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   The PRESIDENT pro tempore. Under the previous order, the Senate will now resume consideration of S. 2600, which the clerk will report.

   The assistant legislative clerk read as follows:

   A bill (S. 2600) to ensure the continued financial capacity of insurers to provide coverage for risks from terrorism.

   Pending:

   Brownback amendment No. 3843, to prohibit the patentability of human organisms.

   Ensign amendment No. 3844 (to amendment No. 3843), to prohibit the patentability of human organisms.

   The PRESIDENT pro tempore. What is the will of the Senate?

   The Senator from Kansas, Mr. Brownback.

   AMENDMENT NO. 3843

   Mr. BROWNBACK. Mr. President, I thank the Senator from Nevada for bringing up the issues. They are important ones before the country.

   We are on the terrorism reinsurance bill, an amendment I have pending on this bill. The amendment I have pending has to deal with the issue of whether you can patent a human embryo, patent a person, whether you can patent a clone. I regret we are considering this amendment in this way. It was my hope that we would be able to have a set amount of time on the floor to be able to openly debate the overall issue of human cloning. I was hopeful we would be able to have that debate in February or March of this year, but things came up, apparently, and we were not able to take this debate forward.

   I am left with the only recourse I have as a Member of this body, and that is presenting amendments to the body to consider the issue of whether or not we should proceed forward with the issue of human cloning,

   which is proceeding forward in America today. I think the wise course of action at this time is for us, overall, to have a moratorium on human cloning of all types for a 2-year time period. This will enable us to sort out what people really think and where this science would take us. I would favor a ban on human cloning, in order that we would not create human beings just for research purposes or for spare parts. But those issues will be left, perhaps, to address later this year.

   For now, we have a narrow issue before the body, and that is whether or not human clones should be allowed to be patented. The Patent Office has issued a statement that it believes they should not grant patents on human clones, that this is a violation of the 13th amendment to the Constitution on slavery.

   The Patent and Trademark Office has a longstanding policy of not permitting patents on people. Within the past year, they have awarded a patent to the University of Missouri on the process of human cloning, as well as what is referred to as the products of that process.

   It is clear that while the Patent and Trademark Office has an announced policy and, in view of recent patents that have been issued, as well as the fate of some of the patents that are currently pending, that the Congress should codify the view of the PTO in order to remove any ambiguity. We need to make it clear to the Patent Office that a human embryo created by a cloning process is a person, not a piece of property, not livestock that can be owned, and therefore should not be allowed to be patented. But there is a rub here because the Patent Office is being asked to issue these patents on people. They are saying, no, we should not grant these. A number of lawyers are challenging that and saying: What is a human clone? What is the young human embryo. They are stating: It is not a person, it is a piece of property; therefore, we can patent this. That is why we want to have clarity coming out of the Congress--a clear determination that you cannot patent a person. That should be illegal and should back up the position of the Patent and Trademarks Office.

   We all know this debate is really about the future of humanity. It is moving at a very rapid rate. Just a few years ago, the debate was over whether or not the Federal Government should subsidize the destruction of embryos for the purpose of harvesting their inner-cell mass. That debate was over the disposition of human embryos already in existence.

   Then the debate moved to whether or not embryos can be specifically created for their destruction. Human cloning--and whether or not we should utilize some of the most recent developments in the field of science--to create embryos for research purposes has been one of the latest debates. The next debate will be the issue of whether or not we can take outside genetic material and put it into the human species to the point where it can be reproduced in future generations of humans--where one generation of humans would decide the future of following generations. That is called germ line manipulation, and that will be up next.

   This involves the issue of slavery again. It is a debate about whether or not individuals, and whether or not corporate America, can in fact patent and therefore control the destiny of a group of humans.

   It is clear, as several have already commented, that the patenting of people could very well lead to a commercial eugenics movement--where people and traits are bought and sold by those in a position of power and authority.

   The time will come--if this is allowed to continue--where

   human attributes are determined by a parents' pocketbook perhaps, rather than nature.

   Human cloning tampers with nature in a very significant way. Now what some in the corporate world want to do is start trafficking in human embryos--creating human embryo farms where embryos are mass produced on assembly lines by specific specifications and harvested for parts.

   These corporate interests are now trying to begin patenting the people they produce. As my colleagues are well aware, the University of Missouri has already been granted a patent on the human cloning process.

   The time for clarity is now. This disturbing bioindustrialization of life is continuing as I speak on the Senate floor. This debate is no longer about yet another step down the path toward a brave new world; it is, as the commentator Charles Krauthammer put it, ``downhill skiing.'' It is not just a step, it is downhill skiing. We need to stop it now.

   By denying private companies the ability to patent a human person, and barring them from patenting the process of human cloning, we will be sending a very clear message that it is unacceptable to turn people into property and then buy and sell them as if they were commodities.

   We should not allow corporate America to traffic in human embryos. By preventing the patenting of people, we will be stopping this practice.

   My amendment makes clear that it is not acceptable to patent people and not acceptable to patent the process of human cloning for the purpose and process of making people.

   This is a very important issue--one that demands our immediate attention. I urge my colleagues to vote against cloture on the terrorism reinsurance bill so that we can have our debate on the emerging biotech sector that I have mentioned.

   I want to address a couple of other issues. I have a letter I want to put forward for Members of the body to consider. It is from the President of the Biotechnology Industry Organization on the issue of patenting people and of embryos, Carl Feldbaum. He was writing to an individual and stated their organization's opposition to the patenting of human embryos.

   He states this:

   Thank you for your thoughtful letter, which posed reasonable, provocative questions. With regard to the primary question you raised, BIO opposes patents on cloned human embryos. Many issues surrounding the research remain to be resolved, but on that matter our position is decided.

   That is from Carl Feldbaum, President of Biotechnology Industry Organization, the lead organization for biotechnology, which is opposed to the patenting of people.

   I ask unanimous consent that this letter be printed in the RECORD at the end of my statement.

   (See exhibit 1.)

   Mr. BROWNBACK. Mr. President, I urge Members to look at this. Here is the lead organization in the country that one might think is probably most in favor of patenting clones; yet they state they are opposed to it.

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   By passing this amendment to ban the patenting of human clones, it does not ban, does not stop, does not even slow down the issue of human cloning. That will proceed. The research is allowed. I don't think it should be. I think we should join the House and the President in calling for an end to human

   cloning. This body has not done that. But this amendment does not address that issue. The only issue in front of the body in this amendment is whether or not the Patent Office will be allowed to patent human embryos and human clones. That is the only issue involved in this amendment--whether or not that patenting will occur.

   If my amendment passes, we will say: Patent Office, do not allow patents of human clones or embryos, but if people want to continue research on human clones, they can do so. If they want to continue to develop human clones, they can do so. I don't think it is wise or the right thing. I think it should stop, but that is not involved in this amendment. This is strictly about the issue of whether patents can be issued on a human clone. In that sense, it is a very clear issue of the division of what do you think a clone is? A person or property? In our jurisprudence system, it is one or the other--a person or a piece of property. If it is a piece of property, it can be patented. If it is a person, it cannot. That is against the 13th amendment to the Constitution on antislavery. If it is property, it can be patented.

   So it really goes to your fundamental view of how you view young life, the human embryo. Is it a person on the continuum of life, or is it a piece of property to be disposed of as its master chooses? Which is it? That is the issue in front of this body--whether this young human at this stage, if it were nurtured to grow into a full birth, full human, by anybody's definition, is considered a person or property.

   Now, some arguments were put forward last week on what this would do in the field of human cloning. Again, I state to my colleagues that it is not going to ban human cloning. This would simply limit the patenting process of human clones, and this is something that the Patent Office seeks clarifying authority on as well.

   For those reasons, I urge my colleagues to support this amendment, to not support the cloture motion on terrorism reinsurance. This is the only vehicle we have open to us to be able to get these important and vital issues in front of the body.

   We would like to get a clear up-or-down vote on this issue, and this is what we need to do to get that vote before the body. I hope my colleagues will study this carefully and realize what they are and are not voting on with this particular motion.

   CLOTURE MOTION

   Mr. BROWNBACK. Mr. President, I send a cloture motion to the desk.

   The PRESIDENT pro tempore. The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.

   The assistant legislative clerk read as follows:

   Cloture Motion

   We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on the Brownback amendment No. 3843:
Jon Kyl, Jeff Sessions, Don Nickles, Jim Inhofe, John Ensign, Rick Santorum, Michael B. Enzi, Bob Smith, Chuck Hagel, Mitch McConnell, Tim Hutchinson, George Allen, Peter Fitzgerald, Trent Lott, Sam Brownback, Larry E. Craig.

   The PRESIDENT pro tempore. The Senator from Kansas, Mr. Brownback.

   Mr. BROWNBACK. Mr. President, I admit filing a cloture motion is a very strong statement to make. However, I believe I have been very patient. The Senate has a responsibility to begin addressing this very important issue. It started last fall. We thought we were going to get it addressed in the February-March timeframe, and now we are in June.

   My cloture motion is meant to ensure that if the majority leader fails to invoke cloture on the underlying bill, we will then get a vote on this amendment of patenting people. The Senate needs to begin voting on these issues, and I am going to begin trying to get votes on my amendment as we go along the process.

   I was a little surprised last week to see that the Senate majority leader filed a cloture motion on the terrorism insurance bill so quickly--another parliamentary move to close debate on this very important issue of human patenting. I had hoped we could have had a fair debate and vote on my amendment. Unfortunately, the leadership is trying to prevent my amendment coming to a vote. Therefore, in the event the majority leader fails to invoke cloture on the underlying bill tomorrow, I am going to get a vote on my amendment, and that is what I seek.

   This should be a clear issue for people to decide where they stand on the issue of patenting of human clones and human embryos. That is why I filed this cloture motion.

   Mr. President, I yield the floor.

   The PRESIDENT pro tempore. What is the will of the Senate?

   The Senator from Nevada, Mr. Reid.

   Mr. REID. Mr. President, there has been some discussion as to why the majority leader filed a motion to invoke cloture. Remember, last week we finished work on a bill and were asked by those who said they favored a discussion and favored the antiterrorism legislation to go to it on Wednesday, and they said: Give us an extra day. Of course, the extra day did not mean anything. Basically, there were no amendments filed. One amendment was filed, and we waited and waited. Then Friday was the same.

   We have a lot of work to do. As the President pro tempore knows, we have all the appropriations bills to do. They are going to have to be done in a very condensed period of time. As soon as we get some numbers, all the subcommittee chairs in the Senate will be anxious to proceed.

   Again, as the Presiding Officer knows, we tried very hard when we were doing the supplemental appropriations bill to get some numbers, complete it, have it a part of that legislation, but people objected. That is too bad because we could this week be marking up some appropriations bills.

   In the Senate, we have a finite amount of time to do an infinite number of items. I certainly support the majority leader filing a motion to invoke cloture, and in the future, when people are not serious about offering amendments to legislation, then he should do so again.

   We have been very patient waiting for people to file amendments on legislation. We just cannot stand around in quorum calls all day and then deal with amendments that have nothing to do with the basic legislation that the whole country says is important.

   I understand the seriousness of the Senator from Kansas. He believes very deeply in what he is trying to do. I admire his conviction. But others have different convictions and feel just as strongly. The Senator will have other opportunities to move this issue. Also, the majority leader lived up to his commitment to the Senator from Kansas. He said he would make sure there was an opportunity to bring this up.

   A unanimous consent request was offered. The only thing wrong with it was who got to vote last. The Senator from Kansas, for reasons he believes are important, would not agree to the unanimous consent request because he did not get the last vote. As a result of that, we are in the posture of these issues being brought up on unrelated legislation.

   I think the best thing to do is to bring up a freestanding bill and deal with the issues he believes are important. It can be debated on both sides. It would be a clean way to do it. Everyone realizes--the Banking Committee is dealing with terrorism insurance legislation--no matter what happens, something dealing with cloning is not going to stay in conference. It is a banking bill. We would be better off with a freestanding bill.

   I personally do not understand why my friend, the distinguished senior Senator from Kansas, would not accept the unanimous consent request, but that is a decision he made. I still underscore the fact that he has a right to do what he is doing, and the majority leader has a right to do what he is doing to terminate debate on this bill which I am confident and hopeful will happen in the morning.

   Mr. BROWNBACK. Mr. President, I would like to respond to the Senator from Nevada. I have a great deal of respect for Senator Reid and for what he is doing. There was a unanimous consent request propounded before, and I

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   If we are going to have two votes on a very big issue, the last one is going to be the one that would have the most possibility. Most Members of the body believe we should be doing something on cloning. If the first one does not get 60, it is highly likely the second one will be in a better position because a number of Members of the body may say, I am with you on this because something needs to be done on cloning, and would peel over and vote for the second cloture motion.

   I gave up a lot of ground and rights by agreeing to a tight timeframe and only two votes on arguably one of the biggest bioethical issues of our era. When we were not given a better position in the vote, it looked to me that the process was set to come up with a certain outcome. I cannot agree to that, not after this much effort has been put into the overall issue. That is why I disagreed to the unanimous consent request, and that is why I am bringing this issue up now. We need to get it considered. This is a vehicle on which we can consider it.

   We have a limited number of legislative days. The body needs to speak on these important issues. I think it is better if we just pull this issue up for a vote even before the cloture motion vote so it is a clean issue and people can decide. It does not remove the issue of cloning. Cloning can continue to take place in America and will,

   whether this amendment passes or not. This is strictly about whether the process of creating human beings or the human person itself can be patented. I think that this vote should be relatively easy for most Members of this body to take. That is why I bring it forward and continue to ask that the cloture petition of the majority leader not be agreed to at this time so we can consider this important legislation.

   I thank the floor manager for being willing to work with us. He has been very gracious and thoughtful, but I wanted to express my reasons for wanting to take the stance that I did.

   Exhibit 1

   BIOTECHNOLOGY INDUSTRY

   ORGANIZATION,

   Washington, DC, April 26, 2002.
Mr. William Kristol,
Chairman, Stop Human Cloning, Washington, DC.

   Dear Mr. Kristol: Thank you for your thoughtful letter, which posed reasonable, provocative questions. With regard to the primary question you raised, BIO opposes patents on cloned human embryos. Many issues surrounding the research remain to be resolved, but on that matter our position is decided.

   I would like very much to discuss in person and at length your other concerns about our industry, and stem cell research in particular. Perhaps we can arrange something after the Brownback vote. Although I wish we had begun this conversation before the issues became so polarized, I welcome the opportunity you've opened for a dialogue.

   Sincerely,

   Carl B. Feldbaum,
President.

   Mr. REID. I suggest the absence of a quorum.

   The PRESIDENT pro tempore. The clerk will call the roll.

   The assistant legislative clerk proceeded to call the roll.

   Mr. REID. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

   The PRESIDENT pro tempore. Without objection, it is so ordered.

   Mr. REID. Mr. President, I ask unanimous consent that, notwithstanding the recess of the Senate, Members may still file amendments until 3 p.m. today.

   The PRESIDENT pro tempore. Without objection, it is so ordered.

   Mr. HOLLINGS. Madam President, I rise to address the pending legislation, S. 2600 which is designed to provide financial assistance to the insurance industry concerning coverages and losses due to acts of terrorism--for the purpose of ensuring the continued availability of terrorism insurance coverage. I must say from the outset that I disagree with this legislation, not based on its aims, but the manner in which the legislation is structured and the way it seeks to accomplish its stated goals.

   This is an issue that the Senate sought to address last fall, during the height of the national market and security crises that were precipitated by the September 11 terrorist attacks. In light of the fact that our commercial markets had never experienced a terrorist attack and losses in the magnitude that occurred on September 11, a great deal of uncertainty was stirred in the marketplace. Claiming that they had no experience in pricing such events, insurance companies threatened wholesale cancellations of terrorism coverage by the end of the year of 2001. Given these circumstances--and the severe threat that was posed to the stability of key industries and markets--clearly Congress was compelled to act.

   Consequently, I, along with Senator MCCAIN, decided it was necessary for the Commerce Committee to take action. We made this decision in light of the Commerce Committee's longstanding jurisdiction over the business of insurance, and given that the committee had been working on legislation to address the availability of property and casualty insurance in areas prone to natural disasters, which involved issues similar to those relating to terrorism insurance. I would like to emphasize that the Commerce Committee has exercised jurisdiction over the business of insurance for the past 50 years. We have considered legislation relating to: the creation of risk pools and special insurance funds for insuring against natural disasters; the repeal of McCarran-Ferguson Act and the Federal regulation of insurance; Federal oversight of the solvency of insurance companies; the prohibition of discrimination in the sale of insurance; insurance redlining; Federal regulation of automobile insurance; and the availability of liability and property and casualty insurance, which are the very issues this legislation seeks to address.

   The committee convened a hearing, which included testimony from Treasury Secretary O'Neill, as well as state insurance officials, academics, the Consumer Federation of America, CFA, the National Taxpayers Union, NTU, and the insurance industry. I should note that the main point that was emphasized by the independent witnesses is that a program could and should be designed to ensure the insurance companies used their own resources to provide the necessary backstop to stabilize the market. As they, and state officials advised, the best way to do this was through the creation of a risk pool.

   Following the hearing, along with Senator MCCAIN and other members of the committee, I began to work with state regulators, CFA and NTU to craft legislation along these lines. Senator MCCAIN and I came to an agreement except for on the matter of punitive damages. Consequently, we introduced two separate bills--S. 1743, my bill, and S. 1744, his bill--both of

   which would have required a payback by the companies.

   I will briefly describe my legislation. As I noted, the legislation was constructed from risk pool proposals submitted by the insurance industry, state insurance commissioners, the Consumer Federation of America, CFA, and the National Taxpayers Union. It has been endorsed by 13 current state insurance commissioners--Republican and Democrat.

   The legislation would establish a risk pool through the creation of a national fund--known as the National Terrorism Fund hereinafter referred to as ``the fund''. The fund will be created within the U.S. Department of Commerce, in conjunction with a 10-member Advisory Committee, which would include the Secretary of Treasury, State insurance regulators, and insurance industry representatives.

   The fund will be capitalized through an annual assessment of 3 percent of an insurer's previous calendar year direct written gross premiums. The companies writing coverages for the major property and casualty lines would be required to participate.

   All commercial insurance companies will be required to participate in the fund. Providers of personal insurance coverage will have the option of participating if they believe they need additional reinsurance.

   Companies will be authorized to pass through the 3 percent assessment to

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   Each participating insurer would have a 10 percent retention level based on its previous year's direct written premiums. Once a company suffers losses due to terrorism that exceeds its retention level, the company would be permitted to receive payments from the fund. For example, if a company has direct written premiums of $100 million, its retention would be $10 million. Some have advised that the retention level should be as high as 20 percent. The bill originally contained a 20 percent retention, but it was lowered to 10 percent in response to concerns by the industry.

   Once a company has met its retention levels, the fund will cover its remaining losses as follows: 90 percent during the first year (90/10). For the second and third years, a company will be permitted to select the amount of coverage from the following options: 90 percent coverage of losses for a premium of 5 percent of its direct written premiums and surplus; 80 percent coverage for a 4 percent premium; and 70 percent coverage for 3 percent premium.

   If at any time during the 3 years of the program, the losses from the participating companies exceed the fund's capacity, the fund will be authorized to borrow, from the Federal Treasury, moneys to cover the losses up to $100 billion. The fund, through assessments on all

   participating companies, would be required to repay the loan. The fund and the companies would be given as long as 20 years, if necessary, to repay the loans at standard market interest. If there are outstanding loans due after the expiration of the fund on December 31, 2004, the companies will continue to be assessed until the loans are repaid.

   If at the end of the program the fund has a positive balance, the participating companies would be allowed to recoup the funds--based on the proportion of each company's contribution--contingent upon a guarantee that the money will be placed in a special catastrophic reserve account. That account could be used only to pay for losses related to terrorism, and major catastrophes, earthquakes, hurricanes, and tsunamis. Any company seeking to use the money for other purposes would be subject to criminal penalties.

   I should also note that as time began to run out last year, I received a call from Secretary O'Neill offering to work together to ensure the passage of a measure to deal with the crisis. I accepted the invitation and had my staff and the administration officials working together the next morning on a compromise bill. We agreed to work upon the outlines of a 1-year stopgap measure. Unfortunately, the Secretary met strong objections from the Republican side of the Chamber.

   I still believe that any legislation that is passed at this point should require a payback. This is especially the case given reports that the market has stabilized and insurance coverage is available for most businesses. The bill before us essentially provides for 2 years of potential unnecessary payments to insurance companies, who could reap a windfall at the expense of the taxpayers.

   I also believe that this legislation should not be used as a vehicle for Federal tort reform. This issue killed the bill last year, and may very well derail it this year.

END