes use of existing platforms,
such as FHA or GSEs, to help achieve this result. There are other ideas
that I welcome, maybe not this idea, but something similar to it will
work. Whatever it is, we ought to bring our practical talents to bear
on all this and do something rather than sitting around doing nothing
about this issue.
The home ownership preservation entity will facilitate the
refinancing of distressed mortgages. This idea was originally proposed
by the American Enterprise Institute and the Center for American
Progress, two organizations that do not normally come together on
economic ideas, but they did on this one; two organizations that
approach economic issues from very different philosophical perspectives
but that agree more action is needed to stem the housing crisis.
In its general outline, the home ownership preservation entity would
capture the discount for which delinquent and near-delinquent loans are
trading in the marketplace through a transparent, market-based process
and transfer the discounts to the homeowners so more families can stay
in their homes.
I would hope such an entity could purchase and restructure these
loans in bulk so we could help as many people as possible, but a case-
by-case approach is possible as well. I would not rule that out. It
would require lenders and investors to recognize losses so there would
be no bailout. In my view, this entity should make use of existing
institutions, such as FHA and the GSEs, to expedite the process and
maximize the process. Every day that goes by without action means more
families are going to lose their homes. Obviously, many details need to
be fleshed out, I know that, but I am currently drafting legislation
for such an idea and plan to introduce it in the coming weeks. The
legislation closely mirrors the approach recommended by Federal Reserve
Chairman Ben Bernanke in a speech before community lenders he gave
yesterday morning in Florida.

Again, I encourage all my colleagues to work with us. I see the
Senator from Iowa on the floor, the former chairman of the Finance
Committee, the ranking member today. I commend the Finance Committee.
They have offered some very sound ideas out of their committee to deal
with revenue mortgage bonds and other ideas. Again, those ideas will
not solve everything, but I commend their committee for stepping up and
saying: Here are a couple things that may restore confidence, increase

[[Page S1590]]

optimism, and may save some families from falling into the worst of all
situations.
Remember, only 10 percent of these subprime mortgages went to first-
time home buyers. Most of them went to people who are making a second
mortgage to take care of financial obligations, people who have been in
their homes for years building up that equity to take care of future
economic difficulties, student loans, health care problems or
retirement, and to watch the wealth that accumulated for years
disintegrate before their very eyes. Many end up losing the only wealth
creator they have had, the long-term financial security for retirement
goes out the window, and we are sitting around doing absolutely nothing
about it. It is reprehensible. Again, not everyone is in that category.
The Senator from Iowa, Senator Grassley, to his credit, and Senator
Baucus and their committee have stepped up, and I commend them for it.
We are doing our part. What I regret is we cannot find the time for a
couple of days to let some of these ideas at least be raised for
debate, discussion, and possibly action before we leave.
As we take off for our 2-week break and enjoy our families, travel,
and do whatever else we do, in that time there will be people losing
their homes in the country, and maybe, just maybe, if we stepped up to
the plate, we might have avoided that from happening.
I think it is sad, indeed, that we cannot find the time to do it,
unwilling to sit down and engage in what this body was created for--for
healthy, responsible debate about actions we ought to be taking to
avoid this problem that grows worse by the hour.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, are we in morning business?
The PRESIDING OFFICER. No, we are still on the underlying bill.
Mr. GRASSLEY. I ask unanimous consent to speak as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. I will speak for a short period of time if anyone else
wants the floor.

Stonewalling on Oversight

Mr. GRASSLEY. Mr. President, throughout my career in the Senate, I
have taken very seriously our constitutional responsibility of
oversight. So I have actively conducted oversight of the executive
branch of Government regardless of who controls Congress or who
controls the White House.
These issues that I do oversight on are about basic, good Government
and accountability in Government. It does not deal with party politics
or with ideology. The resistance from the bureaucracy is often fierce.
It does not matter whether we have a Republican President or a
Democratic President. There is an institutional bias among bureaucracy
not to cooperate with Congress in doing our constitutional job of
oversight.
Protecting itself is what the bureaucracy does best, and it works
overtime to keep embarrassing facts from congressional and public
scrutiny. This has gone on too long. It is time for the stonewalling to
stop. We have a duty under the Constitution to act as a check on the
executive branch, and I take that duty seriously. I know other Members
of the Senate do. But too often, we let issues in oversight slide that
somehow we do not let slide in legislation. So I am asking my
colleagues to ramp it up a little bit, to be more serious in the
pursuit of information, but not just in the pursuit, to make sure that
information actually comes to us when we do not get the proper response
from the administration.
When the agencies I am reviewing get defensive and refuse to respond
to my requests, it makes me wonder what they are trying to hide. They
act as if the documents in the Government files belong to them. These
unelected officials seem to think they alone have the right to decide
who gets access to information--information, which, by the way, was
probably collected at taxpayers' expense.
I have news for them. I am asking my colleagues to have news for
them. Documents in Government files belong to the people, and the
elected representatives of the people in our constitutional role of
oversight of the executive branch have a right to see them. That right
is essential to carry out our oversight function.
Let me summarize a few examples of the kind of stonewalling I face.
But before I do that, I would like my colleagues to know this is the
first of several trips to the floor that I intend to make about the
executive branch and its stonewalling. I am tired of it, and I am going
to talk about it until we in the Senate and this Senator gets what we
are entitled to under the Constitution. All the kids in America study
the checks and balances that are a part of our system of Government,
and this is part of the congressional check under the Constitution on
the executive branch of Government.
So let me start this evening with what is outstanding and is being
held up at the FBI on the one hand, the State Department on the other,
and the Department of Homeland Security in another case. Let's look at
the use of the jet aircraft that is available for the FBI.
The Government Accountability Office is beginning an audit that I
requested on the use of luxury executive jets by the FBI. I asked for
the audit after a Washington Post article detailed evidence that the
jets were being used for travel by senior FBI officials rather than for
the counterterrorism purpose as Congress intended when the jets were
provided. However, the FBI Director has refused to commit to providing
the flight logs to the Government Accountability Office investigators
who are working on this project.
What is wrong with a little bit of public scrutiny about the flight
logs on a corporate jet, which the taxpayers have paid for, for the use
of Government bureaucracy and Government officials?
Let's go to the Michael German case. For nearly 2 years, despite
requests from two Judiciary Committee chairmen, the FBI refused to
provide documents in the case of FBI whistleblower Michael German. It
took more than a year for the FBI to respond to questions for the
record following last year's FBI oversight hearing by the Judiciary
Committee. Even when the responses finally came in, most of them ducked
and evaded the questions rather than answering them very directly.
The FBI misled the public about the facts in the German case. Even
faced with the evidence, the FBI still will not admit that German was
right about domestic and international terrorist groups meeting to
discuss forming operational ties. Now they are trying to hide that
evidence from the public. Don't you think the public ought to know
everything there is to know about people who are planning terrorist
activities against Americans?
I would like to bring up next exigent letters. The FBI continues to
stonewall this committee on requests for documents. For example, last
March, we requested internal FBI e-mails on their issuance of exigent
letters. These letters were criticized by the Justice Department
inspector general as inappropriate ways to obtain phone records without
any legal process and said the letters contained false statements,
promising that a subpoena would be on the way even when there was no
intent to issue such a subpoena. Here we are, then, a whole year later,
and the FBI has provided only 15 pages. We know they have been sitting
on even more e-mails that should shed light on this controversy. It is
enough to make you wonder what they might be trying to hide.

Let us go back to something now 5 years old--the anthrax case. Not 5
years I have been working on it, but it hasn't been too far short of 5
years. There is still no public indication of progress in the
investigation of the anthrax attacks. Well, this involved attacks on
individual Senators. A former journalist is being fined for failure to
disclose her sources, despite press accounts stating the sources were
unnamed FBI officials. Whether anyone in the Justice Department has
taken any serious steps to find out who in the bureau was leaking case
information about Stephen Hatfill to the press is still a mystery. And
why should it be? It shouldn't be a mystery. Have they obtained and
searched the phone records of their own senior officials to see who was
calling the reporters in question? You know, it is mysterious, but the
FBI won't say.

[[Page S1591]]

Let us go to the Cecilia Woods matter. We have been waiting 2 years
for documents in the case of a whistleblower named Cecilia Woods. Woods
came to my office to report that she was retaliated against for
reporting that her supervisor had an inappropriate intimate
relationship with a paid informant and that her supervisor was
inexplicably not fired, despite overwhelming evidence of this
misconduct. I asked to see the FBI internal investigation to find out
why. I still have not received adequate replies.
Let us look at the Goose Creek defendants. It is not only the FBI we
have problems with. The Homeland Security and State Departments are
stonewalling Congress as well. Last year, I wrote to Secretary Rice--
she is an honorable person, Secretary of State, doing well--and we
wrote to Secretary Chertoff--he is an honorable person. We wrote about
the case of two Florida State University students arrested near Goose
Creek, SC, with explosives in their trunk. They are both Egyptian
nationals. One of them, Ahmed Mohammed, entered the United States on a
student visa. However, I learned he had previously been arrested in
Egypt and that he even declared his arrest on his visa form. I wanted a
copy of his visa application and other documents to investigate how our
screening system for visa applicants could still be so broken 7 years
after 9/11. Both the Department of Homeland Security and the State
Department have thus far refused to comply. Why would they want to keep
information such as this from a Member of the Senate, who has
responsibility for appropriating enough money to make sure we can keep
terrorists from doing another attack against American citizens?
For today, I have given only a few examples. I am going to come to
the floor again to outline more examples where these agencies and other
agencies have delayed and delayed and delayed. Months turn into years,
and we don't get the information we need. It is time for excuses to
stop so Congress can perform its constitutional job of check and
balance--in this case check the executive branch of Government--and our
constitutional responsibility of oversight of that branch of
Government, the executive branch.
I yield the floor.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Cantwell). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. VOINOVICH. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. VOINOVICH. Madam President, I ask unanimous consent to speak as
in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

The Budget

Mr. VOINOVICH. Madam President, as we prepare to consider the budget
resolution next week, I rise today to comment on the need for fiscal
responsibility and reform of the very financial pillars that support
our Government's foundation. Building on a speech I gave last October,
and in the tradition of another Member of this body, Senator Fritz
Hollings, I hope to regularly provide my colleagues and the American
people with updates on our growing national debt. We need to be
reminded of the fiscal reality which we find ourselves in. We cannot
continue to live in a state of denial.
The Congressional Budget Office projects a $219 billion budget
deficit for 2008--that is the fiscal year we are in right now--which
does not include the $152 billion economic stimulus package President
Bush recently signed into law. With the addition of the economic
stimulus bill, the 2008 projected deficit can be assumed to be $371
billion in 2008.
But even that figure hides the true degree to which our official
situation has deteriorated, mainly because it uses every dime of the
Social Security surplus. I think it is important for our colleagues to
understand we are using every dime of the Social Security surplus, as
well as surpluses in other trust funds, to hide the true size of the
Government's operating deficit.
If you wall off the Social Security surplus so that Congress can't
spend it on other programs, as I believe we should, then the
Government's operating deficit amounts to $566 billion, over 50 percent
more than the reported deficit of $371 billion. In other words, what we
do is we hide from the American people the fact that we are borrowing
money from ourselves to run our Government, and the only thing we
report to them is the public debt, but we don't report to them the
Government debt. So when we make these figures available, we will say,
oh, the deficit is $371 billion, but the truth of the matter is, when
you add in the Social Security surplus, it is $566 billion.
But the annual difference between revenues and outlays is not what is
truly threatening our future. It is the cumulative ongoing increase in
our national debt that matters. Unfortunately, many in Washington
pretend that the debt doesn't even exist. How often do you hear anybody
talk about the national debt? They don't.
I think we all remember that in 1992 Ross Perot was out running
around America talking about our fiscal irresponsibility and the
national debt. At that time, Ross Perot--and this is 1992--predicted
that by 2007, the national debt would be $8 trillion. Well, the fact
is, he was wrong. It is $1 trillion more. It is $9 trillion.
Now, the interesting thing is that from the beginning of our country
to 1992, it is something like 200 years. We have since 1992 increased
the debt--doubled it--from what it was. In other words, in the last 15
years, we have increased the debt more than what it was for the first
200 years. Think about that--200 years. And the tragedy of it is that
each and every American--man, woman, and child--owes $30,000. That is
what we all owe today.
Here are some additional facts: 47\1/2\ percent of that privately
owned national debt is held by foreign creditors, mostly foreign
central banks. That is up from 13.3 percent only 5 years ago. And who
are the foreign creditors? The three largest creditors are Japan,
China, and the oil exporting countries, or the OPEC nations. Can you
imagine how high our interest rates would soar if these countries moved
out their investment to somewhere else? In other words, if they would
get shaky about where we are in terms of our U.S. economy.
According to the S&P and Moody's, U.S. treasuries will lose their
triple-A credit in 2012. In other words, by 2012, our treasuries are
going to lose their triple-A rating. That is the best rating you can
get. In dollar purchases, I think most of us remember when we could
take the American dollar and buy more Canadian dollars. Today, a dollar
buys 98 cents of a Canadian dollar. In Europe, it takes $1.52 to buy
one Euro.
I have traveled overseas in the last several years, and at one time
everybody wanted the American dollar. They called them Reagans. I want
a Reagan.
Well, the fact is, today they do not want Reagans, they wanted Euros.
Our long-term fiscal situation makes short-term responsible budgeting
today even more important. The adoption of a biennial budget for the
Federal Government, as I had as Governor of Ohio, would ensure Congress
can get its work done on time while also conducting the oversight
necessary to ensure that programs and agencies are functioning
effectively.
I am hoping we can convince the chairman of the House Budget
Committee that this is something that would be great for this country
because it is a systemic change that would make a real difference.
I have long championed this issue. I have been a cosponsor of Senator
Domenici's Biennial Budgeting Act since I came to the Senate in 1999. I
have been advocating for its passage nearly 10 years.
In 25 of the last 30 years, Congress has failed to enact all of the
appropriations bills by the start of the fiscal year, instead passing
omnibus bills and continuing resolutions. Government-by-CR has
consequences: Agencies cannot plan for the future, they cannot make
hiring decisions, and they cannot sign contracts.
In the next several weeks, I am going to give another speech on the
floor of the Senate to remind people about the disruption our not being
able to pass budgets on time and the effect continuing resolutions have
on inefficient Government and our inability to do the

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job the taxpayers want us to do. As I said, we get more waste and
inefficiency from the Government by what we are doing. We get lower
quality services provided to the people. At the end of the day, we get
higher spending and less accountability and oversight of the taxpayers'
money. This is irresponsible management, and it has to stop.
Biennial budgeting will ensure Congress does its job and actually
looks back to see if the money we have spent is doing what it is
supposed to do.
While biennial budgeting can restore order to the appropriations
process, it will not solve our long-term entitlement problems or reform
our Tax Code. We must enact fundamental tax reform to help make the Tax
Code simple, fair, transparent, and economically efficient.
Tax reform is not just a matter of saving taxpayers time and effort;
this is about saving taxpayers real money. The Tax Foundation estimates
that comprehensive tax reform could save us much as $265 billion in
compliance costs associated with preparing our returns.
People come to my office every day, and I ask them: How many of you
do your own tax returns? And the answer is most of them--the hands go
up. I am an attorney. I used to make out my own return. I used to do
them for my clients. I would not touch my tax return today with a 10-
foot pole.
Now, if we can straighten this out through good tax reform, fair,
easy to understand, even if we did it halfway, it would save almost
$160 billion for all of the taxpayers of this country. That is a real
tax reduction, and it is something that would not cost the Treasury one
dime.
In January 2005, President Bush announced the creation of an all-star
panel led by former Senators Mack and Breaux, and that panel spent most
of the year engaging the American public to develop proposals to make
our Tax Code simpler, more fair, and more conducive to economic growth.
In November 2005, the panel issued its final report. While not
perfect in everyone's mind, the panel's two plans provided a starting
point for developing tax reform legislation that will represent a huge
improvement over the current system. The panel's proposals belong as a
key part of the national discussion on fundamental tax reform.
Last January, I introduced the Securing America's Future Economy--or
SAFE--Commission Act, legislation that would create a bipartisan
commission to look at our Nation's tax and entitlement systems and
recommend reforms to put us back on a fiscally sustainable course and
ensure the solvency of entitlement programs for future generations. My
colleague, Senator Isakson, has joined me as a cosponsor.
Democratic Congressman Jim Cooper of Tennessee and Republican Frank
Wolf of Virginia introduced a bipartisan version of the SAFE Commission
in the House, where they have 73 cosponsors from both parties. This
bipartisan, bicameral group has support from corporate executives,
religious leaders, think tanks across the political spectrum, from the
Heritage Foundation to the Brookings Institution, and former members
from both parties.
On the heels of this, two of my colleagues, the Budget Committee
chairman from North Dakota and the ranking member from New Hampshire,
recently introduced a bipartisan bill that would create a tax and
entitlement reform commission entitled the ``Bipartisan Task Force for
Responsible Fiscal Action.'' I signed on as a cosponsor of the Conrad-
Gregg proposal. I look forward to working with them to restore fiscal
sanity to the U.S. Government.
I would like to comment on the efforts of Divided We Fail, a
coalition comprised of the AARP, Business Roundtable, Service Employees
Union, and the National Federation of Independent Businesses, for
encouraging bipartisan congressional action on this legislation. I want
to repeat that. Here is a group. They call themselves Divided We Fail.
It is made up of the AARP, the Business Roundtable, and the National
Federation of Independent Businesses, which are supporting this. What
an interesting array of individuals who think it is time for us to do
entitlement and tax reform.

I am encouraged that the Senate Budget Committee is planning to mark
up the Bipartisan Task Force for Responsible Fiscal Action, and I urge
my colleagues to pass this critical legislation before the close of
2008.
The next President, whoever that may be, should be ready in January
2009 to work with the task force in addressing these critical reform
issues. What we are doing now is not working for us. We know that
oversight is an important part of our job. But oversight takes time. We
must identify programs that are mired in waste, fraud, and abuse.
Another piece of legislation I have introduced, along with Senator
Cornyn, is the United States Authorization and Sunset Commission Act.
This legislation would create a bipartisan commission to make
recommendations to Congress on whether to reauthorize, reorganize, or
terminate Federal programs. It would establish a systemic process to
review unauthorized programs and agencies and, if applicable, programs
that are rated as ``ineffective'' or ``results not demonstrated'' under
the program assessment rating tool, which is called PART. Hopefully,
the next administration will adopt the criteria the Bush administration
has set for PART.
Now, this legislation does not take away from our obligations to make
difficult decisions about which programs to continue and those that we
can no longer afford to support. What it does is provide an opportunity
to work harder and smarter and do more with less.
I believe by establishing this commission to do a thorough
examination of programs and agencies using the established criteria,
and a transparent reporting process, we can carry out our oversight
responsibility more efficiently and effectively.
The legislation will help us distinguish between worthwhile programs
and those that have outlived their purpose, are poorly targeted,
operate inefficiently, or simply are not producing results taxpayers
expect. I used such a commission as Governor of Ohio, and it has helped
us work harder and smarter and do more with less.
As we near the end of the Presidential primary season and move into
the nominating conventions, the Presidential candidates of both parties
should address the critical issue of tax reform, entitlement spending,
and budget process reform.
All of the leading Presidential candidates are Members of the Senate.
The American electorate should demand that they take a stand on the
SAFE Commission and on the Bipartisan Task Force for Responsible Fiscal
Action. Voters should demand that Congress pass this bill this year and
insist Presidential candidates pledge that upon being elected, they
will guarantee that one of their first actions they take as President
is to make their appointments to this task force. The Presidential
candidates should have recommendations on tax reform, entitlement
reform, and biennial budgeting.
But I am afraid that the candidates, whether Democratic or
Republican, will avoid these topics, because these challenges require
tough choices. Where is Ross Perot? Where is Ross Perot? Voters must
ask candidates if they are willing to discuss our country's financial
future. If a candidate avoids this topic of responsibility in the
campaign, how can voters trust them to be forthright after they are
elected?
The former Comptroller General, David Walker, has said:

The greatest threat to our future is our fiscal
irresponsibility.

He added:

America suffers from a serious case of myopia, or
nearsightedness, both in the public sector and in the private
sector. We need to start focusing more on the future. We need
to start recognizing the realities that we are on an
imprudent and unsustainable fiscal path and we need to get
started now.

I have three children and seven grandchildren. My wife Janet and I
are wondering whether they are going to have the same opportunities we
have had, as well as the same standard of living or our quality of
life. I question what kind of legacy we are going to leave them as a
nation.
The time to act is now. When you look at the numbers, it is self-
evident that we must confront our swelling national debt, and we must
make a considered bipartisan effort to reform our tax system, slow the
growth of entitlement spending, and halt this freight

[[Page S1593]]

train that is threatening to crush our kids' and grandkids' future. We
owe it to our children and grandchildren to take care of it now. All of
us--all of us--should think about them. We have a moral responsibility
to the future of this country, our children and our grandchildren, to
make sure our legacy is one that we can be proud of, that they will
have the same opportunities we had during our lifetime.
Mr. LEAHY. Madam President, I support Senator Kohl's amendment to the
Consumer Product Safety Commission, CPSC, Reform Act. This legislation
would make it more difficult to prevent public disclosure of
information in lawsuits involving a product that poses a serious public
heath or safety risk.
Senator Kohl's amendment would promote transparency in court
proceedings by prohibiting courts from restricting access to
information in civil cases that could affect public health or safety.
The amendment would prohibit judges from sealing court records,
information obtained through discovery, and certain details of a
settlement unless the public health or safety interest is outweighed by
a specific and substantial interest in maintaining confidentiality.
When issued, protective orders could be no broader than necessary to
protect the privacy interest asserted.
The Judiciary Committee heard compelling testimony in a recent
hearing about the tragic consequences of court secrecy in cases
concerning defective products. We heard from Johnny Bradley, a Navy
recruiter who tragically lost his wife in a car wreck that resulted
from tread separation on a Cooper tire on his Ford Explorer. Mr.
Bradley chose to buy Cooper tires in the wake of the Bridgestone/
Firestone recall, believing that they would be safer. It was not until
after the tragic death of his wife that he found out during litigation
that Cooper had faced numerous similar incidents and had thousands of
documents detailing design flaws and defects in the company's tires.
The details from as many as 200 lawsuits against Cooper remained
covered up through various protective orders, demanded by the tire
company. As a result, vital information that could have saved Mr.
Bradley's wife was not disclosed to the public. Mr. Bradley's story is
just one example of the terrible consequences of court secrecy in cases
involving products that pose health and safety risks.
Last December, Senator Kohl introduced the language contained in this
amendment as the Sunshine in Litigation Act. I am a cosponsor of
Senator Kohl's bill, and I support this amendment. In an environment
where the administration is clearly not enforcing product safety
regulations, we need to make sure that consumers have better access to
information that affects their health and safety.

Cloture Motion

Mr. REID. Madam President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on S. 2663, a bill to
reform the Consumer Product Safety Commission.
Harry Reid, Charles E. Schumer, Russell D. Feingold,
Bernard Sanders, Debbie Stabenow, Patrick J. Leahy, Jon
Tester, Christopher J. Dodd, Edward M. Kennedy, Blanche
L. Lincoln, Byron L. Dorgan, Richard Durbin, Mark L.
Pryor, Jeff Bingaman, Amy Klobuchar, Kent Conrad.

Mr. PRYOR. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. PRYOR. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________