MARKUP ON PENDING LEGISLATION - - - THURSDAY, JUNE 26, 2008 United States Senate, Committee on Veterans' Affairs, Washington, D.C. The committee met, pursuant to notice, at 9:34 a.m., in Room 418, Russell Senate Office Building, Hon. Daniel K. Akaka, chairman of the committee, presiding. Present: Senators Akaka, Rockefeller, Murray, Sanders, Brown, Webb, Tester, Burr, Craig, Isakson, Graham, and Wicker. OPENING STATEMENT OF CHAIRMAN AKAKA Chairman Akaka. The Committee on Veterans' Affairs will come to order. I want to welcome all of you today to this markup of pending legislation. I want to take a moment to address the agenda items while we are awaiting a quorum, and I will suspend my remarks once a quorum has been reached. The bills before us would make significant and far-reaching improvements to the care and benefits provided to America's veterans and I am very pleased that we have been able to develop this legislation in the spirit of bipartisanship. I thank in particular the committee's Ranking Member, Senator Burr, for the agreements we have been able to reach. I truly appreciate the cooperation that has aided our work and I look forward to working together to advance our legislation through the Senate. I also thank the staff on both sides for their hard work in preparing for today's committee hearing. I recognize that we were unable to resolve all of the concerns about certain provisions and that some members may choose to offer amendments. But overall, I am satisfied that our agreement on the agenda for this markup has been made. The committee's health care bill, S. 2969, focuses on improving recruitment and retention among VA personnel, addresses many important health care issues facing veterans, and would update our VA Nonprofit Research Corporations and how they do business. The committee is also considering a number of bills to address issues relating to veterans' benefits. It is important that we view veterans' compensation, including the annual COLA, and indeed all benefits earned by veterans, as a continuing cost of law. These bills will provide much- needed support to our nation's veterans. S. 2617, which would provide a crucial cost-of-living adjustment to veterans' compensation to keep pace with the rising cost of living in this country. I note that the committee's omnibus benefits bill includes a provision that would make the annual COLA increase automatic beginning next year. The Veterans' Benefits Improvement Act of 2008, S. 3023, would make numerous enhancements to veterans' housing, labor, and education, insurance, and issues related to compensation. This legislation would take steps to improve notices to veterans about their claims. Veterans should not be subjected to confusing information as they seek benefits. The agenda also includes a committee print of S. 22, the Post-9/11 Veterans Education Assistance Act of 2007. This bill would provide essential educational benefits to veterans of the current conflicts. As Chairman of the Senate Committee on Veterans Affairs, I am committed to seeing that this new GI Bill becomes law. I intend to work closely with Senator Webb and others toward that end. Finally, today's agenda includes an original bill which would make technical corrections to S. 22. The bills on our agenda today would make essential changes to the health care and benefit systems of the Department of Veterans Affairs. I believe these various provisions will take us many steps closer towards our goal of serving veterans with the dedication and honor with which they served their country. And now, I would like to turn to Senator Burr for his opening remarks. Senator Burr? OPENING STATEMENT OF SENATOR BURR Senator Burr. Thank you, Mr. Chairman. I also want to give thanks to you and to your staff for the level of cooperation we have had as we have prepared to get ready for this morning. I also have a few areas of disagreement, and I believe once resolved we can get broad support for this package in the Senate. And particularly, I want to thank you and your staff for the inclusion of a pilot program in the omnibus health bill based on the legislation I introduced that would direct the VA to contract for comprehensive dental coverage for veterans enrolled in the VA health care system. I think this is a model that has proven effective for TRICARE retirees and their families and I am pleased we are advancing a pilot program to test the concept for our veterans. I am also pleased, Mr. Chairman, the benefits bill includes a provision extending the time which spouses of seriously injured veterans have to use their VA educational benefits. This will be a great help to spouses like Sarah Wade from North Carolina, who has been dedicating all of her time and energy to caring for her husband, Ted, who was seriously injured in Iraq. Sarah and spouses like her will be able to concentrate on their loved ones in the years following their injuries and still have time to go back to college. I want to thank Senator Brown for his efforts regarding college tuition refunds, re-enrollment, and student loan interest rates for students called to military service. When a student's education is interrupted by being called to military service, it is critical that everyone, colleges and universities, Federal and State government, and student loan lenders, do all they can to ease both the transition to military duty and the transition back to school. Since 9/11, colleges and universities, States and Federal Governments have worked to make sure these transitions are easier. There is more we can do. Some legitimate technical concerns have recently been raised by institutions of higher education and others. To ensure the provisions Senator Brown has proposed are not in conflict with the Higher Education Act, we must continue to work with our colleagues on the HELP Committee, which has jurisdiction over the Higher Education Act, in the coming weeks, and I look forward and am committed to help Senator Brown to this end. Mr. Chairman, I do plan to offer an amendment to protect the Second Amendment rights of VA beneficiaries by ensuring that they are no longer stripped of their constitutional rights through an arbitrary and unfair process. The National Instant Criminal Background Check System is for criminals, not for folks that have trouble handling their own financial affairs, and this is a process that must be fixed. I do have concerns about some other provisions of the omnibus benefits bill. For example, it permanently expands the size of the Court of Appeals for Veterans Claims from seven to nine judges. Although I am committed to make sure the court has the resources it needs to provide veterans with a timely decision of their cases, I don't think we have enough information to decide whether a permanent increase in the size of the court is, in fact, warranted. As the Disabled American Veterans testified last year, and I quote, "Much about the court's internal operations is not transparent to the public," and "until this information is made available to Congress, it is, in our estimation, premature to expand the number of judges to nine" unquote, and I agree with them. We need more information about who is actually doing the work, what type of work is being done, and where there are bottlenecks. Then we would be able to decide on the best way to move to make sure that the court can provide timely decisions for our nation's veterans and families. I plan to offer amendments today that would make an expansion of the court as responsible as possible and also plan to provide minority views in the committee's report to fully outline any additional concerns I might have. Mr. Chairman, it is my hope that we can get to the number of members that we need, we can move quickly, and I will assure the Chairman I will move through my amendments as expeditiously as we can because we have a very important hearing following this markup. I thank the Chair. Chairman Akaka. Thank you very much, Senator Burr. Now let me call on Senator Murray for any remarks. OPENING STATEMENT OF SENATOR MURRAY Senator Murray. Thank you very much, Chairman Akaka, Senator Burr. Thank you so much for holding today's markup on pending veterans' legislation. There are a number of important bills that are being considered by this committee today, but I want to make a few quick comments on one of the bills that I think is critical in moving the VA forward and that is the Women's Veteran Health Care Improvement Act. As all of my colleagues on this committee know, women are playing an increasing role in our military. However, even as women take up increasing roles on the front lines of war, they still remain a small minority at the VA. The Independent Budget estimates that at current rates, the number of women using the VA health care services will double in five years, and we have got to be prepared for that. We can't allow the outdated attitudes or the VA's lack of preparation to interfere with the quality of care for this influx of new women veterans that we are seeing, and that is exactly why Senator Hutchison and I introduced the Women Veterans Health Care Improvement Act of 2008. This legislation is included in the health omnibus bill. It expands and improves health care services for women veterans in the VA system and it makes sure that the VA system will be responsive to the specific needs of women veterans. Mr. Chairman, I will submit my full statement with details about that bill in the record, but I think it is a great step forward for this committee and Congress to approve legislation that will help give access to the VA for our women veterans that are serving our country honorably. Thank you very much. [The prepared statement of Senator Murray follows:] / COMMITTEE INSERT Chairman Akaka. Thank you very much, Senator Murray. Senator Isakson? OPENING STATEMENT OF SENATOR ISAKSON Senator Isakson. I don't have a statement, Mr. Chairman, except to thank you and Ranking Member Burr for your hard work in trying to incorporate the ideas and suggestions of all the members of the committee in this legislation today. Thank you. Chairman Akaka. Thank you, Senator Isakson. Senator Tester? OPENING STATEMENT OF SENATOR TESTER Senator Tester. I, too, want to echo Senator Isakson's thank you for bringing these bills forward. I think they are all very, very important and hopefully we can get on with it and I want to thank you. Chairman Akaka. Thank you, Senator Tester. Senator Craig? OPENING STATEMENT OF SENATOR CRAIG Senator Craig. Mr. Chairman, let me associate myself with the remarks of the great Senator from Georgia. Thank you for holding this markup. Chairman Akaka. Thank you. Senator Sanders, any remarks? Senator Sanders. Good morning, Mr. Chairman. Chairman Akaka. Good morning. [Laughter.] Chairman Akaka. Thank you very much. We are still waiting for a quorum. [Pause.] Chairman Akaka. Senator Wicker, do you have any remarks for the committee? Senator Wicker. No, I don't. Chairman Akaka. Thank you very much. [Laughter.] Chairman Akaka. And may I note that we have Senator Dole here with us. Welcome. Noticing that we now have eight members present, I have one housekeeping item. When this markup was first scheduled, we were unsure of what would happen to the provisions of S. 22 that have since been incorporated into the emergency war supplemental. Now it appears likely that final Senate action will occur on that measure and the President has said he would sign it. In the unlikely event that does not happen, I have promised my good friend and colleague from Virginia, Senator Webb, that I will schedule a markup for S. 22 at the very first opportunity. Therefore, I ask unanimous consent that S. 22, the proposed Post-9/11 Veterans Educational Assistance Act of 2007, be removed from the agenda for this morning's markup. Are there any objections? [No response.] Chairman Akaka. If not, we will proceed. Now I invite a motion that we take up the remaining agenda items that are there now. Is there a second? Senator Murray. I second, Mr. Chairman. Chairman Akaka. There has been a second. The motion has been made and seconded. Is there any discussion on the motion before we act? [No response.] Chairman Akaka. The vote is on the motion that the committee approve the agenda items en bloc, subject to any subsequently-adopted amendments. All those in favor, say aye. [Chorus of ayes.] Chairman Akaka. No? [No response.] Chairman Akaka. The ayes appear to have it. The ayes do have it. The motion is agreed to and the agenda items are ordered reported to the Senate, subject to any amendments adopted during the markup. I would like to welcome Senator Rockefeller. Do you have any remarks to make? Otherwise, we will proceed here. Now we will turn to the amendments. Prior to yesterday's deadline, Senator Burr noticed seven amendments to two agenda items, one amendment to agenda item one and six amendments to agenda item two. It appears that there are no amendments to the last two items on the agenda. If I hear no disagreement, those items will be considered final. [No response.] Chairman Akaka. Hearing no disagreement, we will continue. Turning now to the amendments, Senator Burr, you have noticed seven, as I mentioned. I believe we have agreement on the first two. Let us address those first. Both have been noticed to the committee print of S. 3023, the proposed Veterans' Benefits Improvement Act of 2008. Senator Burr, your first amendment on the recall of retired judges. You may proceed with that. Senator Burr. Mr. Chairman, I would call up--I am not sure how they are numbered or listed, but number five, the trigger increase. Oh, I am sorry. If the Chairman said he was accepting my first two amendments-- Chairman Akaka. Yes. Senator Burr. I thought he was asking me to call up amendments. Chairman Akaka. If you have any remarks to make about this first amendment. Chairman Akaka. And let me tell you--maybe this is what you want to hear. I have no disagreement-- Senator Burr. No, I am having trouble deciding which first two. Chairman Akaka. Well, this same provision passed S. 1315, which is now awaiting action in the House, and I will now ask for a voice vote on your amendment, Senator Burr. Senator Burr. This one and this one? Senator Craig. Which amendment are we dealing with? Senator Burr. Mr. Chairman, if I am correct, and I will rely on your staff for this, this is the judge pay structure amendment and the amendment dealing with the requirements for annual reports on the workload of the Court of Appealsfor Veterans Claims. Chairman Akaka. Yes. Senator Burr. I thank the Chair and would move right to the vote. Chairman Akaka. Well, then let us move on that amendment. All those in favor, say aye. [Chorus of ayes.] Chairman Akaka. Opposed, no. [No response.] Chairman Akaka. The ayes have it. The amendment passes. Senator Burr. Mr. Chairman, if it is appropriate to call up additional amendments at this time, I am prepared to do that. Chairman Akaka. Senator Burr, let me ask you to offer your next amendment regarding retirement authority in the Court of Appeals for Veterans Claims. Senator Burr. Mr. Chairman, it is my intent to call up the trigger amendment next, number five. [Pause.] Chairman Akaka. Senator Burr, we will be moving at this time to your amendment requiring an increase in the number of judges for the Court of Appeals for Veterans Claims. If you have any remarks to make about that at this time, we will consider it. Senator Burr. Mr. Chairman, this amendment would strike the section of S. 3023 that expands from seven to nine the number of authorized judges for the Court of Appeals for Veterans Claims. It would instead insert a provision providing that if the judges of the court each decide an average of 430 cases during a fiscal year, the size of the court will automatically be expanded from seven to nine judges. Mr. Chairman, the court's primary reason for requesting new judges is based on the number of incoming cases, which topped 4,600 last year. Although that is one indicator of the court's resource needs, I think a more important question when we are looking at adding judges-- is how many cases do judges actually handle? We know that last year the court decided 4,877 cases. Of those, the Clerk of the Court disposed of 55 percent and the judges decided 45 percent. That means even though the court took in 660 cases per judge, the judges actually decided about 270 cases each, or about five cases per week. With the incoming cases more than twice the level of cases decided by judges, it seems the output by judges is the better gauge of judges' workload. So the next question is, what level of output should trigger the addition of more judges? For that, we can look to the standard used throughout the Federal judiciary. In other courts, if the annual workload per judge is at least 430 cases, that triggers a review of whether more judges are needed. I realize other courts look at the number of cases filed rather than decided, but they also weight each case based upon the efforts that will be required by a judge to decide the cases before them. For our purposes, we simply don't have any data from the court that could be used to do this type of weighting. So as I just discussed, I think looking at the actual cases decided by judges is the best indicator we have at this point. Based on this, my amendment would automatically increase the size of the court if the average workload per judge exceeds 430 cases per year, or about eight cases per week. I think it is a reasonable way to gauge whether more judges are needed and to provide immediate authority for new judges once that trigger point is, in fact, reached. I would ask for the members to support this amendment. Chairman Akaka. This increases the court to nine judges if the average number of cases decided by each judge exceeds 430 per judge in a fiscal year. This amendment is not consistent with the policies of other Federal courts. That policy considers cases filed, not decided. In addition, this nation is at war and there is no doubt that the number of veterans will rise as a result, producing more potential VA claimants. The court did ask for the increase, looking at the increase of cases. There is great interest in expediting administrative adjudications of the hundreds of thousands of claims that are filed with VA each year. The Congress has substantially increased the resources for VA and the board to accelerate administrative determinations. Therefore, I will not support this amendment. The court has told Congress that it needs two additional judges, as I mentioned, on a non-contingent basis and I believe that deference should be given to the court on this matter. Are there any other comments before the Clerk calls the roll? Senator Craig. Mr. Chairman? Chairman Akaka. Senator Craig? Senator Craig. Mr. Chairman, when I had the privilege of sitting in your chair as Chairman, I spent a good deal of time with our new court, and it is a relatively new court, as we formed it for veterans affairs issues and appeals. At that time, there was a tremendous caseload backlog and the court was not calling up retired judges as they had the authority to do to lessen that, and we didn't have a full complement of judges. So I pushed forward, filled the court full of judges. I have been to the court now, I believe, three times, sat down with them, looked at their caseloads, looked at their work, looked at their dynamics. So I think I have a very good feel for this court. This court is not like all other courts. It is a different kind of court, specific for veterans appeals. And as the Ranking Member noted, if you look at it on a per case filed, 660 per judge, although not all 600 get to those judges. There are 270. So there are indicators out there that create the dynamics of this court and the reality of the court. Now, in your comments, you are absolutely right to assume there is going to be an increase of appeals. They are coming. They have been coming. The court is in desperate need of a variety of things. It is in desperate need of more space. It is now creating electronic records. And for those of you who ought to go--and I would recommend that every member of this committee go to that court, if you have not been there, and sit down with the judges and visit with them and get to know the dynamics of that court. Every hallway and every cubbyhole is full of files, and those are just the files that are active. The rest of them are stored in warehouses outside the District. But that will change because of the electronics. So, therefore, the dynamics of this court is modernizing and changing. Its ability to make decisions in a timely fashion will change and increase with that. The Chief Judge, I am very impressed by his capabilities, his administrative talents, and his desire to make this court work. I don't see this as a bad indices. I don't think we ought to judge this court like we judge every other appellate court in the country. They are different. This one for us is a very important one. To assume that we are going to have increased caseloads is real, but we weren't even calling up judges. These judges are unique. Not only do they retire with full salary, they retire with the understanding with full salary that they could be called back during peak times. They weren't doing that. They are now doing that. They have changed their dynamics. This court is beginning to respond in a dynamic fashion. So I think that the kind of changes that this amendment and others that the Ranking Member has offered are consistently certainly with what I have sensed with the court and we ought to approve the amendment. But I would encourage every member of this committee to go and get to know your court. We are responsible for it. It is not the responsibility of the Judiciary Committee. This is our court. This is the Veterans Court and it is very important to the veterans, their appeals process and the timely adjudication of their needs and our obligation to them. I think this amendment is consistent. I support it. Chairman Akaka. Thank you, Senator Craig. Are there any further remarks? Senator Rockefeller? Senator Rockefeller. Mr. Chairman, I just note that a lot of these cases are negotiated out and don't actually take the time of the judges in the way that this amendment would apply, so I will oppose the amendment. Chairman Akaka. Are there further comments on this amendment? [No response.] Chairman Akaka. If not, the Clerk will call the roll. The Clerk. Mr. Rockefeller? Senator Rockefeller. No. The Clerk. Mrs. Murray? Senator Murray. No. The Clerk. Mr. Obama? [No response.] The Clerk. Mr. Sanders? Senator Sanders. No. The Clerk. Mr. Brown? Senator Brown. No. The Clerk. Mr. Webb? Senator Webb. No. The Clerk. Mr. Tester? Senator Tester. No. The Clerk. Mr. Burr? Senator Burr. Aye. The Clerk. Mr. Specter? Senator Burr. Aye by proxy. The Clerk. Mr. Craig? Senator Craig. Aye. The Clerk. Mr. Isakson? Senator Isakson. Aye. The Clerk. Mr. Graham? Senator Burr. Aye by proxy. The Clerk. Mrs. Hutchison? Senator Burr. Aye by proxy. The Clerk. Mr. Wicker? Senator Wicker. Aye. The Clerk. Mr. Chairman? Chairman Akaka. No. The Clerk. The nays are seven, the ayes are seven, the motion fails. Seven to seven. Good morning. [Laughter.] Chairman Akaka. The amendment is not agreed to and it fails. Senator Burr, are you ready to offer your next amendment? Senator Burr. I am, Mr. Chairman. I would call up amendment, hopefully number four, which is the temporary assignment of judges. Chairman Akaka. Senator Burr calls up the judges for the Court of Appeals for Veterans Claims. Senator Burr. I thank the Chairman. I will be very brief. This amendment would again strike the section of S. 3023 that permanently expands from seven to nine the number of authorized judges for the Court of Appeals for Veterans Claims and it would instead insert a provision providing that the expansion would be temporary. Although I am committed to making sure the court has the resources it needs to provide veterans with timely decisions on their cases, I don't think we have enough information, Mr. Chairman, to decide whether a permanent increase in the court is warranted and whether it would lead to better service for our country's veterans. As the Disabled American Veterans testified last year, "much about the court's internal operations is not transparent to the public" and "until this information is made available to Congress, it is, in our estimation, premature to expand the number of judges to nine." I agree with their assessment. We simply don't have a good picture of who is doing the work, the type of work they are doing, and where the bottlenecks are occurring. We also don't know if the rise in the incoming cases will be sustained in future years. To that point, it is worth reminding the committee that, in the 1990s, the court asked Congress to permanently reduce the size of the court in the face of a downturn in their caseload. Without better information, we are essentially guessing on whether adding judges is the best way to make sure the court can provide timely decisions to our nation's veterans and their families. Making this increase in the size of the court temporary will at least give us time to monitor the court's progress with more judges and to gather more information about the court's workload before we decide to make the expansion permanent. I thank the Chair and I would urge members to support the amendment. Chairman Akaka. Thank you. Are there other comments? Senator Rockefeller? Senator Rockefeller. Mr. Chairman, it is not a familiar concept to me in government if you enlarge a body that it is temporary. I think if you enlarge a body, it stays that way and maybe gets bigger, because that is the way we are. Plus, this is exactly the same argument, from my point of view, as caused the reason for me to vote against the last amendment. It is exactly the same argument. Chairman Akaka. I have a number of concerns with this amendment regarding workload. Since March 2005, the court has experienced a dramatic increase in cases filed. For example, in fiscal year 2004, the court received 2,234 new cases. In fiscal year 2005, that number grew to 3,466. In fiscal year 2006, it was 3,729. And in fiscal year 2007, now appeals filed total 4,644. This trend has continued into fiscal year 2008. Clearly, the court's workload is continuing to grow. Are there any further comments on this amendment? Senator Burr. Mr. Chairman, if I could just make one final comment-- Chairman Akaka. Senator Burr? Senator Burr. --to Senator Rockefeller's point. In 2002, we temporarily increased the authorized number of judges on this court. It lasted for about three years. It was listed as a temporary expansion, and as retirements took effect, the number was reduced back to seven. So there is a precedent as it relates to this Court of Appeals that Congress has seen a problem, addressed it with a temporary increase in the size of the bench, and allowed it then to contract to where it was originally. Chairman Akaka. Are there further remarks? [No response.] Chairman Akaka. I, therefore, call for the yeas and nays. The Clerk will call the roll. The Clerk. Mr. Rockefeller? Senator Rockefeller. No. The Clerk. Mrs. Murray? Senator Murray. No. The Clerk. Mr. Obama? [No response.] The Clerk. Mr. Sanders? Senator Sanders. No. The Clerk. Mr. Brown? Senator Brown. No. The Clerk. Mr. Webb? Chairman Akaka. No by proxy. The Clerk. Mr. Tester? Senator Tester. No. The Clerk. Mr. Burr? Senator Burr. Aye. The Clerk. Mr. Specter? Senator Burr. Aye by proxy. The Clerk. Mr. Craig? Senator Craig. Aye. The Clerk. Mr. Isakson? Senator Isakson. Aye. The Clerk. Mr. Graham? Senator Burr. Aye by proxy. The Clerk. Mrs. Hutchison? Senator Burr. Aye by proxy. The Clerk. Mr. Wicker? Senator Wicker. Aye. The Clerk. Mr. Chairman? Chairman Akaka. No. The Clerk. All right, let us try this again. The nays are seven, the ayes are seven, the amendment fails. Chairman Akaka. The amendment fails. There is no agreement on that. Senator Burr, are you ready for the next amendment? Senator Burr. It is my final amendment in this section, and it would be listed as amendment number three. This amendment would insert into S. 3023 a requirement that a judge filling one of the new judicial vacancies on the Court of Appeals for Veterans Claims that would be created by this bill must serve a full 15-year term before retiring. Mr. Chairman, currently, judges of the Court of Appeals for Veterans Claims are appointed to 15-year terms but may retire early if the judge's age plus years of service on the bench equals 80, a provision known as the "Rule of 80." Although judges have traditionally been able to retire under the Rule of 80, I think an exception is warranted in order to help alleviate an ongoing problem with the judges of this court retiring in clusters. When the court was created in 1988, the terms of the original judges were not staggered, so six judges retired between 2000 and 2005, with four retirements in a single 11-month period. With delays in the confirmation process, the court was without a full complement of judges for much of that period, which led to a serious disruption in the service to our veterans. Looking ahead, we see the possibility that this second generation of judges will also retire in a cluster. The terms of six judges will all expire between 2016 and 2019, with four terms expiring in a two-week period in 2019. As the court testified, creating new positions now could be useful in helping avoid simultaneous vacancies during the next round of retirements and avoid, and I quote, "a period of time when a majority of the judges would be new and unseasoned," unquote. We need to make sure we don't repeat our mistakes of the past, but that is what we will do if we simply add two more judges to the court in the next year and allow them to retire under the Rule of 80. They could potentially be eligible to retire in 2019, the same year the terms of four existing judges expire. Clearly, that would not help the situation that we are here trying to alleviate today. So my amendment would require that any judge confirmed to fill these two new slots must serve out the full balance of the 15 years before retiring and enjoying 100 percent of their salary, currently $169,000, for the rest of their lives. That will ensure the new judges would serve well beyond the retirement dates of all existing judges and it will hopefully provide some continuity for the court and avoid other disruptions in service to our nation's veterans in the future. I believe this is a reasonable modification that will address a very real problem confronting veterans seeking justice from this court and I would urge my colleagues to support this amendment. Chairman Akaka. Thank you, Senator Burr. As I understand it, any new judge who is added to the court by other action today would not under this amendment be allowed to retire under the Rule of 80, which takes into account age and years of service. All Article III judges, including those on the Court of Appeals for Veterans Claims, are currently operating under this rule. If all judges, regardless of age, are required to complete 15 years of service to the court for eligibility for retirement, it may impede the ability to attract experienced and qualified judges. I see no reason to treat judges who decide claims of veterans less favorably than judges who decide claims of other persons. Based on these concerns, I will oppose the amendment. Are there any other remarks? Senator Craig. Mr. Chairman? Chairman Akaka. Senator Craig? Senator Craig. Mr. Chairman, obviously, it appears the committee's mind is made up, but let me try to add a little to it, because I know we look at courts, we walk in lockstep, we always want to be voting positively for veterans, and denying what the Ranking Member has offered up might grasp that appearance. We are really talking about the dynamics of a court, but more importantly, we are talking about the collective knowledge of the court, and that is phenomenally important in these instances. How many of you have been to the court? I won't ask you to raise your hands. Few of us have ever gone. I have spent more time over there on this issue than probably any other Chairman. Why? Because we had a huge backlog, and Mr. Chairman, I was trying to resolve that, and we are resolving it. But what we also did, in the 1980s when we created this court, we didn't create staggered terms, and when I talked about inheriting your Chair and looking at filling the court, which was not full, then I worked aggressively to get judges in place. There is a learning curve because of the uniqueness of these claims and this phenomenal intricate law and judgment process that arrives at a fair approach toward handling our veterans. Staggering terms, creating the dynamics that keeps knowledgeable judges on the court is tremendously important. We know here, because of the politics of what we deal with, whether it is right or wrong, how oftentimes it is very difficult to confirm a nominee. That nominee will languish for months upon months. Now, I must tell you, Mr. Chairman, the nominees of the Bush administration that filled the court languished for years and the court was empty and the veterans were being denied because of the politics of this Senate. Let us not let that happen again, Democrat or Republican. I finally went to all of the powers that be and said, in blunt words, for God's sake, confirm these judges. Let them go to work. And we finally did. What the Ranking Member is trying to do is to create the dynamics of a staggered base of knowledge so that the decision processes can go on so the backlogs don't build. And what he has pointed out to us is a tidal wave of retirements, or potential retirements, hitting the court and a big void again, and nobody can predict the politics of this Senate at the time that happens other than to suggest we might be six, nine, ten, 12 months filling those positions. It is the character of what we do around here. None of us can deny that or say we will do better when we don't. But what we do know is that if we don't create the staggered dynamics of a court system that keeps knowledgeable judges in place dealing with the intricacy-- you don't inherit this law through the law books in a law school. You inherit it by knowledge of the process and the uniqueness. What we suffer from, when I became the advocate of allowing veterans to have attorneys to represent them, everybody said, well, gee, there aren't any attorneys that know veterans' law. There are few people who we nominate to this judgeship who know veterans' law. They learn it in the court. So to give them the Rule of 80 and say, okay, you have learned it, now you can retire at full pay, it is a different court. Please, please recognize it is slightly different from other appellate courts in our system. Thank you. Chairman Akaka. Thank you, Senator Craig. Senator Burr. Mr. Chairman, could I add one thing just for the knowledge of members? Chairman Akaka. Senator Burr? Senator Burr. This requirement is only limited--it is limited only to the two judges that will be appointed under this legislation. It will not extend to any other judges that in the future come to the court. It addresses a real identifiable problem that just with these two new appointments would alleviateany concern that we had of that cluster. I thank you. Chairman Akaka. Thank you, Senator Burr. Senator Rockefeller? Senator Rockefeller. Mr. Chairman, what Senator Craig and the Ranking Member have said is persuasive in many ways, but I think insufficiently, at least for my purposes. Yes, you have the stagger problem. Yes, you have 2019, so four of the seven judges retire. On the other hand, judges leave the bench for many reasons. They are human beings. They have personal crises, family crises, they don't like it or whatever. There is something in here in a previous amendment about judges burning out. I wasn't aware of that. In any event, it doesn't make any sense to me to pick out two and then violate the pension rule, penalize them and the pension rule, Rule of 80, which allows all Federal judges to retire at this level with the combination of their age and their years of service. I will admit that I talked with Judge Mary Schoelen and I have an extraordinarily high regard for her. She used to serve on this committee. And I think she is the first woman to be in that position. She is not one of the two judges at issue, but she said there are many other ways of solving this rather than penalizing two on their pensions, and so I would oppose this amendment. Chairman Akaka. Any further comments? [No response.] Chairman Akaka. Otherwise, I will call for the yeas and nays. The Clerk will call the roll. The Clerk. Mr. Rockefeller? Senator Rockefeller. No. The Clerk. Mrs. Murray? Senator Murray. No. The Clerk. Mr. Obama? [No response.] The Clerk. Mr. Sanders? Senator Sanders. No. The Clerk. Mr. Brown? Senator Brown. No. The Clerk. Mr. Webb? Chairman Akaka. No by proxy. The Clerk. Mr. Tester? Senator Tester. No. The Clerk. Mr. Burr? Senator Burr. Aye. The Clerk. Mr. Specter? Senator Burr. Aye by proxy. The Clerk. Mr. Craig? Senator Craig. Aye. The Clerk. Mr. Isakson? Senator Isakson. Aye. The Clerk. Mr. Graham? Senator Graham. Aye. The Clerk. Mrs. Hutchison? Senator Burr. Aye by proxy. The Clerk. Mr. Wicker? Senator Wicker. Aye. The Clerk. Mr. Chairman? Chairman Akaka. No. The Clerk. The nays are seven, the ayes are seven, the amendment fails. Chairman Akaka. The amendment fails. Senator Burr, are you ready for the next amendment? Senator Burr. Mr. Chairman, I am ready for the next and the last. It is an amendment on the Second Amendment, but it is my preference to offer that to S. 2969, the health bill. I just want to draw that distinction. May I proceed, Mr. Chairman? Chairman Akaka. Yes. Senator Burr. Mr. Chairman, my amendment would protect the Second Amendment rights of VA beneficiaries by ensuring that they are no longer--that they are singled out through an arbitrary and unfair process that prevents them from exercising their Second Amendment rights. The current process is arbitrary. Under a Memorandum of Understanding with the FBI, VA has sent 116,000 names for inclusion on the National Instant Criminal Background Check System because it has appointed a fiduciary for them to manage their disability compensation, pensions, survivors' compensation, and other VA payments. VA's process for appointing fiduciaries focuses on whether they are able to manage their financial affairs and not on whether they present a danger to themselves or to others. Folks this is like using a physical fitness test to determine somebody's IQ! One thing has little to do with the other. Mr. Chairman, the process is unfair. If someone's Second Amendment rights are to be taken away, then the forum for such a decision must be an appropriate one. With all due respect to the VA's claims examiners, they are not the appropriate people to be calling the shots on matters of constitutional rights. The process is a double standard. Currently, over five million Social Security recipients have fiduciaries to help them manage their benefit payments, yet Social Security does not send nor have they been asked to send their names for inclusion on the NICS list. My amendment is quite simple. It says that the VA determinations of mental incompetency shall not constitute an adjudication as a mental defective for the purposes of denying Second Amendment rights unless a judicial authority, such as a judge or a magistrate, finds that an individual is a danger to themselves or to others. I am pleased to say that my amendment enjoys the support of the American Legion, the Veterans of Foreign Wars, the Military Order of the Purple Heart, AMVETS, and the National Alliance on Mental Illness. Let me be clear, Mr. Chairman. I am not against keeping guns out of the hands of individuals that we consider to be dangerous people, but I am against arbitrary, unfair, and discriminatory processes that have nothing to do whatever with that goal. I would urge my colleagues to support my amendment. Chairman Akaka. Thank you, Senator Burr. Although the subject matter of this amendment involves veterans and is drafted as an amendment to Title 38, the underlying issue concerns implementation of the Brady Handgun and Violence Prevention Act of 1993. That suggests to me that the appropriate venue for this issue is the Judiciary Committee and not our committee. That reason alone provides a basis for the committee to refrain from action on this amendment. More importantly, however, is the fact that the legislation from which this amendment is derived has not been appropriately considered by this or any other committee. This bill was introduced just last week. Legislation dealing with an issue of such significance and complexity should be brought before the committee for a hearing so that the members can hear all sides of an issue and can understand both the concern and proposed solution. Statements by the proponents in a markup do not equate to the give-and-take of a hearing. I also do not understand what the urgency is on this issue. Based on my memory from last year, when the issue came up in the context of the Joshua Omvig suicide prevention legislation, and also from material provided by VA yesterday in response to my request, it is clear that concerns about this issue date back many months. I am aware of nothing that explains what has changed recently that prompts the need to move this legislation and to do so without a hearing. Finally, setting aside the merits of the amendment, I do not believe anyone could argue that it is without controversy, and this controversy will hinder action on an important piece of legislation. Based on these various concerns, I do not support the amendment. At the appropriate time, I will move to table the amendment, but if my colleagues believe the current situation requires immediate action with no committee record or consideration, they should not support the motion to table. Are there any other comments? Senator Rockefeller? Senator Rockefeller. Mr. Chairman, I agree with your statement that this was not vetted through the committee and it is the kind of amendment which needs to be. I will also say to you that, having been on this committee for 24 years, that maybe it is just emotional, maybe it is just me, but I think veterans need to be treated differently on some issues. I recognize the inherent unintended consequences of PTSD and traumas and various other matters. I mean, there is just--I feel an obligation to veterans to respect what they have done and what they have given and how they suffered, virtually all of them, and it just causes me not to want to oppose the Ranking Member's amendment. In fact, I very strongly don't want to oppose it. Senator Murray. Mr. Chairman? Chairman Akaka. Senator Murray? Senator Murray. Mr. Chairman, I respect what Senator Rockefeller and Senator Burr said. Clearly, this is an issue that we all want to tread carefully on and do the right thing and no one wants to prevent someone from having a gun that ought to have one for whatever reason. I think we all support common sense gun legislation. We did, I remind everybody, pass the NICS National Instant Check System Improvement Act in 2007, which dealt with this issue. It was legislation that was supported by the Brady Campaign to Prevent Gun Violence and the National Rifle Association, and when it came up for debate on the floor, Senator Coburn said, and I quote, "a balance for protection, but it is also a balance for preserving rights especially for our veterans." So at that time, we saw the fix that we did as making those right balances and moved forward on it. Senator Burr has introduced legislation just in the last several days that changes that formula again. We have not had an opportunity on this committee or any other committee to take a look at it to determine whether there are any problems with it or if we create something we don't know that we have created. I think it is a responsibility of ours to do that without attaching it to a piece of legislation that will likely go through the Senate fairly quickly without it being attached. Senator Akaka, I listened to your statement about the need for a hearing. Would you have a hearing on this in order to be able to move forward on it separately if the committee determines that? Chairman Akaka. Yes, I would have a hearing on this. Senator Murray. Well, I think it is important that we take a look at this language. I think it raises serious questions. We have not been told by the VA or anybody that anybody has run into a problem with what we did with the NICS Act that we just passed a few months ago. I would like to know if there is. I think the committee ought to know that, and I would just encourage us to table this amendment at this time and have the hearing, and if the committee agrees and the testimony backs up the fact that there are problems, then I think that we should act. Chairman Akaka. Are there any further comments on this? Senator Burr. Mr. Chairman, if I could respond-- Chairman Akaka. Senator Burr? Senator Burr. --to some of what has been said. First and foremost, this has been introduced as a bill. It is S. 3167. It was referred by the Parliamentarian to this committee. Senator Murray. Okay. Senator Burr. It is the jurisdiction of this committee, based upon the determination of the Parliamentarian. The constitutional rights of the American people are an important thing to be addressed and I believe in this particular case we owe it to these veterans to address it at the earliest possible time. Mr. Chairman, when the FBI and the VA entered into this Memorandum of Understanding, there was no hearing in this committee as to whether this was the right thing. And there was an attempt to modify it, you are exactly right, and the modification was this, that the VA is still going to send everybody's name to the NICS list, but people have the right to request that their name be removed. I am not sure that is fixing it. What is fixing it is having the right policy in place that doesn't dump every veteran who is assigned a fiduciary into the process where they can't access a firearm without physically requesting that they be removed from it. That is not the way the system is supposed to work. This, in fact, fixes the system, and Mr. Chairman, I realize that this issue from the standpoint of the committee and the members is a little over ten days old. We have shared with every member and all the staff more information about this issue and the VA's position and remarks from Secretary Peake than probably most of the issues we are marking up today. So I appreciate the fact that there is a tendency to say, well, let us punt and have a hearing. There wasn't an offer of a hearing ten days ago. There is an offer of a hearing today because we are in markup and I chose to move this forward. Veterans deserve for us to resolve this today, and if, in fact, that is not the wish of the United States Senate, when this bill moves, it will be removed or it will be again attempted to be added to the legislation. That will be the will of the body as a whole. I thank the Chair. Senator Sanders. Mr. Chairman? Chairman Akaka. Thank you, Senator Burr. Senator Sanders? Senator Sanders. Can I ask, Senator Burr, you mentioned Secretary Peake. He was just up in Vermont the other day. What is his position on your amendment? Senator Burr. Well-- Senator Sanders. And the Veterans Administration. He is Secretary of the Veterans Administration. Senator Burr. Clearly, I would assume that the Secretary, since they have a Memorandum of Understanding with the FBI, has not taken a position, to my knowledge, on this particular-- Senator Sanders. But you mentioned Secretary Peake a moment ago. Senator Burr. That I supplied all the information-- Senator Sanders. Oh, to him? Senator Burr. Peake has-- Senator Sanders. The Secretary had your information, but he has not made a public statement on this? Senator Burr. That is correct. Senator Sanders. Would it be a fair assumption to say that the Bush administration and the Secretary prefer the status quo to your amendment, if they have not supported your amendment? Senator Burr. I am not sure that we have inquired of the Bush administration's position on that. Senator Sanders. But they are the ones who are maintaining the status quo. Senator Burr. I am not sure that they have been asked to comment or to-- Senator Sanders. But these are their regulations. This is the regulation of the VA. I am not-- Senator Burr. This Memorandum of Understanding was initiated under the Clinton administration, so-- Senator Sanders. But seven-and-a-half years later, it still stands? Senator Burr. You are correct. One would suggest that now is the time to fix it. Senator Sanders. Well, seven-and-a-half years of the Bush administration was a long time in which they could have fixed it. Senator Burr. I appreciate the Senator's observation. I am not doing this for the Bush administration. I am doing it for veterans in this country, people who deserve the same constitutional rights that we all have. That is the only reason. So I could care less what the Bush administration thinks, and it won't be the first time that I have initiated something that they weren't in full agreement on. I thank the Chair. Chairman Akaka. Thank you, Senator Burr. If there are no further comments, I now move to table the pending amendment and ask for a voice vote on the motion. Is there a second? Senator Murray. Second. Chairman Akaka. Seconded. The motion is to table this amendment. All those in favor, will you say aye. [Chorus of ayes.] Chairman Akaka. All those opposed, no. [Chorus of noes.] Chairman Akaka. The noes have it and the motion to table is not agreed to. The motion to table having failed, I ask for a voice vote on the amendment, and we have had-- and all in favor, please say aye, and all those opposed, no. The ayes have it and-- Senator Rockefeller. Nobody made a sound-- [Laughter.] Senator Burr. Johnny did-- [Laughter.] Senator Rockefeller. Will you do that again? Chairman Akaka. Yes. Well, what I did, for Senator Rockefeller, was when I announced that the noes had it, the motion to table was not agreed to-- Senator Rockefeller. Yes, I know that, but the adoption--when it came to the adoption part, I am hearing disadvantaged, but I heard no noise whatsoever. [Laughter.] Chairman Akaka. Well, the amendment is not agreed to and before-- Senator Burr. Mr. Chairman? Chairman Akaka. --I adjourn-- Senator Burr. Mr. Chairman? Chairman Akaka. Senator Burr? Senator Burr. I think, if I may make a suggestion that we vote one more time, a voice vote on the actual amendment so that all members could be heard. Chairman Akaka. On the amendment. Well, we will accept that, Senator Burr, and I will call for a voice vote- - Senator Burr. That would be fine with me. Chairman Akaka. --on the amendment-- Senator Burr. On my amendment. If you just call the voice vote before we lose members. Chairman Akaka. Are there any remarks? [No response.] Chairman Akaka. All those in favor, will you say aye? [Chorus of ayes.] Chairman Akaka. All those opposed, no. Senator Murray. No. Chairman Akaka. The ayes do have it. Before I adjourn this markup, I want to thank each of the members of the committee for being here today and for your work in the time leading up to the markup. I also thank your staffs and the majority staff here on the committee, especially Alex and Dahlia, who worked very hard in preparation of this amendment. The committee has created a solid body of legislation that will significantly benefit our nation's veterans and their families, those men and women who have given of themselves in service to our country. The committee intends to file the reports for the legislation as soon as possible, and I hope that we will be able to move the bills through the Senate shortly thereafter. I also want to take this opportunity to tell the committee about our newest majority staff member, Ryan Petit. Ryan is a recent graduate of George Mason University who served two tours in Iraq as a United States Marine. We have spent a lot of time in this Congress talking about the challenges facing our veterans returning from Iraq and Afghanistan and I am proud that we have hired an Iraq veteran whose primary focus will be oversight of the VA health system. After I adjourn the markup, we will reset the room and proceed to a hearing on a nomination. This markup stands adjourned. [Whereupon, at 10:41 a.m., the committee was adjourned.]