[Pages S6156-S6168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DeMINT:
S. 1173. A bill to amend the National Labor Relations Act to ensure
the right of employees to a secret-ballot election conducted by the
National Labor Relations Board; to the Committee on Health, Education,
Labor, and Pensions.
Mr. DeMINT. Mr. President, today I introduce the Secret Ballot
Protection Act, a measure that would amend the National Labor Relations
Act, NLRA, to ensure the right of employees to a secret ballot election
conducted by the National Labor Relations Board, NLRB, when deciding
whether to be represented by a labor organization.
The legislation would prohibit a union from being recognized based on
a ``card check'' campaign. Under a card check system, a union gathers
authorization cards purportedly signed by workers expressing their
desire for the union to represent them. By their very nature, card
checks strip employees of the right to choose freely, safely, and
anonymously, whether to unionize and leave them open to harassment,
intimidation, and union pressure.
The bill also addresses the increasing pressure faced by employers
from union bosses to recognize unions based on a card check campaign
and forego the customary secret ballot election supervised by the
National Labor Relations Board, NLRB, which gives workers the ability
to vote their conscience without fear of reprisal.
Under current law, employers may voluntarily recognize unions based
on these card checks, but are not required to do so. However, threats,
boycotts, and other forms of public pressure are increasingly being
used to force employers to recognize unions based on a card-check
rather than the customary secret ballot election. The need for
legislation to protect workers' rights could not be more clear.
It is no secret that hostile campaigns against American businesses to
discredit employers have become a key organizing tactic used by union
bosses across the country. These and other pressure tactics are often
designed to hurt employers, their workers, and the economy, unless the
demands of union leaders are met. It is wrong that union bosses are
using these types of tactics at the expense of secret ballot elections,
depriving rank-and-file workers of the ability to freely vote their
conscience without fear of retaliation.
The Secret Ballot Protection Act will preserve the integrity of
workers' freedom of choice and the right to a secret ballot election;
it will protect workers from fear, threats, misinformation, and
coercion by a union or coworkers to sign union authorization cards; and
it will eliminate a union's ability to coercively terrorize an employer
into recognition under duress. These fundamental protections can be
achieved by simply requiring unions to win a majority of worker support
in an anonymous, secret ballot election which eliminates the shroud of
union intimidation tactics.
Supporting the right to a private vote and outlawing the corrupt card
check practice of allowing union thugs to bully, harass, and scare
workers who object to union membership is absolutely critical to
democracy and freedom of choice.
Secret ballots are an absolutely essential ingredient for any
functioning democratic system. The lack of secret ballot elections is
how oppressive regimes manage to stay in power without majority
support. Repelling such oppression hinges on the ability to walk into a
voting booth, pull the curtain, and vote for anyone or anything we
please with confidence the vote will be counted but never revealed to
anyone who could use the knowledge to retaliate.
Evidence clearly demonstrates that secret ballot elections are more
accurate indicators than card checks of whether employees actually wish
to be recognized by a union. Numerous court decisions echo this fact.
For example, in the case NLRB v. S.S. Logan Packing Co., the court
said:

It would be difficult to imagine a more unreliable method
of ascertaining the real wishes of employees than a card
check, unless it were an employer's request for an open show
of hands. The one is no more reliable than the other.

There is no question that card checks leave employees open to
harassment, intimidation, and union pressure. Workers' democratic
rights should be protected, and the Secret Ballot Protection Act will
make sure that happens by preserving the secret ballot election
process. This important measure would guarantee workers the right to an
anonymous, secret ballot election conducted by the NLRB and eliminate
the use of intimidation and threats by organizers to coerce workers
into joining a union.
I ask unanimous consent that the text of the bill be printed in the
Record.

[[Page S6157]]

There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1173

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Secret Ballot Protection Act
of 2005''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) The right of employees under the National Labor
Relations Act (29 U.S.C. 151 et seq.) to choose whether to be
represented by a labor organization by way of secret ballot
election conducted by the National Labor Relations Board is
among the most important protections afforded under Federal
labor law.
(2) The right of employees to choose by secret ballot is
the only method that ensures a choice free of coercion,
intimidation, irregularity, or illegality.
(3) The recognition of a labor organization by using a
private agreement, rather than a secret ballot election
overseen by the National Labor Relations Board, threatens the
freedom of employees to choose whether to be represented by a
labor organization, and severely limits the ability of the
National Labor Relations Board to ensure the protection of
workers.

SEC. 3. NATIONAL LABOR RELATIONS ACT.

(a) Recognition of Representative.--
(1) In general.--Section 8(a)(2) of the National Labor
Relations Act (29 U.S.C. 158(a)(2)) is amended by inserting
before the colon the following: ``or to recognize or bargain
collectively with a labor organization that has not been
selected by a majority of such employees in a secret ballot
election conducted by the National Labor Relations Board in
accordance with section 9''.
(2) Application.--The amendment made by paragraph (1) shall
not apply to collective bargaining relationships in which a
labor organization with majority support was lawfully
recognized prior to the date of enactment of this Act.
(b) Election Required.--
(1) In general.--Section 8(b) of the National Labor
Relations Act (29 U.S.C. 158(b)) is amended--
(A) in paragraph (6), by striking ``and'' at the end;
(B) in paragraph (7), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(8) to cause or attempt to cause an employer to recognize
or bargain collectively with a representative of a labor
organization that has not been selected by a majority of such
employees in a secret ballot election conducted by the
National Labor Relations Board in accordance with section
9.''.
(2) Application.--The amendment made by paragraph (1) shall
not apply to collective bargaining relationships that were
recognized prior to the date of enactment of this Act.
(c) Secret Ballot Election.--Section 9(a) of the National
Labor Relations Act (29 U.S.C. 159(a)), is amended--
(1) by striking ``Representatives'' and inserting ``(1)
Representatives'';
(2) by inserting after ``designated or selected'' the
following: ``by a secret ballot election conducted by the
National Labor Relations Board in accordance with this
section''; and
(3) by adding at the end the following:
``(b) The secret ballot election requirement under
paragraph (1) shall not apply to collective bargaining
relationships that were recognized before the date of the
enactment of the Secret Ballot Protection Act of 2005.''.

SEC. 4. REGULATIONS.

Not later than 6 months after the date of the enactment of
this Act, the National Labor Relations Board shall review and
revise all regulations promulgated prior to such date of
enactment to implement the amendments made by this Act.
______

By Mr. AKAKA:
S. 1176. A bill to improve the provision of health care and services
to veterans in Hawaii, and for other purposes; to the Committee on
Veterans' Affairs.
Mr. AKAKA. Mr. President, I rise today to introduce the ``Neighbor
Islands Veterans Health Care Improvements Act.'' My State of Hawaii is
home to 115,000 veterans, nearly 18,000 of whom avail themselves of VA
health care. Unfortunately, the level of care provided to those living
on Oahu and the Neighbor Islands--Kauai, Molokai, Lanai, Maui, and the
Big Island--is not at the optimal level. My legislation would
significantly improve the level of care the veterans residing in Hawaii
have so bravely earned.
Hawaii is undoubtedly an exceptional place to make one's home, and
its population continues to grow each year. As such, the number of
veterans seeking VA health care has grown. However, the level of
services provided to Hawaii's veterans has failed to keep pace.
Additionally, each day more veterans are returning home to Hawaii from
the Global War on Terror, including Operations Enduring and Iraqi
Freedom. It is critical that these brave men and women receive adequate
care. It is equally critical that today's veterans receive needed long-
term care and mental health care.
My bill would ensure that care and facilities are optimized, that the
burden of VA personnel is diminished, and that veterans throughout the
state receive specialized care. Specifically, my legislation calls for
new Community Based Outpatient Clinics and Vet Centers in areas that
desperately need additional health care facilities, as well as
expanding services at those already in existence. Satellite clinics
providing both medical care and mental health counseling would be
opened on the islands of Molokai and Lanai, which currently lack VA
facilities. Staff levels at existing clinics and Vet Centers would be
increased to compensate for these new clinics and to provide needed
community-based long-term care, such as home care. My legislation also
authorizes the construction of a $10 million mental health center on
the grounds of Tripler Army Medical Center, which will include an
inpatient Post-Traumatic Stress Disorder residential treatment program.
That our veterans receive the long-term care to which they are
entitled is of major concern to me. In fact, the Committee on Veterans'
Affairs, of which I am Ranking Member, held a hearing on the potential
demand for long-term care just this May. I would like to point out that
the VA Center for Aging in Honolulu--the only VA nursing home in the
State--has a mere 60 beds. This is nowhere near sufficient to care for
the number of veterans who reside there. Furthermore, community nursing
home beds are limited. Given the dearth of nursing home beds, both VA
and community, the Neighbor Islands Veterans Health Care Improvements
Act authorizes a medical care foster program on the Island of Oahu.
Modeled on the successful Medical Care Foster Program at the Central
Arkansas Veterans Health Care System, such a system places veterans in
a permanent foster home, allowing them to remain in the community while
receiving the care they need.
Because I believe specialized care, such as orthopedics and
opthamology, are limited on the neighbor islands, the bill directs that
VA fully study the provision of such care. VA would then be required to
make a formal determination as to the adequacy of specialized care. I
may seek to direct improvements in this area at a later date.
This bill is vital to those veterans residing in Hawaii. Though they
may live far from the other veterans on the mainland, they are just as
entitled to quality health care.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
(The bill will be printed in a future edition of the Record.)
______

By Mr. AKAKA:
S. 1177. A bill to improve mental health services at all facilities
of the Department of Veterans Affairs; to the Committee on Veterans'
Affairs.
Mr. AKAKA. Mr. President, I rise proudly today to introduce
legislation that would enhance the Department of Veterans Affairs' (VA)
ability to provide mental health and other specialized services to its
patients. At a time when our Nation is at war, it is imperative that we
ensure that all veterans have access to top quality mental health care,
whether they visit a VA hospital or clinic.
At the time of its creation, the VA health care system was tasked
with meeting the special needs of its veteran patients. Those veterans
who suffered from spinal cord injuries, amputations, blindness, Post-
Traumatic Stress Disorder, substance abuse, and homelessness required
unique forms of treatment and rehabilitation. During the past few
decades, VA has emerged as the industry leader in providing specialized
services to these types of patients. Much of VA's expertise in these
areas remains unparalleled in the larger health care community--
particularly with regard to mental health care.
However, it is with great dismay that I rise today, as VA's
specialized programs are in jeopardy due to budget constraints.
Increased demand and flatline budget increases over the past

[[Page S6158]]

few years have literally starved the system. Sadly, this problem is not
a new one. Back in 1996, Congress recognized the merits of these
specialized programs and that they could be vulnerable to cuts because
of their smaller scale. As such, we enacted legislation that required
VA to retain its capacity to provide specialized services at the levels
in place at the time of the bill's passage in 1996, and to annually
report as to the status of its compliance with this requirement.
Despite this effort by Congress and the actions of my predecessors on
this Committee to subsequently strengthen the original legislation to
protect VA's specialized services, VA continues to underfund and cut
back resources for these vital programs. Additionally, VA has employed
measures such as counting dollars according to 1996 levels to appear as
if they are in compliance. In the area of mental health care, this has
been especially true. My proposed legislation amends the statute to
ensure that capacity funding levels are adjusted for inflation. We need
to be talking about real dollars--not 1996 dollars--to get a true sense
of VA's capacity to care for veterans with mental health needs.
This legislation would also mandate that VA carry out a number of
measures designed to improve mental health and substance abuse
treatment capacity at Community-Based Outpatient Clinics and throughout
the VA system. Currently, many clinics do not even provide mental
health services at all. My bill would ensure that at least 90 percent
of all clinics can provide mental health services, either onsite or
through referrals. Furthermore, it would establish more comprehensive
performance measures to provide incentives for clinics to maintain
mental health capacity, for primary care doctors to screen patients for
mental illness, and require that every primary health care facility be
able to provide at least five days of inpatient detoxification
services.
Finally, the bill seeks to foster greater cooperation between VA and
the Department of Defense (DoD) in treating servicemembers and
subsequently veterans who suffer from some form of mental health or
readjustment disorder. It has been estimated that anywhere from 20 to
30 percent of the men and women who are currently serving in Iraq and
Afghanistan will require treatment for a mental health issue. The bill
would direct the two Departments to agree upon standardized separation
screening procedures for sexual trauma and mental health disorders, as
well as establish a joint VA-DoD Workgroup to examine potential ways of
combating stigma associated with mental illness, educate
servicemembers' families, and make VA's expertise in the field of
mental health more readily available to DoD providers.
We still have much work to do in the area of mental illness
associated with service in the armed forces. But this bill is a step in
the right direction. I ask my colleagues for their support of this
bill, for it not only seeks to combat disorders that can be very
debilitating, but it also would protect specialized services that are
at the heart of VA's mission.
I ask unanimous consent that the full text of the bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1177

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Veterans Mental Health Care
Capacity Enhancement Act of 2005''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) Mental health treatment capacity at community-based
outpatient clinics remains inadequate and inconsistent,
despite the requirement under section 1706(c) of title 38,
United States Code, that every primary care health care
facility of the Department of Veterans Affairs develop and
carry out a plan to meet the mental health care needs of
veterans who require such services.
(2) In 2001, the minority staff of the Committee on
Veterans' Affairs of the Senate conducted a survey of
community-based outpatient clinics and found that there was
no established systemwide baseline of acceptable mental
health service levels at such clinics.
(3) In 2004, the Department of Veterans Affairs workgroup
on mental health care, which developed and submitted a
Comprehensive Mental Health Strategic Plan to the Secretary
of Veterans Affairs, found service and funding gaps within
the Department of Veterans Affairs health care system, and
made numerous recommendations for improvements. As of May
2005, Congress had not received a final report on the
workgroup's findings.
(4) In February 2005, the Government Accountability Office
reported that the Department of Veterans Affairs had not
fully met any of the 24 clinical care and education
recommendations made in 2004 by the Special Committee on
Post-Traumatic Stress Disorder of the Under Secretary for
Health, Veterans Health Administration.

SEC. 3. REQUIRED CAPACITY FOR COMMUNITY-BASED OUTPATIENT
CLINICS.

(a) Strengthening of Performance Measures for Mental Health
Programs.--Section 1706(b)(6) of title 38, United States
Code, is amended by adding at the end the following:
``(D) The Under Secretary shall include, as goals in the
performance contracts entered into with Network Directors to
prioritize mental health services--
``(i) establishing appropriate staff-patient ratio levels
for various programs (including mental health services at
community-based outpatient clinics);
``(ii) fostering collaborative environments for providers;
and
``(iii) encouraging clinicians to conduct mental health
consultations during primary care visits.''.
(b) Inflationary Indexing of Capacity Requirements.--
Section 1706(b) of title 38, United States Code, is amended
by adding at the end the following:
``(7) For the purposes of meeting and reporting on the
capacity requirements under paragraph (1), the Secretary
shall ensure that the funding levels allocated for
specialized treatment and rehabilitative services for
disabled veterans are adjusted for inflation each fiscal
year.''.
(c) Mental Health and Substance Abuse Services.--Section
1706(c) of title 38, United States Code, is amended--
(1) by inserting ``(1)'' before ``The Secretary''; and
(2) by adding at the end the following:
``(2) The Secretary shall ensure that not less than 90
percent of community-based outpatient clinics have the
capacity to provide onsite, contract-referral, or tele-mental
health services--
``(A) for at least 10 percent of all clinic visits by not
later than September 30, 2006; and
``(B) for at least 15 percent of all clinic visits by not
later than September 30, 2007.
``(3) The Secretary shall ensure that not less than 2 years
after the date of enactment of this paragraph--
``(A) each primary care health care facility of the
Department has the capacity and resources to provide not less
than 5 days of inpatient, residential detoxification services
onsite or at a nearby contracted or Department facility; and
``(B) a case manager is assigned to coordinate follow up
outpatient services at each community-based outpatient
clinic.''.
(d) Reporting Requirement.--Not later than January 31,
2008, the Secretary of Veterans Affairs shall submit a report
to Congress that--
(1) describes the status and availability of mental health
services at community-based outpatient clinics;
(2) describes the substance of services available at such
clinics;
(3) includes the ratios between mental health staff and
patients at such clinics; and
(4) includes the certification of the Inspector General of
the Department of Veterans Affairs.

SEC. 4. COOPERATION ON MENTAL HEALTH AWARENESS AND
PREVENTION.

(a) Agreement.--The Secretary of Defense and the Secretary
of Veterans Affairs shall enter into a Memorandum of
Understanding--
(1) to ensure that separating servicemembers receive
standardized individual mental health and sexual trauma
assessments as part of separation exams; and
(2) includes the development of shared guidelines on how to
conduct the assessments.
(b) Establishment of Joint VA-DOD Workgroup on Mental
Health.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary of Defense and the
Secretary of Veterans Affairs shall establish a joint
workgroup on mental health, which shall be comprised of not
less than 7 leaders in the field of mental health appointed
from their respective departments.
(2) Study.--Not later than 1 year after the establishment
of the workgroup under paragraph (1), the workgroup shall
analyze the feasibility, content, and scope of initiatives
related to--
(A) combating stigmas and prejudices associated with
servicemembers who suffer from mental health disorders or
readjustment issues, through the use of peer counseling
programs or other educational initiatives;
(B) ways in which the Department of Veterans Affairs can
make their expertise in treating mental health disorders more
readily available to Department of Defense mental health care
providers;
(C) family and spousal education to assist family members
of veterans and servicemembers to recognize and deal with
signs of potential readjustment issues or other mental health
disorders; and

[[Page S6159]]

(D) seamless transition of servicemembers who have been
diagnosed with mental health disorders from active duty to
veteran status (in consultation with the Seamless Transition
Task Force and other entities assisting in this effort).
(3) Report.--Not later than June 30, 2007, the Secretary of
Defense and the Secretary of Veterans Affairs shall submit a
report to Congress containing the findings and
recommendations of the workgroup established under this
subsection.

SEC. 5. PRIMARY CARE CONSULTATIONS FOR MENTAL HEALTH.

(a) Guidelines.--The Under Secretary for Health, Veterans
Health Administration, shall establish systemwide guidelines
for screening primary care patients for mental health
disorders and illnesses.
(b) Training.--Based upon the guidelines established under
subsection (a), the Under Secretary for Health, Veterans
Health Administration, shall conduct appropriate training for
clinicians of the Department of Veterans Affairs to carry out
mental health consultations.
______

By Mr. OBAMA:
S. 1180. A bill to amend title 38, United States Code, to reauthorize
various programs servicing the needs of homeless veterans for fiscal
years 2007 through 2011, and for other purposes; to the Committee on
Veterans' Affairs.
Mr. OBAMA. Mr. President, the Department of Veterans Affairs
estimates that on any given day, as many as 200,000 veterans are
homeless. That is 200,000 men and women who have fought for this
country who will go without the comfort of knowing that they will have
a roof over their head and a place to call home.
If 200,000 of our Nation's veterans will go homeless tonight, the VA
estimates that about twice as many veterans will experience
homelessness this year. Again, that is 400,000 men and women who
defended this great Nation, who will be left out on the streets at some
point this year.
I hope my colleagues are as distressed as I am by these numbers, and
I hope my colleagues will join me in supporting the bill I introduce
today--the Shelter All Veterans Everywhere or ``SAVE'' Reauthorization
Act of 2005.
This bill reauthorizes many of the soon-to-expire homeless veterans
programs currently serving this needy population, including the
Homeless Providers Grant and Per Diem Program and the Homeless Veterans
Reintegration Program. These programs work to provide much-needed
services to homeless veterans so that they can find jobs and ultimately
find a stable home. These programs deserve to be continued. The SAVE
Reauthorization Act actually expands the reach of the Homeless Veterans
Reintegration Program, which provides job placement and training
assistance, to include those veterans at risk of homelessness as well
as those actually homeless, so that we can work to prevent homelessness
before it happens.
At a time when so many of my colleagues are working to ensure that
our Nation's veterans receive the benefits and services they have
earned and deserve, we cannot forget the neediest of our veterans--the
homeless veterans. I hope my colleagues will join me in supporting
these worthy programs.
______

Mr. CORNYN (for himself, Mr. Leahy, Mr. Feingold, and Mr.
Alexander):
S. 1181. A bill to ensure an open and deliberate process in Congress
by providing that any future legislation to establish a new exemption
to section 552 of title 5, United States Code (commonly referred to as
the Freedom of Information Act) be stated explicitly within the text of
the bill; to the Committee on the Judiciary.
Mr. CORNYN. Mr. President, on February 16, shortly before the
President's Day recess, the Senator from Vermont and I introduced the
OPEN Government Act of 2005 (S. 394)--bipartisan legislation to promote
accountability, accessibility, and openness in government, principally
by strengthening and enhancing the Federal law commonly known as the
Freedom of Information Act. s
When I served as Attorney General of Texas, it was my responsibility
to enforce Texas's open government laws. I am pleased to report that
Texas is known for having one of the strongest sets of open government
laws in our Nation. And since that experience, I have long believed
that our Federal Government could use ``a little Texas sunshine.'' I am
thus especially enthusiastic about the OPEN Government Act, because
that legislation attempts to incorporate some of the most important
principles and elements of Texas law into the Federal Freedom of
Information Act. And I am gratified that Senators Alexander, Feingold,
Isakson, and Nelson of Nebraska are cosponsors of the bipartisan
Cornyn-Leahy bill.
This legislation enjoys broad support across the ideological
spectrum. Indeed, since its introduction on February 16, the
legislation has attracted additional support. In particular, I am
pleased to report the endorsements of three conservative public
interest groups--one devoted to the defense of property rights,
Defenders of Property Rights, led by Nancie G. Marzulla, one devoted to
the issue of racial preferences in affirmative action programs, One
Nation Indivisible, led by Linda Chavez, and one devoted to the
protection of religious liberty, Liberty Legal Institute, led by Kelly
Shackelford. I ask unanimous consent that their endorsement letters be
printed in the Record at the close of my remarks. The point of
including these letters in the Record, of course, is not that these
groups are right or wrong in the pursuit of their respective causes,
but that the cause of open government is neither a Republican nor a
Democrat issue--neither a conservative nor a liberal issue--rather, it
is an American issue.
I would like to take a few moments to emphasize one particular
provision of the Cornyn-Leahy bill--section 8. It is a common sense
provision. This provision should not be at all controversial, and
indeed, I am not aware of any opposition whatsoever to it. The
provision would simply help to ensure an open and deliberate process in
Congress, by providing that any future legislation to establish a new
exemption to the Federal Freedom of Information Act must be stated
explicitly within the text of the bill. Specifically, any future
attempt to create a new so-called ``(b)(3) exemption'' to the Federal
FOIA law must specifically cite section (b)(3) of FOIA if it is to take
effect. The justification for this provision is simple: Congress should
not establish new secrecy provisions through secret means. If Congress
is to establish a new exemption to FOIA, it should do so in the open
and in the light of day.
A recent news report published by the Cox News Service amply
demonstrates the importance of this issue, and specifically emphasizes
the need for section 8 of the Cornyn-Leahy bill. I ask unanimous
consent that a copy of this news report be printed at the close of my
remarks.
Senator Leahy and I firmly believe that all of the provisions of the
OPEN Government Act are important--and that, as the recent Cox News
Service report demonstrates, section 8 in particular is a worthy
provision that can and should be quickly enacted into law. We note that
July 4 is the anniversary of the 1966 enactment of the original Federal
Freedom of Information Act. Accordingly, we plan to devote our efforts
this month to getting section 8 approved by Congress and submitted to
the President for his signature by that anniversary date.
Toward that end, we rise today to introduce separate legislation to
enact section 8 of the OPEN Government Act into law. We ask our
colleagues in this chamber to support this measure, first in the Senate
Judiciary Committee, and then on the floor of the United States Senate.
And we look forward to working with our colleagues in the House--
including Representative Lamar Smith, the lead sponsor of the OPEN
Government Act in the House, H.R. 867, as well as Chairman Tom Davis,
who leads the House Committee on Government Reform, and Chairman Todd
Platts, who leads the House Government Reform subcommittee that
recently held a hearing to review the Federal FOIA law.
Section 8 of the Cornyn-Leahy bill is a common-sense, uncontroversial
provision that deserves the support of every member of Congress. It
simply provides that, when Congress enacts legislation--specifically,
legislation to exempt certain documents from disclosure under FOIA--it
do so in the open. After all, if documents are to be kept secret by an
act of Congress, we should at least make sure that that very act of
Congress itself not be undertaken in secret.

[[Page S6160]]

A Senate Judiciary subcommittee held a hearing on the OPEN Government
Act on March 15. I hope that at least section 8 of the legislation can
be enacted into law quickly, and that Congress will then move to
consider the other important provisions of the bill.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

May 25, 2005.
Hon. John Cornyn,
Hart Senate Office Building,
Washington, DC.
Dear Senator Cornyn: On behalf of the Defenders of Property
Rights, I would like to commend you on your introduction of
the Openness Promotes Effectiveness in our National
Government Act of 2005 (OPEN Government Act). With this
legislation, Americans can have confidence that their
government is operating honestly and efficiently.
This proposed bill would be invaluable in aiding our quest
to protect the private property rights of all Americans. The
bill is beneficial for property rights plaintiffs--it puts
teeth into the requirement that the government timely respond
to requests while still protecting private property rights.
For instance, under the bill, if an agency does not respond
within the required 20 days, the agency may not assert any
exemption under subsection (b) of the bill unless disclosure
would endanger national security, ``disclose personal private
information protected by section 552a or proprietary
information,'' or would otherwise be prohibited by law. The
bill also provides for better review of agencies' responses
to FOIA requests and for disciplinary actions for arbitrary
and capricious rejections of requests. If passed, this bill
would surely help private property owners obtain faster
access to information regarding actions that have taken their
property--and provide better enforcement if they do not.
Your bill has our full and enthusiastic endorsement. We
thank you for your steadfast commitment to liberty, open
government, and constitutionally guaranteed property rights.
Yours truly,
Nancie G. Marzulla,
President.
____

One Nation Indivisible,

May 19, 2005.
Senator John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: I am writing to tell you that One
Nation Indivisible supports the OPEN Government Act of 2005.
Good luck with its passage.
Sincerely,
Linda Chavez.
____

Liberty Legal Institute,

June 1, 2005.
Re: ``OPEN Government Act'' bill

Hon. John Cornyn,
U.S. Senate, Washington, DC.
Dear Senator Cornyn: We are fully on board with your
efforts on Freedom of Information Act improvements. The
government should be open to its people. This is a core
requirement in any free society.
FOIA currently has little enforcement capability and was
also hurt by the wrongly decided Buckhannon decision.
Citizens deserve the protection of FOIA and the changes you
are proposing.
Please put us on your endorsement list for the ``OPEN
Government Act'' bill. In fact, we strongly believe the
Buckhannon error needs to be corrected for all Sec. 1983
cases.
Last, even more abusive recently is the abuse of Rule 68 to
threaten and intimidate citizens already victimized once by
government officials. The idea that civil rights victims, who
win their suit (usually for just nominal damages), may have
to pay the government's costs is obscene and a complete
violation of Congressional intent. I hope we can fix this as
well.
Thank you for your service to all Texans.
Sincerely,
Kelly Shackelford,
Chief Counsel, Liberty Legal Institute.

There being no objection, the news report was ordered to be printed
in the Record, as follows:

[From the Cox News Service, June 3, 2005]

Congress Cloaks More Information in Secrecy

(By Rebecca Carr)

Washington.--Few would argue with the need for a national
livestock identification system to help the federal
government handle a disease outbreak such as mad cow.
But pending legislation calling for the nation's first
electronic livestock tracking system would prohibit the
public from finding out anything about animals in the system,
including the history of a cow sick with bovine spongiform
encephalopathy.
The only way the public can find out such details is if the
secretary of agriculture makes the information public.
That's because the legislation, sponsored by Rep. Collin C.
Peterson, D-Minn., includes a provision that exempts
information about the system from being released under the
Freedom of Information Act.
Formally called the ``third exemption,'' it is one of nine
exemptions the government can use to deny the release of
information requested under the FOI Act.
Open government advocates say it is the most troubling of
the nine exemptions because it allows Congress to cloak vital
information in secrecy through legislation, often without a
public hearing or debate. They say Congress frequently
invokes the exemption to appease private sector businesses,
which argue it is necessary to protect proprietary
information.
``It is an easy way to slap a secrecy stamp on the
information,'' said Rick Blum, director of
openthegovernment.org, a coalition of more than 30 groups
concerned about government secrecy.
The legislative intent of Congress is far more difficult to
challenge than a federal agency's denial for the release of
information, said Kevin M. Goldberg, general counsel to the
American Society of Newspaper Editors.
``This secrecy is often perpetuated in secret as most of
the (third exemption) provisions consist of one or two
paragraph tucked into a much larger bill with no notice that
the Freedom of Information Act will be affected at all,''
Goldberg said.
There are at least 140 cases where congressional lawmakers
have inserted such exemptions, according to a 2003 Justice
Department report.
The report notes that Congress has been ``increasingly
active in enacting such statutory provisions.''
The exemptions have become so popular that finding them in
proposed legislation is ``like playing a game of Wackamole,''
one staffer to Sen. Patrick Leahy, D-Vt., joked. ``As soon as
you handle one, another one pops up.''
Congress used the exemption in its massive Homeland
Security Act three years ago, granting businesses protection
from information disclosure if they agreed to share
information about the vulnerabilities of their facilities.
And in another twist on the exemption, Congress inserted a
provision into the Consolidated Appropriations Act of 2004
that states that ``no funds appropriated under this or any
other act may be used to disclose'' records about firearms
tracking to the public.
Government agencies have also sought protection from
information disclosure.
For example, Congress passed an amendment to the National
Security Act in 1984 that exempted the CIA from having to
comply with the search and review requirements of the FOI Act
for its ``operational files.''
Most of the information in those files, which included
records about foreign and counterintelligence operations was
already protected from disclosure under the other exemptions
in the FOI Act.
But before Congress granted the exemption, the agency had
to search and review each document to justify withholding the
information, which cost time and money.
Open government advocates say many of the exemptions
inserted into legislation are not justified.
``This is back door secrecy,'' said Thomas Blanton,
executive director of the National Security Archive at George
Washington University, a nonprofit research institute based
in Washington.
When an industry wants to keep information secret, it seeks
the so-called third exemption, he said.
``It all takes place behind the sausage grinder,'' Blanton
said. ``You don't know what gristle is going through the
sport, you just have to eat it.''
But Daniel J. Metcalfe, co-director of the Justice
Department's Office of Information and Privacy, said the
exception is crucial to the FOI Act's structure.
In the case of the animal identification bill, the
exemption is critical to winning support from the cattle
industry and on Capitol Hill.
``If we are going to develop an animal ID system that's
effective and meaningful, we have to respect participants'
private information,'' said Peterson, the Minnesota lawmaker
who proposed the identification system. ``The goal of a
national animal I.D. system is to protect livestock owners as
well as the public.''
As the livestock industry sees it, it is providing
information that will help protect the public health. In
exchange for proprietary information about their herds, they
believe they should receive confidence that their business
records will not be shared with the public.
``The producers would be reluctant to support the bill
without the protection,'' said Bryan Dierlam, executive
director of government affairs at the National Cattleman's
Beef Association.
The animal identification on bill provides the government
with the information it needs to protect the public in the
event of an disease out break, Dierlam said. ``But it would
protect the producers from John Q. Public trying to willy-
nilly access their information.''
Food safety experts agree there is a clear need for an
animal identification system to protect the public, but they
are not certain that the exemption to the FOI Act is
necessary.
``It's sad that Congress feels they have to give away
something to the cattle industry to achieve it,'' said
Caroline Smith DeWaal, director of the food safety program at
the Center for Science in the Public Interest, a nonprofit
organization based in Washington.
Slipping the exemption into legislation without notice is
another problem cited by open government advocates!.
It has become such a problem that the Senate's strongest
FOI Act supporters, Sen.

[[Page S6161]]

John Cornyn, R-Texas, and Sen. Patrick Leahy, D-Vt., proposed
that lawmakers be required to uniformly identify the
exemption in all future bills.
``If Congress wants to create new exemptions, it must do so
in the light of day,'' Cornyn said. ``And it must do so in a
way that provides an opportunity to argue for or against the
new exemption--rather than have new exemptions creep into the
law unnoticed.''
Leahy agreed, saying that Congress must be diligent in
reviewing new exemptions to prevent possible abuses.
``In Washington, loopholes tend to beget more loopholes,
and it's the same with FOI Act exemptions,'' Leahy said.
``Focusing more sunshine on this process is an antidote to
exemption creep.''

Mr. LEAHY. For the third time this year, Senator Cornyn and I have
joined to introduce common sense proposals to strengthen open
government and the Freedom of Information Act, or FOIA. The Senator
from Texas has a long record of promoting open government, most
significantly during his tenure as Attorney General of Texas. He and I
have forged a valuable partnership in this Congress to support and
strengthen FOIA. We introduced two bills earlier this year, and held a
hearing on our bill, the Open Government Act, issues during Sunshine
Week in March.
The bill we introduce today is simple and straightforward. It simply
requires that when Congress sees fit to provide a statutory exemption
to FOIA, it must state its intention to do so explicitly. The language
of this bill was previously introduced as section eight of S. 394, the
Open Government Act.
No one argues with the notion that some government information is
appropriately kept from public view. FOIA contains a number of
exemptions for national security, law enforcement, confidential
business information, personal privacy, and other matters. One
provision of FOIA, commonly known as the (b)(3) exemption, states that
records that are specifically exempted by statute may be withheld from
disclosure. Many bills that are introduced contain statutory
exemptions, or contain language that is ambiguous and might be
interpreted as such by the courts. In recent years, we have seen more
and more such exemptions offered in legislation. A 2003 Justice
Department report stated that Congress has been ``increasingly active
in enacting such statutory provisions.'' A June 3, 2005, article by the
Cox News Service titled, ``Congress Cloaks More Information in
Secrecy,'' pointed to 140 instances ``where congressional lawmakers
have inserted such exemptions'' into proposed legislation. I commend
this article to my colleagues and understand that Senator Cornyn has
placed a copy in the Record.
Our shared principles of open government lead us to believe that
individual statutory exemptions should be vigorously debated before
lawmakers vote in favor of them. Sometimes such proposed exemptions are
clearly delineated in proposed legislation, but other times they amount
to a few lines within a highly complex and lengthy bill. These are
difficult to locate and analyze in a timely manner, even for those of
us who stand watch. As a result, such exemptions are often enacted with
little scrutiny, and as soon as one is granted, others are requested.
The private sector has sought many exemptions in exchange for
agreeing to share information with the government. One example of great
concern to me is the statutory exemption for critical infrastructure
information that was enacted as part of the Homeland Security Act of
2002, the law that created the Department of Homeland Security. In this
case, a reasonable compromise, approved by the White House, to balance
the protection of sensitive information with the public's right to know
was pulled out of the bill in conference. It was then replaced with
text providing an overly broad statutory exemption that undermines
Federal and State sunshine laws. I have introduced legislation, called
the Restoration of Freedom of Information Act, to revert to that
reasonable compromise language.
Not every statutory exemption is inappropriate, but every proposal
deserves scrutiny. Congress must be diligent in reviewing new
exemptions to prevent possible abuses. Focusing more sunshine on this
process is an antidote to exemption creep.
When we introduced the Open Government Act in February, we addressed
this matter with a provision that would require Congress to identify
proposed statutory exemptions in newly introduced legislation in a
uniform manner. Today, we introduce that single section as a new bill
that we hope can be enacted quickly.
I want to thank the Senator from Texas for his personal dedication to
these issues. I urge all members of the Senate to join us in supporting
this bill.
______

By Mr. CRAIG:
S. 1182. A bill to amend title 38, United States Code, to improve
health care for veterans, and for other purposes; to the Committee on
Veterans' Affairs.
Mr. CRAIG. Mr. President, I seek recognition today to introduce
legislation that will expand the services available to our Nation's
veterans and their dependents, and improve the ability of the
Department of Veterans Affairs (VA) to provide health care services to
this same group of deserving Americans. I take a few moments now to
explain the provisions of this legislation.
First, the bill would, in section 2, exempt veterans enrolled for VA
care from all copayments for hospice care services provided by VA. Over
the past several years, VA has greatly expanded its efforts to provide
compassionate end-of-life care for our Nation's heroes. Last year,
Congress made efforts to ensure that the surviving spouses and children
would not receive bills for such services following the deaths of such
veterans who were in the hospice program. Unfortunately, last year's
legislation did not go far enough, and today some veterans' families
are still paying for this care. This provision would end that practice
in all hospice care settings.
Section 3 of the bill would exempt former Prisoners of War from
copayments that are applicable to care in a VA extended care facility.
Congress has already exempted this deserving group of veterans from
other VA medical copayments, and this provision would complete the
range of services available to these veterans free of charge. In
addition, this section bill would remove the requirement that VA
maintain the exact number of nursing home care beds in VA facilities as
it had during fiscal year 1998. Now before some suggest that I am
advocating the reduction in services available to veterans, I'd like to
explain how the current requirement came about and why I believe it
should be reconsidered.
The requirement that VA maintain a specified level of nursing home
beds was inserted into the law in 1999 when Congress enacted
legislation to expand options for non-institutional, long-term care
services available to veterans. At that time, some felt that by growing
the non-institutional care program, VA would seek simply to shut all of
its institutional care capacity. So in a compromise, Congress decided
that fiscal year 1998 would be the year against which changes in the
institutional care program would be measured. And then it required that
VA maintain all of the beds it had in 1998.
Since 1998, VA has increased the number of veterans it treats by
nearly 2 million. Yet, year after year, VA reports to Congress that it
does not need to maintain the number of nursing home beds required by
law. Does that mean VA is closing beds unnecessarily? No. It means VA
has followed the progress of medicine and is offering tens-of-thousands
of veterans non-institutional care services while keeping them at home
rather than in VA nursing home beds. I do not believe that Congress
should continue to mandate the maintenance of an arbitrarily-determined
number of beds in a system that is trying to effectively use every
dollar it can to provide real and needed services to our veterans. This
provision reflects that belief.
The fourth section of the legislation, if enacted, would ensure that
veterans who seek emergency medical services at the nearby community
medical facilities are treated no differently financially than if the
care had been provided at a VA medical facility. This is an important
issue in the provision of quality health care for our veterans. VA has
some evidence that veterans who need emergency services are bypassing
local medical facilities, and are attempting to ``make it'' to a VA
facility even in the face of an emergency, because of concerns that
VA's reimbursement policies for non-VA provided

[[Page S6162]]

emergency care will result in the veteran paying more out-of-pocket
costs. Clearly, that is not the kind of behavior Congress wants to
encourage in our veterans. Nor is it good medicine. This provision
would clarify once and for all that veterans will be treated equally
regardless of where emergency care treatment is sought.

Section 5 of the bill would authorize VA to provide or pay for up to
the first fourteen days of care for a newborn child of an enrolled
female veteran who delivers her baby under VA provided, or VA financed,
care. As most of my colleagues know, VA provides what it calls a
``comprehensive package of health benefits for eligible veterans.''
Unfortunately, for the increasing number of female veterans enrolling
for VA care, the word ``comprehensive'' does not include coverage for a
newborn's first few days of needed care. This type of arrangement is
common in the private sector. In my judgment, this is an issue we must
address to assure our female service members that, as more and more of
them join the service and change the face of the American military, we
will make certain that the face of VA changes right along with it.
Section 6 would allow private health care providers to recoup costs
for care provided to children afflicted with spina bifida of Vietnam
veterans--children who are, by law, entitled to VA-provided care--when
the costs are not fully covered by VA reimbursements. This so-called
``balance billing'' authority would prohibit charging individual
patients or veterans themselves. Only a beneficiary with private
insurance could have his or her insurance cover charges not covered by
VA. This provision is important because it will provide a financial
incentive to many providers who, unfortunately in some cases today, are
not willing to provide the very specialized services needed by these
children because some costs are not reimbursed by VA at a sufficient
rate.
Section 7 of this bill would increase the authorized level of funding
for the Homeless Grant and Per Diem Program at the Department of
Veterans Affairs. I know all of my colleagues would agree that any man
or woman who served this country in uniform should not be among the
unfortunate Americans who find themselves on the street without
shelter. VA has made tremendous strides in this area by providing grant
programs, health care services, mental health treatment, and other
assistance to those veterans who do find themselves on the street. This
provision would ensure that good programs remain on track for the
foreseeable future.
The eighth section of this bill would authorize VA medical centers to
employ Marriage and Family Therapists. I realize that to some of my
colleagues this may sound as though VA is beginning to become a family
health care system and not a veterans' health care system. I want to
assure any who harbor such concerns that this is not the intention or
the purpose of this proposed authority. Rather, this proposal seeks to
recognize that for some veterans, the trauma and experiences of war may
lead to troubles at home. Often in these situations, treatment as a
family is more effective for the betterment of the veteran. Of course,
preservation of the family is an extremely important byproduct of this
treatment approach as well. I do not believe it is incompatible with
the mission of treating our veterans to focus on their family well-
being when it is appropriate. The military is offering many of these
services already to those who are returning from overseas. These
programs are receiving good reviews from those in the mental health and
counseling professions. It seems only logical that we extend successful
ideas from the military experience to our veterans.
Section 9 would provide pay equity for the national Director of VA's
Nursing Service. Currently, this position is paid at a rate that is
less than all of the other service chiefs at VA's Central Office. I
believe correcting this inequity is not only a matter of fairness, but
a long overdue recognition that VA's nursing service is just as
important to the provision of health services for our veterans as the
pharmacy service, the dental service, and other such services within
VA.
Section 10 of this bill would allow VA to conduct cost-comparison
studies within its health care system. Mr. President, such studies are
invaluable tools for government to measure whether its current
workforce has identified the most efficient and effective means of
delivering services to our veterans, and value to the taxpayers. In my
opinion, any organization that fails to measure its performance against
others in the same field will quickly cease to be an effective
organization. VA is--and it must continue to be--an effective and
efficient health care provider. This small change in the law will
provide one additional tool to ensure that is the case far into the
future.
Section 11 of my legislation would focus on an area of great
importance to many members of the Senate: The treatment of mental
health issues for those returning from service in Operations Iraqi
Freedom and Enduring Freedom. I know many of us have read reports that
estimate that as many as 20 percent of those serving overseas will need
some mental health care services to cope with the stress of serving in
a war zone. First, I want to say to my colleagues that the Department
of Veterans Affairs already has in place numerous programs and services
to respond to the needs of those veterans seeking care for mental
health issues. Still, as Chairman of the Veterans' Affairs Committee, I
believe it is important that we assure our brave servicemen and women,
and the American people, that we are not satisfied with merely
maintaining VA's ability to provide mental health services. Rather, we
must assure that VA continues to improve and expand the treatment
options available.
This section of the bill would authorize $95 million in both fiscal
years 2006 and 2007 to improve and expand the mental health services
available to our Nation's veterans. The Secretary of Veterans Affairs
would be required to devote specific resources to certain
important areas of treatment including, but not limited to $5 million
to expand the number of clinical teams devoted to the treatment of
Post-Traumatic Stress Disorder; $50 million to expand the services
available to diagnose and treat veterans with substance abuse problems;
$10 million to expand tele-health capabilities in areas of the country
where access to basic mental health services is nearly impossible; $1
million to improve educational programs available for primary care
providers to learn more about diagnosing and treating veterans with
mental illness; $20 million to expand the number of community-based
outpatient clinics with mental health services; and $5 million to
expand VA's Mental Health Intensive Case Management Teams.

I want to make it clear to my colleagues that I am taking this
approach because I am concerned about the availability of these
services as much as anyone in the Senate. But, I am also concerned
about recent moves to ``micro-manage'' the VA health care system by
requiring, for example, that certain percentages of VA's budget be
spent on one service or another, or that every VA facility have some
certain clinical service available. These approaches, while well-
intentioned, run the risk of diverting important resources away from
services that are extremely important to our veterans. My approach is
to put Congress on record as expecting improvements and expansion in
certain important programs, attaching a reasonable amount of money to
those efforts, and then monitoring the progress closely from the
Veterans' Committee.
Section 12 addresses a point of legal contention that has restricted
the sharing of medical information between the Department of Defense
and VA. As a result, record transfers for patients who would be VA
patients are not arriving in VA hands as quickly and as seamlessly as
they should. This provision would make clear that DoD and VA may
exchange health records information for the purpose of providing health
care to beneficiaries of one system who seek to quickly move to the
other for services.
Section 13 of the bill would direct VA to expand the number VA
employees dedicated to serving the Veterans Readjustment Counseling
Service's Global War on Terrorism (GWOT) Outreach Program. The
Committee on Veterans' Affairs held a hearing earlier this year at
which two GWOT counselors testified on the numerous services their
program provides to returning service

[[Page S6163]]

members, specifically Guardsmen and Reservists coming back from Iraq
and Afghanistan. In many cases, these GWOT counselors are the first VA
officials to welcome home our troops at the airport, provide them with
their first briefing on VA benefits and services, and steer those in
need to counseling services and health care centers. This is a
creative, vibrant program with only 50 employees that is just now
beginning to reach its peak effect on returning combat veterans. I
believe VA should expand its efforts in this area to ensure we are
reaching everyone we can.
Section 14 of this bill would require VA to expand the number of Vet
Centers capable of providing tele-health services and counseling to
veterans returning from combat. Currently there are 21 Vet Center
facilities that maintain this capability. And while that is a laudable
effort, I believe we can do better. Tele-medicine offers a tremendous
opportunity to bring many health services, particularly mental health
services, to veterans who reside in areas of the country where those
services would not otherwise be available. Practitioners are showing
great results with tele-health services for mental health treatment,
and our veterans are getting the services they need, closer to home, in
a more timely fashion. Expansion of such success only seems logical.
Finally, section 15 of this bill would require the Secretary of
Veterans Affairs to submit a report on all of the mental health data
maintained by VA, including the actual geographic locations of
collection and whether all of these points of data should continue to
be collected.
Over the next several weeks, the Committee on Veterans' Affairs will
be taking testimony on this bill and other legislation introduced by
Senators to improve the range of services and benefits available to our
Nation's veterans. I look forward to working with my colleagues
throughout the rest of this session of Congress on these and other
important efforts.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1182

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNITED STATES
CODE.

(a) Short Title.--This Act may be cited as the ``Veterans
Health Care Act of 2005''.
(b) References.--Except as otherwise expressly provided,
whenever in this Act an amendment or repeal is expressed in
terms of an amendment or repeal to a section or other
provision, the reference shall be considered to be made to a
section or other provision of title 38, United States Code.

SEC. 2. COPAYMENT EXEMPTION FOR HOSPICE CARE.

Section 1710 is amended--
(1) in subsection (f)(1), by inserting ``(other than
hospice care)'' after ``nursing home care''; and
(2) in subsection (g)(1), by inserting ``(other than
hospice care)'' after ``medical services''.

SEC. 3. NURSING HOME BED LEVELS; EXEMPTION FROM EXTENDED CARE
SERVICES COPAYMENTS FOR FORMER POWS.

Section 1710B is amended--
(1) by striking subsection (b);
(2) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and.
(3) in subsection (b)(2), as redesignated--
(A) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(B) by inserting after subparagraph (A) the following:
``(B) to a veteran who is a former prisoner of war;''.

SEC. 4. REIMBURSEMENT FOR CERTAIN VETERANS' OUTSTANDING
EMERGENCY TREATMENT EXPENSES.

(a) In General.--Subchapter III of chapter 17 is amended
by inserting after section 1725 the following:

``Sec. 1725A. Reimbursement for emergency treatment expenses
for which certain veterans remain personally liable

``(a)(1) Subject to subsection (c), the Secretary may
reimburse a veteran described in subsection (b) for expenses
resulting from emergency treatment furnished to the veteran
in a non-Department facility for which the veteran remains
personally liable.
``(2) In any case in which reimbursement is authorized
under subsection (a)(1), the Secretary, in the Secretary's
discretion, may, in lieu of reimbursing the veteran, make
payment--
``(A) to a hospital or other health care provider that
furnished the treatment; or
``(B) to the person or organization that paid for such
treatment on behalf of the veteran.
``(b) A veteran referred to in subsection (a) is an
individual who--
``(1) is enrolled in the health care system established
under section 1705(a) of this title;
``(2) received care under this chapter during the 24-month
period preceding the furnishing of such emergency treatment;
``(3) is entitled to care or services under a health-plan
contract that partially reimburses the cost of the veteran's
emergency treatment;
``(4) is financially liable to the provider of emergency
care treatment for costs not covered by the veteran's health-
plan contract, including copayments and deductibles; and
``(5) is not eligible for reimbursement for medical care or
services under section 1725 or 1728 of this title.
``(c)(1) Any amount paid by the Secretary under subsection
(a) shall exclude the amount of any payment the veteran would
have been required to make to the United States under this
chapter if the veteran had received the emergency treatment
from the Department.
``(2) The Secretary may not provide reimbursement under
this section with respect to any item or service--
``(A) provided or for which payment has been made, or can
reasonably be expected to be made, under the veteran's
health-plan contract; or
``(B) for which payment has been made or can reasonably be
expected to be made by a third party.
``(3)(A) Payment by the Secretary under this section on
behalf of a veteran to a provider of emergency treatment
shall, unless rejected and refunded by the provider within 30
days of receipt, extinguish any liability on the part of the
veteran for that treatment.
``(B) The absence of a contract or agreement between the
Secretary and the provider, any provision of a contract or
agreement, or an assignment to the contrary shall not operate
to modify, limit, or negate the requirement under
subparagraph (A).
``(4) In accordance with regulations prescribed by the
Secretary, the Secretary shall--
``(A) establish criteria for determining the amount of
reimbursement (which may include a maximum amount) payable
under this section; and
``(B) delineate the circumstances under which such payment
may be made, including requirements for requesting
reimbursement.
``(d)(1) In accordance with regulations prescribed by the
Secretary, the United States shall have the independent right
to recover any amount paid under this section if, and to the
extent that, a third party subsequently makes a payment for
the same emergency treatment.
``(2) Any amount paid by the United States to the veteran,
the veteran's personal representative, successor, dependents,
or survivors, or to any other person or organization paying
for such treatment shall constitute a lien in favor of the
United States against any recovery the payee subsequently
receives from a third party for the same treatment.
``(3) Any amount paid by the United States to the provider
that furnished the veteran's emergency treatment shall
constitute a lien against any subsequent amount the provider
receives from a third party for the same emergency treatment
for which the United States made payment.
``(4) The veteran or the veteran's personal representative,
successor, dependents, or survivors shall--
``(A) ensure that the Secretary is promptly notified of any
payment received from any third party for emergency treatment
furnished to the veteran;
``(B) immediately forward all documents relating to a
payment described in subparagraph (A);
``(C) cooperate with the Secretary in an investigation of a
payment described in subparagraph (A); and
``(D) assist the Secretary in enforcing the United States
right to recover any payment made under subsection (c)(3).
``(e) The Secretary may waive recovery of a payment made to
a veteran under this section that is otherwise required under
subsection (d)(1) if the Secretary determines that such
waiver would be in the best interest of the United States, as
defined by regulations prescribed by the Secretary.
``(f) For purposes of this section--
``(1) the term `health-plan contract' includes--
``(A) an insurance policy or contract, medical or hospital
service agreement, membership or subscription contract, or
similar arrangement, under which health services for
individuals are provided or the expenses of such services are
paid;
``(B) an insurance program described in section 1811 of the
Social Security Act (42 U.S.C. 1395c) or established by
section 1831 of that Act (42 U.S.C. 1395j);
``(C) a State plan for medical assistance approved under
title XIX of such Act (42 U.S.C. 1396 et seq.); and
``(D) a workers' compensation law or plan described in
section 1729(A)(2)(B) of this title;
``(2) the term `third party' means--
``(A) a Federal entity;
``(B) a State or political subdivision of a State;
``(C) an employer or an employer's insurance carrier; and

[[Page S6164]]

``(D) a person or entity obligated to provide, or pay the
expenses of, such emergency treatment; and
``(3) the term `emergency treatment' has the meaning given
such term in section 1725 of this title.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 17 is amended by inserting after the
item relating to section 1725 the following:

``Sec. 1725A. Reimbursement for emergency treatment expenses for which
certain veterans remain personally liable.''.

SEC. 5. CARE FOR NEWBORN CHILDREN OF WOMEN VETERANS RECEIVING
MATERNITY CARE .

(a) In General.--Subchapter VIII of chapter 17 is amended
by adding at the end the following:

``Sec. 1786. Care for newborn children of women veterans
receiving maternity care

``The Secretary may furnish care to a newborn child of a
woman veteran, who is receiving maternity care furnished by
the Department, for not more than 14 days after the birth of
the child if the veteran delivered the child in a Department
facility or in another facility pursuant to a Department
contract for the delivery services.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 17 is amended by inserting after the
item relating to section 1785 the following:

``Sec. 1786. Care for newborn children of women veterans receiving
maternity care.''.

SEC. 6. ENHANCEMENT OF PAYER PROVISIONS FOR HEALTH CARE
FURNISHED TO CERTAIN CHILDREN OF VIETNAM
VETERANS.

(a) Health Care for Spina Bifida and Associated
Disabilities.--Section 1803 is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c)(1) If a payment made by the Secretary for health care
under this section is less than the amount billed for such
health care, the health care provider or agent of the health
care provider may, in accordance with paragraphs (2) through
(4), seek payment for the difference between the amount
billed and the amount paid by the Secretary from a
responsible third party to the extent that the provider or
agent would be eligible to receive payment for such health
care from such third party.
``(2) The health care provider or agent may not impose any
additional charge on the beneficiary who received the health
care, or the family of such beneficiary, for any service or
item for which the Secretary has made payment under this
section;
``(3) The total amount of payment a health care provider or
agent may receive for health care furnished under this
section may not exceed the amount billed to the Secretary.
``(4) The Secretary, upon request, shall disclose to such
third party information received for the purposes of carrying
out this section.''.
(b) Health Care for Birth Defects and Associated
Disabilities.--Section 1813 is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c)(1) If payment made by the Secretary for health care
under this section is less than the amount billed for such
health care, the health care provider or agent of the health
care provider may, in accordance with paragraphs (2) through
(4), seek payment for the difference between the amount
billed and the amount paid by the Secretary from a
responsible third party to the extent that the provider or
agent would be eligible to receive payment for such health
care from such third party.
``(2) The health care provider or agent may not impose any
additional charge on the beneficiary who received health
care, or the family of such beneficiary, for any service or
item for which the Secretary has made payment under this
section;
``(3) The total amount of payment a health care provider or
agent may receive for health care furnished under this
section may not exceed the amount billed to the Secretary;
and
``(4) The Secretary, upon request, shall disclose to such
third party information received for the purposes of carrying
out this section.''.

SEC. 7. IMPROVEMENTS TO HOMELESS PROVIDERS GRANT AND PER DIEM
PROGRAM.

(a) Permanent Authority.--Section 2011 (a) is amended--
(1) in paragraph (1), by striking ``(1)''; and
(2) by striking paragraph (2).
(b) Authorization of Appropriations.--Section 2013 is
amended to read as follows:

``Sec. 2013. Authorization of appropriations

``There are authorized to be appropriated $130,000,000 for
fiscal year 2006 and each subsequent fiscal year to carry out
this subchapter.''.

SEC. 8. MARRIAGE AND FAMILY THERAPISTS.

(a) Qualifications.--Section 7402(b) is amended--
(1) by redesignating paragraph (10) as paragraph (11); and
(2) by inserting after paragraph (9) the following:
``(10) Marriage and family therapist.--To be eligible to be
appointed to a marriage and family therapist position, a
person must--
``(A) hold a master's degree in marriage and family
therapy, or a comparable degree in mental health, from a
college or university approved by the Secretary; and
``(B) be licensed or certified to independently practice
marriage and family therapy in a State, except that the
Secretary may waive the requirement of licensure or
certification for an individual marriage and family therapist
for a reasonable period of time recommended by the Under
Secretary for Health.''.
(b) Report on Marriage and Family Therapy Workload.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Under Secretary for Health,
Department of Veterans Affairs, shall submit to the Committee
on Veterans' Affairs of the Senate and the Committee on
Veterans' Affairs of the House of Representatives a report on
the provisions of post-traumatic stress disorder treatment by
marriage and family therapists.
(2) Contents.--The report submitted under paragraph (1)
shall include--
(A) the actual and projected workloads in facilities of the
Veterans Readjustment Counseling Service and the Veterans
Health Administration for the provision of marriage and
family counseling for veterans diagnosed with, or otherwise
in need of treatment for, post-traumatic stress disorder;
(B) the resources available and needed to support the
workload projections described in subparagraph (A);
(C) an assessment by the Under Secretary for Health of the
effectiveness of treatment by marriage and family therapists;
and
(D) recommendations, if any, for improvements in the
provision of such counseling treatment.

SEC. 9. PAY COMPARABILITY FOR CHIEF NURSING OFFICER, OFFICE
OF NURSING SERVICES.

Section 7404 is amended--
(1) in subsection (d), by striking ``subchapter III'' and
inserting ``paragraph (e), subchapter III,''; and
(2) by adding at the end the following:
``(e) The position of Chief Nursing Officer, Office of
Nursing Services, shall be exempt from the provisions of
section 7451 of this title and shall be paid at a rate not to
exceed the maximum rate established for the Senior Executive
Service under section 5382 of title 5 United States Code, as
determined by the Secretary.''.

SEC. 10. REPEAL OF COST COMPARISON STUDIES PROHIBITION.

Section 8110(a) is amended--
(1) by striking paragraph (5); and
(2) by redesignating paragraph (6) as paragraph (5).

SEC. 11. IMPROVEMENTS AND EXPANSION OF MENTAL HEALTH
SERVICES.

(a) In General.--The Secretary of Veterans affairs shall--
(1) expand the number of clinical treatment teams
principally dedicated to the treatment of post-traumatic
stress disorder in medical facilities of the Department of
Veterans Affairs;
(2) expand and improve the services available to diagnose
and treat substance abuse;
(3) expand and improve tele-health initiatives to provide
better access to mental health services in areas of the
country in which the Secretary determines that a need for
such services exist due to the distance of such locations
from an appropriate facility of the Department of Veterans
Affairs;
(4) improve education programs available to primary care
delivery professionals and dedicate such programs to
recognize, treat, and clinically manage veterans with mental
health care needs;
(5) expand the delivery of mental health services in
community-based outpatient clinics of the Department of
Veterans Affairs in which such services are not available as
of the date of enactment of this Act; and
(6) expand and improve the Mental Health Intensive Case
Management Teams for the treatment and clinical case
management of veterans with serious or chronic mental
illness.
(b) Authorization of Appropriations.--There are authorized
to be appropriated in each of fiscal years 2006 and 2007,
$95,000,000 to improve and expand the treatment services and
options available to veterans in need of mental health
treatment from the Department of Veterans Affairs, of which--
(1) $5,000,000 shall be allocated to carry out subsection
(a)(1);
(2) $50,000,000 shall be allocated to carry out subsection
(a)(2);
(3) $10,000,000 shall be allocated to carry out subsection
(a)(3);
(4) $1,000,000 shall be allocated to carry out subsection
(a)(4);
(5) $20,000,000 shall be allocated to carry out subsection
(a)(5); and
(6) $5,000,000 shall be allocated to carry out subsection
(a)(6).

SEC. 12. DATA SHARING IMPROVEMENTS.

Notwithstanding any other provision of law, the Department
of Veterans Affairs and the Department of Defense may
exchange protected health information for--
(1) patients receiving treatment from the Department of
Veterans Affairs; or
(2) individuals who may receive treatment from the
Department of Veterans Affairs in the future, including all
current and former members of the Armed Services.

SEC. 13. EXPANSION OF NATIONAL GUARD OUTREACH PROGRAM.

(a) Requirement.--The Secretary of Veterans Affairs shall
expand the total number

[[Page S6165]]

of personal employed by the Department of Veterans Affairs as
part of the Readjustment Counseling Service's Global War on
Terrorism Outreach Program (referred to in this section as
the ``Program'').
(b) Coordination.--In carrying out subsection (a), the
Secretary shall coordinate participation in the Program by
appropriate employees of the Veterans Benefits Administration
and the Veterans Health Administration.
(c) Information and Assessments.--The Secretary shall
ensure that--
(1) all appropriate health, education, and benefits
information is available to returning members of the National
Guard; and
(2) proper assessments of the needs in each of these areas
is made by the Department of Veterans Affairs.
(d) Collaboration.--The Secretary of Veterans Affairs shall
collaborate with appropriate State National Guard officials
and provide such officials with any assets or services of the
Department of Veterans Affairs that the Secretary determines
to be necessary to carry out the Global War on Terrorism
Outreach Program.

SEC. 14. EXPANSION OF TELE-HEALTH SERVICES.

(a) In General.--The Secretary shall increase the number of
Veterans Readjustment Counseling Service facilities capable
of providing health services and counseling through tele-
health linkages with facilities of the Veterans Health
Administration.
(b) Plan.--The Secretary shall submit to the Committee on
Veterans' Affairs of the Senate and the Committee on
Veterans' Affairs of the House of Representatives a plan to
implement the requirement under subsection (a), which shall
describe the facilities that will have such capabilities at
the end of each of fiscal years 2005, 2006, and 2007.

SEC. 15. MENTAL HEALTH DATA SOURCES REPORT.

(a) In General.--Not less than 180 days after the date of
enactment of this Act, the Secretary of Veterans Affairs
shall submit a report to the Committee on Veterans' Affairs
of the Senate and the Committee on Veterans' Affairs of the
House of Representatives describing the mental health data
maintained by the Department of Veterans Affairs.
(b) Contents.--The report submitted under subsection (a)
shall include--
(1) a comprehensive list of the sources of all such data,
including the geographic locations of facilities of the
Department of Veterans Affairs maintaining such data;
(2) an assessment of the limitations or advantages to
maintaining the current data configuration and locations; and
(3) any recommendations, if any, for improving the
collection, use, and location of mental health data
maintained by the Department of Veterans Affairs.
______

By Mr. WARNER (for himself, Mr. Lieberman, Mr. Roberts, Ms.
Stabenow, Mr. Durbin, and Mr. Allen):
S. 1183. A bill to provide additional assistance to recipients of
Federal Pell Grants who are pursuing programs of study in engineering,
mathematics, science, or foreign languages; to the Committee on Health,
Education, Labor, and Pensions.
Mr. WARNER. Mr. President, I rise today to introduce an important
bill related to education and our national, homeland, and economic
security. I am pleased to be joined in this bipartisan effort with
Senators Lieberman, Roberts, Stabenow, Allen, and Durbin. I am grateful
to each of them for working closely with me in crafting this
legislation.
Our ability to remain ahead of the curve in scientific and
technological advancements is a key component to ensuring America's
national, homeland and economic security in the post 9/11 world of
global terrorism. Yet alarmingly, the bottom line is that America faces
a huge shortage of home-grown, highly trained scientific minds.
The situation America faces today is not unlike almost fifty years
ago. On October 4, 1957, the Soviet Union successfully launched the
first man-made satellite into space, Sputnik. The launch shocked
America, as many of us had just assumed that we were preeminent in the
scientific fields. While prior to that unforgettable day America
enjoyed an air of post World War II invincibility, afterwards our
nation recognized that there was a cost to its complacency. We had
fallen behind.
In the months and years to follow, we would respond with massive
investments in science, technology and engineering. In 1958, Congress
passed the National Defense Education Act to stimulate advancement in
science and math education. In addition, President Eisenhower signed
into law legislation that established the National Aeronautics and
Space Administration (NASA). And a few years later, in 1961, President
Kennedy set the Nation's goal of landing a man on the moon within the
decade.
These investments paid off. In the years following the Sputnik
launch, America not only closed the scientific and technological gap
with the Soviet Union, we surpassed them. Our renewed commitment to
science and technology not only enabled us to safely land a man on the
moon in 1969, it spurred research and development which helped ensure
that our modern military has always had the best equipment and
technology in the world. These post-Sputnik investments also laid the
foundation for the creation of some of the most significant
technologies of modern life, including personal computers and the
Internet.
Why is any of this important to us today? Because as the old saying
goes--he or she who fails to remember history is bound to repeat it.
The truth of the matter is that today, America's education system is
coming up short in training the highly technical American minds that we
now need and will continue to need far into the future.
The 2003 Program for International Student Assessment found that the
math, problem solving, and science skills of fifteen year old students
in the United States were below average when compared to their
international counterparts in industrialized countries.
While slightly better news was presented by the recently released
2003 Trends in International Mathematics and Science Study (TIMSS), it
is still nothing we should cheer about. TIMSS showed that eighth grade
students in the U.S. had lower average math scores than fifteen other
participating countries. U.S. science scores weren't much better.
Our colleges and universities are not immune to the waning
achievement in math and science education. The National Science
Foundation reports the percentage of bachelor degrees in science and
engineering have been declining in the U.S. for nearly two decades. In
fact, the proportion of college-age students earning degrees in math,
science, and engineering was substantially higher in 16 countries in
Asia and Europe than it was in the United States.
In the past, this country has been able to compensate for its
shortfall in homegrown, highly trained, technical and scientific talent
by importing the necessary brain power from foreign countries. However,
with increased global competition, this is becoming harder and harder.
More and more of our imported brain power is returning home to their
native countries. And regrettably, as they return home, many American
high tech jobs are being outsourced with them.
The effects of these educational trends are already being felt in
various important ways. For example: according to the National Science
Board, by 2010, if current trends continue, significantly less than 10
percent of all physical scientists and engineers in the world will be
working in America. The American Physical Society reports that the
proportion of articles by American authors in the Physical Review, one
of the most important research journals in the world, has hit an all
time low of 29 percent, down from 61 percent in 1983. And the U.S.
production of patents, probably the most direct link between research
and economic benefit, has declined steadily relative to the rest of the
world for decades, and now stands at only 52 percent of the total.
Fortunately, we already have an existing Federal program up and
running that, if modified, can help. Under current law, the $14 billion
a year Pell Grant program awards recipients grants regardless of the
course of study that the recipient chooses to pursue. So, under current
law, two people from the same financial background are eligible for the
same grant even though one chooses to major in the liberal arts while
the other majors in engineering or science.
While I believe studying the liberal arts is an important component
to having an enlightened citizenry, I also believe that given the
unique challenges we are facing in this country, it is appropriate for
us to add an incentive to the Pell Grant program to encourage
individuals to pursue courses of study where graduates are needed to
meet our national, homeland, and economic security needs.
That is why today I am introducing this legislation. The legislation
is simple. It provides that at least every two

[[Page S6166]]

years, our Secretary of Education, in consultation with the Secretary
of Defense, the Secretary of Homeland Security, and others, should
provide a list of courses of study where America needs home-grown
talent to meet our national, homeland, and economic security needs.
Those students who pursue courses of study in these programs will be
rewarded with a doubling of their Pell Grant to help them with the
costs associated with obtaining their education.
We in the Congress have an obligation when expending taxpayer money,
to do so in a manner that meets our nation's needs. Our Nation
desperately needs more highly trained domestic workers. That is an
indisputable fact. And, in the Pell Grant program, we have
approximately $14 billion that is readily available to help meet this
demand.
In closing, our world is vastly different today than it was when the
Pell Grant program was created in 1972. My legislation is a common-
sense modification of the Pell Grant program that will help America
meet its new challenges. I hope my colleagues will join me in this
endeavor.
I ask unanimous consent that the text of the legislation be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1183

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``21st Century Federal Pell
Grant Plus Act''.

SEC. 2. RECIPIENTS OF FEDERAL PELL GRANTS WHO ARE PURSUING
PROGRAMS OF STUDY IN ENGINEERING, MATHEMATICS,
SCIENCE, OR FOREIGN LANGUAGES.

Section 401(b)(2) of the Higher Education Act of 1965 (20
U.S.C. 1070a(b)(2)) is amended by adding at the end the
following:
``(C)(i) Notwithstanding subparagraph (A) and subject to
clause (iii), in the case of a student who is eligible under
this part and who is pursuing a degree with a major in, or a
certificate or program of study relating to, engineering,
mathematics, science (such as physics, chemistry, or computer
science), or a foreign language, described in a list
developed or updated under clause (ii), the amount of the
Federal Pell Grant shall be the amount calculated for the
student under subparagraph (A) for the academic year
involved, multiplied by 2.
``(ii)(I) The Secretary, in consultation with the Secretary
of Defense, the Secretary of the Department of Homeland
Security, and the Director of the National Science
Foundation, shall develop, update not less often than once
every 2 years, and publish in the Federal Register, a list of
engineering, mathematics, and science degrees, majors,
certificates, or programs that if pursued by a student, may
enable the student to receive the increased Federal Pell
Grant amount under clause (i). In developing and updating the
list the Secretaries and Director shall consider the
following:
``(aa) The current engineering, mathematics, and science
needs of the United States with respect to national security,
homeland security, and economic security.
``(bb) Whether institutions of higher education in the
United States are currently producing enough graduates with
degrees to meet the national security, homeland security, and
economic security needs of the United States.
``(cc) The future expected workforce needs of the United
States required to help ensure the Nation's national
security, homeland security, and economic security.
``(dd) Whether institutions of higher education in the
United States are expected to produce enough graduates with
degrees to meet the future national security, homeland
security, and economic security needs of the United States.
``(II) The Secretary, in consultation with the Secretary of
Defense, the Secretary of the Department of Homeland
Security, and the Secretary of State, shall develop, update
not less often than once every 2 years, and publish in the
Federal Register, a list of foreign language degrees, majors,
certificates, or programs that if pursued by a student, may
enable the student to receive the increased Federal Pell
Grant amount under clause (i). In developing and updating the
list the Secretaries shall consider the following:
``(aa) The foreign language needs of the United States with
respect to national security, homeland security, and economic
security.
``(bb) Whether institutions of higher education in the
United States are currently producing enough graduates with
degrees to meet the national security, homeland security, and
economic security needs of the United States.
``(cc) The future expected workforce needs of the United
States required to help ensure the Nation's national
security, homeland security, and economic security.
``(dd) Whether institutions of higher education in the
United States are expected to produce enough graduates with
degrees to meet the future national security, homeland
security, and economic security needs of the United States.
``(iii) Each student who received an increased Federal Pell
Grant amount under clause (i) to pursue a degree, major,
certificate, or program described in a list published under
subclause (I) or (II) of clause (ii) shall continue to be
eligible for the increased Federal Pell Grant amount in
subsequent academic years if the degree, major, certificate,
or program, respectively, is subsequently removed from the
list.
``(iv)(I) If a student who received an increased Federal
Pell Grant amount under clause (i) changes the student's
course of study to a degree, major, certificate, or program
that is not included in a list described in clause (ii), then
the Secretary shall reduce the amount of Federal Pell Grant
assistance the student is eligible to receive under this
section for subsequent academic years by an amount equal to
the difference between the total amount the student received
under this subparagraph and the total amount the student
would have received under this section if this subparagraph
had not been applied.
``(II) The Secretary shall reduce the amount of Federal
Pell Grant assistance the student is eligible to receive in
subsequent academic years by dividing the total amount to be
reduced under subclause (I) for the student by the number of
years the student received an increased Federal Pell Grant
amount under clause (i), and deducting the result from the
amount of Federal Pell Grant assistance the student is
eligible to receive under this section for a number of
subsequent academic years equal to the number of academic
years the student received an increased Federal Pell Grant
amount under clause (i).''.
______

By Mr. BIDEN:
S. 1184. A bill to waive the passport fees for a relative of a
deceased member of the Armed Forces proceeding abroad to visit the
grave of such member or to attend a funeral or memorial service for
such member; to the Committee on Foreign Relations.
Mr. BIDEN. Mr. President, today I introduce a bill to remedy a small
gap in our passport laws. The change that I propose could be important
to family members of servicemembers who lose their lives in service of
their country.
Under current law, the State Department may not charge a fee to issue
a passport to relatives of a deceased member of the Armed Forces who
are proceeding abroad to visit the grave of such a member. But the law
as applied requires that the family be visiting an official gravesite
overseas.
The law does not, however, allow the waiver of passport fees if the
family is attending a funeral or memorial service for a servicemember
killed in action, but who is buried or memorialized overseas. The need
for such a waiver probably does not occur often, but it happens. Last
year, a servicemember from my home State of Delaware was killed in
action in Iraq. The servicemember was stationed in Germany and his wife
was German. She wished for him to be buried in Germany. So all of his
relatives in the United States needed to travel quickly, and many of
them did not have passports. At a time of such grieving for a lost
servicemember, the family of the fallen hero should not have to worry
about paying passport fees, which can add up quickly for a family,
Waiving the fee in such cases is the least that we can do.
I hope we can approve such a minor change in the law quickly. I urge
my colleagues to support this bill.
I ask unanimous consent that the text of the bill be printed at this
point in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1184

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. PASSPORT FEES.

Section 1 of the Act of June 4, 1920 (41 Stat. 750, chapter
223; 22 U.S.C. 214) is amended in the third sentence by
striking ``or from a widow, child, parent, brother, or sister
of a deceased member of the Armed Forces proceeding abroad to
visit the grave of such member'' and inserting ``or from a
widow, widower, child, parent, grandparent, brother, or
sister of a deceased member of the Armed Forces proceeding
abroad to visit the grave of such member or to attend a
funeral or memorial service for such member''.
______

By Mr. DOMENICI (for himself, Mr. Schumer, Mr. Cochran, Mr.
Allard, and Mr. Coleman):
S. 1186. A bill to amend the Internal Revenue Code of 1986 to provide
the same capital gains treatment for art and collectibles as for other
investment property and to provide that a

[[Page S6167]]

deduction equal to fair market value shall be allowed for charitable
contributions of literary, musical, artistic, or scholarly compositions
created by the donor; to the Committee on Finance.
Mr. DOMENICI. Mr. President, I rise today to introduce again
legislation to eliminate one of the great inconsistencies in the
Internal Revenue Code.
The bill I am introducing today with Senator Schumer is designed to
restore some internal consistency to the tax code as it applies to art
and artists. No one has ever said that the tax code is fair even though
it has always been a theoretical objective of the code to treat similar
taxpayers similarly.
The bill I am introducing today would address two areas where
similarly situated taxpayers are not treated the same.
Internal inconsistency number one deals with the long-term capital
gains tax treatment of investments in art and collectibles. If a person
invests in stocks or bonds and sells at a gain, the tax treatment is
long term capital gains. The top capital gains tax rate is 15 percent.
However, if the same person invests in art or collectibles the top rate
is hiked up to 28 percent. Art for art's sake should not incur a higher
tax rate simply for revenue's sake. That is a big impact on the
pocketbook of the beholder.
Art and collectibles are alternatives to financial instruments as an
investment choice. To create a tax disadvantage with respect to one
investment compared to another creates an artificial market and may
lead to poor investment allocations. It also adversely impacts those
who make their livelihood in the cultural sectors of the economy.
Santa Fe, NM, is the third largest art market in the country. We have
a diverse colony of artists, collectors and gallery owners. We have
fabulous Native American rug weavers, potters and carvers. Creative
giants like Georgia O'Keeffe, Maria Martinez, E. L. Blumenshein, Allan
Houser, R.C. Gorman, and Glenna Goodacre have all chosen New Mexico as
their home and as their artistic subject. John Nieto, Wilson Hurley,
Clark Hulings, Veryl Goodnight, Bill Acheff, Susan Rothenberg, Bruce
Nauman, Agnes Martin, Doug Hyde, Margaret Nez, and Dan Ostermiller are
additional examples of living artists creating art in New Mexico.
Art, antiques, and collectibles are a $12 to $20 billion annual
industry nationwide. In New Mexico, it has been estimated that art and
collectible sales range between $500 million and one billion a year.
Economists have always been interested in the economics of the arts.
Adam Smith is a well-known economist. He was also a serious, but
little-known essayist on painting, dancing, and poetry. Similarly,
Keynes was both a famous economist and a passionate devotee of
painting. However, even artistically inclined economists have found it
difficult to define art within the context of economic theory.
When asked to define jazz, Louis Armstrong replied: ``If you gotta
ask, you ain't never going to know.'' A similar conundrum has
challenged Galbraith and other economists who have grappled with the
definitional issues associated with bringing art within the economic
calculus. Original art objects are, as a commodity group, characterized
by a set of attributes: every unit of output is differentiated from
every other unit of output; art works can be copied but not reproduced;
and the cultural capital of the nation has significant elements of
public good.
Because art works can be resold, and their prices may rise over time,
they have the characteristics of financial assets, and as such may be
sought as a hedge against inflation, as a store of wealth, or as a
source of speculative capital gain. A study by Keishiro Matsumoto,
Samuel Andoh and James P. Hoban, Jr. assessed the risk-adjusted rates
of return on art sold at Sotheby's during the 14-year period ending
September 30, 1989. They concluded that art was a good investment in
terms of average real rates of return. Several studies found that rates
of return from the price appreciation on paintings, comic books,
collectibles and modern prints usually made them very attractive long-
term investments. Also, when William Goetzmann was at the Columbia
Business School, he constructed an art index and concluded that
painting price movements and stock market fluctuations are correlated.
I conclude that with art, as well as stocks, past performance is no
guarantee of future returns, but the gains should be taxed the same.
In 1990, the editor of Art and Auction asked the question: ``Is there
an `efficient' art market?'' A well-known art dealer answered
``Definitely not. That's one of the things that makes the market so
interesting.'' For everyone who has been watching world financial
markets lately, the art market may be a welcome distraction.
Why do people invest in art and collectibles? Art and collectibles
are something you can appreciate even if the investment doesn't
appreciate. Art is less volatile. If buoyant and not so buoyant bond
prices drive you berserk and spiraling stock prices scare you, art may
be the appropriate investment for you. Because art and collectibles are
investments, the long-term capital gains tax treatment should be the
same as for stocks and bonds. This bill would accomplish that.
Artists will benefit. Gallery owners will benefit. Collectors will
benefit. And museums benefit from collectors. About 90 percent of what
winds up in museums like New York's Metropolitan Museum of Art comes
from collectors.
Collecting isn't just for the hoity toity. It seems that everyone
collects something. Some collections are better investments than
others. Some collections are just bizarre. The Internet makes
collecting big business, and flea market fanatics are avid collectors.
In fact, people collect the darndest things. Books, duck decoys, chia
pets, snowglobes, thimbles, handcuffs, spectacles, baseball cards, and
guns are a few such ``collectibles.''
For most of these collections, capital gains isn't really an issue,
but you never know. You may find that your collecting passion has
created a tax predicament to phrase it politely. Art and collectibles
are tangible assets. When you sell them, capital gains tax is due on
any appreciation over your purchase price.
The bill provides capital gains tax parity because it lowers the top
capital gains rate from 28 percent to 15 percent.
Internal inconsistency number two deals with the charitable deduction
for artists donating their work to a museum or other charitable cause.
When someone is asked to make a charitable contribution to a museum or
to a fund raising auction, it shouldn't matter whether that person is
an artist or not. Under current law, however, it makes a big
difference. As the law stands now, an artist/creator can only take a
deduction equal to the cost of the art supplies. The bill I am
introducing will allow a fair market deduction for the artist.
It's important to note that this bill includes certain safeguards to
keep the artist from ``painting himself a tax deduction.'' This bill
applies to literary, musical, artistic, and scholarly compositions if
the work was created at least 18 months before the donation was made,
has been appraised, and is related to the purpose or function of the
charitable organization receiving the donation. As with other
charitable contributions, it is limited to 50 percent of adjusted gross
income (AGI). If it is also a capital gain, there is a 30 percent of
AGI limit. I believe these safeguards bring fairness back into the code
and protect the Treasury against any potential abuse.
I hope my colleagues will help me put this internal consistency into
the Internal Revenue Code.
I ask unanimous consent that and the text of the bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1186

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Art and Collectibles Capital
Gains Tax Treatment Parity Act''.

SEC. 2. CAPITAL GAINS TREATMENT FOR ART AND COLLECTIBLES.

(a) In General.--Section 1(h) of the Internal Revenue Code
of 1986 (relating to maximum capital gains rate) is amended
by striking paragraphs (4) and (5) and inserting the
following new paragraphs:

[[Page S6168]]

``(4) 28-percent rate gain.--For purposes of this
subsection, the term `28-percent rate gain' means the excess
(if any) of--
``(A) section 1202 gain, over
``(B) the sum of--
``(i) the net short-term capital loss, and
``(ii) the amount of long-term capital loss carried under
section 1212(b)(1)(B) to the taxable year.
``(5) Reserved.--.''.
(b) Effective Date.--The amendment made by this section
shall apply to taxable years beginning after December 31,
2004.

SEC. 3. CHARITABLE CONTRIBUTIONS OF CERTAIN ITEMS CREATED BY
THE TAXPAYER.

(a) In General.--Subsection (e) of section 170 of the
Internal Revenue Code of 1986 (relating to certain
contributions of ordinary income and capital gain property)
is amended by adding at the end the following new paragraph:
``(7) Special rule for certain contributions of literary,
musical, artistic, or scholarly compositions.--
``(A) In general.--In the case of a qualified artistic
charitable contribution--
``(i) the amount of such contribution taken into account
under this section shall be the fair market value of the
property contributed (determined at the time of such
contribution), and
``(ii) no reduction in the amount of such contribution
shall be made under paragraph (1).
``(B) Qualified artistic charitable contribution.--For
purposes of this paragraph, the term `qualified artistic
charitable contribution' means a charitable contribution of
any literary, musical, artistic, or scholarly composition, or
similar property, or the copyright thereon (or both), but
only if--
``(i) such property was created by the personal efforts of
the taxpayer making such contribution no less than 18 months
prior to such contribution,
``(ii) the taxpayer--

``(I) has received a qualified appraisal of the fair market
value of such property in accordance with the regulations
under this section, and
``(II) attaches to the taxpayer's income tax return for the
taxable year in which such contribution was made a copy of
such appraisal,

``(iii) the donee is an organization described in
subsection (b)(1)(A),
``(iv) the use of such property by the donee is related to
the purpose or function constituting the basis for the
donee's exemption under section 501 (or, in the case of a
governmental unit, to any purpose or function described under
section 501(c)),
``(v) the taxpayer receives from the donee a written
statement representing that the donee's use of the property
will be in accordance with the provisions of clause (iv), and
``(vi) the written appraisal referred to in clause (ii)
includes evidence of the extent (if any) to which property
created by the personal efforts of the taxpayer and of the
same type as the donated property is or has been--

``(I) owned, maintained, and displayed by organizations
described in subsection (b)(1)(A), and
``(II) sold to or exchanged by persons other than the
taxpayer, donee, or any related person (as defined in section
465(b)(3)(C)).

``(C) Maximum dollar limitation; no carryover of increased
deduction.--The increase in the deduction under this section
by reason of this paragraph for any taxable year--
``(i) shall not exceed the artistic adjusted gross income
of the taxpayer for such taxable year, and
``(ii) shall not be taken into account in determining the
amount which may be carried from such taxable year under
subsection (d).
``(D) Artistic adjusted gross income.--For purposes of this
paragraph, the term `artistic adjusted gross income' means
that portion of the adjusted gross income of the taxpayer for
the taxable year attributable to--
``(i) income from the sale or use of property created by
the personal efforts of the taxpayer which is of the same
type as the donated property, and
``(ii) income from teaching, lecturing, performing, or
similar activity with respect to property described in clause
(i).
``(E) Paragraph not to apply to certain contributions.--
Subparagraph (A) shall not apply to any charitable
contribution of any letter, memorandum, or similar property
which was written, prepared, or produced by or for an
individual while the individual is an officer or employee of
any person (including any government agency or
instrumentality) unless such letter, memorandum, or similar
property is entirely personal.
``(F) Copyright treated as separate property for partial
interest rule.--In the case of a qualified artistic
charitable contribution, the tangible literary, musical,
artistic, or scholarly composition, or similar property and
the copyright on such work shall be treated as separate
properties for purposes of this paragraph and subsection
(f)(3).''.
(b) Effective Date.--The amendment made by this section
shall apply to contributions made after the date of the
enactment of this Act in taxable years ending after such
date.
______

By Mrs. BOXER (for herself and Mr. Schumer):
S. 1193. A bill to direct the Assistant Secretary of Homeland
Security for the Transportation Security Administration to issue
regulations requiring turbojet aircraft of air carriers to be equipped
with missile defense systems, and for other purposes; to the Committee
on Commerce, Science, and Transportation.
Mrs. BOXER. Mr. President, today I am reintroducing the Commercial
Airline Missile Defense Act. This legislation is designed to ensure
that our commercial aircraft are protected against the threat posed by
shoulder-fired missiles.
I first introduced this legislation in February 2003 in response to
two separate attacks attributed to al Qaeda terrorists. The first
attack was the attempted shoot down of a U.S. military aircraft in
Saudi Arabia. The second attack was against an Israeli passenger jet in
Kenya. Fortunately, there were no casualties in either case.
But make no mistake, the threat posed by these weapons--also known as
man-portable air defense systems (MANPADS)--is very real. In May 2002,
the FBI said, ``. . . Given al Qaeda's demonstrated objective to target
the U.S. airline industry, its access to U.S. and Russian-made MANPAD
systems, and recent apparent targeting of U.S.-led military forces in
Saudi Arabia, law enforcement agencies in the United States should
remain alert to the potential use of MANPADS against U. S. aircraft.''
In February 2004, the Director of the Defense Intelligence Agency,
Admiral Lowell Jacoby, testified before the Senate Intelligence
Committee on current and projected national security threats. He stated
the following: ``A MANPAD attack against civilian aircraft would
produce large number of casualties, international publicity and a
significant economic impact on aviation. These systems are highly
portable, easy to conceal, inexpensive, available in the global weapons
market and instruction manuals are on the internet. Commercial aircraft
are not equipped with countermeasures and commercial pilots are not
trained in evasive measures. An attack could occur with little or no
warning. Terrorists may attempt to capitalize on these
vulnerabilities.''
It is estimated that there are between 300,000 and one million
shoulder-fired missiles in the world today--thousands are thought to be
in the hands of terrorist and other non-state entities.
Since I first introduced my legislation in 2003, progress has been
made in adapting countermeasures now being used by the military for use
on commercial aircraft. A special program office has been created
within the Department of Homeland Security that is working to
demonstrate and test two prototype countermeasure systems. Flight
testing is scheduled to begin in a matter of weeks.
This legislation, which I am again introducing with my primary
cosponsor, Senator Schumer, states that the installation of
countermeasure systems on commercial aircraft will begin no later than
6 months after the Secretary of Homeland Security certifies that the
countermeasure system has successfully completed a program of
operational test and evaluation.
We need to continue to move forward to ensure that commercial
aircraft are protected from the threat posed by shoulder-fired
missiles. I appreciate the hard work of my colleague in the House,
Congressman Steve Israel, who is a real leader on this issue.
I hope my colleagues will support this important legislation.

____________________