E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 104 CONGRESS, FIRST SESSION

Vol. 141 WASHINGTON, WEDNESDAY, JUNE 7, 1995 No. 92 Senate (Legislative day of Monday, June 5, 1995)

The Senate met at 9:30 a.m., on the BIDEN to offer a habeas corpus amend- The PRESIDING OFFICER. Without expiration of the recess, and was called ment No. 1217. That amendment is lim- objection, it is so ordered. to order by the President pro tempore ited to 30 minutes of debate. Therefore, f [Mr. THURMOND]. Senators should be on notice that a rollcall vote is expected at approxi- ODYSSEY OF THE MIND PRAYER mately 10:15 this morning. Mr. HATCH. Mr. President, I rise The Chaplain, Dr. Lloyd John Following disposition of the Biden today to congratulate the educators Ogilvie, offered the following prayer: amendment, only six amendments re- and parent leaders whose teams won Lord God, source of righteousness main in order to the antiterrorism bill. the Utah State Odyssey of the Mind and one who is always on the side of It is, therefore, the expressed hope of competition. The Odyssey of the Mind what is right. We confess that there are the majority leader to complete action Association gives teams of students at times we assume we know what is right on the bill early this afternoon and each educational level an opportunity without seeking Your guidance. then begin consideration of S. 652, the to develop creative problem-solving Lord, give us the humility to be more telecommunications bill. skills. These student teams compete in concerned about being on Your side f than recruiting You to be on our side. local areas, nationally and internation- Clear our minds so we can think Your RESERVATION OF LEADER TIME ally. There is also an annual world thoughts. Help us to wait on You, to championship competition. I am proud The PRESIDENT pro tempore. Under of these young people who are success- listen patiently for Your voice, to seek the previous order, leadership time is Your will through concentrated study ful problem solvers, team workers, and reserved. creative thinkers. and reflection. May discussion move us f to deeper truth, and debate be the I congratulate Mary Ellen Ras- blending of varied aspects of Your rev- MORNING BUSINESS mussen, Robin Money, Rhonda Nilson, elation communicated through others. Karen Sanderson, Charlotte Summers, The PRESIDENT pro tempore. Under Diana and Roger DeFriez, Terry and Free us of the assumption that we have the previous order, there will now be a an exclusive on the dispatches of Heav- Debbie Preece, Karen Bodily, Lynn period for the transaction of morning Ottesen, Spencer Jones, and their stu- en, and that those who disagree with us business, not to extend beyond the must also be against You. dents for their success in the Utah Od- hour of 9:45 a.m. yssey of the Mind competition. I am Above all, we commit this day to Mr. STEVENS addressed the Chair. seek what is best for our beloved Na- proud of their efforts to represent their The PRESIDENT pro tempore. The State and country in the 1995 world tion. Grant us the greatness of being on distinguished Senator from Alaska. Your side and then the delight of being championship at the University of Ten- Mr. STEVENS. I thank the Chair. nessee—Knoxville. The dedication there together. In Your righteous (The remarks of Mr. STEVENS per- name. Amen. given to such programs by these par- taining to the introduction of S. 888 are ents and teachers is representative of f located in today’s RECORD under their love for our children and their in- ‘‘Statements on Introduced Bills and RECOGNITION OF THE ACTING vestment in the future of our country. Joint Resolutions.’’) MAJORITY LEADER Mr. STEVENS. Mr. President, I do f The PRESIDENT pro tempore. The notify the Senate, as I said before, that WAS CONGRESS IRRESPONSIBLE? acting majority leader is recognized. there is a period for morning business THE VOTERS HAVE SAID YES SCHEDULE at this time in which Senators may Mr. STEVENS. I thank the Presiding speak or introduce bills. Mr. HELMS. Mr. President, there is Officer and President pro tempore. I suggest the absence of a quorum. no requirement that one has to be a Mr. President, the leader’s time has The PRESIDING OFFICER (Mr. rocket scientist to know that the U.S. been reserved this morning, and there DEWINE). The clerk will call the roll. Constitution forbids any President’s will be a period for morning business The assistant legislative clerk pro- spending even a dime of Federal tax until the hour of 9:45 a.m. ceeded to call the roll. money that has not first been author- Following morning business, the Sen- Mr. SPECTER. Mr. President, I ask ized and appropriated by Congress— ate will resume consideration of S. 735, unanimous consent that the order for both the House of Representatives and the antiterrorism bill, with Senator the quorum call be rescinded. the U.S. Senate.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S 7801 S 7802 CONGRESSIONAL RECORD — SENATE June 7, 1995 So when you hear a politician or an died when he was very young. He was this attention than my friend, Jerry editor or a commentator declare that fortunate enough to join Boy Scout Jory. ‘‘Reagan ran up the Federal debt’’ or Troop 122 under Mr. Bower, who proved Jerry is perhaps most well known for that ‘‘Bush ran it up,’’ bear in mind to be a source of guidance and influ- his service to his country as a member that the Founding Fathers, two cen- ence. The young man grew up to be a of the U.S. Navy and as a captain in turies before the Reagan and Bush successful citizen who attributes his the Naval Reserve. During the Korean presidencies, made it very clear that it sense of civic duty and leadership to war, he served on the U.S.S. Bremerton is the constitutional duty of Con- Skip Bower. But that is just one exam- as a cryptographer breaking Korean gress—a duty Congress cannot escape— ple of how Skip Bower influenced a life and Russian codes. As an active reserv- to control Federal spending—which and saw a young person grow into a re- ist in the Vietnam war, Jerry served in they have not for the past 50 years. sponsible, productive citizen. There the Pentagon in the sensitive and high- The fiscal irresponsibility of Con- have been many more. ly classified position in charge of the gress has created a Federal debt which For over 60 years Mr. Bower has staffing of troops and officers. Since stood at $4,904,368,578,709.58 as of the quietly continued to touch the lives of then, Jerry has continued to serve our close of business Tuesday, June 6. This students, Scouts, and North Kansas country in the reserves, and he is held outrageous debt, which will be passed City citizens who know him from his in high esteem by his peers and his sub- on to our children and grandchildren, banking job, the Kiwanis Club, or var- ordinates because of his thoughtful and averages out to $18,617.07 on a per cap- ious other community activities. His even-tempered approach to whatever ita basis. accomplishments have not gone unrec- task is assigned. f ognized. He was recently selected by Since my election to the Congress in Newschannel 4 as one of Kansas City’s 1982 and the Senate in 1986, Jerry has PROCLAMATION FOR VIRGIL Symbols of Caregiving, an award re- been my military adviser, and I have ‘‘SKIP’’ BOWER OF KANSAS CITY served for 11 outstanding citizens who relied on his opinion and counsel. He Mr. ASHCROFT. Mr. President, as provide an example of hope and service has also served as the chairman of my the new Republican Congress attempts for everyone. The Kansas City North- Academy selection committee. As a re- to put government back into the hands land Regional Chamber of Commerce sult of his efforts, that committee has of the people and bring back a sense of sponsors the Virgil Bower Award for developed the strongest selection out- independence rather than dependence Community Service, named in his reach program in the country and Ne- for so many citizens, it is important to honor. vada has sent stellar candidates to our recognize those individuals who have Now in retirement at the age of 87, military academies. done their part at the community Mr. Bower continues to work half days Jerry is the finest example of a pa- level, the very core of our society, to greeting customers at Boatman’s Bank triot that I know—a man who serves promote responsibility in others. I am in Kansas City. He takes pride in his with an unassuming yet passionate and proud to recognize a Missourian from work, and knows most of the cus- dignified love for his country. Kansas City, Mr. Virgil Bower, known tomers who come through the door, as Jerry Jory earned a degree in edu- to most as ‘‘Skip,’’ who has devoted his well as most people in North Kansas cation and was prepared to enter the life to influencing others and serving City. His wife of 50 years died over 10 teaching profession. However, after re- as a community activist, volunteer, years ago, but her portrait sits in his turning from Korea, he received an and role model in Missouri for over 60 living room as a reminder of the life offer to become partners in a pawn years. they shared. The words ‘‘loyal, com- shop in Las Vegas. For 40 years, Jerry Mr. Bower began his volunteer serv- mitted, and dedicated’’ are commonly has operated the Hock Shop, and for ice in 1934 as Scoutmaster to Boy used to describe Skip Bower. He de- those 40 years, he has been a compas- Scout Troop 122, and continues to serve serves our praise and recognition for sionate, determined, and persistent to this day. He has been in the banking the outstanding contributions he has leader in our business community. He business in North Kansas City since made to Kansas City and America. Mr. has earned a reputation for his sincere 1948, serving as a public relations rep- Bower will leave a legacy of morality, concern for his fellow human beings, resentative. Throughout his career he responsibility, service, and leadership. and there is no one who, needing his has remained active in civic organiza- help, is ever refused. tions. He has been publicly recognized f In addition to all of his work for his as an outstanding citizen and commu- TRIBUTE TO JERRY JORY community and his country, Jerry has nity leader, having even been called a also been a devoted family man. To- legend in the North Kansas City area. Mr. REID. Mr. President, in the mid- gether with his wife June, they have Mr. Bower is a man of dignity and 1960’s, when I first decided to seek po- raised ten wonderful children—Teri, humility who has worked hard. Shortly litical office, I ran for a seat on the Toni, Jerry, Jason, Shannon, April, after he graduated from high school, hospital board of trustees for Southern Kit, Sean, Kelly, and Gary. I personally Mr. Bower got a job washing dishes in Nevada Memorial Hospital. This was don’t know how Jerry has found the a cafeteria in downtown Kansas City. not considered a political plum, nor did time for all that he does; but he must He saved enough money to attend col- the race engender much public atten- be doing something right—everyone lege and graduated from William tion. For me, however, it was incred- who knows him can tell by the smile Jewell in 1933. He began his career as a ibly significant, as most firsts are. on his face. school teacher and found gratification I mention this because during that Jerry has faced many battles in his in influencing and motivating young campaign, I met a man who, without life, but today he may be facing his people to strive for excellence. He later motive or want, came to me offering toughest. He has recently been diag- became the principal of McElroy Dagg support and assistance in my cam- nosed with cancer, and he will confront Elementary School, only to have his paign. He owned a pawn shop in down- this illness with the same determina- tenure cut short by the bombing of town Las Vegas, heard I needed help, tion that he has shown his entire life. Pearl Harbor. Like so many young and offered it. Since then, I have been And I know there will be hundreds of men, Mr. Bower answered the call of the lucky beneficiary of Jerry Jory’s friends standing beside him to help. his country and served in World War II support as a friend, as an advisor, and I am proud to be Jerry’s friend, and I as an officer in the Navy. as an ally. And he has never asked for wish him the very best as he is honored Skip Bower has influenced many anything in return—because that’s the by the community that is his home. young people throughout the years, kind of guy he is. f and many have followed in his foot- On Friday, June 16, Jerry will be hon- steps, becoming community volunteers ored by the many friends he has made BILLIONAIRES’ TAX LOOPHOLE and serving in World War II, Korea, and at a special tribute sponsored by the Mr. KENNEDY. Mr. President, the Vietnam. Las Vegas Police Protective Associa- Joint Committee on Taxation has now Recently, I received a letter from a tion. I can say, without hesitation, completed its long awaited study on man from Kansas City whose father that there is no one more deserving of the billionaires’ tax loophole, and their June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7803 report is a blatant attempt to save the enforcement procedures, instead of en- antiterrorism bill. This bill is an ap- loophole, rather than close it. acting a new reform to close the loop- propriate place to take up habeas cor- On April 6, the Senate voted 96 to 4 to hole, as President Clinton has pro- pus reform, because the acts of terror- close this unjustified tax loophole for posed. ism in the atrocious bombing of the billionaires who renounce their Amer- But the IRS has attempted to enforce Federal building in Oklahoma City ican citizenship in order to avoid taxes the current law, and it has been found would carry with it the death penalty, on the wealth they have accumulated to be fatally flawed. To tinker with the and habeas corpus reform is very im- as Americans. current law is a thin-veiled pretext to portant in order to make the death As we all know, the Senate Finance save the current loophole. penalty an effective deterrent. Committee had tried to close the loop- The IRS has been able to identify In order to have an effective deter- hole as part of its action to restore the only a handful of cases in which any rent, the penalty has to be certain and health care deduction for small busi- tax was collected under the defective the penalty has to be swift. We have nesses. current law. And the total tax col- seen in the course of the appeals taken The Finance Committee bill closed lected is less than $500,000. on cases from death row that they last the billionaires’ loophole, despite the At the same time, we have tax law- sometimes as long as 20 years. Habeas fact that the revenue gained was not yers quoted as saying: ‘‘I talk to a new corpus proceedings arising from Fed- needed to pay for the health care de- client interested in expatriating every eral convictions are handled slightly duction in the bill. In fact, the Finance week.’’ differently than those arising out of Committee recommended that the rev- Third, the report allows an unaccept- State convictions, because in State enues be used for deficit reduction. able window of opportunity to avoid proceedings, after the highest State This is exactly the type of action the tax. Under this proposal, wealthy court affirms the death penalty on di- necessary if we are serious about tax-evaders can still qualify for the rect review, there may then be addi- achieving a balanced budget. loophole by simply having begun, not tional State-court review called collat- According to the revenue estimates completed, the process of renouncing eral review on State habeas corpus be- at the time, closing the loophole would their citizenship by the February 6 fore review on Federal habeas corpus. raise $3.6 billion over the next 10 years. date. Despite this slight difference, this is Clearly, substantial revenues are at When we debated this issue 2 months the time to move ahead with legisla- stake. ago, there were suggestions that the ef- tion to reform habeas corpus in all Too often, we close tax loopholes fective date should be postponed to ac- cases. only when we need to raise revenues to commodate certain individuals in their This is a subject that I have been offset tax cuts. In this case, the Fi- tax avoidance schemes. working on for many years, since my nance Committee closed this flagrant In my view, we should close the loop- days as an assistant district attorney loophole as soon as it was brought to hole tight, not gerrymander the effec- in Philadelphia and later as district at- the Committee’s attention and rightly tive date to let some well-connected torney of Philadelphia. Since coming so, because this loophole should be billionaires squeeze through. to the Senate in 1981, I have introduced closed as soon as possible. At a time when Republicans in Con- many bills directed at improving the The Senate bill did so, and all of us gress are cutting Medicare, education, administration of criminal justice, like thought the issue was settled. and other essential programs in order the armed career criminal bill, which Yet, when the legislation came back to pay for tax cuts for the rich, they was enacted in 1984, and other legisla- to us from the Senate-House con- are also maneuvering to salvage this tion which has dealt with expanding ference, the loophole had reappeared, unjustified loophole for the super the prison system, improving the and this important tax reform had dis- wealthy. chances of realistic rehabilitation, and appeared. This outrageous tax break I say, this loophole should be closed strengthening deterrent value of the for a few dozen or so of the wealthiest now, and it should be closed tight—no criminal law. The subject of habeas individuals in the country would re- ifs, and, or buts. I intend to do all I can corpus reform falls into the latter cat- main open. to see that it is. egory. The provision was dropped in con- I have addressed habeas corpus re- f ference because it was felt that tech- form on many occasions over the years nical issues needed to be addressed be- COMPREHENSIVE TERRORISM and succeeded in 1990 in having the fore Congress took action on the issue. PREVENTION ACT Senate pass an amendment to the 1990 But in the April 6 vote, the Senate crime bill on habeas corpus reform to The PRESIDING OFFICER. Under went solidly on record to close the try to reduce the long appellate time. the previous order, the hour of 9:45 hav- loophole as quickly as possible, and to Notwithstanding its passage by the ing arrived and passed, the Senate will make the effective date of such legisla- Senate in 1990, the provision was not now resume consideration of S. 735, tion February 6, 1995. passed by the House of Representatives which the clerk will report. This all happened, of course, at the and was dropped from the conference The legislative clerk read as follows: same time our Republican colleagues report. I continued to introduce legis- in Congress have been proposing deep A bill (S. 735) to prevent and punish acts of lation on habeas corpus reform in 1991, terrorism, and for other purposes. cuts in Medicare and education in 1993, and again in 1995. This year, after order to pay for their new tax breaks The Senate resumed consideration of very extended negotiations with the for the rich. the bill. distinguished Senator from Utah, the Now, the report of the Joint Tax Pending: chairman of the Judiciary Committee, Committee suggests that the real pur- Hatch-Dole amendment No. 1199, in the na- we came to an agreement on legisla- pose of the delay was to try to find a ture of a substitute. tion which captioned the Specter- way to save as much of the loophole as Mr. SPECTER. Mr. President, the Hatch habeas corpus reform bill, S. 623, possible. time has arrived for consideration of the provisions of which are now pend- I have several major concerns about the pending bill on terrorism. The is- ing as part of this antiterrorism bill. the report sues which are going to be taken up Preliminarily, Mr. President, I think First, the report now indicates that this morning involve habeas corpus re- it important to note the controversy the revenue gain from closing the loop- form. In the absence of any other Sen- over whether the death penalty is, in hole may be only about half the ator on the floor who desires to speak fact, a deterrent against violent crime. amount estimated earlier—$1.9 billion, or offer an amendment, I will address It is my view that it is a deterrent, instead of $3.6 billion. The amount is the subject in a general way. and I base that judgment on my own still significant, but far less than was Mr. President, the Specter-Hatch ha- experience in prosecuting criminal expected. beas corpus reform bill, S. 623, is a very cases, prosecuting personally murder Second, the report suggests that it important piece of legislation. The pro- cases, and running the district attor- may be preferable simply to tinker visions of that bill will be taken up ney’s office in Philadelphia which had with the existing law and improve IRS now as part of the pending some 500 homicides a year at the time. S 7804 CONGRESSIONAL RECORD — SENATE June 7, 1995 Based on this experience, I am person- should be held to the death penalty as Mr. President, there are many, many ally convinced that many professional well. But their sentences were com- cases which illustrate the enormous robbers and burglars are deterred from muted. delays in the criminal justice system taking weapons in the course of their I think that case is a good illustra- and one which I have cited on the floor robberies and burglaries because of the tion of the deterrent effect of capital before. The CONGRESSIONAL RECORD is fear that a killing will result, and that punishment. Here you had two young replete with citations of cases which would be murder in the first degree. men, 18 and 17, with very marginal show the deterrent effect of the death One of the cases which I handled IQ’s, but they knew enough not to go penalty and show the enormous delays many years ago as an assistant district along on a robbery if a gun was present under habeas corpus, but the Robert attorney on appeal has convinced me because they might face the death pen- Alton Harris case is one which shows it that it is, in fact, a deterrent, and it is alty if a killing occurred. vividly. an illustrative case where there are Mr. President, in the current context Defendant Harris was arraigned for a many, many others which have been in which habeas corpus appeals now double murder back in July of 1978. His cited in treatises and the appellate re- run for as long as a couple of decades, case wound through the courts running ports. the deterrent effect of capital punish- for some 14 years until 1992. In the The case I refer to involved three ment has been virtually eliminated. course of this case, Mr. Harris filed 10 young hoodlums named Williams, age There are many, many cases which State habeas corpus petitions under 19, Cater, 18, and Rivers, age 17. The illustrate this point. Many cases of the laws of California, 6 Federal habeas three of them decided to rob a grocery brutal murders in which the case has corpus petitions, 4 Federal stays of exe- store in north Philadelphia. They dragged on and on for as long as 17 cutions, there were 5 petitions for cer- talked it over, and the oldest of the years or more. tiorari to the Supreme Court of the One of them is the case of a man group, Williams, had a revolver which United States, and the case went on named Willie Turner. On the morning he brandished in front of his two virtually interminably. Finally, in a of July 12, 1978, he walked into the younger coconspirators. very unusual order, the Supreme Court Smith Jewelers in Franklin, VA, carry- When Cater, age 18, and Rivers, age of the United States directed the lower ing a sawed-off shotgun, wrapped in a 17, saw the gun they said to Williams Federal courts not to issue any more towel. Without saying a word, Turner that they would not go along on the stays of execution for Harris. showed his shotgun to the proprietor, a robbery if he took the gun because of There is another aspect to these very man named Mr. Jack Smith. their fear that a death might result Mr. Smith triggered the silent alarm, long delays, Mr. President. It involves and they might face capital punish- and a police officer, Alan Bain, arrived the question as to whether the pro- ment—the electric chair. at the scene. During the course of the tracted, lengthy period of time defend- Williams put the gun in the drawer, events, the defendant, Turner, pointed ants wait to have their death sentences slammed it shut, and they all left the his shotgun at officer Bain’s head and carried out is itself, in fact, cruel and room to go to the grocery store in ordered him to remove his revolver unusual punishment. In a case before the Supreme Court of north Philadelphia for the robbery, to from his holster and to put it on the get some money. floor. Turner then eventually shot the the United States as reported in the Unbeknown to Cater or Rivers, Wil- proprietor, Jack Smith, in the head. Washington Post on March 28 of this liams had reached back into the draw- The shot was not fatal. year, Justice Stevens, joined by Jus- er, pulled out the gun, took it with Then officer Bain began talking to tice Breyer, called upon the lower him, and in the course of the robbery Turner and he offered to take Turner courts to begin to examine whether in the north Philadelphia grocery out of the store if he would agree not executing a prisoner who has spent store, the proprietor, Jacob Viner, re- to shoot anyone else. The defendant many years on death row violates the sisted. Williams pulled out his gun and Turner then said, ‘‘I’m going to kill Constitution’s prohibition on cruel and shot and killed Mr. Viner, and all three this squealer,’’ referring to the propri- unusual punishment. were caught and charged with murder etor, Smith, who lay severely wounded. There was a case in 1989 where the in the first degree. All were tried. All Turner reached over the counter with British Government declined to extra- were given the death penalty. his revolver and fired two close-range dite a defendant, Jens Soering, to Vir- We know the facts of the case from shots into the left side of Mr. Smith’s ginia on murder charges until the pros- the confessions and from the clearly es- chest. ecutor agreed not to seek the death tablished evidence as to what hap- The shots caused Smith’s body to penalty because the European Court of pened, as I have just recited it. jump. Medical testimony established Human Rights had ruled that confine- Ultimately, Williams was executed in that either of these two shots to the ment in a Virginia prison for 6 to 8 1962, the second to the last individual chest would have been fatal. Turner years awaiting execution violated the to be executed in Pennsylvania until was tried for murder in the first de- European Convention on Human within the past few months there was gree, was convicted, and was sentenced Rights. an execution after a 33-year lapse in to death. The appeals lasted 17 years, So we have a situation where these carrying out the death penalty in the with the victim’s family attending long delays involve continuing travail State of Pennsylvania. some 19 separate court proceedings. and pain to the family of the victims When the matter came up on hear- It is not an easy matter, Mr. Presi- awaiting closure and awaiting disposi- ings before the pardon board, and I was dent, when we talk about capital pun- tion of the case. We also have an adju- district attorney, I agreed that the ishment. It is my judgment, however, dication under the European Conven- death penalty ought not to be carried that society needs this ultimate weap- tion on Human Rights that concluded out as to both Cater and Rivers be- on in order to try to deal with violent that the practice in the State of Vir- cause of the difference in their ap- crime in America. That has been the ginia where cases were delayed for 6 to proach to the offense, that although judgment of some 38 States in the 8 years constitutes cruel and unusual technically they were guilty of the acts United States. That is a judgment of punishment—all of these factors come of their coconspirator, there was a sig- the Congress of the United States in together. Delays now average over 9 nificant qualitative difference, because enacting legislation on the death pen- years across the United States. It they had refused to go along when the alty on the crime bill which was passed seems to me the Congress of the United gun was to be taken and it was counter last year—a very controversial bill States, which has the authority to es- to the agreement and conspiratorial with many aspects going in a number tablish timetables and procedures for plan and scheme which the three car- of directions, some with gun control, the Federal courts, ought to act to ried out. others with providing more police, oth- make the death penalty an effective It was not an easy distinction to ers with building more prisons. deterrent. This legislation will move make because many would say that I supported that bill, in large part be- precisely in that direction. Cater and Rivers were equally respon- cause of the death penalty and the Under the Specter-Hatch bill there sible with Williams and that they had strong stands taken in that bill against will be a time limit of 6 months for the participated in the murder plot and violent crime. defendant to file his petition for a writ June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7805 of habeas corpus in the Federal courts praise him for his work in this field The PRESIDING OFFICER. Without in a capital case. At the present time, and for his work on the committee gen- objection, it is so ordered. without any statute of limitations, erally. This has been a very, very dif- The amendment is as follows: some of those on death row wait until ficult matter to come to closure on. I Delete title 6, subtitle A, and insert the the death penalty is imminent before think in the posture of the terrorism following: filing the petition. This will put into problem, that we are on the verge, now, SUBTITLE A—COLLATERAL REVIEW IN effect a 6-month time limit in capital of really moving forward and enacting FEDERAL CRIMINAL CASES cases, where the State has provided this very important legislation. SEC. 601. FILING DEADLINES. adequate counsel in its post-conviction I think it will pass the Senate. I be- Section 2255 of title 28, United States Code, proceedings. So there is motivation lieve it will pass the House. I think is amended— under the pending legislation for ade- once presented to the President, it will (1) by striking the second and fifth para- quate counsel to be appointed by the be enacted into law and will very sig- graphs; and States. Not only will the appointment nificantly improve the administration (2) by adding at the end the following new of counsel expedite the process, but it of criminal justice in the United paragraphs: ‘‘A one-year period of limitation shall will ensure that the defendant will be States. Mr. HATCH. Will my colleague yield? apply to a motion under this section. The accorded his or her rights. limitation period shall run from the latest After that period of time, a U.S. dis- Mr. SPECTER. I do. of— trict court will have a period of 180 Mr. HATCH. Mr. President, I thank ‘‘(1) the date on which the judgment of days to decide a habeas corpus petition my colleague for his kindness. I have conviction becomes final; in a capital case. That really is a suffi- to say we would not be as far along ‘‘(2) the date on which the impediment to cient period of time. That I can person- here on habeas corpus and having it in making a motion created by governmental ally attest to from my own experience this bill if it was not for his leadership action in violation of the Constitution or as an assistant district attorney and in this area. He is one of the few people laws of the United States is removed, if the movement was prevented from making a mo- district attorney handling habeas cor- in the whole Congress who really un- derstands this issue very fully and tion by such governmental action; pus cases in both the State and Federal ‘‘(3) the date on which the right asserted courts. If that time is insufficient, a thoroughly, and I have to give him an was initially recognized by the Supreme judge can extend the time by writing awful lot of credit on it. Court, if that right has been newly recog- an opinion stating his or her reasons. We have worked together with the nized by the Supreme Court and is made Right now, there are cases that have States attorneys general to have the retroactively applicable; or been pending before some Federal dis- language we have in this bill. I hope ev- ‘‘(4) the date on which the facts supporting trict judges for years. We must act to erybody on this floor will vote down the claim or claims presented could have these amendments that are being been discovered through the exercise of due impose some limit on the length of diligence. time such cases are allowed to linger. brought up here today because I think it is the only way we can make the ‘‘In a proceeding under this section before This deadline is not unduly burden- a district court, the final order shall be sub- some to a Federal judge, to take up a change and get rid of these frivolous ject to review, on appeal, by the court of ap- case and decide it in 6 months. Even in appeals, save taxpayers billions of dol- peals for the circuit in which the proceeding the States which have the highest inci- lars, and get the system so it works in is held only if a circuit justice or judges is- dence of capital punishment, with the a just and fair way, the way it should. sues a certificate of appealability. A certifi- most defendants on death row—Flor- The amendment we have will protect cate of appealability may issue only if the movement has made a substantial showing of ida, California, Texas—each Federal civil liberties and constitutional rights while at the same time protecting the the denial of a constitutional right. A cer- judge would not have a case sooner tificate of appealability shall indicate which than once every 18 months or so. On ap- citizens and the victims and their fami- lies from the incessant appeals that specific issue or issues shows such a denial of peal, the Federal court of appeals a constitutional right. would have the obligation to decide the really have been the norm in our soci- ‘‘A claim presented in a second or succes- case within 120 days of briefing. ety. sive motion under this section that was pre- If a defendant sought to file any sub- So I thank my colleague for his lead- sented in a prior motion shall be dismissed. sequent petition for habeas corpus, he ership on this and I just personally re- ‘‘A claim presented in a second or succes- would not be allowed to do so unless spect him and appreciate him and con- sive motion under this section that was not presented in a prior motion shall be dis- there was newly discovered evidence sider him a great friend. We are prepared to go. We are sup- missed unless— going to his guilt which could not have posed to have a vote at 10:15. I hope we ‘‘(A) the movant shows the claim relies on been available at an earlier time. This can move ahead on the bill. a new rule of constitutional law, made retro- is a reasonably strict standard against Mr. President, I suggest the absence active by the Supreme Court, that was pre- filing repetitious petitions. And a sec- viously unavailable; or of a quorum. ond petition would be allowed only if ‘‘(B)(i) the factual predicate for the claim The PRESIDING OFFICER (Mr. could not have been discovered previously the court of appeals agrees to permit CAMPBELL). The clerk will call the roll. the filing of the petition in the district through the exercise of due diligence; and The legislative clerk proceeded to ‘‘(ii) the facts underlying the claim, if court. Because the courts of appeals call the roll. proven and viewed in light of the evidence as act in panels of three judges, two Mr. BIDEN. Mr. President, I ask a whole, would be sufficient to establish by judges will have to agree that a subse- unanimous consent that the order for clear and convincing evidence that, but for quent petition satisfies the rigorous the quorum call be rescinded. constitutional error, no reasonable standards of this bill before it is filed The PRESIDING OFFICER. Without factfinder would have found the movant in the district court. objection, it is so ordered. guilty of the underlying offense. So I think we have set forth here a Mr. BIDEN. Mr. President, I apolo- ‘‘Before a second or successive motion timetable which is realistic and rea- gize to my colleague for being late. under this section is filed in the district sonable, and a structure which will court, the movant shall move in the appro- AMENDMENT NO. 1217 priate court of appeals for an order authoriz- make the death penalty a meaningful (Purpose: To amend the bill with respect to ing the district court to consider the applica- deterrent, cutting back the time from deleting habeas corpus for State prisoners) tion. A motion in the court of appeals for an some 20 years, in extreme cases, to a Mr. BIDEN. Mr. President, I call up order authorizing the district court to con- reasonable timeframe which can be an amendment at the desk and ask for sider a second or successive motion shall be done with fairness to all parties in the its immediate consideration. determined by a three-judge panel of the course of some 2 years. The PRESIDING OFFICER. The court of appeals. The court of appeals may This legislation is not crafted in a clerk will report. authorize the filing of a second or successive way which is totally acceptable to me The legislative clerk read as follows: motion only if it determines that the motion makes a prima facie showing that the mo- but it has been hammered out over the The Senator from Delaware [Mr. BIDEN] tion satisfies the requirements in this sec- proposes an amendment numbered 1217. course of a great many negotiations tion. The court of appeals shall grant or and discussions with the distinguished Mr. BIDEN. Mr. President, I ask deny the authorization to file a second or Senator from Utah, the chairman. unanimous consent that reading of the successive motion not later than 30 days While he is on the floor I would like to amendment be dispensed with. after the filing of the motion. S 7806 CONGRESSIONAL RECORD — SENATE June 7, 1995 ‘‘The grant or denial of an authorization colloquial terms to this, but that is the terrorism. Not one of the horror stories by a court of appeals to file a second or suc- essence of it. Senator HATCH has given or has given cessive motion shall not be appealable and The amendments that I am going to us on the Senate floor relates to a ter- shall not be the subject of a petition for re- offer today and others will offer today rorist who was prosecuted in the Fed- hearing or a writ of certiorari. are not designed to maintain the sys- eral court. They all relate to someone ‘‘A district court shall dismiss any claim tem as it is. We will show in future who is prosecuted in State court and presented in a second or successive motion that the court of appeals has authorized to amendments that, if we amend the ha- has spent too long sitting on death be filed unless the applicant shows that the beas corpus law the way we would like row. There are useful and practical claim satisfies the requirements of this sec- to as opposed to the way it is in the Re- steps we can take to prevent future tion.’’. publican bill, you still would have a terrorist activities. We can reform ha- Mr. BIDEN. Mr. President, this is the situation where someone would have to beas corpus petitions for State court first of a series of several amendments have their fate executed and carried prisoners. But in reforming habeas cor- relating to habeas corpus. Habeas cor- out after a trial by their peers and a pus petitions for State court prisoners, pus is probably the most time honored finding of guilt within a very short not one of them will affect terrorism phrase in our English jurisprudential amount of time. You would not have because—I want to make it real clear— criminal justice system, referred to as these 12-, 14-, 16-, or 18-year delays in if we have a terrorist convicted under the Great Writ. But it is not very well implementing a court’s decision. Federal law in a Federal court, then understood by a vast majority of peo- As my former associate—I was his as- Federal habeas applies. ple including many lawyers. sociate—a very fine trial lawyer in Wil- So my amendment is very simple. It mington, DE, always would say to the I say at the outset here that one of says if you want to deal with terror- jury, ‘‘I hope we keep our eye on the the things we are going to hear today— ism, that is the purpose of putting ha- ball here.’’ I want us to try to focus, if we are going to hear a great deal about beas corpus in this bill and then limit we can, this morning. My colleagues on how the system is abused. We are going it to Federal cases; limit it to Federal the Republican side of the aisle have to be told that time and again. We will prisoners. That is the stated purpose. repeatedly said in this bill that we see charts. We have been seeing these Do not go back and change the whole must do something to ensure swift pun- charts for years that show that a man State court system. Do not go back ishment of those who committed the or woman, in almost every case it has and change the whole State habeas sys- Oklahoma City bombing. That is sup- been a man, who has been sentenced to tem on this bill. Debate it on a bill posedly why, you might wonder, in a death, because of a series of frivolous which should be the crime bill that is terrorism bill there is habeas corpus. coming up in the next couple of weeks appeals and successive habeas corpus Well, the constant argument put for- petitions has remained in a prison cell we are told. ward is, look, we have to do this be- There was a lot of discussion yester- and alive for—some of the examples of cause once we find the person who did day about nongermane amendments. 10, 12, 14, 18 years after having commit- this awful thing in Oklahoma and they This amendment strikes the 95 percent ted the crime and having been con- are convicted and sentenced to death, of the habeas bill that is not germane victed by a jury of their peers and hav- the death penalty must be carried out and keeps the 5 percent that is ger- ing exhausted their appeals—after hav- swiftly. I might add, a bill that the mane. Ninety-five percent of what my ing committed a heinous crime. And we Presiding Officer and I voted for, the friends have in this bill relates to State are left with the impression that the Biden crime bill, is the only reason prisoners, State courts, and has noth- choice here is a stark choice between a there is a death penalty. Had we not ing to do with terrorism, nothing to do continuation of a system where every- voted for that bill, had that not passed with Oklahoma City, but 5 percent ar- body convicted of a heinous crime and last year, this finding of a person who guably does. sentenced to death languishes in a pris- committed the bombing, that person My amendment says let us pass the 5 on for a decade or more, costing the under Federal law would not be eligible percent that has to do with Federal system money and avoiding their ulti- to be put to death. There is no question prisoners held in Federal prisons con- mate fate that the choice is between that because of the action you and I victed in Federal courts and change the that system and a system that essen- and others took last year there is a habeas the way they want for those tially eliminates the right of a Federal death penalty now. prisoners. That will deal with Okla- court to review the actions taken by a So unlike the World Trade Tower, no homa City the way they say they want State court to determine whether or death penalty would be there under it and it will not mess up the 95 per- not someone had been granted a fair Federal law had we not passed the cent of the cases that deal with the trial. That is what habeas corpus is all Biden crime bill then. Now there is. State prisoners in State prisons in about. Habeas corpus is all about say- But they say now, once we find this State courts and deny essentially Fed- ing when so and so is convicted, they person, we are going to go put them to eral review of those State decisions. were deprived of certain rights and op- death, what we have to do—this will be So I will reserve the remainder of my portunities and that they were not a Federal prison because under Federal time by saying that it is simple. My given a fair shake in the system. law they will be prosecuted, not under amendment simply says, all right, if Habeas corpus came about and really the Oklahoma law but Federal law. this is about Oklahoma City, let us came in the forefront of the American They are eligible for the death penalty, have it about Oklahoma City. The pro- political and legal system around 1917 and they will be convicted—I assume, visions in the bill relate to Federal when the State of Georgia put to death and it is our fervent hope they will be prisoners and Federal habeas corpus. someone who by everyone’s account convicted—and now they get sentenced Parliamentary inquiry: How much should not have been put to death, and to death. And the President and the time remains? there was no ability of the Federal Attorney General say they want the The PRESIDING OFFICER. The Sen- court to review the actions taken by death penalty for whomever is con- ator from Delaware has 5 minutes 2 the Georgia State court. The reason I victed. My friends say, well, what we seconds. give this background—and in light of have to do now is have habeas corpus Mr. BIDEN. I will reserve the remain- the fact that I got here a few minutes changed so no one will languish in pris- der of my time. late and there are Senators who have on. I do not think there is anybody in I yield the floor. commitments early in the morning on the Federal system right now—and I Mr. HATCH. Mr. President, I rise in this, I am going to shorten this par- am looking to my staff for confirma- opposition to the amendment offered to ticular amendment. But what we are tion—who sits on death row filing ha- limit habeas reform exclusively to Fed- told is that—and you will hear time beas corpus petitions. There is one ha- eral cases. and again this morning—the system is beas corpus petition that has been filed Some have argued that habeas re- terrible, everyone abuses the system, in the Federal system. form as applied to the States is not and essentially State courts do a good So what I want to say to my friends— germane to this debate. Those individ- job. Why have the Federal courts in and I will put the rest of this in the uals, including my distinguished col- this thing at all? I realize I am putting RECORD—is this has nothing to do with league from Delaware, contend that a June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7807 reform of the Federal overview of State only 263 criminals since 1973. Abuse of STATE OF OKLAHOMA, convictions is meaningless in the con- the habeas process features strongly in DISTRICT ATTORNEY, text of the debate we are having. They the extraordinary delay between sen- Oklahoma City, OK, May 24, 1995. are perhaps willing to admit that some tence and the carrying out of that sen- Senator ORRIN G. HATCH, Chairman, Judiciary, Dirksen Senate Office, revision of the collateral review of tence. Washington, DC. cases tried in Federal court may be in In my home State of Utah, for exam- DEAR SENATOR HATCH: The purpose of this order, but they contend that reform of ple, convicted murderer William An- letter is to express my support for the inclu- Federal collateral review of cases tried drews delayed the imposition of a con- sion of the provisions for reform of Federal in State court is unnecessary. stitutionally imposed death sentence Habeas Corpus authored by Senator Spector This position is simply incorrect. I for over 18 years. The State had to put and you in the Anti-terrorism Bill, S735. Ap- would like to read from a letter writ- up millions of dollars in precious parently some persons have raised questions about the appropriateness of this measure. ten by Robert H. Macy, district attor- criminal justice resources to litigate Specifically, I have been told that there are ney of Oklahoma City, and a Democrat: his meritless claims. His guilt was some who do not see the importance of these [I]mmediately following the trial or trials never in question. He was not an inno- reform measures in cases, such as the Okla- in federal court, I shall, working in coopera- cent person seeking freedom from an homa City bombing, which will initially be tion with the United States Department of illegal punishment. Rather, he simply prosecuted by Federal Court. Justice and the Federal law enforcement wanted to frustrate the imposition of There are two points I would like to make agencies investigating the bombing of the punishment his heinous crimes war- in response to those questions. First, imme- Alfred P. Murrah Building, prosecute in diately following the trial or trials in Fed- Oklahoma State court the cowards respon- ranted. eral Court, I shall, working in cooperation sible for murdering innocent people in the This abuse of habeas corpus litiga- with the United States Department of Jus- area surrounding the federal building. And I tion, particularly in those cases involv- tice and the Federal law enforcement agen- shall seek the death penalty. We must never ing lawfully imposed death sentences, cies investigating the bombing of the Alfred forget that this bombing took several lives has taken a dreadful toll on victims’ P. Murrah Building, prosecute in Oklahoma and injured dozens of persons in the neigh- families, seriously eroded the public’s State Court the cowards responsible for mur- borhood and businesses near the building. confidence in our criminal justice sys- dering innocent people in the area surround- The State of Oklahoma has an overwhelm- tem, and drained State criminal justice ing the federal building. And I shall seek the ing, compelling interest to seek, and obtain death penalty. We must never forget that the maximum penalty allowable by law for resources. This is simply not a just sys- this bombing took several lives and injured the senseless and cowardly killings. tem. dozens of persons in the neighborhood and In our reaction to the destruction of Justice demands that lawfully im- businesses near the building. The State of the Federal building in Oklahoma City, posed sentences be carried out. Justice Oklahoma has an overwhelming, compelling demands that we now adopt meaningful interest to seek and obtain the maximum we may overlook the fact that the penalty allowable by law for the senseless bombing also caused the death of peo- habeas corpus reform. Justice demands that we not permit those who would and cowardly killings. Not only is it in the ple who were not inside the building it- interest of the State, it is my sworn duty to self, or even on Federal property. The perpetuate the current system to steer seek those sanctions, and I intend to fully State of Oklahoma, not the Federal us from our course. We must do as the carry out my responsibilities. Government, will thus prosecute those victims, families, and friends of those The reform measures contained in the responsible for the bombing that killed who have asked us to do: enact mean- Spector, Hatch, Dole Habeas Corpus Reform ingful, comprehensive habeas reform measures contained in S735 will in my judg- people outside of the Federal building. ment significantly curb the abuse and delays In those instances, Federal jurisdiction now. Mr. President, I know a number of inherent in current habeas practice. Every may not obtain and it will thus be nec- day of delay represents a victory for these essary to prosecute the killers in our colleagues are ready to vote on cowardly cold blooded killers and another State, as well as Federal, court. this. Let me just make three or four day of defeat and suffering for the victims A failure to enact a complete, mean- points that I think are important with and all other Americans who cry out for jus- ingful, reform of habeas corpus pro- regard to the amendment of my friend tice. ceedings may enable the individuals in and colleague. Secondly, your reform provisions will also create significant time savings during ap- this case, provided they are appre- I contend that the Biden amend- ment—and I think anybody who reads peals from federal convictions as well. Exam- hended and duly convicted, to frustrate ples of this include: the demands of justice. The blood of it would gut the habeas corpus title of Time limitations on when habeas petitions the innocent men and women are on this bill by applying habeas corpus re- may be filed; time deadlines on when federal the hands of the evil cowards who com- form solely to Federal capital convic- courts must rule on habeas petitions; a re- mitted this terrible tragedy. Justice tions thus making reform inapplicable quirement that federal courts prioritize con- must be, as President Clinton declared, to the majority of capital cases includ- sideration of capital appeals; reform of the ‘‘swift, certain, and severe.’’ ing the Oklahoma State prosecution abuses inherent in the probable cause proc- for murders of some of the people ess; limitations on second and successive pe- Moreover, failure to enact meaning- titions. ful, comprehensive, habeas reform will killed in Oklahoma. I am referring to As Chairman of the Board of Directors of permit other killers who have terror- those victims who were not Federal the National District Attorney’s Association ized their communities to continue to employees but were killed by the blast I am proud to inform you that America’s frustrate the judicial system. If we while outside of the building. If this prosecutors speak with one voice and that adopt the proposed amendment, we will amendment passes, there would be no we are calling upon you and your colleagues create a schism between State and Fed- habeas reform that would apply to to set your priorities and enact reforms which will provide to every convicted mur- eral capital law. In other words, mur- them. So I would like to make three addi- derer the rights guaranteed by the constitu- ders tried in Federal court will face im- tion, but absolutely no further consideration position of their final penalty more tional points about why we should not or delay than is constitutionally required. swiftly than persons tried for capital vote for the Biden amendment before I Respectfully, crimes in State cases. Why should we move to table the amendment. ROBERT H. MACY, adopt such a piecemeal approach to re- First, I have made this point that District Attorney. form, one that will leave such a gap be- where people who were not Federal em- Mr. HATCH. Mr. President, in this tween State and Federal cases? It sim- ployees were outside the building, the letter, Mr. Macy makes it very clear ply makes no sense to reform habeas terrorist will be prosecuted in State that he intends to prosecute these ter- proceedings for cases tried in Federal court for those people. rorists under State law who caused the court but leave the current disastrous I ask unanimous consent that a let- Oklahoma City bombing. If he does, the system in place for cases tried in State ter from Robert H. Macy, a Democrat Biden amendment will not apply to court. district attorney of Oklahoma City, be them. So they can be on death row, As of January 1, 1995, there were printed in the RECORD. even though we want swift, secure, and some 2,976 inmates on death row. Yet, There being no objection, the letter fast judgment, they would be on death only 38 prisoners were executed last was ordered to be printed in the row for anywhere up to 50 years, which year, and the States have executed RECORD, as follows: is the case of one person in our society S 7808 CONGRESSIONAL RECORD — SENATE June 7, 1995 today still sitting on death row almost last year, and under title 18, section [Rollcall Vote No. 237 Leg.] 50 years later. 2332(A) ‘‘Use of Weapons of Mass De- YEAS—67 So, first, it does not take care of struction’’—I would refer my colleague Abraham Faircloth Mack those Federal employees who were to that—anyone killed at all, whether Ashcroft Feinstein McCain Baucus Ford killed outside the building should the sitting across the street drinking a cup McConnell Bennett Frist Murkowski State of Oklahoma choose to prosecute of coffee, whether they are riding by in Bingaman Gorton Nickles those responsible—as Robert Macy has their automobile, whether they are a Bond Graham Nunn stated will occur. Federal employee or whether they are Breaux Grams Pressler Brown Grassley Pryor Second, we do not want piecemeal re- an alien, it does not matter; they are Bryan Hatch Reid form. If a robber kills one of the Fed- Burns Heflin subject to the Federal death penalty. Robb Byrd Helms eral employees the night before the So the Senator is missing the point. Rockefeller Campbell Hollings bombing in Oklahoma City or any- Second, we do want universal reform Chafee Hutchison Roth where else, why should we treat that of habeas corpus. Let us do it on a bill Coats Inhofe Shelby killer any differently from the Okla- that we are supposed to do it on. Let us Cochran Jeffords Smith Snowe homa terrorists simply because he do it on the crime bill. Cohen Johnston Coverdell Kassebaum Specter would be tried in a State court rather And, No. 3, as to the idea that we are Craig Kempthorne Stevens than a Federal court? We need to have somehow going to have two different D’Amato Kerrey Thomas it apply across the board, and the vast standards apply, the real issue is under DeWine Kyl Thompson majority of murders are committed in what circumstances does a Federal Dole Lieberman Thurmond Domenici Lott Warner the States and prosecuted by the State court have a right to review a State Exon Lugar courts, and they would not be affected court’s judgment. It has nothing to do NAYS—28 by the Biden amendment. with terrorism under this provision. It Akaka Harkin Moseley-Braun Third, let us say that the Federal has nothing to do with Oklahoma City. Biden Hatfield Moynihan Government prosecutors, for some rea- We should deal with it. We should dis- Boxer Inouye Murray son or other, blow the prosecution. As- cuss it. We should debate it, not on this Bradley Kennedy Packwood Bumpers Kerry sume we are unable to get a conviction bill. Pell Daschle Kohl Sarbanes against these terrorists in the Federal I am prepared, whenever the Senator Dodd Lautenberg Simon courts. The double jeopardy clause still wants, to move to the tabling of my Dorgan Leahy Wellstone allows the State to prosecute those ter- Feingold Levin amendment. Glenn Mikulski rorists or those murderers in State Mr. HATCH. I am prepared to yield. court under State law. But if they do Let me just make a point that a State NOT VOTING—5 prosecute them and we do not reform prosecutor—a Democrat—is going to Conrad Gregg Simpson Gramm Santorum Federal habeas corpus review of State prosecute these terrorists, and this ha- cases, then we will have the same in- beas reform, if the Biden amendment So the motion to table the amend- cessant, frivolous appeals ad hominem, passes, will not apply to them. And ment (No. 1217) was agreed to. Mr. BIDEN. Mr. President, I under- day and night, from that point on be- that, in a nutshell, is the problem with stand one of our colleagues thought cause this amendment would not take this amendment. We ought to make this was an up-or-down vote as opposed care of that problem. If we are going to our habeas reform apply to both Fed- to a tabling motion and would like to pass habeas reform, let us pass real ha- eral and State convictions. ask unanimous consent to change the beas reform. Let us do it straight up. Mr. President, I move to table the vote which will not affect the outcome. Let us protect the constitutional amendment and ask for the yeas and CHANGE OF VOTE rights, which our amendment does do nays. Mrs. BOXER. On this last rollcall in the bill. Let us protect civil lib- The PRESIDING OFFICER. Do Sen- vote No. 237, I voted ‘‘yea.’’ It was my erties, but let us get some finality into ators yield back their time? intention to vote ‘‘nay.’’ Therefore, I the law so that the frivolous appeal Mr. HATCH. I yield back the time. ask unanimous consent that I be per- game will be over. Mr. BIDEN. Mr. President, I would mitted to change my vote. This will in Basically, those are the three things: take issue with the last statement of no way change the outcome of the People killed who are not Federal em- my friend. I will not debate it now. We vote. ployees outside the building, those will have plenty of time to do that. The PRESIDING OFFICER. Is there prosecutions will be brought in State I yield back my time. objection? court. And the Biden amendment Mr. HATCH. I yield back my time. Without objection, it is so ordered. would not apply to the benefit of ha- The PRESIDING OFFICER. Is there a (The foregoing tally has been beas reform to that case. We do not sufficient second? changed to reflect the above order.) want piecemeal reform. If a robber There is a sufficient second. Mr. KENNEDY. Mr. President, I rise kills a Federal employee the night be- The yeas and nays were ordered. to speak generally on the subject of ha- fore the bombing in Oklahoma City, The PRESIDING OFFICER. The beas corpus and in support of the just to give a hypothetical, and the question is on agreeing to the motion amendments by Senators BIDEN and State has to bring the murder action to table the amendment. The yeas and LEVIN that will be offered to the bill. against that individual, then why nays have been ordered. The clerk will At the outset, I want to emphasize should that person not be subject to call the roll. my support for passage of a strong the same rules as the murderers in the Mr. LOTT. I announce that the Sen- antiterrorism bill that gives law en- Oklahoma City bombing? And if the ator from Texas [Mr. GRAMM], the Sen- forcement agencies the tools they need Federal prosecutor blows the prosecu- ator from New Hampshire [Mr. GREGG], to combat crimes of terror at home and tion, why should not the State prosecu- the Senator from Pennsylvania [Mr. abroad. I commend President Clinton tor be able to bring action under the SANTORUM], and the Senator from Wyo- and the Senators who brought in legis- State laws and under those cir- ming [Mr. SIMPSON], are necessarily ab- lation expeditiously before the Senate. cumstances prosecute the killers and sent. There is much in this legislation that have the same rule apply under those I further announce that, if present deserves to be enacted into law as soon circumstances as well? and voting, the Senator from Wyoming as possible. Mr. BIDEN addressed the Chair. [Mr. SIMPSON], would vote ‘‘yea.’’ It is unfortunate, therefore, that the The PRESIDING OFFICER. The Sen- Mr. FORD. I announce that the Sen- proponents of the bill have injected ator from Delaware. ator from North Dakota [Mr. CONRAD], into it an unrelated and highly con- Mr. BIDEN. I will be very brief in is necessarily absent. troversial subject; namely, drastic reply. The PRESIDING OFFICER. Are there changes to longstanding law relating With regard to the point that if any other Senators in the Chamber to habeas corpus. someone is not a Federal employee who desire to vote? The manager of the bill says that ha- outside the building is killed, fortu- The result was announced—yeas 67, beas corpus is relevant because the sus- nately, we passed the Biden crime bill nays 28, as follows: pects charged in the Oklahoma City June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7809 bombings are charged with a capital of- At any time prior to the execution we all want to pass as quickly as we fense. But that fact presents absolutely there must be a forum in which non- reasonably can. no justification for changing the rules frivolous claims of innocence can be The debate on comprehensive habeas with regard to State prisoners. heard. As Supreme Court Justice Pot- corpus reform should take place when The inclusion of sweeping habeas cor- ter Stewart once wrote, ‘‘swift justice we take up the omnibus crime bill. The pus reform in this bill is the worst kind demands more than just swiftness.’’ attempt to jam it into the pending bill of opportunism, and I regret that it has Finally, the bill might be read to re- is a cynical attempt to manipulate occurred in the wake of this national quire Federal courts to defer to State public concern about terrorism, and tragedy. courts on issues of Federal constitu- the Congress should reject it. When, and if, capital punishment is tional law. In part the bill states that I urge the Senate to act responsibly imposed, it must be imposed in a con- a Federal court cannot grant a writ of on this critical issue. We should adopt stitutional manner. That is accom- habeas corpus based on Federal con- the Biden and Levin amendments on plished through the writ of habeas cor- stitutional claims unless the State the subject, and if necessary resume pus—a process so central to our con- court judgment was an ‘‘unreasonable the rest of the debate on habeas corpus stitutional system of Government that application of Federal law.’’ when the crime bill comes before the it is often called the ‘‘Great Writ.’’ No one thinks that under current law Senate. Clearly, some form of habeas corpus the Federal courts just ignore State (Mr. KYL assumed the chair.) is needed to avoid excessive litigation, court decisions, even on questions of Mr. DOLE. Mr. President, I wanted to repetitive reviews, and the delays that Federal constitutional law. The federal indicate we now have to dispose of the sometimes characterize the present courts respect the State courts and Biden amendment No. 1217. My under- system. In a series of decisions over the give their decisions a great deal of at- standing is that the Senator from Dela- past 10 years, the Supreme Court itself tention. The specialists I have talked ware is prepared to offer a second. has imposed certain restrictions on the to tell me that the Federal courts, even Mr. BIDEN. Mr. President, my inten- ability of death row inmates to obtain now, grant relief on constitutional tion would be to offer the second review through habeas corpus, and the claims only when it is pretty clear that amendment on counsel standards re- issue has brought heated controversy a prisoner’s constitutional rights were quired in Federal habeas corpus cases. to our congressional debates on crime violated. I think the number is 1226. bills in recent years. This being true, a bill that tells the Then I will have one more. The most In the past, Senator BIDEN, among Federal courts that they should not important, from my perspective, of the others, has proposed legislation to grant relief unless they are satisfied amendments I have is the one relating limit the number and length of death that a prisoner’s clearly established to the deference standard that is in the row appeals, but at the same time to rights were violated may not change Republican bill. make sure that post-conviction review things very much. Senator GRAHAM of Florida has indi- in the Federal courts is meaningful. I do not see the need for this kind of cated to me that he will not offer his But he adhered to the sensible conclu- language in the bill, but to the extent amendment. Senator LEVIN, I believe, sion of former Justice Lewis Powell, it allows the Federal courts to do what will be ready to offer his amendment who in a landmark report commis- they are doing now, it may do no great shortly. sioned by Chief Justice Rehnquist said harm. I just hope that, if the bill is I would respectfully request that the the following: adopted, it will be interpreted cor- Presiding Officer, Mr. KYL, offer his Capital cases should be subject to one fair rectly. amendment sometime between that. It and complete course of collateral review A contrary interpretation would is my intention to offer my amendment through the State and Federal system. stand our Federal system on its head. last. I will offer the first three, but the Where the death penalty is involved, fairness Why should a Federal court defer to last amendment on habeas I would like means a searching and impartial review of the judgment of a State court on a very much to be my amendment on def- the propriety of the sentence. matter of Federal constitutional law? erence. But the bill before us today does not The notion that a Federal court would We will by that time have eliminated strike a fair balance. It actually pre- be rendered incapable of correcting a all Democratic amendments. I under- cludes the meaningful review that Jus- constitutional error because it was not stand there is one—unless Mr. KYL is tice Powell said was necessary, and it an unreasonable constitutional error is withdrawing his—there is one amend- increases the likelihood that innocent unacceptable, especially in capital ment on the other side. people will be executed in this country. cases. Mr. DOLE. We have one, and we have A principal problem is that this bill Ever since the days of the great Chief 30 minutes equally divided on this does nothing to ensure that death pen- Justice John Marshall, the Federal amendment. alty defendants receive adequate legal courts have historically served as the Mr. BIDEN. I am happy to do that. representation at their original trial. great defenders of constitutional pro- We have apparently not reached a time As many as 20 percent of all death tections. They must remain so. agreement. I am prepared to enter now sentences are overturned after Federal Whatever the merits of this sweeping into a time agreement on this amend- habeas corpus review, very often be- habeas corpus reform, such drastic ment of 30 minutes equally divided. cause a defendant has been inad- changes should not be adopted on this Mr. DOLE. Mr. President, I make equately represented at trial. bill. Nothing in this legislation would that request. This bill also eliminates the current be more detrimental to the values of The PRESIDING OFFICER. Without requirement that poor defendants re- the Nation and our Constitution than objection, it is so ordered. ceive appointed counsel in Federal ha- for Congress, in its rush to combat ter- AMENDMENT NO. 1226 TO AMENDMENT NO. 1199 beas corpus proceedings. I reject that rorism, to strip away venerable con- (Purpose: To amend the bill with respect to view. The appointment of attorneys for stitutional questions. requiring counsel for federal habeas pro- death row inmates is not a question of The perpetrators of the Oklahoma ceedings) sympathy, it is a question of fun- City tragedy will have triumphed if Mr. BIDEN. Mr. President, I send an damental fairness. their actions promote us to short-cir- amendment to the desk and ask for its In addition, the bill limits the cir- cuit the Constitution. immediate consideration. cumstances under which a death row This bill goes far beyond terrorism The PRESIDING OFFICER. The inmate may raise a claim of innocence and far beyond Federal prisoners. It se- clerk will report. based on newly discovered evidence. verely limits the ability of any State The bill clerk read as follows: The proposal to limit inmates to one prisoner—not just terrorists, but any The Senator from Delaware [Mr. BIDEN], bite at the apple is sound in principle, State prisoner—to seek Federal court proposes an amendment numbered 1226 to but surely our interest in swift execu- review of constitutional rights. This is amendment No. 1199. tions must give way in the face of new an extremely controversial, very com- Mr. BIDEN. Mr. President, I ask evidence that an innocent person is plicated proposal. It is wrong to try to unanimous consent further reading be about to be put to death. sneak it into an antiterrorism bill that dispensed with. S 7810 CONGRESSIONAL RECORD — SENATE June 7, 1995 The PRESIDING OFFICER. Without ‘‘(B)(i) the factual predicate for the claim the State or have otherwise become final for objection, it is so ordered. could not have been discovered previously State law purposes. The rule of court or stat- The amendment is as follows: through the exercise of due diligence; and ute must provide standards of competency ‘‘(ii) the facts underlying the claim, if for the appointment of such counsel. Delete from page 106, line 20 through all of proven and viewed in light of the evidence as ‘‘(c) Any mechanism for the appointment, page 125 and insert the following: a whole, would be sufficient to establish by compensation, and reimbursement of counsel ‘‘(h) The ineffectiveness or incompetence clear and convincing evidence that, but for as provided in subsection (b) must offer of counsel during Federal or State collateral constitutional error, no reasonable counsel to all State prisoners under capital post-conviction proceedings shall not be a factfinder would have found the applicant sentence and must provide for the entry of ground for relief in a proceeding arising guilty of the underlying offense. an order by a court of record— under section 2254.’’. ‘‘(3)(A) Before a second or successive appli- ‘‘(1) appointing one or more counsels to SEC. 605. SECTION 2255 AMENDMENTS. cation permitted by this section is filed in represent the prisoner upon a finding that Section 2255 of title 28, United States Code, the district court, the applicant shall move the prisoner is indigent and accepted the is amended— in the appropriate court of appeals for an offer or is unable competently to decide (1) by striking the second and fifth undes- order authorizing the district court to con- whether to accept or reject the offer; ignated paragraphs; and sider the application. ‘‘(2) finding, after a hearing if necessary, (2) by adding at the end the following new ‘‘(B) A motion in the court of appeals for that the prisoner rejected the offer of coun- undesignated paragraphs: an order authorizing the district court to sel and made the decision with an under- ‘‘A 1-year period of limitation shall apply consider a second or successive application standing of its legal consequences; or to a motion under this section. The limita- shall be determined by a three-judge panel of ‘‘(3) denying the appointment of counsel tion period shall run from the latest of— the court of appeals. upon a finding that the prisoner is not indi- ‘‘(1) the date on which the judgment of ‘‘(C) The court of appeals may authorize gent. conviction becomes final; the filing of a second or successive applica- ‘‘(d) No counsel appointed pursuant to sub- ‘‘(2) the date on which the impediment to tion only if it determines that the applica- sections (b) and (c) to represent a State pris- making a motion created by governmental tion makes a prima facie showing that the oner under capital sentence shall have pre- action in violation of the Constitution or application satisfies the requirements of this viously represented the prisoner at trial or laws of the United States is removed, if the subsection. on direct appeal in the case for which the ap- movant was prevented from making a mo- ‘‘(D) The court of appeals shall grant or pointment is made unless the prisoner and tion by such governmental action; deny the authorization to file a second or counsel expressly request continued rep- ‘‘(3) the date on which the right asserted successive application not later than 30 days resentation. was initially recognized by the Supreme after the filing of the motion. ‘‘(e) The ineffectiveness or incompetence of Court, if that right has been newly recog- ‘‘(E) The grant or denial of an authoriza- counsel during State or Federal post-convic- nized by the Supreme Court and made retro- tion by a court of appeals to file a second or tion proceedings in a capital case shall not actively applicable to cases on collateral re- successive application shall not be appeal- be a ground for relief in a proceeding arising view; or able and shall not be the subject of a petition under section 2254. This limitation shall not ‘‘(4) the date on which the facts supporting for rehearing or for a writ of certiorari. preclude the appointment of different coun- the claim or claims presented could have ‘‘(4) A district court shall dismiss any sel, on the court’s own motion or at the re- been discovered through the exercise of due claim presented in a second or successive ap- quest of the prisoner, at any phase of State diligence. plication that the court of appeals has au- or Federal post-conviction proceedings on ‘‘In all proceedings brought under this sec- thorized to be filed unless the applicant the basis of the ineffectiveness or incom- tion, and any subsequent proceedings on re- shows that the claim satisfies the require- petence of counsel in such proceedings. view, appointment of counsel for a movant ments of this section.’’. ‘‘§ 2262. Mandatory stay of execution; dura- who is or becomes financially unable to af- SEC. 607. DEATH PENALTY LITIGATION PROCE- tion; limits on stays of execution; succes- ford counsel shall be in the discretion of the DURES. sive petitions court, except as provided by a rule promul- (a) ADDITION OF CHAPTER TO TITLE 28, UNIT- ‘‘(a) Upon the entry in the appropriate gated by the Supreme Court pursuant to ED STATES CODE.—Title 28, United States State court of record of an order under sec- statutory authority. Appointment of counsel Code, is amended by inserting after chapter tion 2261(c), a warrant or order setting an under this section shall be governed by sec- 153 the following new chapter: execution date for a State prisoner shall be tion 3006A of title 18. ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS stayed upon application to any court that ‘‘A second or successive motion must be PROCEDURES IN CAPITAL CASES would have jurisdiction over any proceedings certified as provided in section 2244 by a ‘‘Sec. filed under section 2254. The application panel of the appropriate court of appeals to ‘‘2261. Prisoners in State custody subject to shall recite that the State has invoked the contain— capital sentence; appointment post-conviction review procedures of this ‘‘(1) newly discovered evidence that, if of counsel; requirement of rule chapter and that the scheduled execution is proven and viewed in light of the evidence as of court or statute; procedures subject to stay. a whole, would be sufficient to establish by for appointment. ‘‘(b) A stay of execution granted pursuant clear and convincing evidence that no rea- ‘‘2262. Mandatory stay of execution; dura- to subsection (a) shall expire if— sonable factfinder would have found the tion; limits on stays of execu- ‘‘(1) a State prisoner fails to file a habeas movant guilty of the offense; or tion; successive petitions. corpus application under section 2254 within ‘‘(2) a new rule of constitutional law, made ‘‘2263. Filing of habeas corpus application; the time required in section 2263; retroactive to cases on collateral review by time requirements; tolling ‘‘(2) before a court of competent jurisdic- the Supreme Court, that was previously un- rules. tion, in the presence of counsel, unless the available.’’. ‘‘2264. Scope of Federal review; district court prisoner has competently and knowingly SEC. 606. LIMITS ON SECOND OR SUCCESSIVE AP- adjudications. waived such counsel, and after having been PLICATIONS. ‘‘2265. Application to State unitary review advised of the consequences, a State prisoner (a) CONFORMING AMENDMENT TO SECTION procedure. under capital sentence waives the right to 2244(a).—Section 2244(a) of title 28, United ‘‘2266. Limitation periods for determining pursue habeas corpus review under section States Code, is amended by striking ‘‘and the applications and motions. 2254; or petition’’ and all that follows through ‘‘by ‘‘§ 2261. Prisoners in State custody subject to ‘‘(3) a State prisoner files a habeas corpus such inquiry.’’ and inserting ‘‘, except as pro- capital sentence; appointment of counsel; petition under section 2254 within the time vided in section 2255.’’. requirement of rule of court or statute; pro- required by section 2263 and fails to make a (b) LIMITS ON SECOND OR SUCCESSIVE APPLI- cedures for appointment substantial showing of the denial of a Fed- CATIONS.—Section 2244(b) of title 28, United ‘‘(a) This chapter shall apply to cases aris- eral right or is denied relief in the district States Code, is amended to read as follows: ing under section 2254 brought by prisoners court or at any subsequent stage of review. ‘‘(b)(1) A claim presented in a second or in State custody who are subject to a capital ‘‘(c) If one of the conditions in subsection successive habeas corpus application under sentence. It shall apply only if the provisions (b) has occurred, no Federal court thereafter section 2254 that was presented in a prior ap- of subsections (b) and (c) are satisfied. shall have the authority to enter a stay of plication shall be dismissed. ‘‘(b) This chapter is applicable if a State execution in the case, unless the court of ap- ‘‘(2) A claim presented in a second or suc- establishes by statute, rule of its court of peals approves the filing of a second or suc- cessive habeas corpus application under sec- last resort, or by another agency authorized cessive application under section 2244(b). tion 2254 that was not presented in a prior by State law, a mechanism for the appoint- ‘‘§ 2263. Filing of habeas corpus application; application shall be dismissed unless— ment, compensation, and payment of reason- time requirements; tolling rules ‘‘(A) the applicant shows that the claim re- able litigation expenses of competent coun- ‘‘(a) Any application under this chapter for lies on a new rule of constitutional law, sel in State post-conviction proceedings habeas corpus relief under section 2254 must made retroactive to cases on collateral re- brought by indigent prisoners whose capital be filed in the appropriate district court not view by the Supreme Court, that was pre- convictions and sentences have been upheld later than 180 days after final State court af- viously unavailable; or on direct appeal to the court of last resort in firmance of the conviction and sentence on June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7811 direct review or the expiration of the time ‘‘(c) Sections 2262, 2263, 2264, and 2266 shall ‘‘(A) an initial application for a writ of ha- for seeking such review. apply in relation to cases involving a sen- beas corpus; ‘‘(b) The time requirements established by tence of death from any State having a uni- ‘‘(B) any second or successive application subsection (a) shall be tolled— tary review procedure that qualifies under for a writ of habeas corpus; and ‘‘(1) from the date that a petition for cer- this section. References to State ‘post-con- ‘‘(C) any redetermination of an application tiorari is filed in the Supreme Court until viction review’ and ‘direct review’ in such for a writ of habeas corpus following a re- the date of final disposition of the petition if sections shall be understood as referring to mand by the court of appeals or the Supreme a State prisoner files the petition to secure unitary review under the State procedure. Court for further proceedings, in which case review by the Supreme Court of the affirm- The reference in section 2262(a) to ‘an order the limitation period shall run from the date ance of a capital sentence on direct review under section 2261(c)’ shall be understood as the remand is ordered. by the court of last resort of the State or referring to the post-trial order under sub- ‘‘(3)(A) The time limitations under this other final State court decision on direct re- section (b) concerning representation in the section shall not be construed to entitle an view; unitary review proceedings, but if a tran- applicant to a stay of execution, to which ‘‘(2) from the date on which the first peti- script of the trial proceedings is unavailable the applicant would otherwise not be enti- tion for post-conviction review or other col- at the time of the filing of such an order in tled, for the purpose of litigating any appli- lateral relief is filed until the final State the appropriate State court, then the start cation or appeal. court disposition of such petition; and of the 180-day limitation period under sec- ‘‘(B) No amendment to an application for a ‘‘(3) during an additional period not to ex- tion 2263 shall be deferred until a transcript writ of habeas corpus under this chapter ceed 30 days, if— is made available to the prisoner or counsel shall be permitted after the filing of the an- ‘‘(A) a motion for an extension of time is of the prisoner. swer to the application, except on the filed in the Federal district court that would grounds specified in section 2244(b). ‘‘§ 2266. Limitation periods for determining ‘‘(4)(A) The failure of a court to meet or have jurisdiction over the case upon the fil- applications and motions ing of a habeas corpus application under sec- comply with a time limitation under this tion 2254; and ‘‘(a) The adjudication of any application section shall not be a ground for granting re- ‘‘(B) a showing of good cause is made for under section 2254 that is subject to this lief from a judgment of conviction or sen- the failure to file the habeas corpus applica- chapter, and the adjudication of any motion tence. ‘‘(B) The State may enforce a time limita- tion within the time period established by under section 2255 by a person under sen- tion under this section by petitioning for a this section. tence of death, shall be given priority by the district court and by the court of appeals writ of mandamus to the court of appeals. ‘‘§ 2264. Scope of Federal review; district over all noncapital matters. The court of appeals shall act on the petition court adjudications ‘‘(b)(1)(A) A district court shall render a for a writ or mandamus not later than 30 ‘‘(a) Whenever a State prisoner under cap- final determination and enter a final judg- days after the filing of the petition. ital sentence files a petition for habeas cor- ment on any application for a writ of habeas ‘‘(5)(A) The Administrative Office of Unit- pus relief to which this chapter applies, the corpus brought under this chapter in a cap- ed States Courts shall submit to Congress an district court shall only consider a claim or ital case not later than 180 days after the annual report on the compliance by the dis- claims that have been raised and decided on date on which the application is filed. trict courts with the time limitations under the merits in the State courts, unless the ‘‘(B) A district court shall afford the par- this section. failure to raise the claim properly is— ties at least 120 days in which to complete ‘‘(B) The report described in subparagraph ‘‘(1) the result of State action in violation all actions, including the preparation of all (A) shall include copies of the orders submit- of the Constitution or laws of the United pleadings and briefs, and if necessary, a hear- ted by the district courts under paragraph States; ing, prior to the submission of the case for (1)(B)(iv). ‘‘(c)(1)(A) A court of appeals shall hear and ‘‘(2) the result of the Supreme Court rec- decision. render a final determination of any appeal of ognition of a new Federal right made retro- ‘‘(C)(i) A district court may delay for not an order granting or denying, in whole or in actively applicable to cases on collateral re- more than one additional 30-day period be- part, an application brought under this chap- view by the Supreme Court; or yond the period specified in subparagraph ter in a capital case not later than 120 days ‘‘(3) based on a factual predicate that could (A), the rendering of a determination of an after the date on which the reply brief is not have been discovered through the exer- application for a writ of habeas corpus if the filed, or if no reply brief is filed, not later cise of due diligence in time to present the court issues a written order making a find- than 120 days after the date on which the an- claim for State or Federal post-conviction ing, and stating the reasons for the finding, review. swering brief is filed. that the ends of justice that would be served ‘‘(B)(i) A court of appeals shall decide ‘‘(b) Following review subject to sub- by allowing the delay outweigh the best in- sections (a), (d), and (e) of section 2254, the whether to grant a petition for rehearing or terests of the public and the applicant in a other request for rehearing en banc not later court shall rule on the claims properly be- speedy disposition of the application. fore it. than 30 days after the date on which the peti- ‘‘(ii) The factors, among others, that a tion for rehearing is filed unless a responsive ‘‘§ 2265. Application to State unitary review court shall consider in determining whether pleading is required, in which case the court procedure a delay in the disposition of an application is shall decide whether to grant the petition ‘‘(a) For purposes of this section, a ‘uni- warranted are as follows: not later than 30 days after the date on tary review’ procedure means a State proce- ‘‘(I) Whether the failure to allow the delay which the responsive pleading is filed. dure that authorizes a person under sentence would be likely to result in a miscarriage of ‘‘(ii) If a petition for rehearing or rehear- of death to raise, in the course of direct re- justice. ing en banc is granted, the court of appeals view of the judgment, such claims as could ‘‘(II) Whether the case is so unusual or so shall hear and render a final determination be raised on collateral attack. This chapter complex, due to the number of defendants, of the appeal not later than 120 days after shall apply, as provided in this section, in re- the nature of the prosecution, or the exist- the date on which the order granting rehear- lation to a State unitary review procedure if ence of novel questions of fact or law, that it ing or rehearing en banc is entered. the State establishes by rule of its court of is unreasonable to expect adequate briefing ‘‘(2) The time limitations under paragraph last resort or by statute a mechanism for the within the time limitations established by (1) shall apply to— appointment, compensation, and payment of subparagraph (A). ‘‘(A) an initial application for a writ of ha- reasonable litigation expenses of competent ‘‘(III) Whether the failure to allow a delay beas corpus; counsel in the unitary review proceedings, in a case, that, taken as a whole, is not so ‘‘(B) any second or successive application including expenses relating to the litigation unusual or so complex as described in for a writ of habeas corpus; and of collateral claims in the proceedings. The subclause (II), but would otherwise deny the ‘‘(C) any redetermination of an application rule of court or statute must provide stand- applicant reasonable time to obtain counsel, for a writ of habeas corpus or related appeal ards of competency for the appointment of would unreasonably deny the applicant or following a remand by the court of appeals such counsel. the government continuity of counsel, or en banc or the Supreme Court for further ‘‘(b) To qualify under this section, a uni- would deny counsel for the applicant or the proceedings, in which case the limitation pe- tary review procedure must include an offer government the reasonable time necessary riod shall run from the date the remand is of counsel following trial for the purpose of for effective preparation, taking into ac- ordered. representation on unitary review, and entry count the exercise of due diligence. ‘‘(3) The time limitations under this sec- of an order, as provided in section 2261(c), ‘‘(iii) No delay in disposition shall be per- tion shall not be construed to entitle an ap- concerning appointment of counsel or waiver missible because of general congestion of the plicant to a stay of execution, to which the or denial of appointment of counsel for that court’s calendar. applicant would otherwise not be entitled, purpose. No counsel appointed to represent ‘‘(iv) The court shall transmit a copy of for the purpose of litigating any application the prisoner in the unitary review proceed- any order issued under clause (i) to the Di- or appeal. ings shall have previously represented the rector of the Administrative Office of the ‘‘(4)(A) The failure of a court to meet or prisoner at trial in the case for which the ap- United States Courts for inclusion in the re- comply with a time limitation under this pointment is made unless the prisoner and port under paragraph (5). section shall not be a ground for granting re- counsel expressly request continued rep- ‘‘(2) The time limitations under paragraph lief from a judgment of conviction or sen- resentation. (1) shall apply to— tence. S 7812 CONGRESSIONAL RECORD — SENATE June 7, 1995 ‘‘(B) The State may enforce a time limita- at least have a lawyer. But this Repub- tially giving one bite out of the apple tion under this section by applying for a writ lican bill does something I am not sure to drastically reduce the ability to of mandamus to the Supreme Court. they intended to do, but they did. This have successive petitions unless there ‘‘(5) The Administrative Office of United is some egregious action that is States Courts shall submit to Congress an Republican bill changes all of that. As- annual report on the compliance by the tonishingly, it changes all of that. In a learned about after the petition is courts of appeals with the time limitations section entitled ‘‘technical amend- filed, the first petition. under this section.’’. ments’’—we should all keep our eyes But I have always believed if we are (b) TECHNICAL AMENDMENT.—The part anal- open when someone says ‘‘this is just a going to speed up the process, which I ysis for part IV of title 28, United States technical amendment’’—in a section wish to do, if we are going to narrow Code, is amended by adding after the item entitled ‘‘technical amendments,’’ this the avenues of habeas corpus, which I relating to chapter 153 the following new bill repeals the right to counsel in Fed- wish to do, we should at least make item: eral capital cases. It says that the sure that the petitioner has a lawyer. ‘‘154. Special habeas corpus pro- That is what we said in 1988 and there cedures in capital cases ...... 2261.’’. right to counsel is no right at all but a matter of discretion for the judge. has been no serious question raised (c) EFFECTIVE DATE.—Chapter 154 of title Let me refer you back to Gideon ver- about our wisdom in passing that law 28, United States Code (as added by sub- since then. section (a)) shall apply to cases pending on sus Wainwright, that famous last sen- or after the date of enactment of this Act. tence which says, ‘‘The right of one Two years ago I entered into pains- Mr. BIDEN. Mr. President, in 1988, we charged with a crime to counsel may taking extensive negotiations with the passed a bill which I had authored with not be deemed fundamental and essen- Nation’s district attorneys and the at- several others called the Death Penalty tial to fair trials in some countries, but torneys general of the United States for Drug Kingpins Act. it is in ours.’’ over habeas corpus reform. We nego- It was the first constitutional Fed- It does not say it is discretionary in tiated for months. We logged hundreds eral death penalty to go on the books ours. It does not say maybe it is all of hours, argued over scores of serious after 1972 when the Supreme Court in- right in ours. It does not say it is OK issues before we came up with a validated the death penalty. sometimes in ours. It says, ‘‘it is in lengthy and comprehensive com- I helped write that bill, much to the ours.’’ promise—which, I might say and I dismay of many of my liberal friends Astonishingly, this little technical probably should not, my staff will not who could not understand why I was amendment says the right to counsel is like this, which the liberal press killed. writing such a bill. It was a bill strong- a matter of discretion for the judge to The liberal press told us this was some- ly promoted by President Bush, and it decide. how a terrible thing to do. I kept saying we better do this or passed by a lopsided vote of 65 to 29, I do not know what my colleagues they are going to take it all away. But with only six Republicans voting were thinking of when they wrote this. I hope everybody is listening who against the bill. But what this seems to be saying is When we passed that bill, we recog- this: We do not care what the Constitu- helped kill that compromise. But not once in all our discussions nized that if the Federal Government tion says. We do not care what the Su- with the Nation’s prosecutors, I was was going to put a person to death, we preme Court says. We think it is OK to not talking with the public defenders. I deny a person who faces the Federal better get it right. We better have the was not talking with the defense bar. I death penalty—and there are now over right guy and we better have had a fair was talking with the Nation’s prosecu- 60 on the books—we think it is OK to trial, and the defendant better have tors, the DA’s back home, the State’s deny that person the assistance of had his or her day in court. attorneys general back home. Not one As part of the law, we said that the counsel at his trial. I submit this prop- time in our talks did the prosecutors capital defendant—the defendant ac- osition is as unthinkable as it is uncon- propose the repeal of the 1988 right to cused of a crime which carried with it stitutional. And we should have noth- a lawyer in a habeas corpus petition. the death penalty—in that case the ing to do with it. Not once did they argue that the right The Republican bill also repeals the person should have a lawyer. Kind of to counsel in habeas corpus should be right we created in 1968 to a lawyer for axiomatic. They should have a lawyer discretionary. Not once did they sug- if they are going to go to trial, a trial Federal habeas corpus appeal. This bill gest that the right to counsel at a trial in which, if that person is found guilty, says that there should be no right to a should be denied. they will be put to death. lawyer, that it should instead be a As a matter of fact, what they con- That, of course, is also what the sixth matter of discretion for every individ- stantly said was that the best way to amendment of the Constitution of the ual case. What is more, the Republican shorten the appeals, the best way to United States says. It explicitly says proposal is taking away this right at cut down on the abuse, was to do it that ‘‘In all criminal proceedings the the very same time it is changing the right the first time. They argued—not accused shall have the assistance of rules of the game on habeas corpus, me—they, the prosecutors, Republican counsel for his defense.’’ and placing new and sweeping restric- and Democrat—they said if you want Remember Clarence Earl Gideon? tions on the right of habeas corpus it- to get this thing on track make sure The case was Gideon versus Wain- self. there is a competent lawyer represent- wright. The Supreme Court held that We want to change habeas corpus but ing these people during this stage of Mr. Gideon, accused of a crime, could they are making sweeping changes in the proceeding. Because they pointed not receive a fair trial absent the right the rules of the game. And in addition out that most of the habeas corpus pe- to a lawyer. saying, and by the way, while we are at titions that are granted, and the Fed- In that case, the court said, ‘‘The it we are going to go back and deny eral courts grant many, most of the sixth amendment stands as a constant you your right to counsel when you are ones that are granted are granted be- admonition that if the constitutional filing such a petition. And one more cause the court concludes that the de- safeguards it provides be lost, justice thing, we are going to deny you the fendant did not have adequate counsel, will not be done. The right of one automatic right to a lawyer at your they were denied their right to know charged with a crime to counsel may trial, before you are convicted. what a fair trial should be. not be deemed fundamental and essen- It reminds me of that line that is So here you had the prosecutor—not tial to fair trials in some countries, but often used, and I will paraphrase, the defense bar—saying, ‘‘Make sure it is in ours.’’ ‘‘hanging first, trial later.’’ What are that the defendant has legal counsel Also, in the 1988 drug bill we said we into here? and then give him one bite out of the that prisoners, State or Federal, who I agree we should cut down the delay apple.’’ are looking the death penalty in the and abuse of the Federal habeas corpus These are experienced people. These eye should have a lawyer for their Fed- and I have made a number of similar are the people who try these cases. eral habeas corpus appeals. Again, we proposals over the years to impose These are the people who respond to recognize that if the Federal Govern- strict time limits on when such peti- these habeas corpus petitions. ment is going to put its stamp of ap- tions could be filed and also to limit I might say to those who are listen- proval on a man’s execution, he should the number that could be filed, essen- ing, I have to keep reminding people— June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7813 habeas corpus. If a habeas corpus peti- the judge does not appoint counsel, the there will be a lawyer there as well, tion is granted it does not mean any- indigent death row inmate will be left and there will be. I do not know of a one goes free. The man or woman still to find his own way through some of case where a lawyer has not been ap- stays behind bars. All it says is they the most complicated legal doctrines pointed. get a new trial. This is not a petition imaginable. This just does not make What you may not be aware of, how- for innocence that can be decided in sense, in my view, as a practical mat- ever, is that section 848(q) permits the terms of releasing someone. This mere- ter or as a matter of principle. defense counsel to contact the judge ex ly says that a prisoner behind bars We should not in our haste to hurry parte; that is, without the prosecutor slips a paper between the bars and up executions lose sight of our commit- being present, and requests additional says: Send this to the judge, ask him to ment to constitutional values. We funding for experts, investigators, re- take a look at it because I do not think should not endorse proposals that in- searchers, and the like. In other words, I got a fair trial. crease the chance that, where execu- defense counsel can approach the judge That is what it is. And here we had tion is imminent, an innocent person outside the prosecutors presence and for months of negotiations—months— be executed. We should not, I believe, request the appointment of additional worked out a compromise, and these sacrifice certainty in the name of investigators or a new psychiatrist. hard-nosed prosecutors in our home speed, or fairness in the name of venge- The prosecutor is given neither the op- States said make sure they have coun- ance. portunity to present nor even a chance sel. That is the best insurance for the Most importantly, Mr. President, I to oppose such an appointment. public at large that we will not be really believe that everyone should un- To add insult to injury, the court can wasting their money and their time. derstand we are not talking about order payment and the appointment to Just last year the U.S. Supreme changing any of the ways in which we run nunc pro tunc; that is, from the Court, which for the most part is no deal with habeas corpus in this amend- time the defense counsel initially hired friend of the Federal habeas petitioner, ment. We are not talking about wheth- the additional help. They can go way recognized the importance of having a er the Biden approach of only one peti- back. The defense counsel can go hire lawyer. In the case of McFarland ver- tion or their approach of only one peti- these people, have no way of paying sus Scott, the Court said: tion is the best one. We are not talking them, and then all of a sudden have an Quality legal representation is necessary about whether we are going to cut the ex parte proceeding, and the judge can in capital habeas corpus proceedings in light delay by a year or a month or a day. order that they be paid back to the of the seriousness of the possible penalty and What we are talking about is a fun- date that the defense counsel hired the unique and complex nature of the litiga- damental principle, one that, as it re- them. Talk about an abusive system. tion. lates to the trial, has been established This means an investigator hired 6 To say that habeas litigation is since Gideon versus Wainwright, and in months before can, when approved by unique and complex is an understate- many instances before that, and one as the judge, receive payment for all of ment. Habeas petitions must meet it relates to Federal habeas corpus that that investigator’s past work, and in tightened pleading requirements. They was established in 1988. an ex parte proceeding, without the must comply with the Supreme Court’s I ask my friend from Utah, because it right of the prosecutor to be present. intricate doctrines on procedural de- may have been an oversight, whether The defense counsel can use whatever fault and waiver. Federal courts can he really intended to eliminate the information the investigator provides summarily dismiss any petition that right to counsel at trial as well as the as demonstrating the need to hire that appears legally insufficient on its face. right to counsel in a habeas corpus pe- investigator and pay him from the And they can deny stay of execution tition. time that he actually started working where petitioner fails to raise a sub- So I sincerely hope my colleagues on the case. stantial Federal claim. But this provi- will take a close look at this. This does There is absolutely no reason for ex sion tells these indigent defendants not have to do with speeding up the parte proceedings on Federal collateral who have just been sentenced to death process; this has to do with the fun- review after the judgment is final. that they have no right to the help of damental fairness. Are we going to While such an arrangement may argu- a lawyer, that they might have to navi- stick with constitutional principle es- ably be appropriate at the trial level, it gate the arcane, complicated and haz- tablished several decades ago in this is not defensible for postconviction col- ardous sea of the Supreme Court juris- country saying you are entitled to a lateral proceedings. It is likely that prudence and statutory rules by them- lawyer at a trial and, if you cannot af- the secrecy of these proceedings serves selves. ford one, the court will appoint one as no other purpose than to permit the de- Quite apart from what I believe is the a matter of right and you are entitled fense counsel to, outside of the pres- fundamental unfairness of this propo- to a lawyer at the Federal level when ence of the prosecutor or the prosecu- sition, I also think at a practical level you file a habeas corpus petition? The tion, argue their cases, obtain exten- it will waste a lot of time and a lot of practical implication of all that is that sions of time, or receive additional un- money to deny a lawyer at this point. most prosecutors will tell you that will warranted investigative expenses. This First, ask any experienced lawyer or speed the process up, not slow the proc- is simply indefensible. prosecutor. Almost all would rather ess down. There should be no need for a con- have a competent adversary who can I yield the floor. fidential hearing at this point in the adequately frame and present issues Mr. HATCH addressed the Chair. proceeding. They will have had the over an incompetent one who does not The PRESIDING OFFICER. The Sen- hearing already. They will be on ap- have the first clue about how to ator from Utah. peal. They will have had all kinds of present his arguments. Most experi- Mr. HATCH. Of course, we will not constitutional protections under our enced lawyers would tell you that hav- deny counsel, nor will anybody; nor is bill, and then to allow an ex parte pro- ing someone who has no training on it done, nor will it be done. The reason ceeding to go ahead, they will have the other side only slows things down we oppose this amendment offered by raised their issues at the State level or because the trained lawyer and the the distinguished Senator from Dela- they would be unexhausted. By the judge end up doing a lot of extra work ware is this amendment would strike time the claim is presented in Federal just to figure out what the untrained the much-needed reform in 28 U.S.C. court, all of these issues should have lawyer is trying to say and to make 848(q) contained in the antiterrorism seen the light of day. Thus, no reason sure reversible error is not created. bill. Section 848(q), as many of our Sen- exists for defense counsel to hide what- What is more, under the Republican ators and others are no doubt aware, ever they may be investigating, nor proposal, valuable resources will be provides funding for capital litigants; should defense counsel be permitted to squandered in litigation at the outset that is, people who have been convicted argue their petitions outside of the over whether counsel should or should of capital crimes, to hire among other presence of other counsel. not be appointed. If the judge ends up things investigators and expert wit- It just makes sense that they would appointing counsel, all that time and nesses to assist them with their habeas not. Section 848(q) has been greatly money will have been wasted, and if petitions. That just presumes that abused, and has resulted in enormous S 7814 CONGRESSIONAL RECORD — SENATE June 7, 1995 cost to the States. The reform con- of the Controlled Substance Act is counsel wants to hire all these people. tained in the antiterrorism bill is thus amended in paragraph 34(a) by striking The law currently allows these pay- greatly needed. The Supreme Court has ‘shall’ and inserting ‘may’.’’ ments to be made at excessive cost to never required counsel in collateral When you go and look at that para- the States on an ex parte, meaning one proceedings. We do not make it discre- graph in the law, it says, paragraph attorney only, proceeding. And that tionary to appoint counsel at trial; 4(a) says ‘‘notwithstanding any other just should not be. So I hope that folks counsel must be appointed at trial. I provision of the law to the contrary, in will vote this amendment down. I sug- have to say that any argument that we every criminal action in which the de- gest the absence of a quorum. do not is ridiculous. But this is a very, fendant is charged with a crime,’’ and The PRESIDING OFFICER. The very important point. then it goes on to say that the defend- clerk will call the roll. I hope our colleagues will vote ant, the present law says, ‘‘The defend- The assistant legislative clerk pro- against the Biden amendment. ant shall be entitled to the appoint- ceeded to call the roll. Mr. SPECTER addressed the Chair. ment of one or more attorneys and’’ et Mr. BIDEN. Mr. President, I ask The PRESIDING OFFICER. Who cetera. unanimous consent that the order for yields time? But the way it is changed in your the quorum call be rescinded. Mr. HATCH. I yield time to the Sen- law, it says that ‘‘Notwithstanding any The PRESIDING OFFICER. Without ator from Pennsylvania. other provision of the law to the con- objection, it is so ordered. The PRESIDING OFFICER. The Sen- trary, every criminal action in which a Mr. BIDEN. Mr. President, with the ator from Pennsylvania is recognized. defendant is charged with a crime the consent of my colleague—and I failed Mr. SPECTER. Mr. President, I cer- defendant may be entitled.’’ You strike to do this earlier—I would send a modi- tainly agree with the distinguished the word ‘‘shall’’ and insert ‘‘may.’’ fication of my amendment, a draft Senator from Delaware that we have to Mr. SPECTER. I do not have the ref- error correction in my amendment to be meticulous on right to counsel. We erenced section. Let me get it. the desk. cite Gideon versus Wainwright, and I Mr. BIDEN. All right. Mr. President, I will withhold. was assistant district attorney when Mr. SPECTER. Even if you had a Mr. HATCH addressed the Chair. that case was decided in 1963. I am glad statutory provision, it would not alter The PRESIDING OFFICER. The Sen- to say that in our Pennsylvania courts, the constitutional mandate of Gideon ator from Utah. in Philadelphia, counsel had been pro- versus Wainwright. Not that we should Mr. HATCH. I ask unanimous consent vided for indigent defendants long be- trifle with language which would in that the pending amendment be laid fore the Supreme Court of the United any way suggest undercutting the con- aside so that we can proceed to other States made that a constitutional stitutional right to counsel, but if a business and also to work on some of mandate in the landmark Gideon case, statute in error were to say that, Gid- the questions we have. written by Justice Black, which said eon versus Wainwright would control. The PRESIDING OFFICER. Is there counsel was required for anyone who is You simply cannot have a criminal objection? Without objection, it is so hauled into court to face felony proceeding where there is not counsel ordered. charges. appointed for the defendant. Mr. HATCH. I suggest the absence of On a very personal note, I got my in- Mr. BIDEN. If the Senator will yield a quorum. troduction into criminal law when I for 10 seconds, I think he is right, Mr. The PRESIDING OFFICER. The was assisting defendants back in March President, but I do not know why we clerk will call the roll. 1958, when I took my first turn defend- should pass an unconstitutional stat- The assistant legislative clerk pro- ing indigents going down to the prison ute, because this is clearly unconstitu- ceeded to call the roll. in the city of Philadelphia and had, as tional the way it is written. Mr. BIDEN. Mr. President, I ask a matter of fact, my first taste of what Mr. SPECTER. If I may respond fur- unanimous consent that the order for the role of the trial lawyer was, of ther to my colleague, if that is so, that the quorum call be rescinded. criminal prosecutions, and of being in is something that I would certainly The PRESIDING OFFICER. Without public service. concur ought to be corrected. And I objection, it is so ordered. As I understand these provisions of would take a look at that section right Mr. BIDEN. Mr. President, let me the bill, it will greatly improve the ex- now. very briefly state where we are right traordinarily technical and com- Mr. President, I suggest the absence now. You can see the staffs scurrying plicated procedure that when a State of a quorum. around here. We have reached a meet- opts into the expedited procedures, The PRESIDING OFFICER. The ab- ing of the minds on two-thirds of the there is additional responsibility on sence of a quorum has been suggested. amendments that I have offered here. the State under the provisions of sec- The clerk will call the roll. The staff is trying to get precise lan- tion 2261(b) to establish a mechanism Mr. HATCH. If the Senator will with- guage that would accommodate the for the appointment of compensation hold. mutual agreement we have made here and payment of reasonable litigation The PRESIDING OFFICER. Who thus far. But there is going to be one expenses of competent counsel at the yields time? part of my amendment that is still State postconviction proceedings Mr. HATCH. Mr. President, I yield going to be pertinent, and I will speak brought by indigent prisoners. time to myself. to that later. But the distinguished On the point about ex parte contacts The PRESIDING OFFICER. The Sen- Senator from Pennsylvania and I would by defense counsel, I doubt that there ator from Utah. like to enter into a brief colloquy on is any real quarrel about the require- Mr. HATCH. This certainly is not un- what I think will be the only remain- ment that defense lawyers ought to constitutional. This has been worked ing part of disagreement in the Biden make an application in the presence of very carefully by top legal experts, amendment that was sent up. opposing counsel and ought to make State attorneys general and others. Very briefly, Mr. President, there that application in advance of wanting The court has never mandated counsel were two sections of the Biden amend- to hire experts. in collateral proceedings, and I think ment, one relating to counsel for an in- So it seems to me that whatever the that point has to be made. But there is digent in the filing of a habeas corpus state of the law is this is an advance- going to be counsel appointed and al- petition. The second provision is what ment in requiring that States under ways has been. the Senator from Utah spoke to, and this provision that I just read have To be honest with you, what we are that is the ability under present law competent counsel. concerned about is that the way the for the counsel of an indigent person to Mr. BIDEN. Will the Senator yield amendment of the distinguished Sen- go to a judge, without notifying the for a very brief question? ator from Delaware reads, we are going prosecutor he is going to the judge, and Mr. SPECTER. I do. to wind up having nun pro tunc orders in private—we call it in camera—say, Mr. BIDEN. On page 125 of the Sen- which will allow petitioners to have ex- judge, I need you to authorize my abil- ator’s bill, section 608, ‘‘Technical pert witness fees and investigators paid ity to go hire a psychiatrist for the fol- Amendments,’’ it says ‘‘Section 408(c) for from the time that the defense lowing reasons, or hire an investigator June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7815 for the following reasons. The distin- ered pursuant to the section unless a Biden amendment is now pending, is guished Senator from Utah is worried proper showing is made concerning the that correct? about that provision and suggests that need for confidentiality. Mr. BIDEN. Mr. President, the an- that portion of the law is presently I concur with the Senator from Dela- swer is yes. being abused. I do not believe it is ware when he says that there ought not The reason I have counseled my abused. to have to be disclosure by defense friend from Michigan not to go yet is I want to make a very brief state- counsel in the presence of the prosecu- that the key staff people who know ment now as to why I think that and tor to matters which would prejudice this issue very well, who will also want why I am going to pursue in my follow- the defendant in investigating the case to be available to Senator HATCH as on amendment here the elimination of on the facts, or as to getting expert well as to me, are the very people nego- the provision in the Republican bill opinion as to mental state and com- tiating this other item which is very that would delete the possibility of an petency. close. indigent defense counsel going to a But the question I would have, and it Apparently, we are now ready to go. judge on his own. The reason for that is is not really accommodated by the lan- We will be able to move right away to as follows: guage, is that if there is a showing of Senator LEVIN. We may be able to dis- Right now, if I am a prosecutor and I the need for confidentiality, that would pose of this right now. Apparently, we get a lead as to how I can make my preclude the prosecutor gaining an have reached our agreement. case better to prove the defendant did upper hand in an unfair way. As a spon- Mr. DOLE. Does the Senator from the deed, I can hire—I can use—an in- sor of this language, let me state that Wisconsin have an amendment? vestigator to go investigate that. If I it is our intent here in this legislation Mr. BIDEN. Mr. President, I think believe there is a need to make a case that there not be a circumstance in the Senator from Wisconsin wishes to that the defendant is, in fact, perfectly which the defense is compelled to re- speak on the issue. sane and not insane, I can hire a psy- veal, in front of the prosecutor, mat- Mr. FEINGOLD. That is right. Mr. BIDEN. Maybe we can let him do chiatrist. ters which would be prejudicial to his opportunity to present a defense. that while we nail this down. I can use investigative tools without Mr. DOLE. If I understand, after the ever having to go to the defendant’s Mr. BIDEN. Mr. President, in re- sponse to my colleague, he is coming disposition of the pending amend- counsel and say, ‘‘By the way, here is ment—if we work it out—fine; then the what I am going to do. I am going to awfully close to what I intend. If it is read the way in which the distin- amendment of the Senator from Michi- hire this psychiatrist to prove that gan; there would be two amendments your defendant, your client, is sane.’’ guished Senator from Pennsylvania reads it, which is that if there is a remaining, one by the Presiding Officer Or, ‘‘I am going to hire two investiga- and one by the Senator from Delaware. tors to go down to Second and Vine and showing for the need for confidential- ity, then the judge can meet only with Mr. BIDEN. That is correct. prove that the stoplight does not exist Mr. DOLE. And as I understand, one there,’’ or whatever. the defense counsel and make his or her judgment. That, quite frankly, gets would have a 60 minute time agree- So no one quarrels with that. If I am ment, the other 90 minutes. a lawyer who is hired by private funds a lot closer to what I intend. As the Senator feels, as a matter of Mr. BIDEN. I would say we may not to defend an accused person, I am not principle, that we should err on the use all 90 minutes, but since it is the required to telegraph to the prosecutor side of not having ex parte proceedings, last amendment, I would prefer to have that I have hired a private detective to I must acknowledge in these days, I err that cushion. investigate a lead in a particular city. on the side of allowing indigent defense Mr. DOLE. The point is, we would I do not have to tell the prosecutor counsel to have the maximum flexibil- like to complete action. We said no that. votes before 1 o’clock. I think it will be My worry is that if we change the ity with the judge. While the staff is correcting the probably be before 2 o’clock, would be law as proposed in the core legislation, other portions of this, I would like to my guess. there will probably not be that what will be required for an indi- seek the counsel of my counsel, and de- any vote before 2 o’clock, but we had gent defense counsel is to walk into termine whether or not it is still nec- hoped to complete action on this bill court, walk into the chambers of a essary to proceed with the last portion by 3 o’clock so we could start on tele- judge and say, by the way, judge, we of this amendment. communications. We are probably better call in the prosecutor, and sit I see the distinguished leader is on going into the evening tonight on that the prosecutor down and say, now I the floor. He always comes when he bill. want to say, judge, I need your author- worries things are slowing down. I can I am told by the managers on that ity to allow me to go hire an investiga- assure the Senator they are not slow- bill that it is a bipartisan effort, and tor. Here are the reasons that I want to ing down, they are moving along fast. may be able to complete that more hire the investigator. The prosecutor is We will get this done before the time quickly than we may have thought at sitting there taking notes about my would have been used had a rollcall the outset. case. vote been called. We are very close. I The bottom line is we need to finish Now, that is why I think we should think that can happen. this bill, and I know the managers are not delete this portion of the law. So I do not want the Senator to get making progress. I appreciate it very Mr. SPECTER. Would the distin- upset. We have Senator LEVIN waiting much. guished Senator from Delaware yield? in the wings to go with his amendment. Mr. FEINGOLD. Mr. President, I wish Mr. BIDEN. I am delighted to yield. Mr. DOLE. If the Senator will yield, to speak on the bill on the habeas cor- Mr. SPECTER. I understand the con- I had just sort of passed through the pus issue. I rise today to speak against cerns that the Senator has expressed. I Chamber and I did not see anything provisions in S. 735 that are character- believe that the bill as drafted is pref- happening, but there is a lot of prece- ized as reforms in the habeas corpus erable, notwithstanding the arguments dent for that. appeals process. These items that are the distinguished Senator has raised. I As I understand, the next amendment being referred to as reforms, in my will come to the specific question in would be the Senator from Michigan, view, would hasten the implementation just a moment here. Senator LEVIN, and there would be 50 of the death penalty and might well I think that ex parte communica- minutes, 25 minutes on a side. Is that have the result of rushing innocent tions are very problemsome in any satisfactory? people to executions. kind of a case, but they ought to be Mr. LEVIN. That would be fine. This is not, strictly speaking, a de- eliminated to the maximum extent Mr. DOLE. Mr. President, I make bate about the death penalty itself, but possible, which is why I think that it that request. about the fundamental American right just is not a good idea to have one law- The PRESIDING OFFICER (Mr. of due process. yer talking to the judge by himself. ASHCROFT). Without objection, it is so Mr. President, there are several ways But the language which I would focus ordered. in which this fundamental right may on here is that which says no ex parte Mr. DOLE. While that debate is going be undermined by the pending bill, in- communication request may be consid- on, it is my understanding that the cluding the requirement that Federal S 7816 CONGRESSIONAL RECORD — SENATE June 7, 1995 judiciary defer to State courts. This is the law that could send innocent peo- well be the case if we pass S. 735 with a major departure from more than 200 ple to their deaths. That in itself would its habeas reform provisions, which in- years of legal precedent, and to my be a dreadful crime. clude a higher bar to habeas petitions mind, the most egregious change pro- We must be mindful that when we and deference to State courts, he might posed by habeas reform supporters. change the law, it applies to all, not still be sitting in a Louisiana prison, There is also a general 1-year statute just to the clever manipulators of the awaiting death. of limitations—6 months in some system that supporters of the habeas Earlier this year, in January, the cases—for filing a petition. These time reform provisions of S. 735 seem to be- U.S. Supreme Court handed down its limits fail to recognize the time needed lieve fill our death rows. ruling in Schlup versus Delo. to develop a proper habeas petition. Consider the case of Nathaniel In that case, Lloyd Schlup, a prisoner There is also a concern which the Carter, an innocent man wrongly con- in Missouri, was convicted of partici- ranking member has been discussing victed in 1982 of the stabbing death of pating in the murder of a fellow inmate about the elimination of the current his mother-in-law. and sentenced to death. absolute right of petitioners in capital Mr. Carter is a man about my age. However, Schlup, who was filing his cases to counsel for Federal habeas cor- His story was told in the New York second habeas petition, argued his trial pus petitions and replacing it with a Times and in New York Newsday this deprived the jury of critical evidence provision that leaves assignment of past February. Ten witnesses placed that would have established his inno- counsel to the discretion of the court. Mr. Carter miles from the murder cence. The U.S. district court had de- I understand there has been some scene at the time the crime was com- nied relief, stating Mr. Schlup had not movement on that, some progress. I am mitted. Nonetheless, he was sentenced met the ‘‘clear and convincing evi- pleased to hear it and look forward to to 25-years-to-life for a crime he did dence’’ standard that the habeas re- reviewing it. not commit, only because New York form provisions of S. 735 would impose. Mr. President, we have heard the ar- State at that time did not have a death The U.S. Supreme Court adopted a guments for streamlining habeas cor- penalty statute. less stringent standard, that the ha- pus procedures to limit death row ap- It does now, and if that statute had beas petitioner need show that the con- peals and implement the death penalty been in effect in 1982, the sentencing stitutional violation complained of more quickly. judge made it plain that it would have ‘‘probably resulted in the conviction of On a gut level, these arguments carry been imposed, on Mr. Carter, an inno- one who is actually innocent.’’ power; they paint a picture of con- cent man. There is a body of evidence readily victed criminals contemptuously ma- Mr. Carter spent 28 months in prison available to show that putting limits nipulating our justice system to avoid before being exonerated. His former on the habeas corpus process could well punishment for heinous crimes, all the wife eventually admitted committing mean innocent people will be affected while supposedly languishing com- the crime. in the ultimate way. fortably in their prison cells. The argu- Nathaniel Carter was lucky, but had A 19-page staff report prepared last ments remind us of the lingering pain conditions been different, his luck November for the House Subcommittee and frustration of victims’ families, would not have saved him. His boyhood on the Constitution, formerly the Sub- who are forced to wait, sometimes for friend, George Pataki, now Governor of committee on Civil and Constitutional years, before they reach the end of New York, earlier this year signed that Rights, found 52 cases in 20 years where their ordeals that began with the vio- State’s new death penalty statute into innocent people were convicted of cap- lent death of a loved one. The argu- law. ital crimes and later won release, some ments also speak to the problems of It is worth considering what would of them by filing habeas petitions. clogged courts and precious resources have happened if Mr. Carter had faced That document, entitled, ‘‘Innocence tied up in lengthy and, perhaps, dupli- the death penalty and if he would have and the Death Penalty: Assessing the cative habeas proceedings. faced the habeas reforms included in S. Danger of Mistaken Executions,’’ But the supporters of so-called ha- 735. He might well be dead for a crime might be worth reading before we de- beas reform usually do not tell us other he did not commit. cide to reform this system in this way stories—the rest of the story. So the question today is are we will- that reminds me very much of some- They do not tell us about innocent ing to put Mr. Carter and others like thing that is quite the opposite of re- defendants sent to death row because him to death for the sake of hastening form. they could not afford competent coun- other deaths of some guilty parties? At one point, the report states: sel, and because some States do not The U.S. Supreme Court has handed These 52 cases illustrate the flaws inherent have procedures in place to provide ef- down significant habeas decisions this in the death sentencing systems used in the fective counsel to indigents. They do year in two separate cases, decisions states. Some of these men were convicted on the basis of perjured testimony or because not tell us of murder defendants watch- that should be considered in this de- the prosecutor improperly withheld excul- ing as their attorneys fail to properly bate. patory evidence. In other cases, racial preju- prepare and present a defense, either On April 19, the Court, in Kyles ver- dice was a determining factor. In others, de- because they lack resources or because sus Whitley, reversed and remanded fense counsel failed to conduct the necessary they themselves are indifferent, incom- the first-degree murder conviction of a investigation that would have disclosed ex- petent, or inexperienced. Louisiana man, Curtis Lee Kyles. Mr. culpatory information. They do not tell us about innocent Kyles was sentenced to death. I would also call to the attention of defendants convicted because of sloppy After his conviction, it was discov- my colleagues a Yale Law School Jour- investigations or prosecutorial mis- ered the State had not revealed certain nal piece entitled, ‘‘Counsel for the conduct. evidence favorable to Mr. Kyles’ case. Poor; the Death Sentence Not For The They do not seem to take into ac- His appeals to State courts won him a Worst Crime But For The Worst Law- count the amount of time it takes to remand for an evidentiary hearing, but yer,’’ published in May 1994, by Ste- properly prepare and present a habeas the State trial court afterward denied phen Bright, the director of the South- petition. relief. He then went to the State su- ern Center for Human Rights, based in They seem ready and willing to has- preme court, which denied his applica- Atlanta, GA. ten to fatal judgment in the name of tion for discretionary review. Mr. Bright’s piece is a sobering, I efficiency and to accept tragic mis- However, the U.S. Supreme Court might even say chilling description of takes as the necessary price for timely ruled that Mr. Kyles was entitled to a problems encountered by defendants in justice. new trial because there was a ‘‘reason- capital cases. I am not willing to support this able probability’’ that the disclosure of Mr. Bright points out instances of haste. that evidence would have produced a States not providing sufficient re- While I completely understand the different result than the original con- sources to assigned defense counsel for pain of victims’ families, I do not want viction. proper investigation of a case. Com- to create more pain, and more victims Had Mr. Kyles not been able to file pared to the resources available to an of violence, by approving changes in his Federal habeas petition, as might aggressive prosecutor, a defendant can June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7817 begin with a significant disadvantage you certainly do not want to ever see I send that modification of my in a life-or-death fight. happen is that someone innocent is ex- amendment to the desk and ask for its Mr. Bright also describes cases of ecuted, and to in any way, shape, or immediate consideration. professional incompetence on the part form move away from the very rights The PRESIDING OFFICER. Is the of attorneys representing indigent cli- that people have in the appeal process, Senator modifying amendment 1226? ents in capital cases. Some of these de- which is a frightening possibility. I Mr. BIDEN. No, the Senator is modi- fendants, after they were convicted and think the Senator from Wisconsin has fying, actually, it is a whole new sentenced to death, were able to secure spoken to this in a very eloquent way. amendment. I am attempting to mod- competent counsel, prove their inno- I thank him for his remarks. ify the underlying bill. cence, and win just release. AMENDMENT NO. 1252 TO AMENDMENT NO. 1199 Mr. President, I want to make clear. Capital cases are complex, and the Mr. HATCH. Mr. President, I send an I may have done something inadvert- stakes are the highest imaginable, so amendment to the desk and I ask for ently here. experienced counsel is needed to prop- its immediate consideration. I do not mean to modify, I am send- erly represent a defendant. Still, we The PRESIDING OFFICER. The ing the amendment to the desk, the are seeing evidence that these cases are clerk will report. purpose of which is to amend the Hatch not always tried by such experienced The legislative clerk read as follows: amendment. We need a vote on it. I am counsel. Imagine sitting in the defend- The Senator from Utah [Mr. HATCH] pro- not seeking unanimous consent for ant’s chair, your life on the line, know- poses an amendment numbered 1252 to that. ing you are innocent, and watching amendment numbered 1199. The PRESIDING OFFICER. If there your attorney fail to conduct proper Mr. HATCH. Mr. President, I ask is no objection, the clerk will report investigation, fail to call witnesses, unanimous consent that reading of the the new amendment. fail to present an adequate statement amendment be dispensed with. Mr. HATCH. Parliamentary inquiry: to the jury. Imagine that in this coun- The PRESIDING OFFICER. Without As I understand it, this is a substitute try. objection, it is so ordered. that will replace the pending Biden When the day is done, that attorney The amendment is as follows: amendment. walks home. You, the defendant, walk Delete lines 4 through 7 on page 125. Mr. BIDEN. That is correct. to death row. If you cannot find experi- Strike lines 20 through 24 on page 106 and The PRESIDING OFFICER. The Sen- enced, responsible counsel for an ap- insert the following: ator can either withdraw the pending peal, you walk to the gas chamber, the ‘‘(h) Except as provided in title 21, United Biden amendment 1226 and send up a States Code, section 848, in all proceedings electric chair, or to a stark room with new amendment, or he can modify the brought under this section, and any subse- Biden amendment No. 1226. vials of poison to execute you. quent proceedings on review, the court may We must not forget these stories as appoint counsel for an applicant who is or Mr. BIDEN. That is correct. we debate reform. becomes financially unable to afford counsel, Mr. President, if there is one thing I Neither should we forget, in our frus- except as have learned after years, it is that it is tration with the current system, that a Strike lines 9 through 11 on page 108 and very difficult to listen to staff and the habeas petitioner is not free to walk insert the following: Presiding Officer at the same time. I the streets while awaiting the ruling of ‘‘Except as provided in title 21, United apologize. States Code, section 848, in all proceedings I should have been listening to the the court. I think that is a mis- brought under this section, and any subse- perception that some have. This man Presiding Officer. quent proceedings on review, the court may Would he mind repeating his question or woman is in prison, not sitting in a appoint counsel who is or becomes finan- country club. cially unable to me? The PRESIDING OFFICER. The Sen- Many of the stories we hear during Mr. HATCH. Mr. President, this ator could either modify amendment this debate rely on their persuasive modification will correct the text. I 1226 or submit a new amendment, ei- power on the grief and rage many of us want to thank my colleague from Dela- ther one. feel after a brutal murder. But let me ware for bringing our attention to it, speak a word of caution to those who Mr. BIDEN. I am submitting a new as well as my colleague from Penn- amendment. stir those feelings. Grief and rage are sylvania, who has worked with us to AMENDMENT NO. 1226 WITHDRAWN not good foundations for making good try to resolve this. We think we can re- policy, and emotions that strong can solve this matter so that we can then Mr. BIDEN. President, I would like lead us to bad decisions and unintended vote on the Senator’s amendment when to withdraw amendment 1226. I hate consequences, and in this case, to con- the time comes. numbers and acronyms. But that is clude, although it may not be very fre- Mr. BIDEN. I urge adoption of the what I wish to withdraw. quent and apparently is frequent modification. I send a new amendment to the desk, enough, it literally can lead to the exe- The PRESIDING OFFICER. Without the number of which I have not the cution of innocent people. objection, the amendment is agreed to. slightest idea. I urge that the habeas provisions of The amendment (No. 1252) was agreed The PRESIDING OFFICER. Amend- this bill be removed. I do not think to. ment 1226 is withdrawn they are appropriate to this piece of Mr. BIDEN. Mr. President, I thank The amendment (No. 1226) was with- legislation. Certainly, the bill could go my friend from Utah. As usual, he is al- drawn. forward without them, and it would be ways reasonable. AMENDMENT NO. 1253 TO AMENDMENT NO. 1199 a far better piece of legislation. The effect of what the Senator has (Purpose: To amend the bill with respect to I thank the Chair. I yield the floor. just done is to modify the underlying requring counsel for federal habeas pro- Mr. WELLSTONE addressed the bill that he introduced, the Hatch ceedings) Chair. amendment, the Hatch bill, the Hatch- The PRESIDING OFFICER. The The PRESIDING OFFICER. The Sen- Dole bill. clerk will report the new amendment. ator from Minnesota. It maintains in capital cases the re- The legislative clerk read as follows: Mr. WELLSTONE. Mr. President, I quirement that counsel be appointed at The Senator from Delaware [Mr. BIDEN] came in at the very end to hear the re- trial and in a habeas proceeding, and it proposes an amendment numbered 1253 to marks of my colleague from Wisconsin. makes discretionary the appointment amendment No. 1199. I would like to thank him for his elo- of counsel at those stages in noncapital Mr. BIDEN. Mr. President, I ask quence. I am not a lawyer, but I do be- cases. unanimous consent that reading of the lieve that the Senator from Wisconsin That leaves one part of my original amendment be dispensed with. has made an essential point. I think his amendment that still needs to be re- The PRESIDING OFFICER. Without point about habeas is as follows: Actu- solved. We can speak to it in a very objection, it is so ordered. ally, regardless of your position about short order. The amendment is as follows: capital punishment—I think all of us in There was a third section of the ex- Strike lines 10–22 on page 125. very good faith can have profoundly isting bill that was attempted to be Mr. HATCH. Mr. President, as I un- different views on this question—what amended by my amendment. derstand it, that amendment has been S 7818 CONGRESSIONAL RECORD — SENATE June 7, 1995 set over until some time at 1 o’clock, they say: My goodness—or before a that, says basically: JOE, do not worry am I correct? trial—we better check out a lead that about that because our legislation The PRESIDING OFFICER. No we have; we have a lead that on Sep- says—and I will read it—‘‘No ex parte agreement has been reached on the dis- tember 12 the defendant was with Mary proceeding, communication or request position of that amendment. Jones in Oshkosh; we are going to send may be considered pursuant to this sec- Mr. HATCH. I move to table the an investigator to go to see Mary Jones tion unless a proper showing is made amendment. and find out whether that is true—if concerning the need for confidential- Mr. BIDEN. Mr. President, before he the prosecutor had to say: By the way, ity.’’ does that, I would like to be able to defense counsel, on October 3 we are I understand what they intend by speak for 5 minutes to my amendment. going to send an investigator to meet that. What they intend by that is to Mr. HATCH. I withhold that. Mary Jones in Oshkosh, that would solve the problem I have just raised, I ask unanimous consent that the prejudice the State’s case because the but under the law the use of the phrase vote occur on or in relation to amend- defendant could pick up the phone and ‘‘proper showing’’ means that in front ment No. 1226, which is now 1253, at a call Mary Jones and tell Mary Jones to of the prosecutor you are going to have time to be determined by the majority to say: This is why I need this money, leader after consultation with the mi- leave town. It is not reasonable. What we did in the law not long ago, judge, to hire this investigator. nority leader, but not before 1 p.m. we said an indigent should have the The effect of that is in making your today. same rights. But an indigent does not proper showing you have to make it in The PRESIDING OFFICER. Without front of the prosecutor. You have now objection, it is so ordered. have any money. The only reason a poor guy’s lawyer, the one that is ap- given away the very thing you wanted Mr. BIDEN. Mr. President, if I can to avoid when you asked for the closed speak very briefly now to my new pointed by the court, goes to the judge is because he does not have the money. hearing. This closed meeting with the amendment, let me make sure that I judge has nothing to do with the facts have it straight for myself, let alone Otherwise, he would not have to go to the judge. All he would have to do is of the case, nothing to do with the out- for all of my colleagues. come of the case, nothing to do with My original amendment was designed say: OK, I am hiring a guy to go check the evidence that can or cannot be sub- to do three things, to change three pro- this out. But now he is able to go to mitted in the case, nothing to do with visions of the Hatch—I will call it the the judge. The reason he goes to the judge is that the judge is the guy who the substance of the case. bill; it is technically an amendment— It has to do with the resources made dispenses the money. The judge is the the thing we are debating, the available to a court-appointed lawyer. guy to say: OK, I will give you the counterterrorism legislation that is be- He may go in and say: Judge, you have money to hire that guy. You proved to fore us. In that counterterrorism legis- not given me enough money to be able me you need it. I will give you the lation, there were a number of provi- to send out the following 20 questions money. sions, three of which were as follows: to prospective witnesses. I want that Now, what my friends do here—and I One deleted the existing statutory re- money. Can you give me that money to understand their motivation; I think it quirement that there be counsel ap- send out those letters? Or to provide is pure—is they say, wait a minute pointed for an indigent at a trial. The transportation to get a witness. second, deleted an existing statutory now. That is costing money, and should Remember Rosa, that woman in the provision requiring counsel be ap- not the prosecutor, the State, have to O.J. trial who was going to Mexico? pointed at a habeas corpus proceeding be in that room when the defense at- Well, it may be a situation where he for an indigent. And the third amended torney is in that room saying: Judge, I said: Look, I have an indigent witness existing law that says counsel for an have no money, but I wish to hire an who cannot get here. I do not have the indigent has the right to go before a investigator to check this out. money to get him here. Can you give us Federal judge by himself without the They say that the State prosecutor the money to get him here? The judge prosecutor present and make a request should be able to be in that room while may say: No, I will not give you the to the Federal judge for additional re- that is being done. Well, they would money. I do not think it is essential for sources in order to adequately be able not say that if it were a civil case. You your case. But if the judge thinks it is to protect his client’s constitutional would not in a civil case say, by the essential, he can say: OK, you are au- interests, that is, go in to a Federal way, you ought to tell the other side thorized to buy a ticket to send that judge and say: Judge, I do not have the that you are about to hire two people person here. money to hire an investigator like the to go investigate a witness who says But what you do not want to do is to prosecutor has that I need to go to x they saw your client walking around necessarily have to tell that to the town to interview three people. perfectly healthy when they claim to prosecution at this point because it The way the law exists now, that have a bad back. They say, well, you may be a witness you turn out not lawyer for the indigent can do just would not have to telegraph that. using. what a lawyer for a nonindigent can do Just because somebody is poor, why Anyway, that is the crux of this and what the prosecutor can do. He should they have to give away their thing, and although the intention to does not have to tip his hand to the case in front of the prosecutor? correct my concern in the underlying prosecutor to say this is what I am And, by the way, to put it another remaining amendment is the law says about to do; this is what I am about to way, how is the State hurt by this? The that ‘‘upon a proper showing of the investigate; this is what I want to State is not hurt in any way by this. need for confidentiality’’ you can have check out. There is a Federal judge sitting there this secret hearing, or this closed hear- It would be a little bit like in that deciding whether or not there is a le- ing, it does not get it done because God-awful O.J. Simpson trial in that if gitimate case made to need this inves- ‘‘proper showing,’’ we believe, is essen- every time the defense hired someone tigator or to need this additional re- tially a term of art in the law. You to investigate something, they first source. have to make your case before the had to go to the prosecutor and say: By And so what my amendment does is other person. the way, I am going to hire this inves- it strikes another provision in the un- Now, the last point I will make—and tigator to go look at the background of derlying counterterrorism bill, the this is, I think, an appropriate point to one of the police officers, and I am Hatch bill. It strikes the part that says make—is that the mere fact they put going to do it on Tuesday, and I am that before a poor man’s appointed this in here evidences the fact they going to interview the following three counsel can ask a judge a question, he know I am right. The mere fact they people. has to have the prosecutor in the room acknowledge that there are cir- No one would expect defense counsel with him while he asks. cumstances under which confidential- to have to do that with the prosecution Now, my good friend from Pennsylva- ity is appropriate makes my case. present, would not have to tell the nia, who is, along with the chairman of Think about that now. If they prosecutor that. the Judiciary Committee, one of the thought everything I am saying here Conversely, the prosecutor, when best trial lawyers in this place, and makes no sense, that it is not a legiti- they are in the middle of a trial and their previous records demonstrate mate point to raise, why would they June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7819 provide for any circumstance under not fair. That is what I am trying to months and then get a nunc pro tunc which there could be a closed hearing correct. ruling of the court—in other words, in which only the judge and only the The underlying statute is 848. My that they should pay for that, the defense counsel were present? They ac- amendment strikes all of their ref- State is going to have to pay for that, knowledge by implication. They try to erence to that statute. I would be will- from the time they hired them right up correct it by saying ‘‘proper showing.’’ ing to do it by just substituting the to the present time—in an ex parte pro- I spent, with my staff, 20 minutes try- word ‘‘request’’ for ‘‘a proper showing’’ ceeding. We both argued this pretty ing to come up with some other phrase in their language, but I do not think much to death. that would get it done. they are willing to accept that. So I am Mr. BIDEN. Mr. President, I would But the truth of the matter is, it is willing, when it is the appropriate time like to make one brief response. real simple. It is human nature. If you for my colleague to respond, if he wish- The PRESIDING OFFICER. The Sen- have the prosecutor and the defense es to, or move to table this—the bot- ator from Delaware. lawyer there and the judge, where the tom line, Mr. President, is I just think Mr. BIDEN. Mr. President, let me ex- Presiding Officer is, and I have to make this is about fairness. plain why, although it sounds reason- my case to you because you are not Why should an indigent defendant able what my friend said. We have gone going to automatically grant what I re- have to tell the prosecutor all that he through the factfinding stage, the quest, you want to know why I want it. is investigating? You say, ‘‘They don’t trial, this is just on habeas appeals, So you have to ask me, ‘‘Joe, why do have to under the law.’’ They do prac- and why do you want to dig stuff up? you want it?’’ And in order for me to tically, Mr. President, because they do Many of the habeas appeals are pre- convince you to give me the resources, not have the resources to hire these mised on the following proposition: I have to say to you in front of the folks to do the investigation. There- The defendant says, ‘‘Hey, look, I got other guy, ‘‘Well, I want it, Judge, be- fore, they have to ask for that. In order convicted, I got convicted unfairly be- cause I think this witness is going to to get the judge to give them those re- cause there was perjured testimony in show that the witnesses for the pros- sources, they have to tell him why my trial,’’ like a couple trials that ecution are lying.’’ Bingo, out of the they want those resources; thereby, the were mentioned here today, actually bag. effect is they have to tell them. They happened. I am not making these up, Now, if I could say to you, ‘‘Judge, I should not have to do that. Wealthy de- they happened. can’t say in front of the prosecutor fendants do not have to do it. Prosecu- It turns out, for example, the pros- here. Could you ask the prosecutor to tors do not have to do it. Poor people ecutor had a witness that would have step out of the room and I will tell should not have to do it. said, ‘‘I was with Charlie Smith and he you?’’ If you could say that, then that I yield the floor and thank my col- couldn’t have committed the crime,’’ will get it done. I do not mind the pros- league. and the prosecutor never let anybody ecutor being in there as long as when it Mr. HATCH addressed the Chair. know that. Conversely, someone gets comes to me to make my case as to The PRESIDING OFFICER. The Sen- on the stand in the trial and lies and it why I need the resources that the pros- ator from Utah. is later found out that they lied. ecutor is not there. Mr. HATCH. Mr. President, I appre- The reason why the defense attorney So I toyed with the idea of changing ciate what my colleague is saying, and needs to be able to investigate is to be the law to say, ‘‘No ex parte proceed- I know he, with his experience, feels able to root that out. You have a de- ings, communication, or request may very deeply about it. The real problem fendant saying, ‘‘Look, I am about to be considered pursuant to this section is and the reason we have to oppose be put to death, but I’m telling you, unless a request is made concerning this amendment is because at this Charlie Smith lied. If you just go find the need for confidentiality.’’ A request point in the proceedings, we have had a Harriet Wilson, I found out she knows is made—a request—not a showing, be- trial, three appeals, we have had other he lied.’’ cause when you move from request to proceedings, but at this point in the This is what happened. I am asking showing, you are required to lay your proceedings, to which Senator BIDEN is my staff to check the Carter case. I am cards on the table. ‘‘The very cards I referring, all claims should have been not sure of the facts in the Carter case. have to show you, Your Honor, in order out in the open. At that point, they If I am not mistaken, there was addi- to get you to allow me the money,’’ I should be out in the open. They should tional evidence found out after the have to do it in front of those folks. not be investigating new claims at this trial—after the trial. That is why the We do not ask that for a defendant point. defendant needs the same tools avail- who can afford a lawyer. We do not ask Frankly, ex parte proceedings are able to him or her that a wealthy de- that for a prosecutor. We only ask that simply unnecessary at this point in the fendant would need or the prosecutor for somebody who is poor, and that is a proceedings. This is just simply an- needs. That is all I am saying. Do not double standard. That is a double other way of dragging out the process be misled by the notion that the trial standard. To put it another way, Mr. and the proceeding, permitting the de- is over, therefore, there is no other President, if we wanted to make it fense counsel to argue his case outside factfinding to go on, you do not need even for everybody, we should require the presence of the prosecutor. That is an investigator. the privately paid defense lawyer to why we have to oppose this amend- For example, in the Hurricane Carter have to tell the prosecutor every single ment. case—I wanted to make sure I was investigator he or she hires and why I suppose we could argue that we right on my facts here—after the trial they hired them, and we should have to should never finish these proceedings; was over, Hurricane Carter’s lawyers tell the prosecutor they have to tell that there is no finality; that people found out that there was a polygraph the defense lawyer every single thing who do not like the death penalty want test given to one of the witnesses, and their investigator is doing before they these things to go on forever hoping the outcome of that polygraph test sus- do it. That would be fair. Now every- that nobody ever has to live up to the tained Hurricane Carter’s assertion body is on the same playing field. Now judgment of the court or the jury, but that he was innocent. It was never poor folks are treated just like wealthy that is what we are trying to solve made available. They never told any- folks. Prosecutors are treated just like here. body such a test was done. Therefore, defendants. That would be fair. The bill before the Senate protects it took investigative work after the But what do we have here? We have a constitutional rights. It protects civil trial to go back and dig this out. They situation where I am poor, he is liberties. We give them every chance dug it out. wealthy, and she is a prosecutor. She under our bill to be able to pursue their Old Hurricane Carter ‘‘ain’t’’ dead does not have to tell me anything claims. There is no reason why they now, and the reason he is not dead now about what she is investigating as a should be able to walk into a court is because they dug that, among other prosecutor. He does not have to tell her room and get an ex parte hearing with- facts, out. That is the investigative anything about what he is investigat- out having counsel for the State work we are talking about. Keep in ing as a defendant, he can afford it. But present and having hired people to in- mind now, this does not in any way ex- I have to tell everybody. It is not fair; vestigate new evidence over the last 6 tend the number of appeals someone S 7820 CONGRESSIONAL RECORD — SENATE June 7, 1995 can make. This does not in any way ex- The PRESIDING OFFICER. Without would be much greater if the perpetra- tend the time in which appeals have to objection, it is so ordered. tors were allowed to sit on death row be filed. This is just simple fairness. Mr. NICKLES. Mr. President, again, I for many years. She is a former Tulsa Treat poor people like you treat thank my friend and colleague from resident. Diane Leonard, her voice wealthy people during and after the Utah for his leadership on this bill and cracking with emotion, described in trial. for his willingness to bring it to the graphic detail the injuries her husband I yield the floor. floor so quickly. I also thank Senator suffered. She urged Senators to have Mr. HATCH. One more sentence. This DOLE, because I remember after the the courage to amend the law to allow is after direct appeals, after collateral tragedy of April 19 in my State, talk- death sentences to be carried out in 2 appeals have been done, after the State ing to Senator DOLE either that day or or 3 years. has decided the issue on perjury, or to the next day, he stated to me his will- I respect the fact that some of our use his hypothetical, where they would ingness to bring legislation forward to colleagues feel differently on the death have had the opportunity. All we ask is the Senate as quickly as possible. He penalty. We have heard some of them that the State not be hammered. We has met that obligation. We do not speak eloquently today. They are op- have had judges that do these things. usually move very fast in the Senate. I posed to habeas corpus reform in large States have had inordinate expenses, appreciate his willingness to schedule part, in many cases, because they do and there is little or no justification this as early as possible. I also appre- not want the death penalty to ever be for it. ciate the fact that finally we are going carried out. I respect their position, Mr. President, I move to table the to bring this issue to a conclusion. but I do not think they are correct. I Biden amendment and I ask for the It was my hope that we were going to think they are wrong. yeas and nays. finish it last night. I wanted to be in Mr. President, I fear that our crimi- The PRESIDING OFFICER. Is there a Oklahoma today because of some base nal justice system is in critical condi- sufficient second? closing hearings both in Enid and in tion. The past couple of years have There is a sufficient second. Oklahoma City, Vance and Tinker Air shown a dip in America’s crime rate, The yeas and nays were ordered. Force bases. That is very important. but over the course of years our crime Mr. HATCH. I ask unanimous consent But I feel like this issue is most impor- rate has gone up and up and up. that the vote on the motion to table tant for my State and for many people Today, an American is about 21⁄2 the Biden amendment No. 1253 be at a across our country. It is vitally impor- times more likely to be a victim of a time to be determined by the majority tant that we enact habeas corpus re- property crime than he or she was in leader after consultation with the mi- form. 1960. nority leader, but not before 2 p.m. On Monday of this week I was hon- Today, an American is about four today. times more likely to be a victim of a The PRESIDING OFFICER. Without ored to meet with about a dozen Okla- violent crime than he or she was in objection, it is so ordered. homans who had lost family members 1960. Mr. HATCH. I ask that the Biden in the Oklahoma City bombing. These And in the face of these sobering amendment No. 1253 be laid aside and brave individuals came to their Na- numbers and the numbing real-life sto- that the Senator from Michigan be rec- tion’s Capital to honor their loved ones ries that appear on our television sets ognized to offer his amendment. by asking the U.S. Senate to do one The PRESIDING OFFICER. Without meaningful thing—enact tough habeas every night, our criminal justice sys- objection, it is so ordered. corpus reform on the antiterrorism tem appears less and less able to dis- Mr. HATCH. I ask unanimous consent bill. pense justice. that at the conclusion or yielding back There are several important parts of This bill, if it contains tough, new of time on the Levin amendment it be the bill that is before us, but the one habeas corpus reforms, can be an essen- set aside and the vote occur on or in re- key element that will help the victims tial step along the path to reform. No adult in Oklahoma can consider lation to the Levin amendment No. of the Oklahoma City bomber and the probable prospects for the Okla- 1245 following the vote on the motion other victims of violent crime in ha- homa City bomber without reflecting to table the Biden amendment. beas corpus reform. The PRESIDING OFFICER. Without I will read a couple of the comments on the man who until a few weeks ago objection, it is so ordered. that some of the victim’s families was Oklahoma’s most notorious killer. Mr. HATCH. It is my understanding made: That man is Roger Dale Stafford who, that the distinguished Senator from In Oklahoma City they had a press con- in 1978, murdered nine persons in two Oklahoma has asked for some separate ference and came to the State capitol to urge separate incidents. Roger Dale Stafford time. Congress and the President to implement ha- was given nine death sentences for I ask unanimous consent that he be beas corpus legislation that would signifi- those murders, but he is living still. given that opportunity to speak at this cantly reduce the appeals process and expe- Roger Dale Stafford does have an dite the imposition of death sentences. In execution date; it is July 1, 1995. But time. strained, choked voices, they talked of the The PRESIDING OFFICER. Is there Roger Dale Stafford has had execution tragedy that tore at the city, leaving shat- dates before, and they all have come objection? tered families still only beginning to absorb Without objection, it is so ordered. the depths of their losses. Connie Williams and gone. Whether this date will be the Mr. HATCH. I ask that the time not wore a button with her dead son Scott’s pic- last I do not know for his attorney has be charged to Senator LEVIN or our ture, bearing the words ‘‘Beloved Scott, Our announced that he will seek another side. Special Angel.’’ His pregnant wife, Nicole, stay of execution. Incidentally, this is The PRESIDING OFFICER. Without said, ‘‘I do not want his daughter to be in the same attorney who has been ap- objection, it is so ordered. high school wondering why his killers are pointed to represent Timothy James Mr. NICKLES. Mr. President, first, I still on death row.’’ McVeigh, the man being held in con- wish to compliment Senator HATCH for She is right. nection with the Oklahoma City bomb- his leadership on this bill, and I also Some of the families came up to our ing. compliment Senator DOLE for his lead- Nation’s Capitol on Monday. One was Roger Dale Stafford’s crimes are well ership in bringing this bill to the floor Diane Leonard. Her statement was, known in Oklahoma, but the fact that and his willingness to bring it to the ‘‘Our pain and anger are great.’’ Her they are well known does not reduce Senate this early. husband is gone, a Secret Service agent their ability to shock and sadden any- Mr. HATCH. If the Senator will yield, killed in the bombing in Oklahoma one who hears of his wickedness. before the Senator gets into his re- City. I might mention he was an agent On June 21, 1978, after searching un- marks, I want to also ask unanimous of the Secret Service for 25 years. She successfully for a business to rob, consent that immediately following added, ‘‘But it would be much, much Roger Dale Stafford, his wife, Verna, the Senator from Oklahoma the Sen- greater if the perpetrators of this and his brother, Harold, decided to stop ator from Michigan be granted 10 min- crime are allowed to sit on death row their car, raise the hood, and feign dis- utes, without having the time count for many years.’’ She is talking about tress, in hopes that a wealthy and vul- against any amendment. the pain and anger are great, but it nerable Good Samaritan would come June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7821 along. They pulled their car to the side As I said, Mr. President, Roger Dale ability of habeas corpus to State pris- of the road, and Verna Stafford at- Stafford lives still, and each day his oners, beyond the various remedies and tempted to flag down passing cars. penalty becomes farther and farther re- layers of review available in State Roger and Harold Stafford lay in wait moved from the crimes for which it is courts, has little or no value in avoid- in the darkness. so eminently justified. Justice still ing injustices or ensuring that the Fed- Eventually, a blue Ford pickup truck waits for Roger Dale Stafford. eral rights of criminal defendants are with a white camper shell pulled off And, why the delay? Because since respected. The typical applicant has al- the road, and the driver, Air Force Sgt. his convictions, Roger Dale Stafford ready secured extensive review of his Melvin Lorenz approached Verna Staf- has made at least 18 reported appear- case in State courts, having pursued a ford with an offer to help. Sergeant ances in Federal and State courts. He State appeal and often having initiated Lorenz looked under the hood of the has been before the U.S. Supreme collateral attacks in State courts. The Stafford automobile and said that he Court six times—1985, 1985, 1985, 1984, claims raised by such defendants are could find nothing wrong. At that 1984, 1984—before the U.S. Court of Ap- normally without substance and are point, the Stafford brothers confronted peals for the 10th Circuit once, 1994, be- likely to be technical, that is, to allege Sergeant Lorenz and demanded his wal- fore the Oklahoma Supreme Court procedural irregularities which cast no let. Roger Stafford was armed with a once, 1986, and before the Oklahoma real doubt on the defendant’s guilt. pistol. Sergeant Lorenz informed the Court of Criminal Appeals nine times, Let me just mention the cases in Staffords that he and his family were 1993, 1992, 1991, 1990, 1987, 1985, 1985, 1983, Oklahoma City. I talked to a Federal on their way to his mother’s funeral in 1983. This list does not include appear- judge, the first judge I was responsible North Dakota, and that he could give ances which were not officially re- for getting appointed in Oklahoma. the appellant some money, but not all ported. It omits one pretrial appear- 1982 was his first year on the court. that he had. Roger Dale Stafford then ance at an appellate court, 1979. And, it They had 193 prisoner appeals made to shot Sergeant Lorenz twice, killing omits all activity at the trial courts. the Federal courts—193. That happened him. Mr. President, 17 years ago he mur- to be about 10 percent of their case- Hearing the shots, Linda Lorenz, Ser- ders teenagers, he murders an innocent load. In 1992, 10 years later, they had geant Lorenz’s wife, got out of the family that is trying to help him out, 630. The number more than tripled, an pickup truck and ran toward her hus- and he is still on death row. That is not band. Verna Stafford knocked Mrs. increase to 25 percent of their caseload. justice delayed, that is justice denied. Prisoners are finding it pretty easy Lorenz to the ground, and Roger Staf- What about the families that lost to make appeals, and they are appeal- ford shot her as she fell, killing her. teenagers in that incident? What about ing to the Federal system. There is no The murderers then heard a child the families that lost loved ones—178— limit to the number of appeals. They calling from the back of the camper. in the Oklahoma City bombing inci- can appeal for anything. They can ap- Roger Stafford approached the camper, dent; 178, with over 400 injured? Are we peal on habeas that they were incor- cut a hole in the screen, and fired his going to be telling them 15, 17, 20 years rectly convicted, or they can appeal pistol into the darkness, forever silenc- from now, ‘‘Well, the appeals process is and say that somebody next door is ing 11-year-old Richard Lorenz. just very cumbersome,’’ and have tax- For the Lorenz murders, Roger Dale smoking or somebody next door has a payers paying not only the expense for Stafford was convicted on three counts radio too loud. And they take it all the taking care of the perpetrators of the of first degree murder and sentenced to way to the Federal court. That is hap- crime, should they be convicted and re- death for each murder. pening hundreds of times. That was first of Roger Dale Staf- ceive the death sentences, as they sure- ly should and hopefully will. What are In Oklahoma City and the western ford’s murderous episodes in Okla- district in 1992, there were 630 prisoner homa. A month later, he struck again: we going to tell those families? I met with some of the victims that petitions. Some of the prisoners are On July 16, 1978, Roger, Verna, and specializing in this. There is nothing Harold Stafford robbed the Sirloin lost two children. I met with them Fri- day. A young lady in her early twenties else to do. So they have legal access, Stockade Restaurant in Oklahoma they have access to the library, and City. The trio waited in the res- lost both her kids. I met with a daugh- ter that lost her father just last Mon- they can abuse this process for all it is taurant’s parking lot until all the cus- worth. And so what if it ties up the tomers had left, then knocked on the day. I met with three spouses that lost their spouse. One of the individuals court? So what if it keeps them kind of side door of the restaurant. When the busy? So what if they are as guilty as manager answered, he was greeted by that was here was an uncle who lost his nephew, whose wife is expecting. What they possibly can be? So what if they Roger and Harold Stafford pointing have been convicted and gone through guns at him. They forced him to take about that child who will never see her father alive? Are we going to tell that every appeal in the process and been to them to the cash register and the office the Supreme Court? safe. child, ‘‘Well, we are sorry, but the per- Harold and Verna Stafford held five son that was responsible for murdering Roger Dale Stafford has had his case employees at gun-point while Roger your dad is still in Federal court, he is to the Supreme Court six times, and Stafford had the manager empty the still in prison living pretty well, every time the Supreme Court said, office safe which contained almost watching TV; Uncle Sam, or the Gov- ‘‘Guilty.’’ Yet he files another petition. $1300. All six employees were then or- ernment, is taking care of him, giving I expect he has another one in the dered inside the restaurant’s walk-in him three meals, making sure all his typewriter right now. It just so hap- freezer. Once inside, Roger Stafford rights are protected,’’ and allow him to pens his attorney is a very competent, shot one of the hostages, then both abuse the process for 15 years or so? I very professional, very good attorney, men opened fire on the remaining em- do not think so. That is not justice to Steven Jones. He also happens to be ployees. Roger Stafford told Verna that the families. That is not justice, pe- the same attorney that will be defend- it was time for her to take part. He riod. ing Mr. McVeigh. I do not want the vic- placed his gun in her hand and helped So we need habeas corpus reform. We tims of the Oklahoma City bombing to her pull the trigger. have needed it for a long time. I am have to wait 17 or 20 years for justice. All six Sirloin Stockade employees glad the President has reversed himself That is why we need habeas corpus re- died as a result of the shootings. They and now agreed that we need this on form. were: Terri Michelle Horst, age 15; this bill. This will allow the families to Second, the habeas system demeans David Gregory Salsman, age 15; David at least have some knowledge that federalism. The present system of re- Lindsay, age 17; Anthony Tew, age 17; there will be justice, and hopefully we view is demeaning to the State courts Louis Zacarias, age 46; and Isaac Free- will move very quickly. and pointlessly disparaging to the ef- man, age 56. Mr. President, I want to make some forts to comply with Federal law in For the Sirloin Stockade murders, general comments on habeas corpus re- criminal proceedings. A single Federal Roger Dale Stafford was convicted on form because we have needed this for a judge is frequently placed in the posi- six counts of first degree murder and long time. First, our habeas system tion of reviewing a judgment of convic- sentenced to death for each murder. does not promote justice. The avail- tion that was entered by a State trial S 7822 CONGRESSIONAL RECORD — SENATE June 7, 1995 judge, reviewed and found objection- of all this for that one criminal act and the Today I rise to also just indicate my able by a State appellate court, and ultimate conviction. The best estimates overall support for this legislation. upheld by a State supreme court. An could not be very accurate, but they added Clearly, the people in our country and independent determination of the con- to a quarter of a million dollars. The tragic in our State of Michigan in particular aspect was the waste and futility since every tentions raised by the applicant is re- lawyer, every judge and every juror was fully stand back and look at the events quired of the Federal judge although he convinced of the defendant’s guilt from the which took place in Oklahoma City may have no doubt that the State beginning to the end.’’ 25 Record of the with great concern. They have asked us courts were conscientious and fair. N.Y.C. Bar Assoc. 14, 15–16 (Supp. 1970). to act. I believe this bill properly in- State judiciaries are presumed to be in- Fifth, the way our habeas system is corporates the best ideas as to the capable of applying Federal law, or un- used nullifies capital sentences. The sorts of actions we should be taking at willing to do so. constitutionality of the death penalty this time to address the problem of ter- I know Senator KYL will have an has been settled since 1976. Thirty- rorism, wherever it may originate. amendment later that would address eight States now authorize capital pun- At this point I would like, in my re- that, and I compliment him for his ishment, but the inefficiency of current marks, to highlight a series of provi- amendment and plan to support him in court procedures has resulted in a de sions in the bill I have worked on with his efforts. facto nullification of capital punish- our outstanding floor leader and my Third, habeas corpus defeats the de- ment laws. The public interest organi- good friend, the Senator from Utah, mand for finality. The current system zations that routinely involve them- with the majority leader, and others. of Federal habeas corpus defeats the selves in capital cases have fully ex- These provisions would facilitate the important objective of having an end ploited the system’s potential for ob- deportation of aliens who have com- to litigation. The costs of such a sys- struction. Delay is maximized by defer- mitted serious crimes while in the tem were eloquently described by the ring collateral attack until the eve of United States. late Justice John Harlan in Mackey v. execution. Once a stay of execution has The provisions at issue, contained in United States, 401 U.S. 667, 690–91 (1971): been obtained, the possibility of carry- title III, section 303(e) of the bill, re- Both the individual criminal defendant and ing out the sentence is foreclosed for quire that aliens who are convicted of society have an interest in insuring that additional years as the case works its there will at some point be the certainty serious crimes in courts of law in this way through the multiple layers of that comes with an end to litigation, and country be deported upon completion State and Federal courts. that attention will ultimately be focused not of their sentences without any further on whether a conviction was free from error Mr. President, this country des- perately needs reform in its criminal judicial review of the order of deporta- but rather on whether the prisoner can be re- tion. These expedited deportation pro- stored to a useful place in the community. justice system. Habeas corpus reform is * * * If law, criminal or otherwise, is worth an important part of that necessary re- cedures will apply to the almost half a having and enforcing, it must at some time form, and this bill is an excellent place million aliens currently residing in provide a definitive answer to the questions to start reforming habeas corpus. this country who are deportable be- litigants present or else it never provides an I agree with the families of the Okla- cause they have been convicted of com- answer at all. * * * No one, not criminal de- homa City dead: Habeas corpus reform mitting serious felonies. fendants, not the judicial system, not soci- ety as a whole is benefitted by a judgment is an inadequate, but necessary, memo- Under the Immigration and National- providing a man shall tentatively go to jail rial to the memories of those who died ity Act, aliens who are convicted of today, but tomorrow and every day there- in that dreadful, murderous blast. felonies after entry are already deport- after his continued incarceration shall be Again, I compliment Senator HATCH able. They are rarely actually de- subject to fresh litigation on issues already for his leadership, and Senator DOLE ported, however, because criminal resolved. for bringing this to the floor of the aliens are able to request equitable Fourth, habeas procedures are waste- Senate and Senator DOLE for pushing waivers from the courts and other ful. The current system is wasteful of the Senate for the last several days, in- types of judicial review that were never limited resources. At a time when both cluding last night. meant to apply to convicted felons. State and Federal courts face stagger- I am glad that finally we are going to Such abuse of process operates to pre- ing criminal caseloads, we can ill af- have this bill come to a conclusion and vent the order of deportation from be- ford to make large commitments of ju- have cloture, and allow us to have ha- coming final. dicial and prosecutorial resources to beas corpus reform which, again, in my Notably, both the administration’s procedures of dubious value in further- opinion, is the most significant ele- antiterrorism bill and S. 735 contain ing the ends of justice. Such commit- ment of true crime control that we can expedited deportation procedures for a ments come at the expense of the time enact. small class of aliens reasonably sus- I am hopeful we can send a positive available for the stages of the criminal pected of planning future terrorist ac- signal to the families of the victims in process at which the questions of guilt tivity. The administration’s bill, how- the Oklahoma City bombing and tell and innocence and basic fairness are ever, makes no provision for rapid de- them that, yes, we are going to have an most directly addressed. Former Chief portation of aliens who have actually end to these endless appeals, and that Justice Warren Burger made the fol- committed crimes. This, despite the justice will be done and it will be done, lowing points: fact that the Attorney General has said as President Clinton said, in a timely I know of no society or system of justice that the removal of criminal aliens manner as well. that takes such scrupulous care as we do to from the United States is one of the ad- give every accused person the combination The PRESIDING OFFICER (Mr. ministration’s highest priorities and of procedural safeguards, free legal counsel, FAIRCLOTH). The Chair recognizes the free appeals, free records, new trials and post Senator from Michigan. that our prisons and jails are crowded conviction reviews of his case. I have seen Mr. ABRAHAM. Mr. President, I rise with criminal aliens. The substitute to cases—and this occurs in many courts today in support of this legislation as S. 735 remedies that omission. today—where three, four, and five trials are According to the FBI, foreign terror- accorded to the accused with an appeal fol- well. I also pay tribute to my colleague lowing each trial and reversal of the convic- from Oklahoma, whom I think today ists have been responsible for exactly tion on purely procedural grounds. * * * In presented an extraordinarily strong two terrorist incidents in the United some of these multiple trial and appeal cases and compelling argument in favor of States in the last 11 years: the World the accused continued his warfare with soci- the reforms of habeas corpus that we Trade Center bombing and a trespass- ety for eight, nine, ten years and more. In are looking at today, and against a se- ing incident at the Iranian mission to one case more than 60 jurors and alternates ries of amendments. the United Nations. While the World were involved in five trials, a dozen trial Later in my remarks I will address Trade Center bombing was obviously a judges heard an array of motions and pre- some of those reforms and that issue, very serious matter, it should not be sided over these trials; more than 30 dif- ferent lawyers participated either as court- although I am unable to think of how I the exclusive focus of our efforts to appointed counsel or prosecutors and in all can address them more vividly and ef- take strong action to protect American more than 50 appellate judges reviewed the fectively than the Senator from Okla- citizens from criminal conduct by non- case on appeals. I tried to calculate the costs homa has already done. citizens. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7823 More than 53,000 crimes have been In addition, these provisions will re- ment on people who have committed committed by aliens in this country re- quire deportation of criminal aliens extremely heinous crimes. cently enough to put the perpetrators within 30 days of the conclusion of the This is not fair to the people, who are in our State and Federal prisons right alien’s prison sentence in most cir- entitled to determine the punishments now. An estimated 20 to 25 percent of cumstances. to be accorded crimes committed in all Federal prison inmates are Finally, they will apply these expe- their States. Nor is it fair or even hu- noncitizens; in California, almost one- dited deportation to aliens who have mane to the families of the victims of half of the prison populations are committed the ‘‘General Crimes’’ listed crime. noncitizens. According to a 1995 Senate in section 1251 of title 8 of the United The habeas reforms in the Report on Criminal Aliens in the Unit- States Code. These include crimes such antiterrorism bill impose reasonable ed States, a conservative estimate of as murder, rape, drug trafficking, espi- limits on the use of the writ—reforms the total number of deportable crimi- onage, sabotage, and treason. that are long overdue. I support these nal aliens presently residing in the These reforms are extremely reason- reforms and I urge the Senate to enact county is 450,000. All of these aliens able. Aliens in this country who com- the antiterrorism bill. have committed at least one serious mit these crimes will still be afforded Mr. President, I yield the floor. crime in this country. For that reason all the due process protections and I suggest the absence of a quorum. all are deportable under the law. They lengthy appellate and habeas corpus re- The PRESIDING OFFICER. The have not been deported because they view afforded U.S. citizens on the un- clerk will call the roll. have been able to prevent the order of derlying offense. Moreover, once those The bill clerk proceeded to call the deportation from ever becoming final appeals have run and the conviction roll. by seeking repeated judicial review. has been upheld, the alien will con- Mr. LEVIN. Mr. President, I ask The grounds on which criminal aliens tinue to be entitled to a hearing before unanimous consent that the order for are legitimately entitled to waivers of an immigration judge to determine the quorum call be rescinded. deportation are extremely narrow. To whether an order of deporatation The PRESIDING OFFICER. Without avoid deportation, criminal aliens es- should be entered. And if an order of objection, it is so ordered. sentially must prove a case of mis- deportation is entered, the alien will AMENDMENT NO. 1245 TO AMENDMENT NO. 1199 taken identity—that the alien is not still retain the right to appeal the (Purpose: To retain an avenue for appeal in who the Government thinks he is; that order to the Board of Immigration Ap- the case of prisoners who can demonstrate he is not an alien, at all; or that he has peals. The substitute to S. 735 only actual innocence) been pardoned or had his conviction eliminates additional judicial review Mr. LEVIN. Mr. President, I call up overturned. Mistakes of this order do for criminal aliens beyond this point. an amendment at the desk and ask for not happen often. Mistakes of this Without the rapid deportation provi- its immediate consideration. order certainly have not happened sions for criminal aliens in this legisla- The PRESIDING OFFICER. The 450,000 times—for each of the deport- tion, aliens who are convicted felons clerk will report. able criminal aliens currently in the will continue to be deported at the cur- The bill clerk read as follows: country. Rather, the alien’s capacity rent pace, that is about 4 percent a The Senator from Michigan [Mr. LEVIN] to demand successive judicial review, year. At this rate—assuming no alien proposes an amendment numbered 1245 to even wholly merit less judicial review, is ever convicted of another felony—it amendment No. 1199. grinds the deportation process to a would take 23 years to deport all the Mr. LEVIN. Mr. President, I ask halt. aliens presently residing in the country unanimous consent that reading of the Meanwhile, the Immigration and who are under felony convictions. amendment be dispensed with. Naturalization Service does not have Meanwhile, many will be released back The PRESIDING OFFICER. Without adequate facilities to house this many into society to prey on more American objection, it is so ordered. criminal aliens. As a result, the great citizens. No country, no matter how The amendment is as follows: majority of these convicted felons are civilized, should continue to tolerate released back to our streets after serv- On page 106, line 12, strike ‘‘and’’ and all this abuse. that follows through the end of line 17 and ing their sentences, with instructions For that reason, as well as the many substitute the following: to report several months later for a others that have been advanced over ‘‘or hearing before the INS. the past few days, we should enact this ‘‘(B) the facts underlying the claim, if Needless to say, the majority of legislation, and quickly too. I urge the proven and viewed in light of the evidence as criminal aliens released from custody Senate to do just that. a whole, would be sufficient to establish that do not return for their hearings. Hav- Finally, Mr. President, I would like constitutional error has occurred and that ing been returned to the streets to con- more likely than not, but for that constitu- to say a few words about another very tional effort, no reasonable factfinder would tinue their criminal predation on the important set of provisions in this bill: have found the applicant guilty of the under- American citizenry, many are the sections that would reform habeas lying offense.’’ rearrested soon after their release. corpus. On page 110, line 3, strike ‘‘and’’ and all Thus, for example, a recent study by Like the provisions concerning de- that follows through the end of line 9 and the GAO found that 77 percent of portation of criminal aliens, the habeas substitute the following: noncitizens convicted of felonies are corpus reforms in the bill correct a ‘‘or rearrested at least one more time. In common abuse of judicial process in ‘‘(ii) the facts underlying the claim, if proven and viewed in light of the evidence as Los Angeles County alone, more than our criminal justice system. In this half of incarcerated illegal aliens are a whole, would be sufficient to establish that case they correct the obstructive and constitutional error has occurred and that rearrested within 1 year of their re- abusive manipulation of the writ of ha- more likely than not, but for that constitu- lease. beas corpus by criminals who have tional error no reasonable factfinder would The provisions at issue will put an been convicted of serious violent have found the applicant guilty of the under- end to this abuse of process by doing crimes. lying offense.’’ the following: Right now, the delay made possible Mr. LEVIN. Mr. President, it is my First, they will prohibit the Attorney by abuse of this writ allows convicted intention to offer and modify this General from releasing criminal aliens criminals to essentially overrule a amendment. I will do that in a moment from custody prior to deportation. State’s entire criminal justice system. so that the amendment clarifies lan- They will also eliminate judicial re- By filing repetitive or frivolous habeas guage that more precisely tracks the view for orders of deportation entered corpus petitions, criminals are able to Supreme Court language which is the against criminal aliens—although delay the imposition of capital sen- subject of the amendment. criminal aliens will still be entitled to tences indefinitely. This delay in turn I ask unanimous consent that the challenge their orders of deportation seriously undercuts the moral author- modification be in order. before the Board of Immigration Ap- ity of the people, through their elected The PRESIDING OFFICER. Without peals. representatives, to impose this punish- objection, it is so ordered. S 7824 CONGRESSIONAL RECORD — SENATE June 7, 1995 AMENDMENT NO. 1245, AS MODIFIED, TO the person is probably—that is the key fect, a petitioner persuades a court AMENDMENT NO. 1199 word—actually innocent of the under- that he or she is probably innocent of Mr. LEVIN. Mr. President, I send a lying offense. I want to go back into the underlying crime? Will we permit a modification to the desk. history in order to give the background second petition to be granted so that The PRESIDING OFFICER. The of this issue. there can be a hearing? We are not amendment is so modified. As I have said, the court as well as talking about now release from prison. The amendment (No. 1245), as modi- the Congress has found that the writs We are just talking about whether a fied, is as follows: of habeas corpus have been used exces- hearing will be available to somebody On page 106, line 13, strike clause (B) and sively—the petition, more accurately, who persuades a court that he or she is substitute the following: seeking a writ, has been used exces- probably innocent and is awaiting exe- ‘‘(B) the facts underlying the claim, if sively. This has been happening for cution. proven and viewed in light of the evidence as many, many years. Now, Justice O’Connor in the pre- a whole, would be sufficient to establish that The court in the Schlup case, which a constitutional violation has probably re- vious Carrier case, which is relied on sulted in the conviction of a person who is is the case I want to discuss at some heavily in Schlup, said the following: actually innocent of the underlying offense.’’ length, a 1995 case, went through the In an extraordinary case, where a constitu- On page 110, line 4, strike clause (ii) and history of writs of habeas corpus, and tional violation has probably resulted in the substitute the following: they found that the writ had been ex- conviction of one who is actually innocent, a ‘‘(ii) the facts underlying the claim, if cessively sought, that there had been Federal habeas court may grant the writ proven and viewed in light of the evidence as repetitious petitions, there had been even in the absence of a showing of cause for a whole, would be sufficient to establish that successive writs sought, and that the the procedural default. a constitutional violation has probably re- And the Court went on to say: sulted in the conviction of a person who is burden on the courts became too great. actually innocent of the underlying offense.’’ So in the Schlup case, the majority Explicitly tying the miscarriage of justice said the following about the history of exception to innocence Mr. LEVIN. Mr. President, Justice the applications for writs of habeas Clark, discussing the Magna Carta, And I want to repeat that word be- corpus. said the following: cause that is the heart of this amend- To alleviate the increasing burdens on the ment. We are only talking about people Ever since the Magna Carta, the greatest Federal courts and to contain the threat to who are probably innocent as found by right of personal liberty has been guaran- finality and comity, Congress attempted to teed, and the procedures of the Habeas Cor- a court and as to whether or not they fashion rules disfavoring claims raised in should be denied a hearing on the pus Act of 1679 gave to every Englishman a second and subsequent petitions. prompt and effective remedy for testing the ground that their application is a sec- legality of his imprisonment. Considered by And they then went through congres- ond application for the writ and not the founders as the highest safeguard of lib- sional enactments starting in 1966. the first application but where a court erty, it was written into the Constitution of They also then talked about what the now for the first time, faced with new the United States that its privilege shall not Court has done to restrict the applica- evidence, is satisfied that that appli- be suspended unless, when in cases of rebel- bility and the availability of petitions lion or invasion, the public safety may re- cant is probably innocent. for writs of habeas corpus, and said the And here is what the Court said: quire it. Its principle is embedded in the fun- following in the Schlup case. damental law of 47 of our States. Explicitly tying the miscarriage of justice These same concerns— Justice Clark went on to say: exception to innocence thus accommodates And that is the overutilization— both the systemic interest in finality, com- It has long been available in the Federal resulted in a number of recent decisions from ity, and conservation of judicial resources, courts to indigent prisoners . . . both the this Court that delineate the circumstances and the overriding individual interest in State and Federal Government to test the under which a district court may consider doing justice in the ‘‘extraordinary case.’’ validity of their detention. Over the cen- claims raised in a second or subsequent ha- turies, it has been the common law world’s The Court went on to say the follow- beas petition. In these decisions, the Court freedom writ. We repeat what has been so ing: held that a habeas court may not ordinarily truly said of the Federal writ. There is no reach the merits of successive claims absent Experience has taught us that a substan- higher duty than to maintain it unimpaired a showing of cause and prejudice. tial claim that constitutional error has and unsuspended, save only the cases speci- caused the conviction of an innocent person fied in our Constitution. The Court then quotes an opinion is extremely rare. To be credible, such a Mr. President, the right of habeas written by Justice O’Connor in the claim requires petitioner to support his alle- corpus over the years has been abused. Carrier case. And they said in Schlup gations of constitutional error with new reli- It has been overused and excessively that Justice O’Connor has noted the able evidence—whether it be exculpatory sci- following: entific evidence, trustworthy eyewitness ac- attempted to be utilized in many cases. counts, or critical physical evidence—that Over the years, the Congress and the In appropriate cases the principles of com- ity and finality that inform the concepts of was not presented at trial. Because such evi- courts have attempted to rein in some dence is obviously unavailable in the vast of those excesses, and have done so. cause and prejudice must yield to the imper- ative of correcting a fundamentally unjust majority of cases, claims of actual innocence Both the Supreme Court and the Con- incarceration. are rarely successful. gress have in a number of ways at- So there is an exception if the Court And the Court said that: tempted to restrict the utilization of finds a fundamental miscarriage of jus- A petitioner does not meet the threshold the right of habeas corpus so that it tice. That is what courts are for. requirement unless he persuades the district would not be abused. The bill before us, Courts can be abused but ultimately court that, in light of the new evidence, no in many respects, however, has reduced juror, acting reasonably, would have voted what they must seek to do is avoid a the utilization of the right of habeas to find him guilty beyond a reasonable fundamentally unjust incarceration corpus excessively. One particular that doubt. and a fundamental miscarriage of jus- I want to address in the next few min- Now, that is a pretty strong test for tice. And this is what the Schlup court utes would deny access to the writ on being eligible for a hearing on a second wrote. the part of somebody who a court be- writ, that a court must find an appli- lieves is actually innocent. To ensure that the fundamental mis- cant is probably innocent, meaning carriage of justice exception would remain I want to repeat that because this is ‘‘rare’’ and would only be applied in the ‘‘ex- that no reasonable juror—no reason- a very narrow group of cases that we traordinary case,’’ while at the same time able juror—would find that person are talking about. The case which this ensuring that the exception would extend re- guilty beyond a reasonable doubt. And amendment addresses is the case where lief to those who are truly deserving, this the issue becomes whether or not we a court determines that the prisoner court explicitly tied the miscarriage of jus- want to require that person to be exe- filing the writ is probably actually in- tice exception to the petitioner’s innocence. cuted. Is that person going to be exe- nocent. That is what we now must address cuted? Are we going to deny, as this I hope that sounds startling because this afternoon. It is what do we do, bill does, a Federal court the right to this is a startling subject. The subject what standard do we adopt when, on a grant a hearing on a second writ of ha- is whether or not we are going to exe- second application for a petition of ha- beas corpus when a petitioner introduc- cute somebody where a court finds that beas corpus raising a constitutional de- ing new evidence convinces a court June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7825 that he or she is probably innocent? ities have been raised by people who he or she can have successive habeas Will we deny that court that oppor- are guilty. This amendment raises the corpus petitions and our bill contains a tunity? opposite issue. This amendment raises safety valve which permits Federal Now, what the bill does is adopts the the question of whether or not we are courts to hear legitimate claims. The dissent in Schlup, which has a higher going to use a technicality to deny a Levin amendment, however, weakens standard—not the standard of prob- hearing to someone who is probably ac- the standard of review for determining ability but the standard of clear and tually innocent. whether someone is innocent from a convincing. And that is the issue on ‘‘Probably actually innocent,’’ is ‘‘clear and convincing’’ standard, this amendment, whether or not we, in that enough for a hearing when some- which is what we have in our bill, to a the Senate, are going to overturn the one is on death row or not? Or will the subjective ‘‘probably’’ innocent stand- Supreme Court decision in Schlup, procedural technicality be used to deny ard. which said that if a court is convinced that person—a rare case—a hearing be- In addition, the amendment guts the that a person is probably innocent, cause there had been a previous peti- bill’s prohibition against subsequent that is enough for that court to grant tion filed? And to meet the test of the provisions by allowing successive ha- a hearing on a second or subsequent ap- Supreme Court, the lower court must beas corpus petitions where the death plication for writ of habeas corpus, or find that it is more likely than not row inmate does not dispute his having will we adopt the dissent in Schlup, that no reasonable juror would have committed the homicide in question which says, no, probability of inno- convicted him in light of the new evi- but claims the death penalty should cence is not enough. Even if somebody dence. not be imposed. is probably innocent of the underlying Mr. President, we are having to face The amendment offered by Senator offense, we are going to execute that up to the narrowest group of cases, the LEVIN, while it seems reasonable, is person unless there is clear and con- case where there is a claim that a problematic. When the Court rules on vincing evidence, evidence above and court finds probably correct that an these issues, it does not write on a beyond probability. applicant for the great writ is probably clean slate—and I am talking about the The case itself in Schlup was a case innocent of the underlying crime. We Supreme Court. The Supreme Court where this man was already a prisoner cannot avoid this by talking about has repeatedly held, for example, that and was convicted of first-degree mur- technicalities. We are the ones who Federal courts are not the forums in der, a murder that occurred in prison, will determine whether a procedural which to relitigate criminal cases. At and was sentenced to death. In the ha- technicality will stand in the way of a the initial trial, society’s resources beas corpus proceedings, he produced a hearing for that small group of pris- have been concentrated in order to de- videotape showing him in a cafeteria oners who persuade a court that they cide the question of guilt or innocence. lunch line at the time the killing oc- are probably innocent of the underly- Therefore, a petitioner making a claim curred in a different place, sworn testi- ing crime. of actual innocence falls well short of mony from a prison guard stating that This may be and probably is only a satisfying his burden if the reviewing Schlup could not have committed the very few percent of persons who are in court determines that any juror rea- murder, and sworn testimony of five prison on death row, but we know that sonably could have found the peti- eyewitnesses that Schlup was not these cases exist. There were two of tioner guilty of the crime. present and did not participate in any them in 1995. In addition to the Schlup The proposed amendment attempts way in the murder. case, we had the case of Curtis Kyles. to follow the Supreme Court’s recent The Federal court of appeals judge In that case, the Supreme Court found decision in Schlup versus Delo in which found—this is the court of appeals now, that the prosecution had improperly the Court exacerbates the confusion in before the Supreme Court—the court of suppressed evidence of Mr. Kyles’ inno- the lower courts, undermines the final- appeals judge found ‘‘truly persuasive cence and that this evidence would ity of lawful convictions and creates a evidence that Mr. Schlup is actually have made a different result reasonably greater uncertainty as to the standard innocent.’’ Despite that, the majority probable—reasonably probable. The under which a court must hold an evi- of the court of appeals upheld the Court agreed with Judge King of the dentiary subsequent hearing. death sentence and refused to grant a fifth circuit, who expressed ‘‘serious I know that I have said this many hearing on the new evidence. The court reservations about whether the State times before, but we are dealing with held that under the clear and convinc- has sentenced to death the right man.’’ postconviction collateral proceedings, ing test, the test that they thought Mr. President, how much time do I not a trial. This is posttrial. Habeas they should follow, they would not have left? corpus review is a postconviction rem- grant a hearing in his application. The PRESIDING OFFICER. The Sen- edy. This is postjury verdict. This is Earlier this year, the Supreme Court ator has 4 minutes 7 seconds. postsentence by the court. What it overruled that court of appeals saying Mr. LEVIN. I thank the Chair and re- means is the jury has already con- that the clear and convincing test, serve the remainder of my time. victed the individual and his convic- which is the test in the bill before us, Mr. HATCH addressed the Chair. tion and sentence have been upheld on failed to provide a meaningful avenue The PRESIDING OFFICER. The Sen- appeal. The individual had at least two by which to avoid a manifest injustice ator from Utah has 25 minutes. State appellate reviews which are sub- in cases of actual innocence. Mr. HATCH. Mr. President, again, ject to Supreme Court review. The in- The Court ruled that the fair test for what we are trying to do here is put dividual has gone to the intermediate the relief sought is whether ‘‘a con- some finality into the habeas corpus appellate court and has gone to the su- stitutional violation has probably re- procedures. The Senator’s amendment preme court of the State. sulted in the conviction of one who is just allows another loophole that is un- I might add, the appellate courts actually innocent.’’ I am going to re- justified and allows further appeals. have upheld the conviction and the peat it because that is the issue in this Because liberal judges who are opposed State habeas petitions have thus been amendment. The issue is whether we to the death penalty do not want the exhausted. In other words, there has ought to adopt the majority in Schlup death penalty imposed, there will be an been the trial, there has been a review or whether we ought to reverse it. The incentive for them to find that there is by the intermediate court, there has bill reverses it and goes with the dis- probable innocence under this amend- been a review by the supreme court of sent. The amendment would allow the ment and the whole process will have the State. The State procedures have majority of the Supreme Court in to start over again, regardless of been exhausted. It also means that pe- Schlup to utilize that test in habeas whether the petitioner is truly inno- titions to the Supreme Court have been corpus proceedings, the test being that cent of the crime. filed. In other words there have been whether a constitutional violation has The Hatch substitute, our bill, the two rounds of State review both of probably resulted in the conviction of Specter-Hatch bill, permits successive which were the subject of a petition for one who is actually innocent. habeas corpus petitions in death pen- certiorari to the Supreme Court of the I think most of us feel that habeas alty cases where the petitioner may be United States of America, and that corpus has been abused, that technical- innocent. If the petitioner is innocent, both of those Supreme Court petitions S 7826 CONGRESSIONAL RECORD — SENATE June 7, 1995 have been denied; and at least in col- have a man in California sitting on I mention these cases—Randall Dale lateral cases, as a general rule, the death row almost for 50 years—succes- Adams and Walter McMillan—not be- Governor also has ruled on the case be- sive habeas corpus petitions all the cause I advocate abolition of Federal cause there has been a petition for time, on and on. In Utah, we had the habeas corpus. It is clear that we pro- clemency; and the Government has Andrews case. It lasted 18 years. He tect it in the Specter-Hatch also reviewed the claim in a clemency filed over 30 different habeas corpus pe- antiterrorism bill. I am not advocating petition and has denied it, too. At this titions—30 different habeas corpus pro- abolition of Federal habeas corpus. The point, the prisoner’s conviction has ceedings—over that 18 years before the responsible scholars and lawyers and been proved beyond a reasonable doubt. death penalty was finally carried out. law enforcement professionals do sup- It has been upheld on direct and State All this does is continue the old sys- port banning and getting rid of Federal collateral review. The conviction has tem, the old business as usual. Frank- habeas corpus. There are many bright also been upheld on the death row in- ly, because we all know the distin- people who think that this system is mate’s Federal habeas petition. It is at guished Senator from Michigan is one out of whack and that we do not need this point in the process—after all of of the most eloquent advocates against Federal habeas corpus. But I am not these reviews—where my colleague the death penalty in this body—and I arguing that position. from Michigan wants to give individual have respect for him; I believe he is We have provided for protection of Federal judges broad, subjective au- very sincere on this issue—I think it is Federal habeas corpus, but we do it one thority to determine whether someone fair for him to argue against the death time and that is it—unless, of course, is innocent of the crime he or she was penalty straight up. But to just provide they can truly come up with evidence convicted of. We allow such a deter- a mechanism whereby there can be an- of innocence that could not have been mination by a Federal court but we other appeal because some liberal presented at trial. There we allow suc- propose a more certain standard rather judge decides there ought to be an ap- cessive petitions. Any time somebody than the subjective standard employed peal and will delay a sentence that the can show innocence, we allow that. I in my colleague’s amendment. law allows, I think is wrong. I know of simply wish to provide my colleagues The proposed amendment would re- no case—not one—that has been cited some perspective on this issue. We in quire the district court to hold an evi- to the Judiciary Committee, in its the Senate, whose duty it is to enact dentiary hearing or grant a second suc- years of study on this issue, in which into law the community’s legitimate cessive petition if it could be shown Federal habeas corpus review has been interest in seeing justice done within that a constitutional violation prob- successfully employed to release an in- the parameters of the Constitution, ably resulted in an erroneous convic- nocent individual from an erroneous should soundly reject the present tion. State court conviction. It is a myth. amendment to the Dole-Hatch bill. In- First, what does probably mean in This amendment is just another deed, the Senate has a particular duty the law? Who knows? This standard method to try to get another appeal with respect to habeas corpus. As the will gut our habeas corpus proposal and delay the ultimate imposition of inscription on the Dirksen Senate Of- here today. Would it be a 50-percent the sentence. fice Building states, ‘‘The Senate is the chance of innocence? Is that what it Where is the case of an innocent per- Living Symbol of our National Union means? If that is so, then I think if the son needing Federal habeas corpus re- of States.’’ prisoner were probably innocent, his view in order to prove his or her inno- The amendment before us will not conviction would have been overturned cence? Take Randall Dale Adams, the only hinder and potentially defeat our long ago in all of these proceedings up Texas death row inmate who was the efforts to pass a true crime bill this through the State courts to the Su- subject of the documentary ‘‘The Thin year, but in so doing, this amendment preme Court, to the Governor, for Blue Line.’’ How did he establish his will also force an unprecedented and clemency. innocence after he was convicted? Not substantial intrusion into the State Second, the proposed amendment through Federal habeas corpus, but criminal justice system. would let a court decide independently through the Texas State court proceed- So I hope that our colleagues will that a defendant might be innocent. We ings—procedures similar to those vote against this amendment, as sin- go through that every day in the cur- available in virtually every State in cere as it is and as sincere as it is being rent system. Judges who do not want the Union today. offered. It is another way of just delay- the death penalty to be imposed, who Take the case of Walter McMillan, ing the process because some people do are violently opposed to it, for any rea- who was wrongfully convicted and sen- not like the death penalty. I under- son, decide there is another reason to tenced to die for the brutal robbery- stand that. I think there are good argu- let this be prolonged again, all at a tre- murder of an Alabama convenience ments on both sides of the death pen- mendous cost to the States and the vic- store clerk. Was it habeas corpus that alty. I myself would very seldom use tims of these crimes. saved his life? No, it was the State of the death penalty and only in the most So what we are saying is, the pro- Alabama. Despite being granted relief heinous of cases. On the other hand, I posed amendment would let a court de- through the States, both of these men think it is essential that we have it on cide independently that a defendant were called before the Senate Judiciary the books. There are those who would might be innocent, that there was con- Committee by a colleague of ours, who just as sincerely argue the other side, stitutional error, and that he should opposes the death penalty, to dem- that there should be no death penalty, not have been convicted. This is a onstrate why our Nation needs more that it is cruel and unusual—even some wholly appropriate standard that we Federal habeas corpus review rather of our Supreme Court Justices of the have in the bill. than less. Federal habeas corpus review past and maybe now and in the future. The Levin amendment will simply had nothing to do with it. But do not try to do it by gumming up serve to permit these prisoners who The State procedures were adequate the procedural process posttrial that have been duly convicted, their convic- and did the job in protecting their in- has plenty of protections for defend- tions upheld, all of their constitutional nocence and finding their innocence. ants. rights protected, their civil liberties Yet, they brought them up here to try There is no reason for this expensive protected to continue to raise new and show that Federal habeas corpus litigation process with frivolous ap- claims. It allows judges who does not review is important. peals to continue. That is what we are like the death penalty to make subjec- I do not know of one case where Fed- fighting today. And we are acknowl- tive determinations, many years after eral habeas corpus review has saved the edging that we protect the constitu- the conviction, to proclaim the prob- defendant. But the State procedures tional rights and civil liberties of the able innocence of a long-convicted have. In the Federal courts, the Fed- defendants in these matters. murderer. It simply serves to permit a eral direct appeal procedures have. I know the Senator from Michigan is prisoner to drag out his proceedings That sort of logic, as in the present very sincere and I acknowledge that. I and further delay justice. amendment, cannot even be called re- have a great deal of respect for his sin- Delayed justice is justice denied. We form even when it expands the rights of cerity and intelligence. But this are frustrated by that all the time. We convicted murderers. amendment should not pass because I June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7827 think it would make this process a con- Utah, my colleagues—I cannot believe cal division among South Africans that typi- tinuation of the current process, and I they will vote against that. cally run along racial lines, one year after think that would be a tragedy. Maybe Members will vote against it the formal end of apartheid. if they are not aware of what the On radio talk shows today, reactions were I reserve the remainder of my time. deeply split between black and white, with Mr. LEVIN. Mr. President, I will take amendment does, and a briefing is the former typically applauding the aboli- 30 seconds to tell my friend from Utah right at the desk on either your side or tion of the death penalty, while the latter, this is not a death penalty amendment. our side. These briefings—and I do not invoking high crime rates, criticized what This is a habeas corpus amendment. mean this disrespectfully to the fine many whites say in a gradual slide away The language in the bill reverses the staff—but it is very difficult to con- from law and order. Supreme Court opinion in the Schlup dense in a few words what these ‘‘Under the A.N.C., the message is that people can commit any crime and get away case. That opinion found that the man amendments do. with it,’’ said one caller to a Johannesburg in that case was probably innocent. I The Levin amendment says ‘‘If you radio station, referring to the African Na- do not think anyone in this body wants are probably innocent, you ought to tional Congress, the party of President to execute someone who is probably in- have the chance to appeal.’’ I have a Nelsen Mandela. nocent and deny that person a hearing. hard time believing that is not going to Crime has become a highly emotional issue Now, Justice O’Connor said—not be accepted unanimously. Apparently, among many whites here, even though your liberal judge—one of the majority it may not be. blacks are overwhelmingly represented I am pleased to support the Levin among the victims of violence. Last weekend in the Schlup case, said, ‘‘The court in Johannesburg alone, 42 people were killed, today does not sow confusion in the amendment, proud to support it and 477 businesses and homes were broken into law. Rather, it properly balances the vote for it. and 34 women were reported raped. dictates of justice with the need to en- I believe I have consumed my time, While whites complained of a spreading sure that the actual innocence excep- Mr. President. I hope I have been able sense of impunity, many blacks reacted by tion remains a ’safety valve’ in an ’ex- to get the message across. noting that they had been disproportionately traordinary case’.’’ Mr. President, I ask unanimous con- made victims of the death penalty in the sent to have an article printed in the past through wrongful arrests and convic- The issue is that the bill before the tions. Senate reverses the Supreme Court. RECORD. Moreover, with the death penalty much The Levin amendment is not trying to There being no objection, the mate- more likely to be applied to blacks than to bring something new into this. The rial was ordered to be printed in the whites under apartheid, capital punishment Levin amendment is trying to preserve RECORD, as follows: had become as powerfully emotional an issue a Supreme Court opinion of a few [From the New York Times, June 7, 1995] for many blacks as crime has become for many whites. SOUTH AFRICA’S SUPREME COURT ABOLISHES months ago, joined by Justice O’Con- Mr. Mandela himself made this point in a DEATH PENALTY nor. That is the issue. point in a statement to the court during his I yield the remainder of my time to (By Howard W. French) trial for incitement in 1962. ‘‘I have grave my friend from Illinois. JOHANNESBURG, SOUTH AFRICA, June 6.—In fears that this system of justice may enable Mr. SIMON. Mr. President, I thank its first major decision, South Africa’s re- the guilty to drag the innocent before the my colleague, and I rise in strong sup- cently created supreme court abolished the courts,’’ he said. ‘‘It enables the unjust to port. I think we all know that I oppose death penalty today, ending a decades-old prosecute and demand vengeance against the practice of executing criminals convicted of the death penalty. It is a penalty we just. It may trend to lower the standards of serious crimes that had once given the coun- fairness applied in country’s courts by white reserve for those of modest means. If a try one of the world’s highest rates of capital judicial officers to black litigants.’’ person has enough money, that person punishment. Two years later, in another trial, Mr. will never get the death penalty in this Announcing the unanimous decision, Ar- Mandela was sentenced to life imprisonment country. That is the reality. thur Chaskalson, president of the Constitu- for conspiracy to overthrow the government, That is not the question, though I tional Court, said, ‘‘Everyone, including the a judgment that his supporters saw as a vic- find it of interest that today’s New most abominable of human beings, has a tory because the death sentence was not im- York Times has a story that the South right to life, and capital punishment is posed, even as they deplored Mr. Mandela’s therefore unconstitutional.’’ conviction. African Supreme Court yesterday That the Constitutional Court chose the Conservative white groups condemned the unanimously outlawed capital punish- death penalty issue for its first major ruling ruling while many predominantly black po- ment in South Africa. We are one of underscored the importance of the issue in a litical organizations portrayed it as a vic- the few countries left in the Western country where for decades execution was tory for racial justice. world that still has the death penalty. used not just as a weapon against common The predominantly black African National The question is whether someone crime, but as a means of terror in enforcing Congress, the country’s largest political who is probably innocent—that is the the system of racial separation known as party and the leading force in the fight apartheid. language of the Levin amendment— against apartheid, hailed the ruling as a vic- ‘‘Retribution cannot be accorded the same tory for the country’s new democracy, say- probably resulted in the conviction of a weight under our Constitution as the right ing, ‘‘never, never and never again must citi- person who is actually innocent of the to life and dignity,’’ Mr. Chaskalson said. ‘‘It zens of our country be subjected to the bar- underlying offense. has not been shown that the death sentence baric practice of capital punishment.’’ Now, whether a person is for the would be materially more effective to deter ‘‘It’s making us a civilized society,’’ Arch- death penalty or against it, no one or prevent murder than the alternative sen- bishop Desmond Tutu, the Anglican primate wants to send someone to prison who is tence of life imprisonment would be.’’ of Southern Africa, told the South African In a strong show of support for the ruling, probably innocent. We have done that. Press Association. ‘‘It shows we actually do each of the court’s 11 judges issued a written mean business when we say we have rev- I can remember when we were debat- opinion backing the decision. The Constitu- erence for life.’’ ing this issue when I was in the Illinois tional Court was created earlier this year as Archbishop Tutu, a leading campaigner General Assembly and a man was about an equal to the executive and legislative against apartheid, called the death penalty to be executed, and suddenly someone branches. ‘‘obscenity,’’ saying it, in effect, said to in the State of Georgia confessed that South Africa stopped executing prisoners criminals, ‘‘We want to show you that we he had committed the crime. in 1992 on the orders of the former National care about life so we kill you too.’’ Now, that case is clear and convinc- Party Government. With violent crime Amoung white political groups the reac- rampant, the number of prisoners awaiting tion to the ruling was typically negative, ing evidence. I have to say that the bill execution on death rows has since swollen to running from carefully worded statements of without this amendment would take 443. Over 1,100 people were executed in the displeasure to outright hostility. care of that case. 1980’s. Death sentences were carried out by Saying that the overwhelming majority of There are a lot of other marginal hanging. South Africans supported the death penalty, cases. We are not just saying a mar- Reacting to the ruling, Justice Minister F.W. de Klerk, vice president in the coun- ginal case. The Levin amendment says Dullah Omar said the prisoners would be try’s coalition transition Government, said where a person is probably innocent, a quickly moved off of death row. According to that his National Party, a predominantly person ought to have that chance to prison wardens, the announcement set off a white party that had governed the country round of wild celebration among condemned for decades under apartheid, would campaign appeal. I cannot believe anyone who inmates at Pretoria’s Central Prison. to reinstate capital punishment. really looks at this—the Senator from Elsewhere, however, comments on the rul- Other conservative white groups reacted North Carolina, the Senator from ing revealed the continuing depths of politi- even more harshly. ‘‘The rights of murderers S 7828 CONGRESSIONAL RECORD — SENATE June 7, 1995 and rapists are being held in higher regard this is about. Nobody under habeas cor- 1. To show actual innocence one must show than those of their victims,’’ said one Afri- pus petition goes free. They get a new by clear and convincing evidence that but for kaner youth organization. trial. That is all they are saying here. a constitutional error no reasonable juror For his part, Mr. Mandela, who served 27 I sure think this is distinction with a would have found the petitioner eligible for years of a life sentence under a succession of the death penalty under the applicable State apartheid governments made no public com- difference that can mean the difference law. between life and death of an innocent ment today on the ruling. The President’s of- The amendment before us, the Levin person. I hope they will yield on ‘‘prob- fice, however, issued a statement intended to amendment, will not help the truly in- reassure those who fear a growing leniency ably’’ and not ‘‘clear and convincing.’’ nocent. This amendment will further toward crime. Mr. HATCH. Mr. President, I do not undermine the proper role of habeas ‘‘The President also wishes to emphasize want to prolong this. I think I have 11 corpus and that is the effect of the that this decision has no bearing on the com- minutes left. I will just take a minute mitment of the Government to tackle the amendment. The effect of it is not or two. problem of crime, and particularly violent meant to overturn the fundamental de- crime, with all the resources and determina- What I am saying, there has been a trial, conviction, there have been fects. The Specter-Hatch habeas bill tion it can muster.’’ has the safety valve. It has a safety Mr. BIDEN. Mr. President, par- posttrial proceedings, there has been an appeal to the intermediate court in valve available for the truly innocent. liamentary inquiry. Is there any time We provide successive petitions for remaining? the State, an appeal to the supreme court of the State, then a petitioner of those who prove innocence. The pro- The PRESIDING OFFICER. There is posed amendment will do nothing to no time. certiorari to the Supreme Court, all of which are denied, and a petition for help the truly innocent. It is merely Mr. BIDEN. I ask unanimous consent another means of delaying justice. that I be able to speak 2 minutes on clemency to the Governor. He denies. In every case where we found actual in- There are plenty of procedures and the Senator’s amendment. mechanisms in the Specter-Hatch bill The PRESIDING OFFICER (Mr. nocence, or any kind of innocence, it to protect the truly innocent. So we do INHOFE). Without objection, it is so or- has been through those proceedings, not in Federal habeas. not need to continue to prolong this. dered. I move to table the Levin amend- Mr. BIDEN. Mr. President, this is I have to say that all of this is an- other attempt to just prolong the proc- ment. I ask for the yeas and nays. pretty clear here. The PRESIDING OFFICER. Does the What the Senator from Michigan ess and allow—call it what it is—a lib- Senator yield his remaining time? eral judge who does not believe in the does in his amendment is stick with Mr. HATCH. I yield my remaining death penalty to prolong the process, one part of the change in the law. time. Right now there is no requirement in again at a tremendous cost to the Mr. President, I ask for the yeas and the law to file the successive petition States, everybody concerned, and I nays. that says that the defendant has to ex- think a cost to justice. The PRESIDING OFFICER. Is there a plain why he did not file the petition People out there are starting to say, sufficient second? before. my goodness gracious, is there no final- There is a sufficient second. Now, under the Hatch approach and ity to the decisions, the just decisions, The yeas and nays were ordered. under the approach if adopted by Sen- of the court? Mr. HATCH. Mr. President, I ask ator LEVIN, that is tightened up. Even I have to say the cases that we can unanimous consent the vote on the mo- Senator LEVIN is saying we have to cite where people have been helped, tion to table the Levin amendment be show cause why this was not raised be- where innocence has been proven, have deferred to a time to be determined by fore. There is only one disagreement been through that State process, not the majority leader, after consultation before the Senate. That is, what stand- through the Federal habeas process. It with the minority leader, after 2 p.m. ard of proof do you have to bring for- is just another layer of expense. today. ward to show you are innocent? I am not going to knock those who The PRESIDING OFFICER. Without By implication, they are agreeing a are trying to do this because they will objection, it is so ordered. person ought to be able, if there is evi- sincerely do anything to stop the death Mr. HATCH. I now ask the Levin dence of innocence, ought to be able to penalty. I respect that. amendment be laid aside so the distin- have another petition. Senator LEVIN If I was a defense lawyer again, I guished Senator from Arizona can call says the same thing. would do anything to try and preserve up his amendment. I understand there I think every American would say somebody’s life. But I have to say it is to be a 1-hour time agreement. you ought to have another crack at it. would be pretty cynical to keep doing I ask unanimous consent there be a 1- The difference is, they say ‘‘clear and what is being done in some of these hour time agreement with the time convincing.’’ Right now, the Supreme cases today. We can call it sincerity, equally divided—in the usual form, we Court says, no, you do not have to go but the fact of the matter is it is a will put it that way. that far, but you have to go pretty far. legal obligation to do what you can. The PRESIDING OFFICER. Without You have to sufficiently establish the But there is an element out there in objection, it is so ordered. constitutional violation. You said what the legal community which, having Mr. HATCH. I also ask unanimous happened to you in the lower court, failed to convince the public and the consent at the conclusion or yielding you say your constitutional rights courts that the death penalty is wrong, back of the time on the Kyl amend- were violated in a way that probably has set about to eliminate the death ment that it be set aside and the vote resulted in the conviction of a person penalty defect by making death pen- occur on or in relation to the Kyl who is actually innocent. alty litigation too costly and pro- amendment following the vote on the Are we going to quibble over putting tracted. motion to table the Levin amendment. someone to death on whether or not we As a lawyer I do everything I can The PRESIDING OFFICER. Without abide by the Supreme Court majority within the law, and if we provide this objection, it is so ordered. that says all you have to do is say law, I will be doing that, and so will The Senator from Arizona is recog- ‘‘probably’’ this resulted in a convic- every other defense lawyer. It is an- nized. tion of an innocent person? other appeal, another cost to the AMENDMENT NO. 1211 But they want to go even further. States, another frivolous appeal which (Purpose: To stop the abuse of Federal They want to say, no, ‘‘probably’’ is we are trying to limit here while still collateral remedies) not enough. You have to show that giving the protections we need in these Mr. KYL. Mr. President, I have an there is clear and convincing. The only matters. amendment at the desk and I ask for thing they do not say is ‘‘beyond a rea- The Levin amendment relies on the its immediate consideration. sonable doubt.’’ term ‘‘actual innocence.’’ Actual inno- The PRESIDING OFFICER. The Keep in mind, folks, what everybody cence means—and let me just read out clerk will report. misses, when we talk about habeas cor- of the leading Supreme Court case on The legislative clerk read as follows: pus, is this is not about having a con- it, Sawyer versus Whitney. This is The Senator from Arizona [Mr. KYL] pro- victed person go free. That is not what what they held: poses an amendment numbered 1211. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7829 At the appropriate place, insert the follow- so interested in this provision is be- we are limiting them a little bit by the ing new section: cause of the recent tragedy in his bill before us. STOPPING ABUSE OF FEDERAL COLLATERAL State. Let us assume two cases in the My amendment says: No, a Federal REMEDIES. State of Oklahoma. In the first case, court prisoner adjudicates his claims in (a) IN GENERAL.—Chapter 153 of title 28, there is a robbery and in the course of Federal court. A State court prisoner United States Code, is amended by adding at the end the following: that robbery someone is shot. The per- adjudicates his claims in the State son is tried in the State courts, there is court. The only time the State court ‘‘§ 2257. Adequacy of State remedies an appeal to the appeals court and on prisoner can go to a Federal court is ‘‘Notwithstanding any other provision of up to the supreme court of the State— from an ultimate appeal to the U.S. law, an application for a writ of habeas cor- pus in behalf of a person in custody pursuant eventually a prosecution, a conviction Supreme Court. to a judgment or order of a State court shall and a sentencing. This will end the duplicative appeals not be entertained by a court of the United Thereafter that State court prisoner that we have all been complaining States unless the remedies in the courts of may file writs of habeas corpus in the about. This and only this amendment the State are inadequate or ineffective to Oklahoma State court system as often will end those duplicative appeals. Be- test the legality of the person’s detention.’’. as that person can find grounds for cause it will still be quite possible for Mr. KYL. Mr. President, I ask unani- doing so. Those writs can be deter- State court prisoners under the bill be- mous consent that reading of the mined legally in the appeals and su- fore us to adjudicate their claims in amendment be dispensed with. preme court of the State of Oklahoma, State court and then go to the Federal The PRESIDING OFFICER. Without and eventually of course, after the su- court so long as they do it in a timely objection, it is so ordered. preme court of Oklahoma has ruled, manner. So long as they meet the time The amendment is as follows: they can be considered by the U.S. Su- limits we impose in this bill, they can At the appropriate place, insert the follow- preme Court. So that State court pris- still go to the Federal court and ing new section: oner has virtually an unlimited right relitigate exactly the same claims. SEC. . STOPPING ABUSE OF FEDERAL COLLAT- to take these writs of habeas corpus up What ordinarily happens is that the ERAL REMEDIES. and down the State court system. Federal district courts or circuit (a) IN GENERAL.—Chapter 153 of title 28, In today’s law he also has the right courts of appeals say, ‘‘Wait a minute, United States Code, is amended by adding at to go to the Federal court system and the State court has already decided the end the following: essentially relitigate the exact issues. that. Your appeal is summarily de- ‘‘§ 2257. Adequacy of State remedies ‘‘I have some newly discovered evi- nied.’’ But that takes time. ‘‘Notwithstanding any other provision of dence that will prove I was innocent of I just spoke to the presiding judge of law, an application for a writ of habeas cor- the crime. I have gone up and down the the Arizona court of appeals and he pus in behalf of a person in custody pursuant State court system, now I would like said we summarily dismissed many of to a judgment or order of a State court shall to try my luck in the Federal courts.’’ these. But he said every one of them not be entertained by a court of the United has to be considered. And that is the States unless the remedies in the courts of Under existing law, that person can do the State are inadequate or ineffective to it. point. From a very small number to a test the legality of the person’s detention.’’. What the bill says is we are going to very large number, the district courts (b) CLERICAL AMENDMENT.—The table of put a couple of roadblocks in the way. and the circuit courts of appeals are sections for chapter 153 of title 18, United It should not be quite so easy for you having to handle these writs that have States Code, is amended by adding at the end to you do that. You at least ought to already been decided by the State the following: have some time limits within which to court and, as the Federal courts have ‘‘2257. Adequacy of State remedies.’’. file these habeas corpus writs in Fed- said over and over again, the State Mr. KYL. Mr. President, the reason I eral court, and the Federal courts at courts are perfectly able to resolve asked the key provision of that amend- least ought to give great weight to the these issues. ment be read is to illustrate its sim- previous decisions of the supreme Mr. President, this is not just an idea plicity. It is very simple and yet I court. Those are both sound provisions that I have come up with. This is what think very important and necessary as but they obviously do not preclude the is happening in the District of Colum- an improvement to the bill which is be- State court prisoner from going to Fed- bia today, and has been for the last 25 fore us now. eral court. years, because 25 years ago the Con- I want to begin by complimenting Let us take, on the other hand, the gress passed a law and established that the manager of the bill, the Senator perpetrators of the heinous tragedy in in the District of Columbia courts—by from Utah, for not only getting the bill Oklahoma City a few weeks ago. They the way, the District of Columbia has to this point but for insisting that we will probably—he or they—will prob- in effect a State court system which have habeas corpus reform in this im- ably be tried in the Federal district parallels the U.S. District Court and portant piece of legislation. court in Oklahoma. If convicted, there the Circuit Court of Appeals for the My amendment will improve the ha- could be an appeal to the Tenth Circuit District of Columbia. beas corpus reforms by, as was just Court of Appeals and eventually to the So it is similar to States in that it read, ensuring that a case in the State U.S. Supreme Court. But those people, has its own system of courts. We in the courts can be reviewed in the State having been convicted, will have their Congress 25 years ago said that pris- court system, but that as long as the writs of habeas corpus reviewed only in oners in the District of Columbia can State court system provides adequate the Federal district court and circuit only use that quasi-State court system and effective remedies, that person courts of the United States of America. here in the District of Columbia. That does not have the authority to go over They do not have the right to go over was tested in the U.S. Supreme Court to the Federal courts and relitigate all to the Oklahoma State court system and the constitutionality was upheld in of the same claims in the Federal and relitigate those same claims. So, the case of Swain versus Pressley in courts. whereas the State court prisoner can 1977. And there have also been other Of course, it should go without say- use both the State system and the Fed- opinions with respect to the constitu- ing that there is always a review in the eral system, in duplicate appeals, a tionality of what was done. One judge, U.S. Supreme Court from any decision Federal prisoner may only use the Fed- as a matter of fact, even wrote that be- of the highest court of a State. So eral system. cause of this experiment in the District there is ultimately still the potential The constitutionality is obviously of Columbia, which has worked very for Federal review of a State court de- clear. Either the State courts or the well for the last 25 years, that the Con- cision. Federal courts are competent to adju- gress ought to consider the same kind I would like to illustrate exactly dicate constitutional claims. That is of limitation of remedies in the State what we are talking about here with a established. There is no legal question courts, exactly what we are proposing hypothetical and a real case. The Sen- about that whatsoever. But the Federal here today with my amendment. ator from Oklahoma is here. One of the court prisoner has one set of options. So at the invitation of Judge reasons the Senator from Oklahoma is The State court prisoner, under the McGowan, we are proposing an amend- stats quo, has two sets of options. And ment which says in the State courts, S 7830 CONGRESSIONAL RECORD — SENATE June 7, 1995 you do like the District of Columbia. tem as well where the Federal judges jured himself; and Danny McKinney, You exhaust your remedies in the do not have time to go through the en- Linda’s husband. It goes on and on. State court. You can go to the U.S. Su- tire case, where there is almost a pre- There is not time to name all of them. preme Court, but not jump over to the sumption that, if they have to do that, But they were here for one reason. Federal District Court and the Circuit maybe the Federal Government knows That reason is that they wanted to be Court of Appeals to litigate the same better, which is not always correct. sure that we had the strongest possible claims. The Federal judges I have talked to habeas reform in this bill. Judge Robert Bork has written a let- said we are in serious need of habeas So when you stop and realize what ter in support of my amendment. He corpus reform. has happened in Oklahoma, and what writes, in part: I compliment my friend and col- happened in Oklahoma as I mentioned Your proposed amendment to the league from Arizona for, I believe, once before on this floor, but I think it antiterrorism bill to stop the abuse of Fed- truly making more significant reform. is worth bringing up again at this point eral collateral remedies is an excellent and I think Senator HATCH’s bill has some because it gives you an insight into much-needed reform. There is no doubt good reform. I compliment him for it. what the families of the victims in about the constitutionality of the provision The reforms in S. 735 will help expedite you propose, nor is there any doubt about Oklahoma are thinking about because the need for your amendment. Your amend- the procedures. There are time limits it is something that is contemporary ment is a sorely needed reform to a situation under the proposal now before us from right now—a guy named Roger Dale that is now out of hand. the Senator from Utah. Senator KYL’s Stafford is scheduled to be executed on Mr. President, the constitutionality amendment would go much, much fur- July 1. I do not know whether he will of what I propose is beyond question. It ther. It would eliminate these hundreds be. It is hard to say. In the spring of has been tried for 25 years here in the of, in almost all cases—at least, in my 1978, someone stopped to help him with District of Columbia. It is found to be State, frivolous petitions placed before his car. He was broken down in Okla- very workable. Everybody agrees that the Federal courts, frivolous but yet homa. He murdered in cold blood a Ser- we need to limit duplicative appeals. they still take time. At 25 percent of geant Lorenz, and the sergeant’s wife Therefore, it seems to me that, if we the caseload, you are talking about a and small son, and drove 60 miles to are to really make the provision of ha- very significant amount of time and Oklahoma City, and committed a great beas corpus reform in this bill work, we energy and dollars that now are being crime known as ‘‘The Sirloin Stockade do not just play with it at the edges by expended by frivolous appeals because Crime,’’ where he rounded up six people proposing some time limits and provid- many prisoners become quite good at and took them into the refrigerator, ing for deference to State court pro- filing petitions, and there is no limit tied them up, and executed the six of ceedings. We go right to the heart of whatsoever on the number of petitions them. He has been found guilty on all matter and say if you have a complete that they can file. nine counts and has nine death sen- and adequate remedy in the State So I compliment my colleague from tences. That was 17 years ago. courts, then that is what you will get Arizona for his leadership and for com- I might suggest that Roger Dale except, of course, for your ultimate ap- ing up with very significant reform. I Stafford today is 100 pounds heavier peal to the U.S. Supreme Court. You appreciate the fact that we have out- than he was 17 years ago. So I am sure cannot jump over to the Federal sys- standing scholars such as Judge Bork he is eating well. He has been in the tem of courts to readjudicate those and others who have endorsed the re- cell, probably living under better con- very same claims. forms in this amendment. ditions than he was before, for the past The Senator from Oklahoma is on his I urge my colleagues to adopt the 17 years. feet. I would like to yield time to the amendment. I cannot help but think when anyone Senator from Oklahoma to further dis- Mr. KYL. Mr. President, I would like is considering a crime of the mag- cuss this particular amendment. to yield 7 minutes of additional time to nitude of that which we had in Okla- Mr. NICKLES addressed the Chair. the junior Senator from Oklahoma, homa City, Mr. President, that they The PRESIDING OFFICER (Mr. Senator INHOFE. spend a lot of time thinking, ‘‘What is Mr. INHOFE addressed the Chair. THOMAS). The Senator from Oklahoma the downside? What is the worst thing The PRESIDING OFFICER. The Sen- is recognized. that can happen to me if I get caught Mr. NICKLES. Mr. President, I would ator from Oklahoma. and convicted? It is going to be that I like to compliment my friend and col- Mr. INHOFE. Thank you, Mr. Presi- will be executed. Wait a minute. The league from Arizona for his leadership. dent. average time between conviction and He brought this amendment to my at- First of all, let me thank the Senator execution in America is 91⁄2 years. So I tention. I told him I was not very fa- from Arizona for bringing this up. I will be there for 10 or 15 or 20 years miliar with it, but I told him I would think it is significant for all of us to watching color TV in an air-condi- do a little more homework. I have. I realize that had it not been for the tioned cell.’’ have become more convinced that he is bombing in Oklahoma City, we would That loses its deterrent value for on the right track. not be here today. We would not even I talked to the Federal judge in the be having a discussion. There would those of us who are narrow enough in Western District of the State of Okla- not be a debate on habeas reform. our thinking to believe that punish- homa, and I asked him about the num- There would not be a counterterrorism ment is a deterrent to crime. ber of appeals; prisoner petitions. We bill. So without this, we have no way of find out in the last 10 years they more Certainly, this contentious item of delivering the message to other indi- than tripled, and have actually habeas that we have been trying to viduals who might be considering such consumed about 25 percent of the work bring up, at least for the last 9 years a heinous crime as that which was load in the western district. The court that I know of, would not even be dis- committed in Oklahoma City. has before them hundreds of prisoner cussed in an open debate as it is today. So let me just say that I am here petitions and appeals that have to be So it is very significant for people to today on behalf of multitudes of people reviewed. understand this is all precipitated by in the State of Oklahoma who were The Senator from Arizona makes an the tragedy that took place in April of killed in the brutal bombing, the mass excellent point, and says the States this year in Oklahoma City. murder that took place last April in have ajudicated these cases thor- On Monday of this week, we had a Oklahoma City. oughly. They have gone all the way group of people that came up from The message they told us last Mon- through the State courts, through the Oklahoma. Among others, they were day to deliver on the floor of this Sen- appeals process, State supreme courts, Diane Leonard, whose husband, Don, a ate, the loud and clear message, was and then all the way even—with cap- Secret Service agent, was killed in the yes, if this does not pass, we still want ital punishment cases—to the Supreme bombing; we had Glenn Seidl, who lost to support the bill as it is right now Court. his wife, Kathy; Kay Ice, who lost her and the habeas element that is in the Yet, they continue to press, and want brother, Paul, a Customs Agent; Mike bill. That is fine. But the message was to run through the Federal court sys- Reyes, who lost his father and was in- let us get the strongest possible habeas June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7831 reform that we can have. That happens on this issue, but the debate was nec- curtail the time within which someone to be the John Kyl amendment. essary and inevitable. is able to file a habeas petition and So I am not here speaking on behalf Let me point out there are three sort how many times they are able to file of one U.S. Senator from the State of of teams in this debate. One team says one and what constitutes a successive Oklahoma. I am speaking on behalf of keep habeas corpus the way it is; we do petition. the families of those individuals who not want any changes in habeas corpus. Now, I am certain that the Senator were killed in that very brutal act in I got a bite out of that apple over the from Oklahoma was right when he April of this year. last couple years because every time I ticked off the names of the families of Thank you, Mr. President. would offer amendments on habeas cor- the victims and said they want action. Mr. KYL. Mr. President, does the pus I would read in the editorial page I would respectfully suggest that it is Senator reserve the remainder of his of the New York Times about how Sen- unlikely that they know the difference time? ator BIDEN is emasculating habeas cor- between a successive petition based Mr. INHOFE. I yield. pus, and what a terrible thing he is upon probable innocence versus clear Mr. KYL. Both Senators from Okla- doing, and the compromises Senator and convincing evidence. Most lawyers homa have conducted themselves in an BIDEN is working out are—and it went on this floor do not know the dif- exemplary manner following the trag- on and on. Every liberal newspaper in ference. Most lawyers who practice law edy in their State in a way both to help America pointed out that wanting to do not know the difference; 85 percent the people of their State but also to try change habeas corpus from the way it of the highest paid lawyers in America, to do everything they could to assist is to make sure that the Staffords of if you brought them in and sat them law enforcement officials to bring to the world are executed—— down in these chairs and asked them to justice the responsible parties and to Mr. INHOFE. Just for a moment, will define what a successive petition is, see to it that there are changes in the the Senator yield? could not do it, could not do it. I am law that perhaps can help prevent Mr. BIDEN. I would be happy to talking about the thousand-dollar-an- those kinds of things from happening yield. hour guys. They could not do it. in the future and, in the cases where Mr. INHOFE. Let me clarify. I used Now, I do not mean that to malign they cannot be prevented, that the peo- the words ‘‘at this level.’’ I do not be- the legal profession. They do not han- ple are brought to justice. lieve we would be having the debate at dle these cases. Death penalty cases, I very much appreciate the support of this level if it had not been for the fact habeas cases are complicated. Just like both of the Senators from Oklahoma. it did not happen. I could not, if I were back in the prac- Mr. President, I would like to reserve I might also observe that the same tice of law, explain to you a com- the remainder of my time at this point attorney, who is a very capable and plicated antitrust provision. I did not should anyone from the minority wish competent attorney in Oklahoma, Ste- practice antitrust law. to speak. ven Jones, the one who so successfully So with all due respect, what I am Mr. BIDEN addressed the Chair. got the delays in the Stafford case, is proposing and will propose —and my The PRESIDING OFFICER. The Sen- the same attorney that is handling opposition to the Kyl amendment is ator from Delaware. Timothy McVeigh’s case here, too. just as likely to be acceptable to those Mr. BIDEN. Let me say while our col- Mr. BIDEN. I thank the Senator. folks in Oklahoma as anyone else’s be- league from Oklahoma is in the Cham- But there are basically three points cause the effect of what I wish to see ber that I, too, admire the way in of view on this floor in a broad sense. happen—and I think a majority in which he and his senior colleague have One is, do we maintain the status quo here—is to make sure that we are no conducted themselves in the wake of on habeas corpus? That is made up of longer in a situation where this fellow such a horrible tragedy. I do not in any half a dozen to a dozen Members on my Stafford could be gaining weight in an way question that the victims’ survi- side and one or two Members on the air-conditioned cell after having filed vors, families of the victims in Okla- Republican side. And they do not want 17 petitions. homa City, want what he states, and to see any change in habeas. If we adopt the amendment that I am that is a change in the way habeas cor- There is a second school of thought going to offer after this amendment, pus works. They do not want any more in a broad sense represented by the dis- Stafford would be dead. No more Staf- Staffords. They cannot understand, nor tinguished Senator from Arizona, who fords. There is no legal way in which can I, why Stafford is in jail for 17 is a capable and competent lawyer in anyone could hang around, after hav- years after having filed apparently suc- his own right and knows this area well, ing been convicted of a capital offense, cessful petitions to delay his execution, as he demonstrated by his presen- for 17 years, let alone 7 years, because and they want action. tation. And that is to say, in effect, as there are strict time limits and strict But I would say that we would be on I read what he says but what others circumstances under which a second habeas corpus whether or not that god- have said as well, that State courts are petition could be filed. awful tragedy in Oklahoma had oc- fully competent to determine whether Now, one of the problems here is that curred. The Republican crime bill has or not somebody’s constitutional we confuse all crimes with apples and the habeas corpus petition in it. We are rights have been violated. And that is a oranges. We hear about delay all the scheduled to take up the Republican respected, understood, and clearly ar- time, and it is true, with all due re- crime bill. We were scheduled to take ticulated school of thought that has spect, even the Kyl amendment will up the Republican crime bill before we existed for some time and has been in not fundamentally change the delay. If left for our Easter recess. Then we were a very articulate manner stated here you take a look at where the delay oc- scheduled to take it up before we left today. curs—and just pick this one case that for Memorial Day. Now we are sched- There is a third school on this floor we talk about—and I will get the sec- uled to take it up before the Fourth of that says status quo is bad. We do not ond graph, if I can, about the length of July recess. want habeas corpus to continue as it delay in State courts versus Federal— In that Republican crime bill is the statutorily has and has been inter- the case often cited is this Guerra case, reform of habeas corpus. In the crime preted by the courts over the last cou- to find out how long this fellow, after bill that I offered 2 years ago, 18 ple decades. We want it changed. having been convicted, languished in, months ago, there was a reform of ha- Now, we differ. There are limits to at the expense of the taxpayers, a pris- beas corpus. So I just want to make it that third group, and they range some- on avoiding the inevitable. clear that the Senate’s attention is not where between Senator SPECTER and Of the delays that took place, only— focused on habeas corpus at this mo- probably me. And Senator SPECTER and still, there are delays—24 percent of ment because of what happened in I have been for years debating this them were because of what the Federal Oklahoma and the counterterrorism issue, agreeing and disagreeing, but we courts did. And 76 percent, or 9 years 2 bill. It is a convenient—and I mean are into that school that says, wait a months’ worth of delays had nothing to that in a literal sense; I do not mean minute, do not take the Federal courts do with the Federal courts. They were that in a disparaging way—it is a con- totally out of this or, in effect, take all in the State court in the State of venient vehicle to move up the debate them totally out of it but drastically Texas. S 7832 CONGRESSIONAL RECORD — SENATE June 7, 1995 Leave that graph up for another mo- Federal courts out of this. That does Senator Kyl’s amendment would bar ment, please. I want to make sure ev- not solve the problem, but it creates a prisoner even from being able to file erybody understands. The State of another problem. The problem it cre- a habeas petition if the State court Texas, under State court and State ates when there is no Federal habeas system has in place what are deter- law, provided for 9 years 2 months’ corpus is bad decisions. Bad decisions mined to be adequate and effective pro- worth of delay. made by State courts allow people who cedures to test the legality of the pris- The Federal courts, having Federal deserve another trial to not get it. oner’s detention. habeas available, did, in fact, add to Their constitutional rights are vio- This amendment makes clear that the delay, 2 years and 10 months. But lated. A significant number of the ha- the State court need not have gotten let us eliminate, as my friend from Ari- beas corpus petitions that are filed are the result right in a particular case zona wishes to do, in effect, the ability granted. and, in fact, it need not even have ap- of the Federal courts to get into the I admit I cannot change the State of plied its system fairly in a particular game. There still would have been a 9- California. I have no authority as a case. All it says is they have to have year-2-month delay in the execution of Federal official to tell the State of had a process, and if they had a proc- a man who was convicted and should California how they should look at ess, even though it may not have been have been put to death. The point is, their petitions. But I can do one thing. applied fairly in a particular case, even the end result of all this was he ended When it gets to the bottom here and though it may not have gotten the re- up with a granting of habeas in the they finally act, under the proposal I sult right on a constitutional basis, the end. The point is, it was 9 years 2 want, they get one chance to get into Federal court cannot look at it. months in the State court. Federal court, to say the State court Everyone agrees that there is a need In the State of California, we heard a judges did not know what they were to end the delays in the system. It just lot of talk about how Federal habeas doing on the Constitution. does not work right now. But I also corpus causes all these delays. The Keep in mind now, what I am propos- think everyone agrees that there delays in execution of the death pen- ing means when all this is done, within should be a fair process and one that alty, much of the responsibility is in 6 months, the person in jail has to file does not execute innocent people. a petition in Federal court. If they do the State courts. The California experi- We know most prosecutors and law not, they are out of luck, and they can ence: California’s Supreme Court has enforcement officers are honorable. only file a second petition under the on its docket four capital cases that Most cases proceed fairly, and we can same ground rules that my friends have been fully briefed for over 7 years, have confidence in the result. Under from the Republican Party, that Sen- but the State court has not even heard my approach, after the first petition, ator SPECTER ATCH the argument yet. It has nothing to do and Senator H ’s bill most of that will be made clear. They with the Federal courts. You have four says, where we differ, which I will de- will be rejected and they will be put to cases, as of a month ago, when this bate later, where we differ, Senators death. And I support the death penalty. chart was made up for a hearing. SPECTER, HATCH and BIDEN, is on what The Biden crime bill is the only reason Maybe something has happened in the they are allowed to look at once they why, if McVeigh is convicted in Okla- last month, but as of a month ago, get that petition in front of them. I homa, he would be put to death. I there were four capital cases in the will speak to that later. wrote the law. If he is tried in Federal But look, I really think, to quote my California Supreme Court where the court without that law having been old friend Sid Balick again, ‘‘You gotta petitioners seeking redress filed their passed, he could not be put to death. I keep your eye on the ball here.’’ The briefs 7 years ago, and the State court support the death penalty. But I do not vast majority of us in this body want has not even acted yet. Translated, support a reasonable ability for a per- to and have been trying for years to that means 7 years living off the tax- son, if they have a strong case, to sug- change the old system to limit the payers in an air-conditioned cell be- gest they did not get a fair trial, to be time in which a petition can be filed cause the California State Supreme able to have one bite out of the apple and to limit the number of petitions Court has not even looked at the briefs to determine in Federal court whether that can be filed. So essentially you or, if they looked at them, have not that was true. told anybody they looked at them. get one bite out of the apple. The California Supreme Court has What my friend from Arizona would We all know that occasionally pros- taken more than 8 years to decide 24 of do would deny that one bite. I ask you, ecutors or cops act in bad faith, as Sen- the cases in which it affirmed the what damage is done to the Nation al- ators do, as doctors do, as lawyers do, death penalty. lowing a person who, after the fact, as housewives do. Every one of our pro- One State habeas petition has been learns that perjured testimony was fessions, every one of them, has some bad apples. So, occasionally, prosecu- pending for 41⁄2 years and another has used against him; after the fact, learns been pending for 6 years. This is not that information was made available to tors or cops act in bad faith and there even getting to the Federal court. the prosecution which went to his in- are cases which have demonstrated The reason I cite this is the distin- nocence that was never made known to that. As we all know, our judicial sys- guished former Member of Congress him; after the fact, after the fact, after tem will make honest mistakes and has and attorney general of the State of the trial, after the appeals? done so. California, Mr. Lungren, came before If you have to file it within 6 months, The recent case of Kirk Bloodworth our committee and said, ‘‘The Federal I do not know how much additional is one example. Bloodworth was con- courts should work like the State weight old Stafford would have gained victed and sentenced to death for the courts work. My State of California in 6 months, but it would not have been rape and murder of a young girl. After really knows what it is doing.’’ Look at 100 pounds. What is the alternative? a new trial, he was again convicted and what the State of California knows. The alternative, for example, in this sentenced to life imprisonment. Subse- I understand the anger. I feel angry Guerra case was when they finally got quent DNA testing confirmed his inno- and aggrieved as an American citizen down to it, they granted his appeal. cence. Bloodworth lost 9 years of his that convicted killers are in California They said, ‘‘Wait a minute, you did not life because of the error in our legal sitting in the jails for 7 and 8 years be- get it right at the trial.’’ system. Habeas corpus has existed to cause the court has not even gotten But I, with the greatest amount of correct just such errors, and to ensure around to listening to what they have respect, suggest that although I under- that there will never be another Leo to say. You cannot put them to death, stand the motivation, it will not speed Frank, another innocent person who because they filed a petition but they up the process. All it will do is enhance has been executed. have not gotten around to looking at the likelihood that a person whose con- You do not have to have 17-year the petition. stitutional rights have been denied— delays to ensure that. You do not have What are we doing, though, when we and those constitutional rights usually to have any delay to ensure that. But decide that we are angry about that? relate to whether they are innocent or what you have to have is the ability of We are saying the answer is get the guilty—whether they have had a a Federal court, on one occasion, to Federal Government out of this, the chance to make their case. look at the facts in the petition and June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7833 make a judgment as to whether or not Mr. BIDEN. I reserve the remainder That was in the case of Stone versus a new trial is warranted. of my time. Powell, in 1976. So I respectfully suggest that the de- The PRESIDING OFFICER. If I was Later, speaking to the American Bar bate between the Senator from Arizona not clear, the Senator from Arizona Association, Justice Powell said: and me is not about maintaining the has 12 minutes. The Senator from Dela- Another cause of overload in the Federal status quo; it is about how we change ware has 4 minutes. court system is conferring Federal habeas the status quo. I respect the Senator’s Mr. BIDEN. I reserve my 4 minutes. corpus jurisdiction to review State court intelligence and motivation greatly. Mr. KYL. Mr. President, I will yield criminal convictions. Repetitive recourse is But I also respectfully suggest that his myself 6 minutes of my remaining commonplace. I know of no other system of approach, A, does not solve the real time. I would like to respond to the justice structured in a way that assures no problem—State court delay—and, B, comments of the Senator from Dela- end to the litigation of a criminal convic- takes away the one last shot, as a prac- tion. Our practice in this respect is viewed ware. They were well put and thought- with disbelief by lawyers and judges in other tical matter, that one has to get before ful, and I think they contribute to the countries. a Federal court. debate. I am going to consider the ar- Now, I will acknowledge—and I sus- guments that he made, with the pri- So, Mr. President, I think that par- pect he would agree—that 75 years ago mary arguments in reverse order, if I ticular issue is disposed of by, among Federal review was probably needed might. other things, the words of Justice much more than it is today, because The last argument he made essen- Powell. the competence of State court justices tially was what happens when, after A second point the Senator from was, in some cases, de minimis. And the fact, the defendant finds something Delaware said is that most of the delay the prejudice that existed in some out that might enable him to win his is in State courts. He is correct, al- States—my own included—was real and freedom? That, of course, is the ration- though the chart he has there rep- palpable, making it very difficult for ale for the writ of habeas corpus. Of resents one case. He has about 25 or 24 some people to get a fair trial and get course, the answer is, if you are a Fed- percent of the delay in the Federal their constitutional rights guaranteed. eral court prisoner, you have the op- courts, and the rest in the State court. I acknowledge that. That is why the portunity to file a writ of habeas cor- Actually, there is a better figure than Leo Frank case generated a change in pus in the Federal courts. If you are a that, and the figure is about 40 percent statutory habeas corpus. He was a Jew State court prisoner, you have the in the Federal courts, 60 percent in the and he was put to death in large part right to file a habeas corpus petition in trial courts. because he was a Jew. Facts were over- the State courts. So that is your rem- This is from the Powell committee looked, and a decade later it became edy for something that happens after report, and it talked about overdue clear from witnesses that he did not the fact. process. The Powell committee report commit the crime. The Senator from Delaware said it on page 27 notes ‘‘Federal habeas cor- Most States do not operate that way must be a fair process, and indeed it pus made up 40 percent of the total anymore. I will pick a State so that I must be. Under my amendment, one of delay from sentence to execution, in a am not being parochial and bragging the things that can be contested, and sample of 50 cases.’’ That is 50 cases as about my State court system, and I could be contested in Federal court, is opposed to one case. will not brag about the Arizona State that the remedy of the State is not The point of the matter is the Sen- court system, which is very good. I adequate or fair. Finally, with regard ator from Delaware is correct in noting know several of their State supreme to this last point, the Senator from that most of the delay would be State court justices and State court judges. Delaware said he will be proposing an courts. I submit, however, that that is They are first rate. I will pick a State. amendment that at least gives the pris- due to several factors. I am not sure I would rank the New York State court oner in the State court system one the statistics fail to account for the of appeals, their highest court, over the shot in the Federal courts and pri- fact that most of the cases are in State last 50 years, up against any Federal marily base that argument on the no- court. As a matter of fact, there are district court or Federal circuit court tion that while great strides have been not that many in the Federal court. of appeals in the Nation. But I cannot made in State courts’ competence over Say it is between 25 and 40 percent. say that for probably 20 States that I the years, there may still be some situ- At least under my amendment we are will not name, because it would be a ations where the State court would not dealing with 40 percent of the problem. violation of Senate rules, and because I be as competent as the Federal court. That is not insignificant. Or, the least, would be maligning the justices of I would like to respond to this in a taking the number of the Senator from other States. But I will say, as Barry couple of ways, Mr. President. First of Delaware, 25 percent of the problem. Goldwater once said, ‘‘In your heart, all, we do have one shot in the Federal Whereas the Senator from Delaware you know I am right.’’ In your heart, system under my amendment. It is di- would simply make it more difficult to you know there are certain States you rectly to the U.S. Supreme Court. That get into Federal court if you are a would just as soon not be tried in for a right exists today, and it could not be State court prisoner, we say you can- capital offense as other States. taken away in our amendment, and we not. As Federal legislators, what we So what this does—although I ac- do not do that, of course. So if a State can do something about, the Federal knowledge that State courts get it court prisoner believes that, despite all court, we do something. We say you right the vast majority of the times, I of the hearings he has gotten in the cannot go there. It is up to the States will put this in the negative—what State court system, he still has not to deal with the rest of the problem damage is done by the proposal of time gotten a fair shake, and that he has which is before them. limits built into the proposal I am really two things that he can claim— making and that are made, I might Finally, Mr. President, the Senator first, the State court system is not from Delaware made a point with re- add, in the underlying bill, that say fair, and secondly, he can go to the you have to file a petition within a cer- spect to Senator INHOFE’s presentation, U.S. Supreme Court and make his final and it was a valid point. But I think it tain amount of time and there is a lim- point there. ited circumstance under which you can makes a point too far, or one point too Let me read something that Justice much. file a second petition. Powell wrote not too long ago that I So for those reasons, and others The Senator from Delaware said it is think goes to this point: doubtful that Senator INHOFE’s con- which I will not take the time to speak He said this nearly 20 years ago: to, I am going to oppose the amend- stituents understand the difference be- ment of my distinguished friend from We are unwilling to assume that there now tween the Hatch and Kyl amendment, exists a general lack of appropriate sensitiv- Arizona. and mentions a lot of lawyers could not ity to constitutional rights in the trial and identify the difference. He is correct. I Mr. President, Is any time left in op- appellate courts of the several States. State position? courts, like Federal courts, have a constitu- do not believe that makes the case. The PRESIDING OFFICER. The op- tional obligation to safeguard personal lib- It is true we have to be careful about position has 12 minutes 42 seconds. erties and to uphold Federal laws. what we do here. It is also true that S 7834 CONGRESSIONAL RECORD — SENATE June 7, 1995 while the common citizen may not un- I believe that it is very, very impor- matter to say that it violated the U.S. derstand the technicalities, the legal- tant, Mr. President, if we are to retain Constitution. ities, even the word habeas corpus com- the death penalty, we have to use it The Federal courts have been provid- ing from Latin, the common citizen very, very carefully. ing the safeguards on constitutional does understand when something is There are some 37 States which favor rights significantly through Federal broken. And the Senator from Dela- the death penalty. Thirteen jurisdic- habeas corpus. I believe that has to be ware made an eloquent case for the tions in the United States oppose it. It maintained. In urging the adoption of proposition that something is dras- took many years to bring back the the Specter-Hatch amendment, our tically broken when people can stay on death penalty on the Federal level, amendment really goes to the issue of death row as long as they do. having achieved that only last year. curtailing the time. The Senator from Oklahoma made The news from South Africa is they Some might say that it is a restric- the same point, 16 or 17 years, with the have abolished the death penalty. The tion on defendant’s rights. I think, ac- average being over 9 years. The system death penalty is not in use in many ju- tually, it is not, for reasons I stated is drastically broken. It does not take risdictions, in many nations. I think it earlier, on the challenge to cruel and a lawyer to figure that out. is very, very important to retain the barbarous treatment, keeping someone Mr. President, let me conclude at death penalty as an effective weapon. on death row for a protracted period of this point that the ordinary man may Therefore we have to use it very, very time. not understand all of the technicalities carefully. The international court I referred to we are talking about, but he knows I have objections to the pending earlier this morning, refused an extra- something is broken here. The fix in amendment both on constitutional dition from England to Virginia, be- my case is quite simple. Federal pris- grounds and on public policy grounds. I cause Virginia kept prisoners on death oners go to Federal court, State pris- am well away of the contention that row for 6 to 8 years, which was deemed oners go to State court with an ulti- there is constitutional support to it. a violation of cruel and barbarous mate appeal to the U.S. Supreme Frankly, I doubt that the constitu- treatment. Court, but State prisoners do not get tional support would stand up. I think, Mr. President, on constitu- the extra bites of the apple in the Fed- When we are dealing with the ques- tional grounds and on public policy eral court. It is a simple solution. tion of jurisdiction of the Federal grounds we ought not to restrict the The solution in the bill and the solu- courts to entertain questions on Fed- jurisdictions of the Federal courts. tion of the Senator from Delaware is eral issues, on constitutional issues, I Accordingly, I urge my colleagues to much more complex. We will impose believe it is necessary that the Federal oppose this amendment. I yield the some limitations on how you get into courts retain that jurisdiction as a floor. the Federal court. That does not stop constitutional matter. Mr. KYL. Mr. President I appreciate you from getting in the Federal court. I am aware of ex parte McCardle and the remarks of the Senator from Penn- So if you want to solve between 25 and aware of the distinctions on habeas sylvania. He makes some good points 40 percent of the problem, voting for corpus where there is supposedly an that I would like to respond to, but at the Kyl amendment will definitely do adequate State habeas corpus remedy. this point I would like to ask unani- that. When someone comes into the Federal mous consent that the Senator from It has been held as constitutional. It courts on habeas corpus, especially in a Mississippi be allotted the same is supported by Judge Bork and by capital case, and makes an assertion of amount of time that the Senator from many others. I submit it would be a denial of actual rights on privilege Pennsylvania spoke on, so that I may good addition to this bill. I am happy against self-incrimination or coerced utilize the remaining amount of my to yield to the Senator from Penn- confession or ineffective counsel or ab- time to close the debate. sylvania. sence of counsel or search and seizure The PRESIDING OFFICER (Mr. Mr. SPECTER. Mr. President, I ask INHOFE) Without objection, it is so or- the distinguished Senator from Dela- issues, I believe it is necessary as a constitutional matter that the Federal dered. ware to yield. Mr. LOTT. Mr. President, I thank the Mr. HATCH. Mr. President, I believe courts retain that kind of jurisdiction. In our Judiciary Committee hear- distinguished Senator from Arizona for the Senator from Delaware needs his letting me have this time and for his remaining 4 minutes. How much time ings, this is a question which I fre- quently ask the nominees as to wheth- effort on this amendment. I certainly does the Senator need? am pleased to support it because I Mr. SPECTER. I shall be brief, hold- er they believe the Congress has the authority to take away jurisdiction on think it really does what needs to be ing to 5 minutes. done in this area of habeas corpus, be- Mr. HATCH. I ask unanimous consent constitutional issues from the Federal cause it provides that when a State— that the Senator be granted 5 minutes. courts. It is too lengthy a subject to The PRESIDING OFFICER. Without discuss at any length today. State—provides adequate and effective objection, it is so ordered. Beyond the constitutional issue is a remedies for considering prisoners’ Mr. SPECTER. Mr. President, I am matter of public policy. I think it is claims, there is simply no basis for al- opposed to the amendment by the dis- very important to have the kind of de- lowing additional rounds of litigation tinguished Senator from Arizona. At tached, objective review that the Fed- on the same claims in the lower Fed- the outset, I acknowledge his experi- eral courts give. eral courts. ence in the field. But it is my view that In many of our States we have elect- I am not a constitutional expert. But Federal review of State criminal con- ed judges. I think that is, in some cir- let me just read what Judge Robert victions, especially in capital cases, is cumstances, perhaps in many cir- Bork has said about this particular very, very important in order to guar- cumstances, an impediment to the kind amendment. He says: antee appropriate constitutional safe- of review we have by judges who have [This] . . . amendment to the anti-terror- guards. life tenure. ism bill to stop the abuse of federal collat- I believe the death penalty is an ef- I recall reading for the first time in eral remedies is an excellent and much-need- ed reform. . . . There is no doubt about the fective deterrent against crimes of vio- law school the case of Brown versus constitutionality of the provision you pro- lence. I spoke earlier about my own ex- Mississippi, 1936, a decision by the Su- pose. . . . Nor is there any doubt about the perience as a district attorney of Phila- preme Court of the United States say- need for [the] amendment. ... [The] amend- delphia, and before that as an assistant ing that the due process clause which ment is a sorely needed reform to a situation district attorney where I tried murder limited State action warranted the Su- that is now out of hand. cases. My thought is that it discour- preme Court of the United States to re- Again, I am not a constitutional ex- ages many professional robbers and verse a conviction in a State court in a pert and I know when we have bills like burglars from carrying weapons be- capital case. Without reciting the case this the lawyers descend on the floor cause of concern that a killing might of Brown versus Mississippi and the and start arguing. There are very good result and they would face the possibil- horrendous facts there, it was not until merits on both sides. But let me just ity of first-degree murder and the 1936 that the Supreme Court of this say what I hear from the American death penalty. country intervened in a State criminal people when I go to my State and other June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7835 States. They think there is horrible dancy of the current situation through folks convicted in Federal court to go abuse in this area. They think these the time limits on Federal habeas fil- to the Federal courts for their habeas endless appeals are totally out of con- ings, stricter limits on the repetitive corpus petitions. The problem is that trol and that it should be cut back and habeas filings, and more deferential Federal court judges are trained in cut back significantly. standards of review. But they do not their experiences in interpreting the I want to emphasize, this does still address the underlying problem of Federal Constitution. State courts allow for the Supreme Court to be in- pointless readjudication in the lower hardly deal with the Federal Constitu- volved. But how many rounds are we Federal courts. The Kyl amendment tion. They deal with the State con- going to have? The American people addresses the root cause of the existing stitutions. We should have the people understand how this system is being problems of delay and abuse by elimi- who are trained and experienced in in- abused. That is what is so applicable in nating these habeas corpus reviews of terpreting the Federal law relative to this case. If we have a process whereby the State judgments. the Federal Constitution being able to the people who were involved in the I think we have seen where this has determine whether there has been a bombing in Oklahoma City are found, been changed in the District of Colum- violation of that Federal law or, in this apprehended, indicted, convicted and bia. That has worked quite well. The case, the Federal Constitution. sentenced, if you will, perhaps to experience here in DC demonstrates Last, Justice Powell, I am con- death, and then we go through a long, that the rights of defendants can effec- fident—and I am willing to bet; you are protracted process of appeals through tively be protected without the redun- not allowed to bet on the floor—but the State courts, appeals through the dancy of these habeas corpus reviews in figuratively speaking, I would be will- Federal courts, the American people the lower Federal courts. This amend- ing to bet him dinner at any restaurant are going to be even more horrified at ment, as I understand it, would extend in America that Justice Powell does our judicial system in America. those benefits to all the other States. not support his amendment. I can say They are looking now at the Simpson Punishment is intended to be a deter- that with certainty because Justice trial and wondering what have we rent to heinous crime. Under the Powell’s commission came forward wrought? This is one small step in the present system, however, many killers with an explicit guarantee that there right direction. do not fear the punishment because would be access to Federal courts; an Under current law, habeas corpus they know of the delays that will be in- explicit guarantee. They made it abso- claims that are rejected after thorough volved. The Kyl amendment addresses lutely clear that it is essential there be consideration in the State courts are this problem, and I commend him for access to the Federal courts. I do not readjudicated in the lower Federal his efforts. I certainly support this doubt that Judge Bork would support courts. It is duplicative review in the amendment. this, I do not doubt that at all. In fact, Federal courts and it is needless and I yield the floor. I am certain he would and we should time consuming. The habeas corpus The PRESIDING OFFICER. Who all keep that in mind. provision in S. 735 reduces this redun- yields time? So I reserve the remainder of my dancy, but it does not eliminate it. Mr. BIDEN. Mr. President, I yield time. I commend the Senator from Utah, myself the remainder of the time. The PRESIDING OFFICER. The Sen- Senator HATCH, for the good work he Let me respond quickly to my ator from Utah. has been doing in this area for years. friend’s comment in response to what I Mr. HATCH. How much time re- Finally he has brought this issue al- had said. mains? most to a climax. But I think now Sen- First of all, he said this is about win- The PRESIDING OFFICER. The Sen- ator Kyl will go one step further and ning freedom. This is not about win- ator from Arizona has 6 minutes. The that will really help in dealing with ning freedom. Habeas corpus is grant- Senator from Delaware has 1 minute 1 this problem of abuse, delay, and repet- ed—no freedom. It means a new trial. second. itive litigation in the lower courts, the He points out very forthrightly that Mr. HATCH. Mr. President, I ask State courts, and the Federal courts. he attempts to prevent folks from both sides to allow me to have a few Under current law, criminal defend- going to Federal court except as it re- minutes just to make—I ask unani- ants in the State present their claims lates to being able to go to the Su- mous consent I be given a few minutes at their trials, in State court appeals, preme Court. It is not the Supreme just to make some short comments. in State collateral proceedings, and in Court’s job to take a detailed look at The PRESIDING OFFICER. Without applications for review by State su- every State court conviction. It is for objection, it is so ordered. preme courts and then by the U.S. Su- the Supreme Court to decide weighty Mr. HATCH. Mr. President, I have preme Court. After exhausting these issues of Federal constitutional law. listened to this debate and I really State remedies, prisoners can then go That is why we have Federal courts want to compliment the distinguished back and initiate additional rounds of and that is why my committee spends Senator from Arizona. I think this has litigation through the habeas corpus so much time, a significant portion of been one of the most spirited parts of proceedings in the lower Federal it, considering the nomination of Fed- this whole debate on the habeas corpus courts, presenting the same claims eral judges. Our system depends on provisions of the bill. I deeply appre- that have already been raised and de- Federal courts, all the Federal courts, ciate, of course, the frustration some cided in State court review. As a result being the safeguarders of Federal law. have with the Federal court’s of this redundant review, the criminal Let us just put this in very practical micromanagement of State court deci- justice system in the United States terms. Let us assume he is right, the sions. Indeed, I think the abuses of really now is plagued with problems of State courts are fully capable and do Federal habeas corpus practice fuel the delay and abuse. not need any Federal review. What you desire to remove the Federal courts al- We talked about, I guess it was, cruel end up with is as many as 50 different together from the review process. The and inhuman punishment in the past. interpretations of the Federal Con- Kyl amendment would effectively end The Supreme Court addressed the ques- stitution; 50 different ways in which 50 Federal habeas review of State convic- tion of people staying in jails awaiting different States could interpret wheth- tions where the State already has final conclusion of their trials or con- er or not a constitutional right has postconviction collateral review. And I victions, and that was ruled as being been denied or not denied. Just from a can appreciate my colleague’s willing- wrong. What about the fact that many very practical standpoint that is not ness to address the gross abuse that of them now sit on death row for years good policy. Whereas, when you have currently occurs under our Federal ha- and years with access to libraries and the appeal to the Federal court system, beas process. We are all sick of it. computers and everything they could that becomes the law, the law of the Something has to be done. possibly need so they continue to drag land governing all 50 States. Senator KYL’s amendment would re- out this process? There has to be an I also point out that the State—as turn habeas review to its original end to it. the Senator said: Look, we allow folks moorings, as a corrective process where The habeas corpus provisions in the who are convicted in State court to go no other real remedy exists. And it de- bill, S. 735, do moderate the redun- to State courts for their appeal and serves consideration. S 7836 CONGRESSIONAL RECORD — SENATE June 7, 1995 In the early history of this country, postconviction remedy, as he points So very clearly, the State courts habeas review was not available at out. I believe he is very familiar, as a have always been thought of as a place common law to review by any other matter of fact, with Congress’ law of 25 where Federal constitutional issues court a conviction of a felony entered years ago under which the District of could be resolved. As I noted earlier, by a court of competent jurisdiction. Columbia uses a purely quasi-State Justice Powell has made a very con- The function of the writ was to free court system for the review of its writs vincing case, and he is not the only people who had been imprisoned ille- and does not allow prisoners to go into one. But he specifically has made a gally. Let us understand what I am the Federal system, a system which convincing case that the State courts saying. The constitutional great writ is has worked very well and which we have the competence to rule on these preconviction. have been invited to consider as a re- issues. That is the Constitution writ. The sult by Federal judges who have writ- Mr. President, just in summary, writ of habeas corpus we are talking ten on the subject. again I compliment both managers of about is postconviction, and it is a Let me also address briefly two this bill for the very intelligent way in statutory writ that can be changed points, one made by the Senator from which they have approached this issue. readily by the Congress of the United Pennsylvania, and one by the Senator I appreciate the opportunity to debate States. Senator KYL has cogently from Delaware. The Senator from my amendment in this way, and I will pointed out that that is exactly what it Pennsylvania questioned the constitu- simply say that in summary, what I is. The writ is guaranteed against sus- tionality of what we are doing here. I am trying to do with my amendment is pension by the Constitution. The ear- understand the point he was making. to ensure that there is an adequate lier great writ was well understood to But I do not think that the constitu- remedy for all habeas petitions for refer to habeas for Federal prisoners, tionality of what we are proposing here both Federal and State court prisoners, only Federal prisoners. The Kyl amend- is in doubt. The U.S. Supreme Court Federal prisoners in the Federal sys- ment appreciates the history of the has upheld this procedure unanimously tem, State court prisoners in the State writ and attempts to return it to its in a 1977 opinion, Swain versus court system, but to limit State court original understanding. He has argued Pressley. The opinion was written by systems to the State just as Federal that nobly and well. Justice Stevens. That was—to use the writs are limited to the Federal sys- I think the proposal of the Senator phrase—‘‘bandied about’’ a fairly lib- tem. from Arizona deserves close scrutiny, eral court in 1977. Subsequently, the The only exception which we could and he should be complimented for his Federal courts have consistently held not take away, even if we tried—and, of efforts to address this difficult prob- that the remedy provided in this Dis- course, we do not want to—even in the lem. I have to say that I believe there trict of Columbia court system, which State court system, prisoners have the needs to be postconviction habeas cor- does not permit a Federal writ of ha- ability to go to the U.S. Supreme pus review. But I also believe that the beas corpus, is adequate and effective Court, the ultimate Federal court, to Senator makes a very strong point be- to test the legality of detention. test the propriety of the final decision cause, as a lot of people do not know, Among the cases are, for example, of the State court, in most cases called the District of Columbia has done away Garris versus Lindsay in 1986, a D.C. the State supreme court. So there is adequate ability to protect the con- with postconviction habeas corpus re- Circuit Court case, and Saleh versus stitutional rights of both State and view, collateral review. And it has Braxton, a District of Columbia Dis- Federal prisoners. worked very well in the District of Co- trict Court case in 1992. So consistently the courts have upheld, and I also cited My amendment simply helps to solve lumbia. All the Senator is saying per- this problem of overburdened Federal haps is that we should consider doing the U.S. Supreme Court decision up- holding the constitutionality, as well. courts by taking out of the Federal that for the country as a whole. courts somewhere between 25 and 40 So I just wanted to make these few The Senator from Delaware argued percent perhaps of the cases that are short comments. I have to say that I finally that there could be 50 different interpretations of the constitutional currently adjudicated not only in State compliment my friend and colleague courts but in a duplicative way in the from Arizona for his intelligence on law, if the State court prisoners are relegated only to a State court habeas Federal courts, as well. this issue, and for the very, very spir- I urge that my colleagues support my remedy. With all due respect, I do not ited debate that we have had here on amendment. this. I want to express that for all con- think that is correct because, as we all Mr. BIDEN. Mr. President, do I have cerned. know, those of us who are constitu- any time left? The PRESIDING OFFICER. Who tional lawyers anyway, the U.S. Su- The PRESIDING OFFICER. The Sen- yields time? preme Court precedents must be fol- ator from Delaware has 1 minute and 19 Mr. KYL addressed the Chair. lowed when State supreme courts—or seconds. The PRESIDING OFFICER. The Sen- as in New York’s case, it is called the Mr. BIDEN. Mr. President, my staff ator from Arizona. court of appeals, or the circuit courts— pointed out to me, as I sat down when Mr. KYL. Mr. President, I would like are adjudicating constitutional ques- I said we should keep that in mind, I to use the remainder of my time and tions, they must follow U.S. Supreme said in jest that we should keep that in close the debate, if there are no others Court precedents. mind, my reference was to Judge Bork. who wish to speak. Therefore, it is not possible for there I believe Powell does not support this, Mr. President, first of all, let me to be 50 different interpretations of the Powell Commission would not sup- compliment the Senator from Dela- Federal law by State supreme courts port this, and that Justice Bork would. ware who has conducted a very intel- unless those courts are dealing in bad We should keep in mind the distinc- ligent and thoughtful debate. I appre- faith, and I am sure that no one is sug- tion. ciate that. I very much appreciate the gesting that is the case. It has always But I would also like to point out, as comments of the Senator from Utah been the case that under our Constitu- my staff pointed out to me, in Wright just now. It is only because of his te- tion, the Framers contemplated that versus West, the Supreme Court case nacity that this issue is before us. As State courts would be making these in- decided a couple of years ago, where he said, he has been fighting this issue terpretations. As a matter of fact, the Bush administration sought to ask for years to try to bring some reform there is an interesting book by Curt the Supreme Court to rule on the to the Senate and was able to do that Sneideker who writes to this point. He standard of full and fair, which is what finally in the bill that he brought to said that in our judicial system it has Senator KYL is proposing, Justice the Senate floor. I appreciate very been understood from the very begin- Rehnquist, from his home State of Ari- much his efforts. ning that State courts could pass on zona, refused to adopt the standard I also appreciate the comments he Federal questions. And, by the way, he that Senator KYL is proposing. He is just made. He is exactly correct in de- cites Federalist Papers No. 82 for that certainly no liberal. He refused to scribing my amendment as an attempt proposition. Indeed, the Constitution adopt the standard and insisted that to return the habeas petition to its itself expressly directs them to do so in there be access to the lower Federal original meaning. There is a statutory article VI, clause 2. courts. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7837 But I thank my colleagues for their Mr. President, I would like to con- which has jurisdiction over terrorism indulgence. centrate the remainder of my com- issues, a role I have continued in the I yield the remainder of my time. ments of two provisions of mine that Senate as chair of the International Mr. KYL. Mr. President, let me again are included in this bill with the assist- Operations Subcommittee of the For- compliment both managers of the bill. ance of the chairman of the Judiciary eign Relations Committee. I think this has been a good debate. I Committee, Senator HATCH, and our Sheikh Rahman is the spiritual lead- reiterate my amendment simply re- distinguished majority leader, Senator er of Egypt’s terrorist organization, stricts the State court prisoners to the DOLE. These two provisions are the the Islamic Group. His followers have Start court as prisoners until they are Terrorist Exclusion Act and the Law been convicted for the 1993 bombing of able to go the to U.S. Supreme Court. Enforcement and Intelligence Sources the World Trade Center in New York, I believe this will significantly reduce Protection Act, both of which I have and the sheikh himself is now on trial the number of duplicative appeals. introduced separately this session of for his alleged role in planting and ap- That is what this is all about on the Congress. proving a second wave of terrorist acts habeas corpus reform, to strengthen Traditionally, Americans have in the New York City area. the bill. In any event, I reiterate that thought of terrorism as primarily a Eu- The significance of Sheikh Abdel this is a good bill that we should all ropean, Middle Eastern, or Latin Amer- Rahman is that he was clearly exclud- support. ican problem. While Americans abroad able from the United States under the The PRESIDING OFFICER. The Sen- or U.S. diplomatic facilities have been old pre-1990 law, but the legal author- ator’s time has expired. targets, Americans have often consid- ity to exclude him ended with enact- The Senator from Utah. ered the United States itself largely ment of the Immigration Reform Act Mr. HATCH. Mr. President, I com- immune from acts of terrorism. Two that year. He was admitted to this pliment both Senator KYL and Senator events have changed this sense of safe- country through an amazing series of BIDEN. Both have presented very inter- ty. The first was the international ter- bureaucratic blunders. esting and good arguments. They both rorist attack of February 26, 1993, But then, the 1990 law came into ef- deserve being listened to. fect, and the State Department was Mr. President, I ask unanimous con- against the New York World Trade forced to try to deport him on the sent that the vote on the Kyl amend- Center, and the second was the shock- grounds that he once bounced a check ment be at a time to be determined by ing domestic terrorist attack this April in Egypt and had more than one wife, the majority leader, after consultation 19 against the Federal building in Okla- rather than the fact that he was the with the minority leader. homa City. The PRESIDING OFFICER. Without I first introduced the Terrorist Ex- known spiritual leader of a violent ter- objection, it is so ordered. clusion Act in the House 2 years ago, rorist organization. This was before the Mr. KYL. Mr. President, do we first and this year I have reintroduced the World Trade Center bombing. have to ask for the yeas and nays? legislation in the Senate with Senator A high-ranking State Department of- Mr. HATCH. Yes. I ask for the yeas BROWN as my original cosponsor. The ficial informed my staff during my in- and nays on the Kyl amendment. Terrorist Exclusion Act will close a vestigation that if Sheikh Abdel The PRESIDING OFFICER. Is there a dangerous loophole in our visa laws Rahman had tried to enter after the sufficient second? which was opened up in the Immigra- 1990 law went into affect, they would There is a sufficient second. tion Reform Act of 1990. That bill have had no legal authority to exclude The yeas and nays were ordered. eliminated then-existing authority to him from the United States because Ms. SNOWE. Mr. President, I would deny a U.S. visa to a known member of they had no proof that he had ever per- like to join my colleagues in support- a violent terrorist organization. sonally committed a terrorist act, de- ing S. 735, the Comprehensive Terror- The new standards required knowl- spite the fact that his followers were ism Prevention Act. This legislation edge that the individual had personally known to have been involved in the as- contains a broad range of needed been involved in a past terrorist act or sassination of Anwar Sadat. changes in law to enhance our coun- was coming to the United States to The urgency of passing this provision try’s ability to combat terrorism, both conduct such an act. This provision comes from the sad truth that every at home and from abroad. The man- will restore the previous standard al- day American lives continue to be put agers of this bill have described its pro- lowing denial of a U.S. visa for mem- at risk out of deference to some imag- visions in some detail, so I will not re- bership in a terrorist group. ined first amendment rights of foreign peat their comments. Briefly, however, The elimination of authority to ex- terrorists. This is an extreme misinter- this bill would increase penalties: for clude a foreigner from the United pretation of our cherished Bill of conspiracies involving explosives, for States for mere membership in a ter- Rights, which the Founders of our Na- terrorist conspiracies, for terrorist rorist group happened in the context of tion intended to protect the liberties of crimes, for transferring explosives, for Congress’ rewrite of the old McCarran- all Americans. using explosives, and for other crimes Walter’s Act. The McCarran-Walter’s In my reading of the U.S. Constitu- related to terrorist acts. Act contained a wide range of visa ex- tion I see much about the protection of The bill also contains habeas corpus clusions for ideological or the safety and welfare of Americans, reform to curb the abuse of habeas cor- associational reasons. But in narrowly but nothing about protecting the pus and to address the acute problems refocusing all visa exclusions on per- rights of foreign terrorists to travel of unnecessary delay and abuse in sonal acts, it perhaps inadvertently freely to the United States whenever death penalty cases. The bill also in- treated foreigners who join violent ter- they choose. cludes provisions to combat inter- rorist organizations no differently than The second of my bills contained in national terrorism, to remove aliens, if they had merely joined a political S. 735 is the Law Enforcement and In- to control fundraising for foreign ter- club, or fraternal order. This removed a telligence Sources Protection Act. This rorists, and procedural changes to valuable tool for protecting American legislation would significantly increase strengthen our counterterrorism laws. lives. In my view, and I am sure the the ability of law enforcement and in- Among those strengthening laws are a view of the vast majority of Ameri- telligence agencies to share informa- requirement to use chemical tagging in cans, there is a difference. tion with the State Department for the plastic explosives, to criminalize a I discovered this dangerous weakness purpose of denying visas to known ter- threat to use a weapon of mass destruc- in our visa laws in early 1993 during my rorists, drug traffickers, and others in- tion, and to add conspiracy crime to investigation of the State Department volved in international criminal activ- certain terrorism offenses. failures that allowed the radical Egyp- ity. Finally, the bill authorized increased tian cleric, Sheikh Omar Abdel This provision would permit denials funding for Federal law enforcement Rahman, to travel to and reside in the of U.S. visas to be made without a de- agencies, providing $1.5 billion over 5 United States since 1990. I undertook tailed written explanation for individ- years for the FBI, DEA, assistant U.S. this investigation in my role as rank- uals who are excluded for law enforce- attorneys, the INS, and the U.S. Cus- ing Republican of the House Inter- ment reasons, which current law re- toms Service. national Operations Subcommittee, quires. These denials could be made S 7838 CONGRESSIONAL RECORD — SENATE June 7, 1995 citing U.S. law generically, without sues. It is my hope that this bill is an Senator HOLLINGS have been waiting further clarification or amplification. example of what we can accomplish to- all day long to take up the tele- Individuals denied visas due to the sus- gether in this body, and I hope we will communications bill, and there will be picion that they are intending to immi- continue to approach issues important votes and there will be amendments grate would still have to be informed to the future of our Nation in this probably until 10 or 11 o’clock tonight. that this is the basis, to allow such an manner. So if we can finish, whenever we finish individual to compile additional infor- I urge adoption of the bill. this bill, we will be on the tele- mation that may change that deter- Mr. HATCH. I now ask that the Kyl communications bill. mination. amendment be laid aside and the Sen- I understand the Senator from Dela- Under a provision of the Immigration ator from Delaware be recognized to ware is now prepared to offer his and Nationality Act [INA], a precise offer the last amendment to this bill as amendment, which will be the final written justification, citing the spe- soon as we have a quorum call. amendment. cific provision of law, is required for Mr. President, I suggest the absence The PRESIDING OFFICER. The Sen- every alien denied a U.S. visa. This re- of a quorum. ator from Utah. quirement was inserted into the INA Mr. DOLE addressed the Chair. Mr. HATCH. Mr. President, I see the out of the belief that every non-Amer- The PRESIDING OFFICER. The dis- distinguished Senator from Maine is ican denied a U.S. visa for any reason tinguished majority leader is recog- prepared to speak and utilize his 15 had the right to know the precise nized. minutes. grounds under which the visa was de- Mr. DOLE. Mr. President, what is the Mr. COHEN addressed the Chair. The PRESIDING OFFICER. The Sen- nied, even if it was for terrorist activ- pending business? Are we on the final ity, narcotics trafficking, or other ille- ator from Maine. amendment? Mr. COHEN. Mr. President, first let gal acts. This has impeded the willing- The PRESIDING OFFICER. The me thank the Senator from Utah for ness of law enforcement and intel- Chair would observe we just dispensed allowing me to use 15 minutes of his ligence agencies to share with the with the Kyl amendment. There is no time. I will try and cut it down if I can, State Department the names of exclud- pending amendment at this time. because I do not want to trespass on able aliens. Mr. DOLE. Is there a time agreement his time, especially since I am going to These agencies are logically con- on the Biden amendment? be speaking in opposition to his posi- cerned about impeding an investigation Mr. HATCH. Mr. President, I ask tion. So it is kind generosity on his or revealing sources and methods if unanimous consent that the amend- part, superimposed by the majority they submit a name of a person they ment of the distinguished Senator from leader, I might add, but nonetheless I know to be a terrorist or criminal—but Arizona be laid aside; that as soon as appreciate it. who we do not want to know that we the distinguished majority leader is Mr. President, I have in my past life know about their activities—who then finished, we can move to the final been both a prosecutor and defense goes on the lookout list, is denied a amendment, the Biden amendment. counsel. I believe firmly that some re- visa, and then is informed in writing The PRESIDING OFFICER. Without form of habeas corpus is necessary. that he or she was denied a visa be- objection, it is so ordered. Successive and repetitive petitions, ap- cause of known drug trafficking activ- Mr. DOLE. How much time is the peals and Supreme Court reviews have ity. That drug trafficker then will Biden amendment? led to excessive delays and imposed know that the DEA knows about his or Mr. HATCH. Mr. President, I ask costs on State prosecutors’ offices that her illegal activity and may be devel- unanimous consent that there be 90 otherwise would be dedicated to law oping a criminal case. This informa- minutes equally divided between Sen- enforcement. I think these delays have tion is something the United States ator BIDEN and myself. rightly been perceived by the American would want to protect, until the case Mr. COHEN. Reserving the right to people as an abuse of the judicial proc- against is completed and, hopefully, object, I might indicate to the Senator ess by those opposed to the death pen- some law enforcement action is taken. from Utah that Senator BIDEN indi- alty. At the same time, however, for the pro- cated he will allow me to have an addi- I also want to point out that I oppose tection of the American people we tional 15 minutes separate and apart the death penalty, but I cannot support should also make this information from this agreement. a system that allows respect for the available to the Department of State Mr. HATCH. Let us make it 105 min- law to be undermined. Consequently, I to keep the individual out of our coun- utes with 45 minutes—— believe many of the procedural reforms try. Mr. DOLE. I have a better idea. Why contained in S. 735 are appropriate and The key issue is that travel to the not the Senator from Utah give him 15 necessary. United States by noncitizens is a privi- minutes of his 45. I support limits on successive, repet- lege, not a constitutional right. There Mr. HATCH. That will be fine. itive petitions. I support a statute of is no fundamental right for extensive Mr. COHEN. I do not want to take limitations for filing habeas petitions. due process in visa decisions by our the time of Senator HATCH. And I support time limits on judicial consular officers overseas. While I be- Mr. DOLE. We want to finish this consideration of habeas cases. I think lieve that our country should do what bill. these reforms should be sufficient to we can to be fair in our treatment of Mr. HATCH. That is fine with me. eliminate the abuses of the habeas sys- would-be visitors to the United States, Half-hour to me, an hour to Senator tem that have led to decade-long in cases where providing information BIDEN. delays in many capital cases. to an alien would harm our own na- The PRESIDING OFFICER. Is there But the goal of habeas corpus reform tional security, complicate potential objection? Does the Senator from ought to be that prisoners have one criminal cases or potentially reveal Maine object? complete bite at the apple. sources and methods of intelligence Mr. COHEN. No. The bill before the Senate gives pris- gathering, we should err on the side of The PRESIDING OFFICER. Without oners one bite at the apple but changes protecting Americans, not the conven- objection, it is so ordered. the law so that the bite is incomplete. ience of foreign nationals. Mr. DOLE. Mr. President, then it It weakens the standards under which Mr. President, I again congratulate would appear to me that we are not Federal courts review constitutional Senator DOLE, Senator HATCH, and all going to finish this bill until after 5 errors that take place in State courts of my other colleagues—on both sides o’clock. But we will take up the tele- by requiring a Federal court to defer to of the aisle—who have been instrumen- communications bill. We will be here a State court’s reasonable interpreta- tal in bringing this comprehensive late because we have frittered away the tion and application of constitutional counterterrorism bill to the Senate afternoon here. We hoped to conclude law. floor for swift action. This is an exam- action on this bill by 1 o’clock. It is By weakening the effectiveness of the ple of our capacity to act quickly on a now 3:30, and it is going to be 5 or 6 writ in this way, I think it is going to bipartisan basis and in cooperation o’clock. So we do not have any re- erode what has been a cherished proce- with the administration on critical is- course because Senator PRESSLER and dure over the centuries, the hallmark June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7839 of Anglo-American jurisprudence. The Carter. I read a book that was written have knocked Carter out for the rest of writ of habeas corpus is the last line of some time ago called ‘‘The 16th his life, without him ever having a le- defense for constitutional rights. Round.’’ In ‘‘The 16th Round,’’ we have gitimate opportunity to challenge the An effective habeas remedy is espe- a description of what happened to injustice that took place 20 years ago. cially necessary in modern times be- Rubin ‘‘Hurricane’’ Carter, the one So let us not fool ourselves. The sub- cause of the poor caliber of legal rep- time the middleweight prizefighter. It stantive changes to the habeas bill resentation capital defendants are was not a death penalty case, but it being proposed are not designed just to being provided in capital trials. was a case of an innocent man being eliminate frivolous cases. They are de- Many of the States that produce a convicted for a crime he did not com- signed to weaken the Federal courts’ large number of capital cases have no mit, primarily because he was a black role in scrutinizing State court ver- minimum competency standards for man who was in the vicinity when a dicts for constitutional error. Prof. defense counsel. One State limits the triple murder was committed. Henry Monaghan from Columbia Uni- compensation for court-appointed It was way back in June 1966. Two versity said it very well in a letter to counsel to $1,000 for all pretrial prepa- light-skinned black men, one described Senator HATCH. He acknowledged that ration and trial proceedings—I repeat, as thin, about 5 feet 11 inches, shot and he is ‘‘no fan of habeas corpus.’’ But he $1,000 for all pretrial preparation and killed three people in a Paterson, NJ was satisfied that the changes in the trial proceedings. bar. Carter, a very dark-skinned, Supreme Court law and the procedural Another State pays a maximum of stocky, prizefighter, 5 feet 8 inches reforms in this bill ‘‘would go a long $2,500. A survey by the Mississippi tall, was driving in the vicinity with way to eliminating abuses.’’ He went Trial Lawyers Association estimated two other people. They were stopped by on to urge that the substantive stand- that the average capital defense attor- the police and then released because ards not be altered: ney is compensated at a rate of $11.75 they did not match the description of I believe the writ’s core function of afford- an hour, just 21⁄2 times the minimum the killers. Later that night, Carter ing independent Federal review to mixed wage. and a man named John Artis were questions of law and fact should be retained There are reported cases of trial again picked up by the police, but the and that the deference provision in S. 735 counsel sleeping during trial, not pre- survivor of the shooting failed to iden- should be withdrawn. The deference provi- senting any mitigating evidence during tify them as the killers. They were sion in S. 735 would keep habeas corpus from the penalty phase of the trial, having serving any meaningful role. Effectively, it given lie detector tests and they would repeal the habeas corpus statute. only 6 months of legal experience and passed. no criminal trial experience, or filing a In the meantime, a small-time thief Similarly, a former State prosecutor one-page brief on appeal. who was robbing a factory nearby the recently wrote to me that the ‘‘reason- In one of his last opinions from the murder site told the police he had seen ableness’’ rule of deference in this bill bench, Justice Blackmun listed six the commission of the crimes, and in is not the way to speed up habeas cor- egregious examples of the poor rep- an attempt to curry favor with the po- pus review. It is not a way to prevent resentation many capital defendants lice, he told them Rubin ‘‘Hurricane’’ the same prisoner from filing more receive. One case Justice Blackmun de- Carter was the killer. than one petition. Rather, ‘‘it is an un- scribed was that involving John Young, Based on that information, Carter precedented attack on the rule, as old who was represented in his capital trial and Artis were tried, convicted, and as the Republic, that Federal courts by an attorney who was addicted to sentenced. Carter himself was sen- have the last word on what the Federal drugs and who a few weeks after the tenced to life in prison. Constitution means and how it is to be trial was incarcerated on Federal drug Ten years later, after the thief re- applied. It would require Federal charges. The court of appeals of the canted his trial testimony, Carter and courts to stand by and do nothing even eleventh circuit rejected Young’s inef- Artis were given new trials. Then at if presented with a State court ruling fective assistance of counsel claim on the time of trial the thief recanted his that was wrong, and the cause of the Federal habeas review and the Supreme recantation. Carter and Artis were con- person being unjustly imprisoned or Court denied certiorari. Young was ex- victed again. The New Jersey Supreme even executed.’’ ecuted in 1985. Court affirmed Carter’s conviction by a So, Mr. President, I think it is impor- In another case, Larry Heath was vote of 4–3. tant that those accused of serious cap- represented on direct appeal by counsel Then a habeas corpus petition was ital crimes have one complete bite at who filed a six-page brief before the filed in Federal court. In 1985, the court the apple. I believe the Biden amend- Alabama Court of Criminal Appeals. issued an opinion finding two serious ment will make sure that one bite is The attorney failed to appear for the constitutional violations: The prosecu- complete and not incomplete. I hope oral argument before the Alabama Su- tor’s misuse of a lie detector test and that it will receive the endorsement of preme Court and filed a brief in that the denial of equal protection due to the Senate, because habeas corpus court containing a one-page argument the prosecutor’s unfounded racial alle- without it will become a hollow rem- and citing a single case. The eleventh gations against the defendants. The edy, one that I do not think would be circuit found no prejudice, and the Su- prosecution argued that the defendants worthy of the title ‘‘the Great Writ.’’ preme Court denied review. He was exe- were simply out to murder white peo- A strong case has been made for the cuted in 1992. ple when, in fact, the evidence was that procedural reforms in this bill. They The bill before the Senate does noth- they both had many white friends. will increase respect for the law by ing to remedy the serious problem of The third circuit upheld the lower stopping the endless delays and appeals incompetent counsel in State court court’s decision to grant the petition. of capital sentences. But no case has capital cases. But in light of this, I The Supreme Court denied certiorari. been made for changing the sub- think the Biden amendment is all the And the State of New Jersey finally stantive standards applicable in federal more imperative to maintain the effec- dismissed the indictment. courts for well over a century. When tiveness of habeas under these cir- Here we have a situation where a per- we are making such radical changes in cumstances. When trial counsel has son spent over 20 years in prison over our legal system, we should act pru- done little to protect a capital defend- charges that were false. The attorney dently. We can always cut back on ha- ant’s constitutional rights at trial, at for Mr. Carter has written to Senator beas in the future if the procedural re- the very least, it seems to me the Fed- HATCH to point out that if a proposal forms in this bill do not work. But we eral Government ought to provide ef- similar to the one on the floor right may never recover the habeas process fective Federal court review of the now were law today, Carter’s habeas once it has been effectively been re- State court conviction and sentence to corpus petition would have been dis- pealed by the substantive changes ensure that the core constitutional re- missed. He said, ‘‘I do not see what le- being proposed. quirements have been satisfied. gitimate criminal justice purpose I yield the floor. Mr. President, I think Senator BIDEN would be achieved by such a result.’’ Mr. BIDEN. Mr. President, I thank has already talked at some length Indeed, the 16th round never would the Senator from Maine. The Senator about the case of Rubin ‘‘Hurricane’’ have occurred. The 15th round would from Maine has a reputation in this S 7840 CONGRESSIONAL RECORD — SENATE June 7, 1995 body of being one of the most thought- Nothing in my amendment, nothing Republicans want to slam the door of ful, and when he speaks in debates, un- at all, would change what the Repub- the Federal courthouse closed. like the Senator from Delaware, a most licans propose for speeding things up or I know there are a lot of things about measured Senator, and one whose ca- for cutting down on abuses. Federal overreaching, but one thing I reer has been marked by observable The Republicans have a new strict do not think most Americans—whether high points of principle. And this is, I limit on successive petitions in their they are liberal or conservative, wheth- detect, from his speech, a principled bill. Many of my liberal friends think er they are moderate, whether they are issue here. This is an important issue. these restrictions are excessive. I do Republican or Democrat—I do not This is not one where we should, quite not. I have not attempted to change a think they believe that is a remedy, to frankly, be guided by the legitimate word. I have not attempted to change a slam the Federal courthouse door. but sometimes not fully articulated word on their bill relating to succes- They do not want it swinging off its concerns of our constituents. sive petitions. Not a period, not a hinges, but they do not want it I believe what our constituents want comma of their proposal is changed by slammed shut. is what the Senator from Maine has my amendment. What I propose is—to be able to use outlined. I doubt whether there is a Put another way, at the end of the this silly metaphor—to be able to open man or woman in America who thinks day, or the end of today, even if I were the door once, walk through the door, that Hurricane Carter should not be to win everything I am asking for, the and say, ‘‘Federal judges, experts on free today. I doubt whether there are statutory right of habeas corpus will be the Federal Constitution, listen to my any people in America today who drastically altered from what it is plea. Make a decision. If you decide would have been happy had this been today. No longer will we see a guy fil- against me, I’m out, but listen to it.’’ the law and had he been denied the op- ing petition after petition. No longer As the Senator said, the lawyer for portunity to make that final plea in will my friend from Utah, my distin- Hurricane Carter, and I suspect every- Federal Court. guished friend from South Carolina, one else would agree he would be a man Yet, if we amend the law along the Senator THURMOND, my friend from in jail the rest of his life were that lines of the Biden amendment, which Pennsylvania, my new friend and col- door slammed shut, had it been Senator COHEN supports, we would have league from Oklahoma, be able to put slammed shut in the way I believe this drastically cut down frivolous appeals up on a board or reference cases which present bill does. and drastically cut down successful ap- are real and exist today where someone So that is what we are arguing about. peals. As a matter of fact, there is no has sat, after having been convicted for AMENDMENT NO. 1224 difference in the time limitation for a capital offense, on death row for 2, 5, (Purpose: To amend the bill with respect to filing an appeal and the number of suc- 10, 12, 15, 16, or 19 years. That will not deleting the rule of deference for habeas cessive appeals that are allowed be- be possible if we adopt my amendment. corpus) tween what Senator HATCH wants and Now, usually, the Senator from Utah Mr. BIDEN. Mr. President, I send an what we want. The big difference in has a chart out here listing the number amendment to the desk and ask for its what the Senator from Maine and I are of petitions in several cases. I am not immediate consideration. saying is the standard the court is able making light of that. When he brings The PRESIDING OFFICER. The to apply when the Federal court looks out that chart, if he does in his re- clerk will report. at, as Professor Monaghan states, sponse, I want everyone to look at it The assistant legislative clerk read those mixed questions of fact and law. and understand that if the Biden as follows: This would essentially not allow them amendment passes, that would be the The Senator from Delaware [Mr. BIDEN] to look at fact, just theoretically the end of charts like that. proposes an amendment numbered 1224. law. So what I propose to do is precisely There would no longer be an ability Mr. BIDEN. Mr. President, I ask what Professor Monaghan, who is not a for a convicted prisoner, convicted of a unanimous consent that reading of the fan of habeas corpus, wants done. Let capital offense, to be able to file those amendment be dispensed with. us be real clear right from the start successive petitions and delay for the The PRESIDING OFFICER. Without here what we are arguing about and number of years the charts have al- objection, it is so ordered. what we are not arguing about. Again, ways shown. The amendment is as follows: as my old buddy Sid Balick, says, I also point out that we will still Delete page 105, line 3, through page 105, ‘‘keep your eye on the ball.’’ What are have the problem of irresponsible State line 17. we arguing about and what are we not courts who do not read briefs, who do Mr. BIDEN. Mr. President, let Mem- arguing about? We are not arguing not take the time to follow through. I bers be clear about what we are talking about whether or not to speed up the cannot affect that, nor can they. At a about. process of habeas corpus review, and we Federal level, we will have eliminated A petition for habeas corpus—I want are not arguing about reducing the cur- the ability to have those successive pe- to complicate this—a petition for ha- rent abuses in the system. titions. beas corpus is literally and simply a I agree with my Republican col- So let the Senate be clear on what we piece of paper on which a State pris- leagues from Utah and Pennsylvania are not arguing about. What we are ar- oner says, ‘‘I have been denied my con- that we have to have a strict statute of guing about is whether we should dis- stitutional rights in the following limitations and a strict limit on suc- mantle the habeas corpus process by way,’’ and takes that paper or has his cessive petitions. Put another way, dramatically restricting the Federal lawyer take the paper and file that in how many times after that first one, or power of the Federal courts to decide a Federal court. under what circumstance, can you file whether a State court got it wrong, In almost all instances, this is after another petition if you are able to at whether a State court wrongly con- his remedies have expired in a State all. Nothing I am trying to do today, victed a person, whether a State court court system. The issue is whether he nothing in my amendment would is wrongly sending a person to death. or she should be able to file that in change what the Republicans propose That is what we will be changing. Federal court and under what cir- for speeding things up or cutting down That is where I part company with cumstances. on abuses. They have a 6-month statute my Republican friends. I want to fix The piece of paper that a habeas cor- of limitations in their bill. I am not the problem. They want to do away pus petition is written on says that the trying to make that 9 months or 1 year with the right. I want to get a habeas prisoner claims to be held or sentenced or 2 years. I am not proposing to corpus petitioner in and out of Federal to death in violation of the Federal change a single word in the statute of court quickly. I do not want to make it Constitution, the U.S. Constitution. It limitations. As this chart up here practically impossible for him to get does not ask that the prisoner be re- shows, in the Biden amendment the into Federal court. I want to say you leased, but it does ask that he be given time limits for filing a petition are the get in, and you must get in quickly, a new trial. same as in the Specter-Hatch provi- and you can only get in under certain Habeas corpus is the means by which sion. We both set limits on time. circumstances, and you are out. The Federal courts ensure that State June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7841 courts are following the Constitution. things up, Senator HATCH and I are in After the conviction takes place, he It ensures that those in jail or on death the same spot. Both our bills have time files a petition for the writ of habeas row were not only not put there mis- limits on when a petition can be filed. corpus and proves that this informa- takenly, but that they were not put Both our bills have limits on successive tion was withheld from him; that it there in violation of the U.S. Constitu- petitions. But our bill differs when it would have made a difference to the tion. comes to the issue of deciding these pe- jury. And the State court of Delaware I might add, if we, in fact, eliminate titions. says: No, no, even if that is true, it Federal habeas corpus or in effect I said the Federal courts should exer- does not prove that he is innocent. It eliminate Federal habeas corpus, what cise independent review while the just proves that I have a grudge we do is we leave to 50 different States Specter-Hatch bill requires Federal against him and it just proves that the the potential for 50 different interpre- courts to defer to the States. prosecution was not totally honest. tations of fact and law. It is important to realize that the But it does not prove his innocence. We all know if a Federal court makes deference standard in the Specter- Therefore, hang him. Or, in Delaware, a judgment on a Constitution in a cir- Hatch bill effectively makes the rest of lethal injection. cuit or in a district, it usually goes to the bill irrelevant. After all, what dif- Now, the fact of the matter is under a circuit, and then to the Supreme ference does it make what the time the language of this bill the State Court. We get a final national judg- limits are if the Federal courts are court’s decision on this issue, that is ment on how to read that provision and going to be precluded from examining the scope of the prosecutor’s duty to that fact/legal mixture under the Fed- what the State courts did in any event? turn over the information, would be eral Constitution. We have a uniform What difference do the time limits the absolute last word because, as long application of the law. make? That is the fundamental dif- as the State court decision could be de- The writ of habeas corpus, known ference in our approaches, because that scribed by a lawyer as being reason- historically as the ‘‘great writ,’’ is en- is what the result of the Specter Hatch able, the Federal court could not over- shrined in the Constitution itself, bill will be. turn it. In this example, an innocent which provides that ‘‘The writ of ha- Let me give a hypothetical example. man may be put to death because, beas corpus shall not be suspended,’’ Suppose an innocent man is charged under this bill’s provisions, the issue article I, section 9. with a capital crime and during the in- before the Federal court would be, was Unfortunately, under the current sys- vestigation one of the witnesses identi- it reasonable for the State court to say tem, guilty people can sometimes fies someone else as having committed that they are upholding the conviction delay their death sentences by filing the crime other than the defendant, a because the information withheld frivolous habeas petitions. There is no fact which is concealed from the de- would not have proved his innocence? time limit on when the petition has to fendant. And there are cases where this The probability is the Federal court be filed, and there is no statutory limit has occurred. would have to say that is reasonable. It on the number of petitions. At trial the witness identifies the de- may not be right. We might not have I have, in years past, proposed legis- fendant, the innocent man, even decided it that way, but it is reason- lation that would reform this system though the prosecution has in its pos- able. A reasonable man could say, all to generally limit a petitioner to one session the evidence that another wit- right, even if the jury had known this, petition in Federal court, and to im- ness identifies someone else as having it did not prove his innocence. They pose strict limits on when that petition committed the crime. But at trial, the still may have convicted him. The Re- had to be filed. But my legislation also second witness identifies the defend- publican bill says: recognized in that one round of Federal ant, the innocent man. An application for writ of habeas corpus on review, the prisoner is allowed and In addition, the witness testifies that behalf of a person in custody pursuant to the must be allowed a full and careful re- he has never met the defendant before judgment of a State court shall not be grant- view to ensure that we do not execute when, in fact, the prosecutor knows ed with respect to any claim that was adju- innocent people. that the witness harbors a grudge dicated on the merits in State court proceed- The death sentence is unlike any against the defendant, the witness who ings unless the adjudication of the claim other. There is no turning back once it identifies the defendant. * * * resulted in a decision that * * * in- has been carried out; to state the obvi- Now, the prosecutor goes ahead and volved an unreasonable application of, clear- ous, a mistake cannot be fixed. Because does not tell the defense about the de- ly established Federal law, as determined by of that, we cannot allow the death pen- tails of what the witness previously the Supreme Court of the United States. alty to be used against innocent people said, that he previously said, no, I iden- That is a heck of a standard to have and we cannot allow it to be carried tify somebody else, and where the pros- to apply. out unfairly. ecution knows that the identifying wit- So, I say goodbye to the stenog- I am certain all of my colleagues ness has a grudge against the defend- rapher. He is off to death row. He prob- would agree that, although the death ant. ably thinks he is off to death row when penalty should be applied swiftly and The State courts go ahead and up- he has to come out here and take down with certainty, the worst thing in the hold the conviction anyway, reasoning my speeches. But he is off to death world would be for it to be applied that the truthful evidence would not row. Because even though—even wrongly. actually prove the defendant innocent. though—the prosecution withheld evi- My amendment tries to preserve the Let me get this straight now. If in a dence that goes to his innocence, in- important role that habeas plays, while trial the stenographer here is accused stead of the court saying, ‘‘This would reducing delays. It strikes at what I be- of killing John Doe and the prosecutor have made it difficult for the jury to lieve is the issue that truly rises above interviews me as a witness. I say no, he find beyond a reasonable doubt he was all else in the Republican bill. It did not kill John Doe, Charlie Smith guilty,’’ which would have been a rea- strikes the provision in the Republican killed John Doe. But then I say, no, I sonable conclusion to reach as well, bill that I think is the most trouble- change my mind. I think he did kill they said ‘‘This does not prove that he some, and that is the so-called rule of John Doe. is innocent so we are not going to over- deference, which has been known The prosecutor investigates and finds turn the conviction.’’ So he is gone. Be- around here the last 20 years that I out that the stenographer and I have cause, as long as the State court deci- have been here as the full and fair rule. hated one another for the last 20 years, sion could be described by a lawyer as This, in my view, and probably in the or I have held a grudge against the ste- being reasonable, the Federal court has view of advocates of both sides of the nographer because he took down one of to defer to the State court. habeas corpus debate, is the single my speeches incorrectly. The effect is there is no habeas cor- most important provision of the Re- They never do that, I might add. pus review on matters of fact and law publican bill and the single biggest dif- Now, the prosecutor does not tell the at a Federal level. My amendment sim- ference between my approach and their defendant about my grudge against the ply strikes this language. It leaves in approach. defendant and about the fact that I ini- the bill the rest of the reforms—time As the chart I have just had put up il- tially identified somebody else. So, limits, limits on second petitions—but lustrates, when it comes to speeding now there is a trial and he is convicted. it strikes the deference rule and allows S 7842 CONGRESSIONAL RECORD — SENATE June 7, 1995 the current practice of independent re- Reasonable people, like Senator Federal court decisions that never get view by the court, the Federal court. HATCH and I, are going to be arguing on to the Supreme Court because no one The Federal court should be able to say the floor about the regulatory reform bothers to conclude that they were in that circumstance: We understand bill and about the takings clause and wrongly decided. And they are accepted what the State court did but under our all of those issues, right now if the U.S. as Federal law. In this case, you could interpretation of the Constitution and Congress passes a law saying you can- have all the districts or the circuits his constitutional rights we believe not have more than 2 parts per billion agreeing on one application of the law, that withholding this information was of a carcinogenic substance in the liq- and the State court ignore what the so prejudicial that he should get a sec- uid effluent coming out of your fac- Federal courts have said because there ond trial with all the facts being tory, the Supreme Court says not is no Supreme Court decision on point. known. They should be able to do that. whether that does or does not cause That seems to me to be a very dan- This would preclude them from doing cancer, they say it is reasonable for gerous precedent. Even so, if there is a that. those folks in the Senate and the Federal court decision directly on I think there are four parts of this House to conclude that is dangerous point, under this language, the State long sentence I read up here on the and, therefore, they will uphold the court could ignore it as long as the Su- board, four parts of this long sentence statute. preme Court has not spoken to it. In which have a devastating effect. It is the lowest standard. It is one other words, State courts could ignore (Mr. THOMPSON assumed the chair). thing to apply that when we are pro- the decisions of the lower U.S. courts Mr. BIDEN. First, the language sets tecting the public against environ- interpreting the Constitution without out clearly what the general principle mental pollution. It is another thing any prospect of being corrected by Fed- is. The general principle in this lan- when we are applying that standard to eral courts. guage in the Hatch bill is that Federal the application of constitutional rights For example, an appeals court re- courts shall not grant a claim that was to individuals. There we have always cently held that a defendant cannot be adjudicated in State court proceedings. applied the highest standard. The Gov- prosecuted criminally and have his That is what is at the top. It seems to ernment has been required to meet the property forfeited under the civil for- me that is what the sponsor of this bill highest standard before they can put feiture laws because of the double jeop- views as the most desirable outcome in someone in jail or put them to death. ardy clause prohibiting that. That rul- a habeas petition. Of course, this is di- This reasonableness standard reduces ing is clear. It is unambiguous. But it rectly contrary to the purpose of ha- to its lowest common denominator. is not a Supreme Court ruling. Under The court also uses a reasonableness beas corpus, which is to have Federal this bill, a State court, which subse- standard in reviewing Federal agen- courts, and in particular the Supreme quently refused to follow that interpre- cies’ interests, and the administrative Court, decide issues of Federal con- tation, could not be corrected by ha- statutes. I will not get into it now. But stitutional law. beas corpus review because it could the Chevron case and others are cases never get back into the Federal court The second problem, in this instance, we debated about whether or not, in system. the bill seems to allow an exception to applying civil law, which standard we This limitation on Supreme Court the general rule but one that is likely should apply. But the bottom line is laws is particularly nonsensical be- to be illusory because a claim can be this, folks. If the standard is reason- cause the Supreme Court generally granted only if the State court’s appli- ableness, it is the lowest common de- does not accept for review decisions by cation of Federal law to the facts, be- nominator. And, if the Federal court is circuit courts of appeal unless there is fore it was unreasonable, not merely required to give deference to a State a split in the circuits, as the Presiding wrong but unreasonable. It could be court on the grounds that it acted rea- Officer knows. If all the circuits agree wrong but viewed as reasonable. This is sonably as opposed to correctly, a lot on a principle of law, the Supreme an extraordinary deferential standard of folks—I should not say a lot; I do not Court would have no reason to address to the State courts, and I believe it is know how many—but there will be in- it. an inappropriate one. It puts the Fed- dividuals who will be put to death So under this standard that we are eral courts in the difficult position of where they otherwise would not have about to write into the law, a State evaluating the reasonableness of a been put to death if the Federal court court could ignore a rule that all the State court judge rather than simply were able to apply the standard that circuit courts agreed on and no Federal deciding whether or not he correctly determines their ability to go back and court could correct that State decision. applied the law, not whether he did it look at the facts and the law and make That is preposterous; maybe unin- reasonably. You can have a reasonable an independent judgment. tended, but that is the effect. mistake. They could reasonably con- By the way, let me say the whole rea- Fourth, the exception to the general clude that on a constitutional provi- son to have the ability of a defendant rule in habeas shall not be granted if sion, it should not apply, when in fact to go into Federal court is to allow the State court ajudicating the claim the Supreme Court would rule it must Federal judges to apply the Federal is further narrowed by the language in apply. Reasonable people could have Constitution and determine whether the statute requiring that the Federal reached the conclusion prior to the ap- they think the State court applied it law at issue must have been clearly es- plication of the Miranda decision that correctly. But if you limit what they tablished. Not only must the decision it was reasonable not to tell someone can look at and the standard they use of the State court have been unreason- their rights. That is a reasonable deci- in review, you have in effect undercut able, and not only must it have been sion. It may not be born out of animus. the very rationale for allowing the de- unreasonable in light of Supreme Court The Supreme Court said no. You have fendant to get into that Federal court law, not Federal law, but it must have to tell people their rights. A reasonable in the first place. been unreasonable in light of Supreme standard of review is the lowest stand- The third problem with this language Court law that is clearly established. ard used by Federal courts. is the bill’s reasonableness exception is The one thing we know is that where In reviewing the constitutionality of limited not only by the requirement lawyers are involved, there is little statutes, for example, in cases where that the decision must have been un- that can be said to be clearly estab- courts used the reasonable or rational reasonable, but that it must have been lished. So where the application of a standard, it looks only at whether unreasonable in light of Supreme Court U.S. Supreme Court decision to a new there is any rational basis supporting law. So even if there is a Federal court set of facts is unclear, the State court the statute. It is a cursory standard of decision directly on point, the State need not worry about it. review. In fact, looking at thousands of court could ignore it as long as the ap- For instance, the Supreme Court cases since the late 1930’s, our Supreme plication of law had not been directly quite logically has held that the pros- Court has found—to the best of my decided by the Supreme Court. ecution must give to the defendant any knowledge—no statute invalid when As the Presiding Officer knows, as a evidence it has that is favorable to they have applied the reasonable stand- former prosecutor and a first-rate trial him. It is called justice—justice. This ard. lawyer, there are a number of lower is not a game. Prosecutors are not June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7843 there to determine whether they can not in relation to decisions of lower a court wrongly but in good faith, in win. They are there to do justice. And Federal courts in their State. And it good faith wrongly decides a provision so the Supreme Court has said that, if requires them to act reasonably only if in the Constitution, wrongly decides it, the prosecution has at its disposal evi- the Supreme Court law can be said to the result of which is the person goes dence that goes to the innocence of the be clearly established. All this to death. Are we going to reward igno- defendant, that has to be made avail- amounts to is that State courts in al- rance? Are we going to reward reason- able to the defendant. But is a certain most every case will be free to reach ableness just because it came from the kind of evidence favorable to the ac- virtually any decision without any State? It may be reasonable that he cused? That might not be clearly estab- chance of Federal review later. This reached that decision but wrong. lished. And so the State courts will be rule, the so-called rule of deference, Wrong. This would preclude Federal free to go their own way. turns habeas on its head. The purpose courts from looking at the merits— For example, a clear case would be of habeas is to correct State court er- whether it was wrongly decided. They assume that in the State court, the rors. But if Federal courts have to only get to do it if it meets the thresh- prosecutor had evidence there were two defer to State court decisions, they old that it was an unreasonable appli- witnesses at the same time who said will not be able to correct their mis- cation of the facts and the law. the defendant did not do it. Well, they takes except in the most egregious cir- When the Supreme Court announces cannot withhold that from him. But cumstances. a constitutional wrong such as the they may conclude at the State court Now, through the years we have right of the defendant to know about level that they have evidence there is a fought in this Chamber battles over the evidence held by the prosecutor that motel receipt that indicated the de- so-called full and fair standard, essen- suggests he is innocent, it necessarily fendant was at such and such a place tially what Senator KYL had intro- leaves open the question of how that when this crime was committed. They duced. At least he was straightforward general rule applies to specific facts. can reasonably conclude at a State and blatant about it. He said: Look, my Does that mean evidence that could be court level we really do not think that purpose here is to do away with any used to impeach a witness must be goes to the innocence, that is not fa- State prisoner being able to get into a turned over? How strong does the evi- vorable to the defendant, that is a mar- Federal court, period, and because the dence need to be before the require- ginal question so we are not going to Constitution says you can go to the Su- ment kicks in? The Supreme Court tell him. preme Court under rare circumstances, cannot possibly decide all of these is- Now, what you have to do, if you are I am not going to try to eliminate it. sues in one case. filing a Federal habeas corpus appeal But he said 40 percent of the delay is in But lawyers arguing in courts will be to get them to go back and get them to Federal court, so what I am going to do able to come up with all sorts of dif- look at that, you have to prove that is do away with the ability to get into ferent ways of applying that general judgment was unreasonable even Federal courts. rule in individual cases. And many of though there is a Supreme Court deci- Straightforward. This provision sug- those ways of applying them may be sion out there saying you have to make gested by my Republican friend essen- reasonable. That means that Federal things that are favorable to the defend- tially does the same thing, making it courts will be unable to review State ant available to the defendant, because sound like we are really letting some- decisions through habeas corpus and it is not clearly established law, be- one get in. begin to establish some uniform law in cause it is not around long enough to Admittedly, the most egregious that portion of the country. Instead, have been applied to 10, 20, 30 fact cir- cases, which would not be captured by virtually any decision a court reaches cumstances. the Kyl amendment, would be captured will have to be considered acceptable Now, it seems to me that we are re- in this amendment. But the vast ma- solely because it was reasonable. quiring an awful lot of hurdles and lim- jority of cases are in a gray area. And I ask everybody listening to this, do itations on what a Federal judge can again my proposal to delete this stand- we want 25 different interpretations of look at once we get to court. Again, ard will in no way slow the process up what is reasonable? Do we want 25 or 50 keep our eye on the ball here. We are and will in no way increase the number different versions of what is reason- not talking about successive abilities of opportunities that a prisoner has to able? That flies in the face of the no- to get into Federal court. We are not file a petition. tion of a uniform application of the talking about extended time limits to While this language looks different only unifying document that exists in get into Federal court. We are not than full and fair, the language in this our Nation, the U.S. Constitution. This talking about whether or not you can bill would have virtually the same ef- would mean that the Federal Constitu- get into Federal court repeatedly. We fect. It would prevent Federal courts tion would be determined by State are only talking about when you get to from granting relief for a violation of court judges. Federal court what is the Federal judge the Federal Constitution because it Placing primary responsibility for able to look at. And right now the Fed- would require deference to the State the Federal Constitution in the hands eral judge is able to look at the whole decision unless that decision were un- of State courts is a dramatic departure thing from ground up if he wants to. He reasonable. Being wrong would not be from this country’s historical prin- can make an independent decision enough to get it overturned. It would ciple, and that is that it is the Federal based on what the specific statement have to be unreasonable. courts that should be the final arbiters by the defendant is in his petition as to If I can make an analogy to the Pre- of Federal law. It would relegate us to why they should be granted a new trial. siding Officer—who is the only one here a system in which the 50 State court They can go back and look at the facts at the moment and so that is why I am systems and in fact the individual in the case and the law and apply them speaking to him, although I always judges within those systems are the in conjunction with one another. like to speak to him—it is like this So let me summarize what I think deal with good-faith exceptions to the separate and ultimate arbiters of what this language in the Hatch bill says. fourth amendment, search and seizure. the Constitution means. The meaning First, it states that habeas relief can- All of a sudden, by the way, my friends of the Federal Constitution could be not be granted by a Federal judge if a on the right side of the Chamber, my different, depending on what State you State court has adjudicated the claim, right and on the ideological right, all are in. which is directly contrary to the entire of a sudden are beginning to realize: Independent review is the only sen- purpose of Federal habeas corpus. Wait. Maybe we do not want to do sible approach, I suggest. Even Justice Second, it creates what looks to be away with that so quickly. But at any O’Connor has said in rejecting a judi- an exception but one that is largely il- rate, there is an exception that if a cop cially created full and fair rule—which lusory. It requires that a State court violates the fourth amendment but did is what this rule is—that: merely behave reasonably—not cor- it in good faith, it should be admissible We have never held in the past that Fed- rectly, reasonably. It requires that a in court. eral courts must presume the correctness of State court merely act reasonably in Well, you can theoretically argue State court legal decisions. relation to a Supreme Court decision, that makes sense. But how about where Let me stop there and read it again: S 7844 CONGRESSIONAL RECORD — SENATE June 7, 1995 We have never held in the past that Fed- they concluded that the State court de- make that judgment. For instance, one eral courts must presume the correctness of cision was wrong. woman told the police Herrera had not State court legal decisions. The Supreme Court applied the rule committed the killing. She was threat- This requires us to presume—pre- of deference in 1915, and Mr. Frank was ened by a police officer who said he sume—the correctness of State court killed in prison by an angry mob, and would take away her daughter unless decisions. I am not certain that the later the actual offender confessed and she cooperated. The prosecutor knew State of Mississippi would apply the Frank was posthumously pardoned. this. The prosecutor also insisted she Constitution the same way the State of But because of the deference rule, an change her testimony to implicate Her- New York would, as the State of Cali- innocent man was executed, and that is rera, and the judge found many other fornia would, as the State of New what is at stake today. We are talking such violations of law, but the State Hampshire would. I do not know if any- about going back to the 1915 standard. court concluded, no, he was guilty; the body else is very sure of that. Several years later, after the Frank conviction should stand. Let me go on and read the entire case in Moore versus Dempsey, 1923, The Federal court corrected it. Based quote from Justice O’Connor: the Supreme Court was faced with an- on this severe misconduct, this We have never held in the past that Fed- other similar case. Again, this time Reagan-appointee judge said but for eral courts must presume the correctness of several African-American men were on the conduct of the police officer and State court legal decisions or that State trial for murder, which they claim was the prosecutor, either Herrera would courts’ incorrect legal determination has self-defense, when a mob attacked not have been charged with the offense ever been allowed to stand because it was them in their church and set the or the trial would have resulted in ac- reasonable. We have always held that Fed- church on fire. At the trial, the same eral courts, even on habeas, have the inde- quittal. The prosecutor’s misconduct pendent obligation to say what the law is. mob armed and surrounded the court- was designed to obtain a conviction house. The State court held that there and another notch in their guns despite That is the Federal constitutional in- had been no violation of the constitu- the overwhelming evidence that an- terpretation by the Supreme Court. I tional right to a fair trial by an impar- other man was the killer and the lack quote her again: tial jury, notwithstanding those little of evidence pointing to Herrera. We have never held . . . that State courts’ incidental facts. This remarkable finding that a con- incorrect legal determination has ever been This time, the Supreme Court re- stitutional violation would put an in- allowed to stand because it was reasonable. jected the deference rule and concluded nocent man on death row would not This would allow incorrect State that independent review is required have occurred under the Hatch-Specter court decisions to stand because they and the dissenters argued that the Fed- bill. The same claims had been made to are reasonable, although incorrect. eral court should defer to the State the State courts. There was nothing That quote, I might add, was from court decision and voted to uphold the new in the Federal court habeas peti- Wright versus West, decided in 1992. conviction. tion, but the State court found that Even Justice Rehnquist—— Many years later, in the famous 1953 they did not amount to a constitu- The PRESIDING OFFICER. All the case of Brown versus Allen, the court tional violation. If the bill’s deference time of the Senator from Delaware has considered a case in which the defend- rule had been in effect, the Federal expired. ant had confessed after being subjected judge would have been foreclosed from Mr. BIDEN. Mr. President, I ask to psychological and physical coercion, correcting the State court’s decision unanimous consent, although I have sleep deprivation, and other types of and saving an innocent man’s life. much more, that I be allowed to have 7 pressure that put the confession and Let me pose the question to Senator more minutes. the resulting conviction in serious HATCH. In the Herrera case, the court The PRESIDING OFFICER. Without doubt. was confronted with various questions, objection, it is so ordered. The State court found the confession including whether the conduct of the Mr. BIDEN. Mr. President, even Jus- to be voluntary, notwithstanding the police officer, when intimidating wit- tice Rehnquist publicly stated that circumstances. The Supreme Court nesses and withholding evidence, this full and fair doctrine goes further overturned the conviction, applying amounted to a violation of the Con- than is wise, and the Supreme Court, independent review. Had they been re- stitution. reflecting that view, has on at least quired to apply this standard, they I would like to ask him when he five occasions refused to apply this would have been required to hold that comes back, would not his bill, which doctrine. Let me give some of the person guilty, even though he had been requires deference to the decisions of cases. subjected to psychological and physical the State court, have prevented the The effect of the deference rule is coercion and sleep deprivation before judge from granting Federal habeas re- best illustrated, I think, by looking at the confession was granted. lief? some of the real-life cases. The last These Supreme Court cases, and oth- Mr. HATCH. As I understand it, it is time the Federal courts were required ers I will not take the time to go into, the Herrera case. to defer to State courts, we executed illustrate in concrete terms what the Mr. BIDEN. It is the Herrera case. an innocent man. That was in 1915. effect of the deference rule is. There Mr. HATCH. I do not think so. The There is a chart I have to illustrate are also lower court cases in which ha- fact of the matter is, let me just take that. beas relief has been granted. These a second and look at that Herrera case. Leo Frank, a Jewish man, had been cases would be decided differently Mr. BIDEN. I would like to describe convicted and sentenced to die by a under the deference rule. another case: Fred Macias. He was con- jury intimidated by an angry lynch Consider the recent case of Herrera, victed of murdering two people in their mob outside the courtroom. The mob who was convicted of murder and sen- homes. The main evidence was the tes- could be heard inside the courtroom. tenced to death. The State court de- timony of another man who admitted Mr. Frank’s lawyers were so intimi- nied his appeal and the habeas petition. having been in the house when the dated that they left the courtroom at A few months ago, a Reagan appointee murder occurred, but who then claimed times because they feared for their of the Federal bench granted habeas re- Macias was with him and committed lives. lief because the prosecutor had threat- the murder. Macias’ lawyer did such a Nevertheless, the State court review- ened and intimidated witnesses and poor job. He did not investigate and ing the conviction concluded the trial failed to disclose evidence that proved discover a credible witness who pro- had been fair and upheld the convic- Mr. Herrera innocent and knowingly vided an alibi. tion. A majority of the Supreme Court used false evidence in a closing argu- The State court rejected Macias’ voted to uphold the conviction and, ment to the jury. claim that his lawyer had failed to give after determining that they were re- That was not some wacko liberal him an effective representation. Only quired to defer to the State court deci- judge appointed by a liberal President. when a Federal court looked at the fact sion, upheld the conviction. The dis- That was a judge appointed by Reagan. an innocent man was facing the death senters thought independent review If, in fact, this law had existed at the sentence was the conviction thrown was appropriate and, on that basis, time, he would not have been able to out. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7845 The prosecution still tried to reindict And that the State had interviewed a new trial, he was again convicted and Macias, but on being presented with all other inmates who said the ‘‘accom- sentenced to life in prison. Subsequent the evidence, a grand jury in that same plice’’ had told them he was going to DNA testing confirmed his innocence. jurisdiction refused to indict Macias frame a man. Bloodsworth lost 9 years out of his life again. The new investigation into the because of an error in our legal system. Again, as I read the Hatch-Specter McMillian case showed that all of this He was lucky to escape with his life. bill, the Federal court would have been evidence was withheld from the defend- Mistakes do happen. Innocent people forced to defer to the State court. So I ant at trial. are convicted and sentenced to die. would like to also point out another Despite this new evidence, the Ala- Habeas corpus has existed to correct case, that of Hurricane Carter, which bama trial court refused to grant re- such errors—and to ensure that there has been referred to. Carter was con- lief, turning down the constitutional will never be another Leo Frank—that victed of the murder of three people— claims about perjured testimony and there will never be another innocent despite the fact that he did not match Government misconduct. Eventually, person—man who is executed. the physical description of the killers, the Alabama Appeals Court reversed. I urge my colleagues to support this and was sentenced to life in prison. But, had the Alabama Appeals Court amendment. The prosecution used the eyewitness come out the other way, the deference I hope that the Senator from Utah, testimony of a thief who at first denied language would have barred the Fed- seeing Carter at the scene. But the po- when he gets an opportunity, will re- eral court from preventing the execu- spond to my question relating to the lice then showed the witness a manu- tion of an innocent man. factured lie detector test that falsely case I raise. I thank the Chair for the While my colleagues rightly point time. showed he was lying.—In the face of out the crush of repetitive petitions— this pressure, the witness changed his I yield the floor. many of which are frivolous, they leave Mr. HATCH. Mr. President, this testimony. The fact that the witness the impression that habeas is no longer had been pressured into his testimony chart, I think, says about everything needed. that needs to be said on this. Every- using a false lie detector was not dis- The cases I have just described dem- thing that Senator BIDEN has said can closed to the defendant, and was con- onstrate how important it is to pre- cealed from the jury. be answered by the Specter-Hatch bill. serve independent Federal review. The New Jersey Supreme Court These are the inmates on death row While most State courts try to apply upheld the conviction—but the Federal versus the actual executions. There courts concluded that the prosecutor the law properly, sometimes they fail were 2,976 inmates on death row as of had unconstitutionally withheld evi- because of police or prosecution mis- January 1995. The yellow bar on the dence favorable to Carter. After habeas conduct, or simply because they make chart shows 281 executions since 1977. was granted, the State dismissed the mistakes. There are multiple frivolous appeals in indictment rather than seek a retrial Here are a few more examples of re- almost every one of these almost 3,000 in which it would have to give all the cent cases in which Federal courts death row cases. If they lose on one, evidence to the defendant. granted habeas relief: they conjure up another one, and then The deference rule in this bill would In Brown versus Lynaugh (5th Cir. 1988), they conjure up another one, and they have prevented the Federal courts from Habeas relief was granted because the presid- conjure up another one, just like An- ing judge left the bench, took the witness correcting the State court’s decision drews in Utah—18 years, 30 appeals. that the prosecutors had not violated stand and provided evidence against the de- fendant. Even though that type of conduct Every one of them were frivolous; the Constitution. seems to make the trial patently unfair, the every one was denied. No question of In fact, in that case, the State of New State court didn’t think so. The rule of def- guilt. No question of problems. No Jersey tried to win the case by arguing erence has prevented the Federal Courts question he did the murders. Yet, it that the Federal court should defer to from correcting that error. took 18 years. And every time he the State court. The Federal court in- In McDowell versus Dixon (4th Cir. 1988), brought up a habeas corpus petition, stead exercised independent review, the conviction of a dark-skinned African the victims and their families had to American was reversed because the prosecu- and ruled for Mr. Carter. relive the whole murder situation Let me also discuss the case of Wal- tor had withheld eye-witness statements that the assailant was white. The state again. You wonder why people in this ter McMillian. McMillian was con- country are worried about the laws and victed of murder and sentenced to courts found that this error did not deprive the defendant of a fair trial. The Federal do not believe in them. death. The main evidence at trial was court overruled and granted habeas relief. There is no finality, no way of solv- the testimony of a white man who The deference rule would have prevented the ing these problems. It is a farce. Why is claimed to have been an accomplice, Federal courts from granting relief. it? Because liberal judges—and I have and who was granted immunity. Two These cases demonstrate that habeas to say active defense lawyers who are other witnesses testified that they had corpus is still needed—and that injus- doing their jobs under a system that seen McMillian’s truck in front of the tices continue to occur. Without ha- allows this charade to go on and on— dry cleaners. The jury ignored the tes- beas, those injustices would be left to continue to allow this to happen be- timony of a number of friends and fam- stand uncorrected. cause they do not like the death pen- ily members who said he was at a fish CONCLUSION alty. fry. After trial, a new investigation Everyone agrees that there is a need I think we ought to face that death showed that the alleged accomplice to end the delays and that the current penalty straight up and down. If you who testified against McMillian at system just doesn’t work right. But I have arguments against the death pen- trial did not even know him at the also think everyone would agree that alty, I understand that. I know there time of the offense. we should have a fair process—one that are two sides to it. I do not like it my- That, in fact, he had denied does not execute innocent people. self, except in the most heinous of McMillian’s involvement in three We know that most prosecutors and cases. I would never use it unless it was interviews before finally fingering most law enforcement officers are hon- a really heinous case, like the Andrews McMillian. orable. Most cases proceed fairly, and case, or like any number of other cases, That witnesses who claimed to have we can have confidence in the result. like the Manson case. He was saved by seen McMillian’s low-rider truck could But occasionally, prosecutors or cops the Furman case, the Supreme Court not have done so since the truck was act in bad faith—and there are cases case where we had a temporary law on not a low-rider at the time of the of- which have demonstrated that. And, as whether or not the death penalty is to fense. we all know, our judicial system can be inflicted. There are many others you That the accomplice had complained make mistakes—and has done so. can talk about. to prison doctors that he was being The recent case of Kirk Bloodsworth Mr. President, I have to oppose this pressured to frame McMillian, and that is one example. Bloodsworth was con- amendment. It is offered to modify the the doctors told the prosecutors about victed and sentenced to death for the standard of habeas corpus reform that this before trial. rape and murder of a young girl. After we have proposed in this antiterrorism S 7846 CONGRESSIONAL RECORD — SENATE June 7, 1995 bill. Our present system of multi- I notice the standard of review on the Mr. President, I think that part of layered State and Federal and collat- habeas proposals by the Biden staff- the disagreement we have with respect eral appeal has resulted in enormous prepared poster. It says that Specter- to the appropriate standard of review delays. I have just made the case be- Hatch requires Federal courts to defer in habeas petitions involves differing tween sentencing and judicial resolu- to State courts in almost all cases, visions as to the proper role of habeas tion as to whether the sentence was even if the State is wrong about the review. Federal habeas review takes lawful, without any improvement in U.S. Constitution. That is absolutely place only after there has been a trial. the quality of the adjudication. The re- false. The fact of the matter is, cur- A direct review by the State appel- sulting lack of finality saps public con- rently, Federal courts have virtual de late court, usually in intermediate fidence in our criminal justice system novo review of a State court’s legal de- court, another direct review by the and undermines the proper roles of the termination. Under our change, Fed- State supreme court, then a third re- State and Federal Government. I know eral courts would be required to defer view or fourth review by the U.S. Su- there are people here who believe that to the determination of State courts, preme Court on a petition for certio- only the Federal courts tell the truth. unless the State court’s decision was rari. Thus we have a trial in at least That just is not true. State courts, in ‘‘contrary to or involved in an unrea- three levels of appellate review, four many respects, are just as good, if not sonable application of clearly estab- different ways of protecting the rights better, than the Federal courts—in lished Federal laws as determined by of the defendant. these areas, just as good. I get a little the Supreme Court.’’ I will read that In a capital case, the petitioner often tired of the Federal courts being de- again. files a clemency petition, so the State meaned and maligned because, basi- An application for a writ of habeas corpus executive branch also has an oppor- cally, people do not like the death pen- on behalf of a person in custody pursuant to tunity. That is five: The trial, the ini- the judgment of a State court shall not be alty. tial appeal to the intermediate court, A system incapable of enforcing le- granted with respect to any claim adju- dicated on the merits in a State court pro- the State supreme court, the petition gally imposed sentences cannot be ceedings unless the adjudication of that to the Federal Supreme Court, and the called just and must be reformed. I claim (1) resulted in a decision that was con- petition for clemency to the Governor. mentioned in my home State of Utah, trary to or involved an unreasonable applica- Five different protections for the de- for example, the William Andrews case. tion of clearly established Federal laws as fendant. Those are the direct appeals. He delayed imposition of a constitu- determined by the Supreme Court of the Then we give them separate habeas tionally imposed death sentence for 18 United States or (2) resulted in a decision that was based on an unreasonable deter- appeals all the way up to the State years, and we went through 30 appeals, courts again, all the way up to through and the survivors—I think there was mination of the facts in light of the evidence presented in the State court proceeding. the Federal court again. one where they poured Drano down his I notice the distinguished Senator throat. There were others, too, and This is a wholly appropriate stand- from Pennsylvania was at an Intel- they would drive pencils through their ard. It enables the Federal court to ligence Committee hearing and needs eardrums before killing them. This sur- overturn State court positions that to get back there. So I will interrupt vivor had to be there each time and clearly contravene Federal law. It fur- my remarks to grant him 5 minutes for had to go through it each time, had to ther allows the Federal courts to re- his remarks on this very important have it recollected each time. There view State court decisions that im- issue. was no question of guilt, no question of properly apply clearly established Fed- the sentence, and no question it was eral law. The standard also ends the Mr. SPECTER. Mr. President, I constitutional. Yet, it took 18 years improper review of the State court de- thank my distinguished colleague, the and 30 appeals and millions of dollars cisions. chairman of the committee, for yield- After all, State courts are con- to get done. He was not an innocent ing to me at this time. I have worked strained to uphold the Constitution person seeking freedom from an illegal with him intimately on this legisla- and faithfully apply Federal law as punishment. Rather, he committed a tion. well. There is simply no reason that particularly heinous crime and simply As he has noted and I noted earlier, Federal courts should have the ability wanted to frustrate the demands of jus- we are in the midst of an Intelligence to virtually retry cases that have been tice. Committee meeting, a committee properly adjudicated by our State which I chair, so I appreciate his yield- The Andrews case is hardly an iso- courts. There is no reason to allow lated example. As I have said, as of ing to me for a few moments. Federal courts to do that. If you talk I have sought recognition to support January 1995 there were almost 3,000 to your State attorneys general, they Senator HATCH and to oppose the people on death row. Yet the States will tell you that a review standard is have executed only 263 since 1973—38 amendment offered by the distin- the single most important provision of guished Senator from Delaware. last year. Now, Federal habeas corpus our bill. Meaningful reform will stop This legislation is the result of a proceedings have become, in effect, a repeated assaults upon fair and valid great deal of work over many, many second round of appeals in which con- State convictions through spurious pe- years. It has been going on since the victed criminals are afforded the op- titions filed in the Federal courts. We 1980’s. As I commented earlier, a ha- portunity to relitigate claims already cannot stop the spurious petitions beas corpus reform bill was passed by considered and rejected by the State without changing the standard under the U.S. Senate in 1990, but it did not courts. which these petitions are reviewed. The abuse of habeas corpus litiga- If the Biden amendment passes, we survive a conference with the House of tion, particularly in those cases involv- are back to business as usual, except Representatives. ing lawfully imposed death sentences, for some time constraints. Even then it Legislation to reform habeas corpus has seriously eroded the public’s con- is business as usual, because there will has been considered and reconsidered fidence in our criminal justice system. be repetitive frivolous appeals allowed each year for many years. The provi- It has drained our State criminal jus- by the liberal judges in almost every sion which is being debated now, I tice resources and has taken a dreadful case brought to them where they can think, is a reasonable compromise. It is toll on the victims’ families and those make any kind of a claim, regardless of not my absolute preference on the kind who have to live through that every whether it is legitimate or not. of language that I would have chosen time there is a habeas petition found. It happens all the time now. People had I written the bill alone, but I think The single most important provision are fed up to here with it and are sick it is a reasonable compromise. contained in the habeas reform pro- of it. That is why this issue is so im- Part of my concern is that when we posal in S. 735, the bill today, is the portant. We have the balance of the change the standards it breeds a lot of standard of review that this provision procedural protections afforded to de- new litigation to have interpretations has. It determines the degree of def- fendants against the need for maintain- of untested language. I think there is erence the Federal court will give to ing the integrity of the finality of deci- substantial latitude here for interpre- the decisions of a State court. sions of our State courts. tation. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7847 Current law gives significant def- merits or refusing to hear it as a dis- lution of this issue in the 1990 legisla- erence on questions of law and on fac- cretionary matter. tion, which passed the Senate, which tual determination to State court de- The defendant then sought a writ of eliminated the requirement of exhaus- terminations. Under the current bill, I habeas corpus from the U.S. District tion of State remedies, that provision think there is still a good bit of lati- Court for the Eastern District of Penn- is not in this bill. tude which the Federal judge will have sylvania, which sent the case back to I refer to that to illustrate how uni- when he makes a determination under the State court, holding that Peoples formity and consensus cannot be a habeas corpus petition. There will be had failed to exhaust his available achieved on these difficult issues, and deference to the determinations of the State remedies because it was unclear different people will have different State court, but the Federal judge will whether the Pennsylvania Supreme views. But what we come down to at still have latitude to alter the State Court had considered the merits in de- bottom in this legislation that is cur- court decision in any case in which the nying allocatur. rently crafted, I think, is a realistic Federal judge determines that it was The case then went from the district compromise. I think defendants’ rights contrary to or involved an unreason- court to the court of appeals which re- are protected. There are increased pro- able application of clearly established versed the district court, saying that tections in this legislation with the ap- Federal law as determined by the Su- there had been an adequate exhaustion pointment of counsel. We have the re- preme Court of the United States, or of State court remedies. quirement that there are timetables resulted in a decision that was based The PRESIDING OFFICER. The time and limitations periods so the defend- on an unreasonable determination of has expired. ants’ rights, the States rights, and the the facts in light of the evidence pre- Mr. HATCH. I yield an additional 3 victims’ rights are all protected. sented in the State court proceedings. minutes. I think it is a carefully crafted com- So there still is latitude for the Fed- Mr. SPECTER. The State then went promise which ought to be enacted to eral judge to disagree with the deter- to the Supreme Court of the United promote the interests of all parties in- mination made by the State court States which hears few cases. Thou- volved. That is why I urge my col- judge. It is my sense, having litigated sands apply and the year in which the leagues to reject the amendment of- these cases as an assistant district at- court agreed to hear this appeal only fered by the distinguished Senator torney years ago, in the Federal and about 150 cases were heard. They took from Delaware on this state of the State courts, that where there is a mis- this case. The Supreme Court of the record. carriage of justice, the Federal court United States then reversed the circuit I thank my colleague for yielding to can come to a different decision than court and sent the case back to the dis- me at this time. was made in the State court proceed- trict court. The PRESIDING OFFICER. The Sen- ings. Now, had there been no requirement ator from Utah. The language in the habeas corpus for an exhaustion of State court rem- Mr. HATCH. Mr. President, I thank reform bill passed earlier this year by edies, the case could have had one my colleague. I have enjoyed working the House is even more restrictive than hearing in the Federal court, all of the with him on this Specter-Hatch habeas the language in the Senate bill. The issues would have been decided, and I corpus reform. Without him I do not House bill contains a provision that think decided about the same way if we think we would be nearly as far along precludes the granting of a writ of ha- did not have State court proceedings, as we are, so I want to personally beas corpus unless the State court’s de- bearing in mind that there had already thank him for the efforts he has put cision is arbitrary. This is an even been a full decision by a State appel- forward. more restrictive standard than that in late court which had upheld the judg- Let me get back to what I was say- the Senate bill. ment of conviction in the first in- ing. Look at all the reviews these cases Mr. President, in the legislation stance. have: The trial, the direct review to which is pending before us, there are What we are really looking at with the intermediate court, the direct re- provisions which I consider a step about 2,900 inmates on death row, there view to the State supreme court, the backward from the bill which passed were only 38 cases in which the death direct review to the Supreme Court of the Senate in 1990, which would have penalty was carried out. It would be the United States of America, petition eliminated the requirement of exhaus- very much in the interests of the objec- to the Governor for clemency. tion of State court remedies. tive of swiftness and certainty to put But that is not the end. In virtually Were I to craft a bill myself, I would an end to the long delays. Eliminating every State a postconviction collateral not require an exhaustion of State the requirement of exhaustion of State proceeding exists. In other words, the court remedies before the filing of a remedies would go a long way to petitioner can file a habeas corpus pe- Federal habeas corpus petition because achieving these goals. tition in State court. The petition is if that exhaustion requirement were The State prosecutors and the attor- routinely subject to appellate review not present there would be a much neys general, however, disagree with by an intermediate court and the State more orderly and a prompt disposition my view as to what is in the public in- supreme court. The prisoner then may of these contested issues. terest on the issue of exhaustion. We file a second petition in the U.S. Su- Were exhaustion of State remedies have the same objective. That is, to preme Court and may also, of course, not necessary, we would not have the make the punishment swift and cer- seek a second review of that by the interminable tennis match back and tain, to eliminate the long delays Governor. So after conviction we have forth between the State and Federal which are a detriment to law enforce- at least six levels of review by State courts as illustrated by the Pennsylva- ment and undermine the deterrent ef- courts, two rounds of review at least in nia case of Peoples versus Castille, fect of the death penalty, not to have capital cases by the State executive. which is illustrative of the complexity the matter come to closure for the Contrary to the impression that may of bouncing back and forth between the families of the victims, and not to be left by some of my colleagues on the courts. harm the interests of the defendants, other side of this issue, Federal habeas In the Peoples case, the defendant as interpreted by some international review does not take place until well was convicted in the State court of ag- tribunals, which say it is cruel and un- after conviction and numerous rounds gravated assault. The conviction was usual punishment to have the cases of direct and collateral review. reviewed and upheld by the Pennsylva- last longer than 6 to 8 years, an issue The Supreme Court has clearly held nia superior court, an intermediate ap- also raised by two of the current Jus- in Goeke versus Branch that habeas re- pellate court. Then the case went to tices of the Supreme Court, as I men- view is not an essential prerequisite to the Supreme Court of Pennsylvania on tioned earlier today. I will not go into conviction. Indeed, this very term the what is called an allocatur application, that because of the limitation of time. Supreme Court reaffirmed that prin- a request for review. The Supreme The issue of exhaustion of State rem- ciple that the Constitution does not Court of Pennsylvania denied the peti- edies has been eliminated, however, be- even require direct review as a pre- tion for allocatur but the court may do cause this bill does not abolish to ex- requisite for a valid conviction, and so either considering the case on the haustion requirement. Unlie the reso- that is the Goeke case. S 7848 CONGRESSIONAL RECORD — SENATE June 7, 1995 Now that we have the proper context have in this bill, are in reality argu- Carter case is a fresh indictment of the for this debate, let us look at the pro- ments against the death penalty. If current system. It shows more clearly posed standard again. Under the stand- that is so, then let us debate the effi- than ever, that if you can get your ha- ard contained in S. 735, Federal courts cacy of the death penalty. Let us not beas petition before the right liberal would be required to defer to the deter- continue frivolous appeal after frivo- Federal judge, you can get out of State minations of State courts unless the lous appeal at a cost of billions of dol- prison, regardless of your innocence or State court’s decision was ‘‘contrary to lars in this society, just because we do guilt. or involved an unreasonable applica- not like the death penalty. Let us de- Here is what the New York Times— tion of clearly established Federal law cide whether death is the appropriate one of the most liberal papers in our as determined by the Supreme Court.’’ sanction for people like those who mur- Nation—said about Judge Sarokin’s de- That is a wholly appropriate stand- dered 168 individuals in Oklahoma City, cision in the Carter case: it said that ard. It enables the Federal court to for whom I am wearing this memorial the judge’s decision was ‘‘flawed by ex- overturn State court decisions that set of ribbons pinned on me by the cessive lecturing on the need for ‘com- clearly contravene Federal law. Indeed, daughter of one of the victims, some- passion’ and the injustice of a possible this standard essentially gives the Fed- body, I have to say, by whom I was third trial’’ for Rubin Carter. Well, I eral court the authority to review de very moved. submit that the Federal courts are not novo whether the State court decided I am prepared to debate the point on empaneled to provide compassion, they the claim in contravention of Federal whether or not the death penalty is an are there to provide justice. In the area law. appropriate penalty. But let us not dis- of habeas, they are there to provide a Moreover, the Federal standard, this guise the argument under the guise of constitutional back-up for constitu- review standard proposed in S. 735, al- phony habeas corpus. tional issues. The Hatch/Dole bill pre- lows the Federal court to review State The second argument I think my serves that function of the Federal court decisions that improperly apply friends are making is that they fun- courts. clearly established Federal law. In damentally distrust the decisions of The floor of the U.S. Senate is not other words, if the State court unrea- the State courts. It is an insult to all the place to determine the guilt or in- sonably applied Federal law its deter- of the wonderful, fine State court nocence of persons involved in highly mination is subject to review by the judges around this country. They can- disputed cases. That is what hearings Federal courts. not show cases that literally show that are for. What does this mean? It means that the State courts cannot do the job. Where were these defenders of the al- if the State court reasonably applied Let me just give an illustration. We leged innocence of this three-time mur- Federal law, its decision must be have heard a lot about the Rubin derer when the Judiciary Committee upheld. Why is that a problematic Carter case, ‘‘Hurricane’’ Carter. The held hearing after hearing on the spe- standard? After all, Federal habeas re- fact of the matter is we have heard all cific question of whether habeas corpus view exists to correct fundamental de- kinds of arguments relating to that was needed to protect innocent pris- fects in the law. If the State court has case. oners? They were nowhere. reasonably applied Federal law it is He is supposed to be an innocent indi- I have asked witness after witness to hard to say that a fundamental defect vidual, falsely held in prison despite show me a case—even one case—where exists. his innocence. As a trial lawyer, I Federal habeas corpus has been used to The Supreme Court in Harlow versus know that you should always be sus- free an innocent man or woman, and Fitzgerald has held that if the police picious of alleged evidence offered at not one case has been cited. Specifi- officer’s conduct was reasonable, no the last minute by your opponents. cally, I asked Chief Judge Charles claim for damages under Bivens versus And this Carter case is no different. Clark of the fifth circuit if he could Six Unknown Agents can be main- Here, at the last minute, we hear name even one case that he had ever tained. about still one more apocryphal, highly seen in which Federal habeas corpus In Leon versus United States, the Su- disputed case on which there is abso- had resulted in the release or retrial of preme Court held if the police officer’s lutely no agreement whatsoever about an innocent man. And he could not. conduct in conducting a search was the guilt or innocence of the defendant. Yet he was the chief judge of the larg- reasonable, no fourth amendment vio- First we are told that Carter was est circuit in the Nation—running from lation ensues or would obtain, and the falsely convicted in New York—well, he Texas to Florida in those days. Not one court could not order suppression of was convicted for murder—twice, but case. the evidence obtained as a result of the in New Jersey. Then we are told that So forgive me if I am a bit reluctant search. he served 28 months, when, in fact, he to accept today the unsupported alle- The Supreme Court has repeatedly served for nearly 20 years. And now, we gations made on the Senate floor as to endorsed the principle that no remedy are told, without any supporting proof, the alleged innocence of prisoners who is available where the Government acts that he is innocent of the very murders have long been held to be guilty of seri- reasonably. Why, then, given this pref- that two juries have found—beyond a ous crimes.‘ erence for reasonableness in the law, reasonable doubt—that he committed. It should also be pointed out that the should we empower a Federal court to And we are supposed to believe these Carter case rebuts entirely the point reverse a State court’s reasonable ap- unsupported allegations of innocence— that the Senator from Delaware has plication of Federal law to the facts? If allegations made by Senators who made several times to the effect that we give that power that Senator BIDEN don’t even know what State Rubin habeas petitions only result in re- will give, we have hundreds of judges Carter was tried in? trials—they do not result in release. So who do not like the death penalty, who These allegations are directly dis- he says. But there was no retrial for are just going to give repeated habeas puted by the prosecutors in New Jersey Rubin Carter—nor could there be after corpus reviews any time some clever who know this case best. They are di- 20 years. He was released outright—de- defense lawyer demands it—which is rectly disputed by every jury and every spite the jury verdict that he murdered exactly what we have today. court that has reviewed this case. And three individuals. Our proposed standard simply ends we should remember that it was Judge (Ms. SNOWE assumed the chair.) the improper review of State court de- Lee Sarokin— a very liberal judge— Mr. HATCH. We can go on and on. cisions. After all, State courts are re- who was the district judge that re- There are a number of others. Vir- quired to uphold the Constitution and leased Rubin Carter, after nearly 20 tually every case brought up—I do not to faithfully apply Federal law so there years in jail. And he released him not know the Garrett case, but every case is no reason for what the distinguished because he was innocent, but because brought up can be distinguished. Senator from Delaware is arguing for. of a procedural objection to the com- The Frank case, cited by Senator He does not believe in the death pen- position of the jury. An objection BIDEN, involved a lynching. There was alty. I understand that. I respect him raised 20 years after the fact. nothing State or Federal corrective for that. But the arguments against The Carter case does not show the process could have done to help Mr. meaningful habeas reform, like we value of Federal habeas corpus—the Frank. It was wrong that they lynched June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7849 him, but it happened. That case, de- [Rollcall Vote No. 238 Leg.] Bumpers Hollings Moynihan Chafee Inouye cided in 1915, occurred at a very dif- YEAS—65 Murray Daschle Jeffords Packwood ferent time and under very different Abraham Feinstein McCain Dodd Kennedy Pell circumstances. That is not applicable Ashcroft Ford McConnell Dorgan Kerry Pryor to this debate. We can go on and on. Baucus Frist Murkowski Feingold Kohl Sarbanes Bennett Gorton Glenn Lautenberg Madam President, this is the most Nickles Simon Bond Graham Nunn Graham Leahy Specter Brown Gramm Harkin Levin important stage in criminal law in the Pressler Wellstone last 30 years, and maybe in our life- Bryan Grams Reid Hatfield Mikulski Burns Grassley Robb Heflin Moseley-Braun time. This is a change to stop the in- Byrd Gregg Rockefeller cessant frivolous appeals that are eat- Campbell Hatch NOT VOTING—1 Roth Chafee Hatfield Conrad ing our country alive. We have the Santorum chance to really, really do something Coats Helms Cochran Hutchison Shelby So the motion to lay on the table the about this while at the same time pro- Cohen Inhofe Simpson amendment (No. 1245), as modified, was tecting constitutional rights and civil Coverdell Jeffords Smith agreed to. Craig Johnston Snowe liberties for everybody, and doing it in VOTE ON AMENDMENT NO. 1211 D’Amato Kassebaum Specter an appropriate, legally sound manner. DeWine Kempthorne Stevens The PRESIDING OFFICER. The This amendment will do that. Dole Kyl Thomas question is on agreeing to the amend- I hope we will vote down all of these Domenici Lott Thompson ment offered by the Senator from Ari- Exon Lugar Thurmond amendments that we have heard de- Faircloth Mack Warner zona, Senator KYL. bated here today. The yeas and nays have been ordered. I am prepared to yield back the re- NAYS—34 The clerk will call the roll. mainder of my time. Akaka Harkin Mikulski The legislative clerk called the roll. Biden Heflin Moseley-Braun I yield the remainder of my time. Mr. FORD. I announce that the Sen- Bingaman Hollings Moynihan ator from North Dakota [Mr. CONRAD] I ask unanimous consent that the Boxer Inouye Murray is necessarily absent. rollcall vote on the motion to table the Bradley Kennedy Packwood Breaux Kerrey The PRESIDING OFFICER. Are there Biden amendment No. 1253 be the Pell Bumpers Kerry Pryor any other Senators in the Chamber de- standard 15-minute vote and that all Daschle Kohl Sarbanes siring to vote? Dodd Lautenberg remaining stacked votes be limited to Simon Dorgan Leahy The result was announced—yeas 38, Wellstone 10 minutes each. Feingold Levin nays 61, as follows: The PRESIDING OFFICER. Without Glenn Lieberman [Rollcall Vote No. 240 Leg.] objection, it is so ordered. NOT VOTING—1 YEAS—38 Mr. HATCH. Madam President, I ask Conrad Ashcroft Grams McConnell unanimous consent—I have the ap- Brown Grassley Murkowski proval of Senator Biden to do this—on So, the motion to lay on the table Burns Gregg Nickles behalf of myself and Senator BIDEN, the amendment (No. 1253) was agreed Campbell Helms Pressler that all action on amendment No. 1241 to. Coats Hutchison Santorum Cochran Inhofe Shelby VOTE ON MOTION TO TABLE AMENDMENT NO. 1245, be vitiated, the Heflin amendment. Coverdell Kassebaum Simpson The PRESIDING OFFICER. Without AS MODIFIED Craig Kempthorne Smith D’Amato Kyl The PRESIDING OFFICER. The Stevens objection, it is so ordered. Dole Lott Thomas Mr. HATCH. Madam President, do we question now occurs on agreeing to the Domenici Lugar Thurmond motion to table amendment No. 1245, Faircloth Mack have rollcall votes ordered on every Warner one of the amendments? as modified, offered by the Senator Gramm McCain The PRESIDING OFFICER. We have from Michigan, Senator LEVIN. The NAYS—61 rollcall votes ordered on the first three yeas and nays have been ordered. The Abraham Feinstein Lieberman with the exception of 1224. clerk will call the roll. Akaka Ford Mikulski The assistant legislative clerk called Baucus Frist Moseley-Braun Mr. HATCH. I move to table the Bennett Glenn the roll. Moynihan Biden amendment, and ask for the yeas Biden Gorton Murray and nays. Mr. FORD. I announce that the Sen- Bingaman Graham Nunn Bond Harkin The PRESIDING OFFICER. Is there a ator from North Dakota [Mr. CONRAD] Packwood Boxer Hatch Pell is necessarily absent. Bradley Hatfield sufficient second? Pryor The PRESIDING OFFICER. Are there Breaux Heflin There is a sufficient second. Reid any other Senators in the Chamber de- Bryan Hollings The yeas and nays were ordered. Robb siring to vote? Bumpers Inouye Mr. HATCH. Madam President, a Byrd Jeffords Rockefeller The result was announced—yeas 62, Roth rollcall vote is ordered on one which is Chafee Johnston nays 37, as follows: Cohen Kennedy Sarbanes not a motion to table, and the rest are Simon [Rollcall Vote No. 239 Leg.] Daschle Kerrey motions to table? DeWine Kerry Snowe The PRESIDING OFFICER. The Sen- YEAS—62 Dodd Kohl Specter ator is correct. Abraham Feinstein McCain Dorgan Lautenberg Thompson Ashcroft Ford McConnell Exon Leahy Wellstone VOTE ON MOTION TO TABLE AMENDMENT NO. 1253 Baucus Frist Murkowski Feingold Levin The PRESIDING OFFICER. The Bennett Gorton Nickles NOT VOTING—1 Bond Gramm Nunn question is on agreeing to the motion Breaux Grams Conrad of the Senator from Utah to lay on the Pressler Brown Grassley Reid So the amendment (No. 1211) was re- table amendment No. 1253 offered by Burns Gregg Robb Byrd Hatch jected. the Senator from Delaware [Mr. Rockefeller Campbell Helms VOTE ON MOTION TO TABLE AMENDMENT NO. 1224 BIDEN]. On this question, the yeas and Roth Coats Hutchison The PRESIDING OFFICER. The nays have been ordered, and the clerk Cochran Inhofe Santorum question now occurs on the motion to will call the roll. Cohen Johnston Shelby Coverdell Kassebaum Simpson table amendment No. 1224, offered by The bill clerk called the roll. Craig Kempthorne Smith the Senator from Delaware [Mr. Snowe Mr. FORD. I announce that the Sen- D’Amato Kerrey BIDEN]. The yeas and nays have been ator from North Dakota [Mr. CONRAD] DeWine Kyl Stevens Dole Lieberman Thomas ordered. is necessarily absent. Domenici Lott Thompson The clerk will call the roll. The PRESIDING OFFICER. Are there Exon Lugar Thurmond The assistant legislative clerk called any other Senators in the Chamber Faircloth Mack Warner the roll. who desire to vote? NAYS—37 Mr. FORD. I announce that the Sen- The result was announced—yeas 65, Akaka Bingaman Bradley ator from North Dakota [Mr. CONRAD] nays 34, as follows: Biden Boxer Bryan is necessarily absent. S 7850 CONGRESSIONAL RECORD — SENATE June 7, 1995 The PRESIDING OFFICER. Are there On page 5, line 20, strike ‘‘destructs’’ and On page 99, between lines 21 and 22, insert any other Senators in the Chamber insert ‘‘obstructs’’. the following: who desire to vote? On page 7, line 11, insert ‘‘intent to commit ‘‘(c) AVAILABILITY OF FUNDS.—Funds made The result was announced, yeas 53, murder or any other felony or with’’ after available pursuant to this section, in any fis- nays 46, as follows: ‘‘assault with’’. cal year, shall remain available until ex- On page 9, line 12, strike ‘‘any manner in’’ pended. [Rollcall Vote No. 241 Leg.] and insert ‘‘interstate’’. On page 117, lines 3 and 4, strike ‘‘right YEAS—53 On page 10, between lines 18 and 19, insert made retroactively applicable to cases on Abraham Feinstein McConnell the following new subsection: collateral review by the Supreme Court’’ and Ashcroft Frist Murkowski (f) EXPANSION OF PROVISION RELATING TO insert ‘‘right that is made retroactively ap- Baucus Gorton Nickles DESTRUCTION OR INJURY OF PROPERTY WITHIN plicable’’. Bennett Gramm Pressler SPECIAL MARITIME AND TERRITORIAL JURIS- On page 133, line 3, strike ‘‘(a) IN GEN- Bond Grams Reid DICTION.—Section 1363 of title 18, United ERAL.—’’. Brown Grassley Rockefeller States Code, is amended by striking ‘‘any On page 133, strike lines 8 through 10 and Burns Gregg Roth building, structure or vessel, any machinery insert the following: Byrd Hatch Santorum Campbell Helms or building materials and supplies, military (B) in paragraph (2), by striking ‘‘; or’’ and Shelby Coats Hutchison or naval stores, munitions of war or any inserting the following: ‘‘and the results of Simpson Cochran Inhofe structural aids or appliances for navigation such use affect interstate or foreign com- Smith Coverdell Kempthorne or shipping’’ and inserting ‘‘any structure, merce or, in the case of a threat, attempt, or Specter Craig Kyl conveyance, or other real or personal prop- conspiracy, would have affected interstate or D’Amato Lieberman Stevens Thomas erty’’. foreign commerce if such use had occurred;’’; DeWine Lott On page 13, strike lines 5 through 8 and in- Dole Lugar Thompson (C) by redesignating paragraph (3) as para- Domenici Mack Thurmond sert the following: graph (4); Faircloth McCain Warner (b) PENALTY FOR CARRYING WEAPONS OR EX- (D) by inserting after paragraph (2) the fol- PLOSIVES ON AN AIRCRAFT.—Section 46505 of lowing: NAYS—46 title 49, United States Code, is amended— ‘‘(3) against a victim, or intended victim, Akaka Glenn Levin (1) in subsection (b), by striking ‘‘one’’ and that is the United States Government, a Biden Graham Mikulski inserting ‘‘10’’; and member of the uniformed services, or any of- Bingaman Harkin Moseley-Braun (2) in subsection (c), by striking ‘‘5’’ and ficial, officer, employee, or agent of the leg- Boxer Hatfield Moynihan Bradley Heflin inserting ‘‘15’’. islative, executive, or judicial branches, or Murray On page 23, line 23, strike ‘‘2339A)’’ and in- Breaux Hollings Nunn any department or agency, of the United sert ‘‘2339A of title 18, United States Code)’’. Bryan Inouye Packwood States; and’’; and On page 29, line 25, strike ‘‘determined’’ Bumpers Jeffords Pell (E) in paragraph (4), as redesignated, by in- Chafee Johnston Pryor and insert ‘‘designated’’. serting before the comma at the end the fol- Cohen Kassebaum Robb On page 36, line 2, strike ‘‘item of’’. lowing: ‘‘, or is within the United States and Daschle Kennedy Sarbanes On page 48, lines 21 and 22, strike ‘‘Not- Dodd Kerrey is used in any activity affecting interstate or Simon withstanding any other provision of law,’’. foreign commerce’’. Dorgan Kerry On page 60, strike lines 1 and 2, and insert Exon Kohl Snowe On page 133, line 21, before the end Feingold Lautenberg Wellstone ‘‘Columbia not later than 30 days after re- quotation marks insert the following: ‘‘The Ford Leahy ceipt of actual notice under subsection preceding sentence does not apply to a per- (b)(6).’’ NOT VOTING—1 son performing an act that, as performed, is On page 57, strike lines 18 and 20, and in- within the scope of the person’s official du- Conrad sert ‘‘The designation shall take effect 30 ties as an officer or employee of the United So the motion to lay on the table the days after the receipt of actual notice under States or as a member of the Armed Forces amendment (No. 1224) was agreed to. subsection (b)(6), unless otherwise provided of the United States, or to a person em- Mr. HATCH. Madam President, I by law.’’ ployed by a contractor of the United States On page 93, lines 22 through 24, strike ‘‘to— move to reconsider the vote by which for performing an act that, as performed, is ’’ and all that follows through ‘‘(ii) expand’’ authorized under the contract.’’. the motion to lay on the table was and insert ‘‘to expand’’. agreed to. On page 134, strike lines 1 through 8. On page 95, line 15, strike ‘‘shall provide’’ On page 140, line 20, insert after ‘‘em- The PRESIDING OFFICER. Without and insert ‘‘shall provide to appropriate ployee,’’ the following: ‘‘or any person assist- objection, the motion to lay on the State law enforcement officials, as des- ing such an officer or employer in the per- table is agreed to. ignated by the chief executive officer of the formance of official duties,’’. Mr. HATCH. Madam President, I sug- State,’’. On page 140, line 21, strike ‘‘their official gest the absence of a quorum. On page 95, strike line 23 and all that fol- duties,’’ and insert ‘‘such duties or the provi- The PRESIDING OFFICER. The lows through page 96, line 2 and insert the sion of such assistance,’’. clerk will call the roll. following: On page 141, line 1, insert ‘‘or man- The legislative clerk proceeded to (D) ALLOCATION.—(i) Of the total amount slaughter as provided in section 1113’’ after appropriated pursuant to this section in a call the roll. ‘‘murder’’. fiscal year— On page 143, between lines 15 and 16, insert Mr. HATCH. Madam President, I ask (I) $500,000 or 0.25 percent, whichever is unanimous consent that the quorum the following: greater, shall be allocated to each of the par- (i) CLARIFICATION OF MARITIME VIOLENCE call be dispensed with. ticipating States; and JURISDICTION.—Section 2280(b)(1)(A) of title The PRESIDING OFFICER. Without (II) of the total funds remaining after the 18, United States Code, is amended— objection, it is so ordered. allocation under subclause (I), there shall be (1) in clause (ii), by striking ‘‘and the ac- AMENDMENT NO. 1254 TO AMENDMENT NO. 1199 allocated to each State an amount which tivity is not prohibited as a crime by the Mr. HATCH. Madam President, on be- bears the same ratio to the amount of re- State in which the activity takes place’’; and maining funds described in this subpara- half of Senator BIDEN and myself, I (2) in clause (iii), by striking ‘‘the activity send a managers’ amendment to the graph as the population of such State bears takes place on a ship flying the flag of a for- to the population of all States. desk, which is agreed to by us, and ask eign country or outside the United States,’’. (ii) DEFINITION.—For purposes of this sub- On page 147, line 19, strike ‘‘effective date for its immediate consideration. paragraph, the term ‘‘State’’ means any of section 801’’ and insert ‘‘date of enactment The PRESIDING OFFICER. The State of the United States, the District of of title VII’’. clerk will report the amendment. Columbia, the Commonwealth of Puerto On page 148, line 13, insert ‘‘of title VII’’ The legislative clerk read as follows: Rico, the Virgin Islands, American Samoa, after ‘‘date of enactment’’. The Senator from Utah [Mr. HATCH], for Guam, and the Northern Mariana Islands, ex- On page 148, line 18, insert ‘‘of title VII’’ himself and Mr. BIDEN, proposes an amend- cept that for purposes of the allocation after ‘‘date of enactment’’. ment No. 1254 to amendment No. 1199. under this subparagraph, American Samoa On page 149, lines 6 and 7, strike ‘‘effective Mr. HATCH. I ask unanimous consent and the Commonwealth of the Northern Mar- date of section 801’’ and insert ‘‘date of en- that further reading of the amendment iana Islands shall be considered as one State actment of title VII’’. and that for these purposes, 67 percent of the On page 152, strike lines 3 through 5 and in- dispensed with. amounts allocated shall be allocated to sert the following: ‘‘Except as otherwise pro- The PRESIDING OFFICER. Without American Samoa, and 33 percent to the Com- vided in this title, this title and the amend- objection, it is so ordered. monwealth of the Northern Mariana Islands. ments made by this title shall take effect 1 The amendment is as follows: On page 99, line 19, insert after ‘‘Attor- year after the date of enactment of this On page 5, lines 8 and 9, strike ‘‘113 (a), (b), neys’’ the following: ‘‘and personnel for the Act.’’. (c), or (f)’’ and insert ‘‘113(a) (1), (2), (3), (6), Criminal Division of the Department of Jus- On page 160, between lines 11 and 12, insert or (7)’’. tice’’. the following: June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7851 SEC. 902. AUTHORIZATION OF ADDITIONAL AP- body armor. Law enforcement rep- lost. Thus, they want to drastically PROPRIATIONS FOR THE UNITED resents the first line of defense against limit the ability of those convicted of STATES PARK POLICE. threats to our internal security. My crimes and given the death penalty to (a) IN GENERAL.—There are authorized to be appropriated from the General Fund of amendment therefore was designed to appeal their convictions, despite the the Treasury for the activities of the United give the maximum level of protection fact that the sentence, if carried out, is States Park Police, to help meet the in- to our police officers by extending the irreversible and final. creased needs of the United States Park Po- current composition-based ban on cop- Let me be clear. I harbor no sym- lice, $1,000,000 for each of the fiscal years killing bullets to provide that any bul- pathy for those appropriately found 1996, 1997, 1998, 1999, and 2000. let capable of penetrating body armor guilty of murder and strongly believe (b) AVAILABILITY OF FUNDS.—Funds made will be banned, regardless of the bul- that it is critical that they face certain available pursuant to this section, in any fis- let’s physical composition. I decided and severe punishment, including life cal year, shall remain available until ex- in prison without parole. The victims pended. not to pursue adoption of the amend- deserve no less, the criminal deserves SEC. 903. AUTHORIZATION OF ADDITIONAL AP- ment, however, because of my concern PROPRIATIONS FOR THE ADMINIS- that it would slow action on this im- no more. However, I do oppose the TRATIVE OFFICE OF THE UNITED portant bill. I intend to offer this death penalty. I do so because I believe STATES COURTS. amendment to the next appropriate ve- that the death penalty is not a con- (a) IN GENERAL.—There are authorized to hicle. scionable punishment in a civilized so- be appropriated from the General Fund of Madam President, the provisions in ciety. The reason is obvious; the death the Treasury for the activities of the Admin- penalty once carried out cannot be re- istrative Office of the United States Courts, this bill are vitally important to our to help meet the increased needs of the Ad- efforts to respond to international and versed if turns out that an individual ministrative Office of the United States domestic threats of terrorism. I, there- really was innocent. Indeed, I note that Courts, $4,000,000 for each of the fiscal years fore, fully support this bill, and I am the last time an individual was exe- 1996, 1997, 1998, 1999, and 2000. confident that because of our actions cuted in my state of Rhode Island, it (b) AVAILABILITY OF FUNDS.—Funds made today, America will be more fortified was later proved that he did not com- available pursuant to this section, in any fis- against the evils of terrorism. mit the crime. It strikes me as remark- cal year, shall remain available until ex- Mr. PELL. Madam President. Today, able that in a legal system which has pended. as the Senate considers final passage of the death penalty, such as ours, that SEC. 904. AUTHORIZATION OF ADDITIONAL AP- S. 735, legislation designed to combat procedures would be sought which PROPRIATIONS FOR THE UNITED STATES CUSTOMS SERVICE. domestic and international terrorism, I limit the opportunities otherwise (a) IN GENERAL.—There are authorized to regret that I must oppose the final ver- available for an individual to prove his be appropriated from the General Fund of sion of the bill. I regret it because I be- innocence. If anything, I believe that the Treasury for the activities of the United lieve that appropriate steps can be additional avenues should be available States Customs Service, to help meet the in- taken by this Congress to add to the for the proof of innocence, not fewer. creased needs of the United States Customs tools currently available to law en- But the bill before us today does just Service, $10,000,000 for each of the fiscal forcement to combat terrorism. Espe- that—it limits the rights of the ac- years 1996, 1997, 1998, 1999, and 2000. cially in light of the recent, horrific (b) AVAILABILITY OF FUNDS.—Funds made cused to have their convictions re- available pursuant to this section, in any fis- tragedy in Oklahoma City, enhance- viewed for error. This is wrong and in cal year, shall remain available until ex- ment of the ability to combat the my opinion, a sad day in the U.S. Sen- pended. growing menace of terrorism is timely ate. On page 51, line 10, replace ‘‘1252(a)’’ with and necessary. Accordingly, I feel that the limited ‘‘1252a’’. However, as Congress rushes to re- good done by the bill—by which I mean On page 51, line 14, insert ‘‘of this title ’’ spond, we can not let our fervor for ac- the commendable efforts to fight ter- after ‘‘section 101(a)(43)’’. tion allow us to unwisely circumscribe rorism—is outweighed by the attack on Mr. HATCH. Madam President, I urge basic protections long enshrined in our habeas corpus which has been included. adoption of the amendment. Constitution. Unfortunately, I believe Interestingly enough, efforts to limit The PRESIDING OFFICER. Without that as the bill stands, the Senate has the changes in habeas corpus to apply objection, the amendment is agreed to. gone too far in changing and restrict- only to Federal terrorism cases, the So the amendment (No. 1254) was ing the application and availability of supposed reason for this bill, were re- agreed to. the right to appeal court decisions jected. The entire habeas corpus sys- Mr. HATCH. I move to reconsider. under the writ of habeas corpus. This tem, meaning for both those cases Mr. DOLE. I move to lay that motion writ has been a fundamental part of brought in State and Federal courts, on the table. our jurisprudence since our country’s has been changed. It brings into ques- The motion to lay on the table was founding. It is a critical part of the tion the true motivations behind at- agreed to. means by which our system of justice taching this language to this bill—a Mr. BRADLEY. Madam President, I guarantees that everyone has the op- bill that on its face has great public ap- rise in support of the Comprehensive portunity for a fair trial and that the peal and is being moved by a sense of Terrorism Prevention Act. The Okla- rights granted under the U.S. Constitu- urgency given the events in Oklahoma homa City bombing brought into sharp tion will be respected and enforced. City in April. But despite my profound focus the reality and horror of domes- With this time-honored tradition of sympathy for the victims of the bomb- tic terrorism in America. The death habeas corpus so much a part of the ing in Oklahoma City—indeed as well toll of the bombing now stands at 167, bedrock legal principles which under- as all terrorist acts—and my desire to making it the deadliest mass murder in pin our society, why are we considering do something about relieving the pain the history of the United States. This changing it all? The answer is clear they suffer, I believe that in good con- legislation will enhance the ability of and has been readily acknowledged by science, I cannot support the bill as it law enforcement to combat both for- the proponents of this so-called reform: stands given the changes it contains to eign and domestic terrorism. It is a they want to expedite the execution of habeas corpus. strong, adequate response to the seri- those who have received the death pen- JUDICIAL REVIEW OF CRIMINAL ALIEN CASES ous problem of terrorism, and will pro- alty. It is that simple. There is no Mr. KENNEDY. Madam President, vide the United States with the nec- other driving force behind these ef- section 303(e) broadens the class of essary tools to respond to the inter- forts; efforts which incidentally have criminal aliens subject to special expe- national and domestic terrorist threats been around for years now. Those who dited deportation procedures and elimi- and prosecute these despicable acts to favor the death penalty are frustrated nates all judicial review. the fullest extent of the law. that appeals under habeas corpus are Every Member of this body is willing Madam President, I had wanted to available for those who protest their to take every reasonable step to punish offer an amendment to this bill that innocence and claim they were denied criminal aliens and deport them from was designed to make a technical cor- a fair trial. They argue that with an the United States. rection to the existing law banning appeals process that lasts for years, the But the Justice Department reports handgun bullets capable of piercing deterrent effect of the death penalty is that this provision is a step backward S 7852 CONGRESSIONAL RECORD — SENATE June 7, 1995 in our fight against crime. It disrupts Under this provision, a Cuban refugee store and buys a firearm which she strong provisions against criminal convicted of shoplifting in certain doesn’t realize is illegal. She is con- aliens enacted in last year’s crime bill States could face life imprisonment in victed of a felony. Even though she is and only recently implemented an INS jail. married to an American and has four through regulation. It ties the Attor- Finally, by providing that all crimi- U.S.-citizen children, she must be ney General’s hands in obtaining con- nal aliens be removed within 30 days of placed in expedited deportation pro- victions against criminal aliens. And it the issuance of a deportation order, the ceedings with no recourse to the eliminates all judicial review in these provision ignores real law enforcement courts. cases—a major departure from fun- needs. The 30-day requirement may be A long-time permanent resident damental principles of due process. waived where criminal aliens are co- could decide to go fishing. He hooks This provision harms our crime fight- operating with law enforcement as wit- and kills what he does not realize is a ing efforts in at least three ways. nesses. However, there is no allowance rare fish, which is a strict liability fel- First, it eliminates the Attorney for other law enforcement purposes. ony with a mandatory minimum of 1 General’s ability to target the removal For example, an alien convicted and or- year. Even though he is married to an of the most serious offenders within dered deported for one offense could American and has U.S.-citizen chil- the resources she has available. It ap- not be held in the United States for dren, he is convicted, serves his time, plies to all criminal aliens, regardless trial under other offenses for which the and is immediately deported with no of the gravity of their offense. Under alien may subsequently be charged. prospect for judicial review. current law, only aggravated felons— In the World Trade Center bombing, These are the kinds of cases which those committing the most serious of- for example, one of the suspected con- can easily happen if this drastic provi- fenses—are placed in expedited pro- spirators in the case was already in jail sion is allowed to stand. ceedings. Under this section, however, for another crime. Under this provi- Even if we accept—as this provision all criminal aliens must be removed sion, he would be subjected to manda- proposes—that virtually any offense re- within 30 days, whether they are mur- tory deportation within 30 days of the sults in automatic deportation, the derers or petty shoplifters. issuance of a deportation order for the elimination of judicial review alone An immigrant with an American citi- first crime, and would not be available would be grounds for opposing this pro- zen wife and children sentenced to 1- for prosecution under the second—and vision. This is a major departure from year probation for minor tax evasion far more serious—crime. fair principles of due process. and fraud would be subject to this pro- In addition to undermining the war The need for judicial review in this cedure. And under this provision, he on crime, this amendment virtually instance is obvious. Immigration would be treated the same as ax mur- eliminates the Attorney General’s judges in the Justice Department make derers and drug lords. INS is required flexibility to grant discretionary relief mistakes. to detain him. He gets a quick deporta- from deportation for long-time perma- For example, in a recent ninth cir- tion hearing from an immigration nent residents convicted of lesser cuit case, the panel reviewed an immi- judge in the Justice Department and he crimes. This discretionary relief is gration judge’s deportation order is out within 30 days—no judicial re- available to permanent residents who against someone convicted of drug traf- view, no nothing. have resided here for at least 7 years. It ficking who claimed to be a U.S. citi- Over the past 2 years, the President is granted if the immigration judge be- zen but did not have a lawyer. The and Congress have increased substan- lieves their equities in the United court found that the immigration tially the number of immigration offi- States—such as American citizen judge’s order was ‘‘not based on sub- cers and immigration judges to handle spouses or children or contributions to stantial evidence.’’ In this case, a pos- these cases. As a result, over the next their communities—outweigh the grav- sible U.S. citizen could have been erro- year, the administration will double ity of their offense. neously deported if the court had not the number of criminal aliens deported Under current law, permanent resi- intervened. to more than 58,000. dents with aggravated felony convic- It is because of cases such as these But even with the additional funds, tions who serve at least 5 years in pris- that the standing policy of the Amer- resources are still limited. The Justice on are ineligible for this discretionary ican Bar Association is that legislation Department would be required to di- relief from deportation. However, should not: vert resources from the Border Patrol, under this provision, this discretionary Limit the availability and scope of judicial from naturalization, and from other relief would be denied to permanent review of administrative decisions under the important activities to accommodate residents for carrying a concealed fire- Immigration and Nationality Act to less this provision. arm, drug abuse, or addiction, in which than what is provided . . . in the Adminis- The Immigration Subcommittee is no conviction would even be required, trative Procedures Act: in particular judicial now considering legislation which will any drug offense involving more than review of . . . denials of stays of execution of reform the criminal alien definitions. 30 grams of marijuana, and other such exclusion or deportation orders . . . and con- We should allow that process to pro- crimes. They could live here produc- stitutional and statutory writs of habeas corpus. ceed, rather than make premature and tively for 30 years and have an Amer- drastic changes in the current defini- ican citizen wife and children. But for I had intended to offer an amendment tion and due process. them, it is one strike and you are out. to the counter-terrorism bill which The second way in which this provi- Similarly, refugees could also be de- would correct these problems. While I sion harms law enforcement is that it ported to the hands of their persecu- will not offer the amendment at this requires the Attorney General to de- tors for relatively small offenses. time, it is my hope that the grave tain all those in this broadened cat- Under this provision, for example, a problems of the current language will egory of criminal aliens, with no allow- refugee from Rwanda could put a bill in be addressed as the bill proceeds. ance for those whose home countries the mailbox and realize he forgot to The provision in the pending bill will not or cannot take them back. put a stamp on it. When he innocently would do nothing to enhance our abil- This is the case today with Cuba, Viet- tries to remove the letter from the ity to exclude suspected terrorists. It nam, and Bosnia. In these cases, the mailbox and he is arrested for tamper- would impede current efforts to remove Attorney General would be required to ing with the mail—a felony. Due to dangerous criminal aliens. And I hope keep the alien in indefinite detention, poor representation, he accepts a plea it will be addressed at a later stage. even if the offense is relatively light bargained sentence of 1 year. To his ALIEN TERRORIST REMOVAL ACT and the Attorney General believes the surprise, he is suddenly subject to ex- Mr. SMITH. Madam President, I rise alien would pose no danger to the com- pedited deportation with no judicial re- this afternoon to commend Senators munity. view. DOLE and HATCH for incorporating my This is a drastic and unnecessary ex- Under this provision, an older immi- bill, S. 270, the Alien Terrorist Re- pense to the taxpayer. It takes jail grant who came to the United States moval Act of 1995, into S. 735, the com- space and resources away from more as a child but was never naturalized prehensive antiterrorism legislation pressing criminal enforcement. gets tired of a rash of robberies on her now before the Senate. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7853

I also want to thank Senator SPEC- cial alien terrorist removal court made achieving that goal, and I strongly sup- TER again for the opportunity to tes- up of sitting U.S. District Judges that port those proposals. tify before his Terrorism Subcommit- is modeled on the special court that The bill would make available about tee last month regarding my alien ter- was created by the Foreign Intelligence $1.2 billion to increase law enforcement rorist removal bill. Surveillance Act. resources to carry out these tasks. My bill—now the alien terrorist re- Under title III of S. 735, the U.S. dis- There are provisions added during floor moval title of S. 735—essentially em- trict judge sitting as the special court consideration to provide for tracer ele- bodies the Smith-Simpson amendment would personally review the classified ments to be placed in explosives to that the Senate passed unanimously as information involved. help identify where these materials are part of the crime bill in the last Con- Without the compromising classified likely to have originated. There are gress. Unfortunately, certain House information, the alien in question other provisions included in this bill Members of the conference committee would be provided an unclassified sum- that are also likely to help us fight ter- insisted on the removal of the Smith- mary of the classified information in- rorist threats. Simpson amendment from the 1994 volved. Nevertheless, I intend to vote against crime bill. Ultimately, the special court would this legislation. I believe that in the This year, however, Madam Presi- determine whether, considering the haste to respond to a national tragedy, dent, the Clinton administration pro- record as a whole, the Justice Depart- we may be making mistakes that will posed its own substantially identical ment has proven, by clear and convinc- be difficult to undo. version of my bill as a part of its omni- ing evidence, that the alien is a terror- There are a number of provisions in bus antiterrorism legislation. Thus, I ist and should be removed from the this legislation that are problematic, am confident that the alien terrorist United States. and quite frankly, I am equally con- removal title of S. 735 will enjoy broad Finally, any alien ordered removed cerned about the process which bipartisan support here in the Senate, under the provisions of title III of S. brought this measure to the floor of will be supported by the House as well, 735 would have the right to appeal to the Senate, the hasty debate, and the and will be signed into law by the the full U.S. Court of Appeals for the pressure to clear the measure without President in the next few weeks. District of Columbia Circuit. understanding the implications of what Let me summarize briefly for the In closing, let me say that the most is being proposed. The Administration proposed legisla- benefit of my colleagues what the alien serious threat that our Nation faces in tion to deal with international terror- terrorist removal title of S. 735 is all the post-cold-war world is the scourge ism earlier this year; that initial pro- about. The alien terrorist removal pro- of terrorism. posal was quickly reshaped as a result visions of the bill would establish a Foreign terrorism came to our shores of the Oklahoma City tragedy into a new, special, judicial procedure under in 1993 with the World Trade Center bill to deal with domestic terrorism. which classified information can be bombing. Tragically, with the Okla- Although hearings were held in the Ju- used to establish the deportability of homa City bombing in April, we diciary Committee, the Committee learned the bitter lesson that we face alien terrorists. never met to debate the bill, there is The new procedures provided under the threat of terrorism from domestic no committee report, and the measure title III of S. 735 are carefully designed extremists as well. which was called up by the leader was to safeguard national security inter- Now, this historic 104th Congress is drafted in private and introduced doing its job by moving quickly to re- ests, while at the same time according shortly before many Members left town spond to those twin threats. I urge the appropriate protection to the nec- for the Memorial Day recess. essarily limited constitutional due prompt passage of S. 735 and, once It has also become the vehicle for process rights of aliens. again, I commend the sponsors for in- what is called ‘‘habeas corpus reform.’’ Under current law, Madam President, corporating my alien terrorist removal What is described as ‘‘reform’’ is in fact classified information cannot be used bill into their landmark legislation. an attempt to rewrite and weaken to establish the deportability of terror- Mr. FEINGOLD. Madam President, what is known as the ‘‘Great Writ’’— ist aliens. Thus, when there is insuffi- after the despicable attack on the the common law instrument that al- cient unclassified information avail- Murrah Federal building in Oklahoma lowed citizens to challenge the lawful- able to establish the deportability of a City almost 2 months ago, I reacted ness of their detention by the crown. terrorist alien, the Government faces with the same feelings of shock and Suddenly, habeas reform has become a two equally unacceptable choices. outrage as millions of other Ameri- tool for fighting terrorism. I find that First, the Justice Department could cans. a stretch of the imagination. What we declassify enough of its evidence Those feelings run deeper than lan- have is a classic, political move to get against the alien in question to estab- guage can adequately describe. The another agenda wrapped into an emo- lish his deportability. pictures of the ravaged building, the tionally charged, moving vehicle. Sometimes, however, that simply stories of the victims and the families In the past year, many of our basic, cannot be done because the classified will never be forgotten. fundamental protections against gov- information in question is so sensitive Madam President, there should be ab- ernment intrusion contained in the Bill that its disclosure would endanger the solutely no debate about our national of Rights have been under assault. I lives of human sources or compromise resolve to fight terrorism and to keep think many Americans are unaware highly sensitive methods of intel- it from our shores. No American wants that these reform movements are in ligence gathering. to fear that the kind of thing that hap- fact assaults upon fundamental The Government’s second, and equal- pened in Oklahoma or at the World rights—not just the rights of criminals, ly untenable, choice would be simply to Trade Center in New York will occur in but the rights of all Americans to be let the terrorist alien involved remain their hometown or that one of their free from government overreaching and in the United States. loved ones will be hurt by this kind of harassment. Unfortunately, that is not just a hy- heinous act. I spoke at some length earlier today pothetical situation. It happens in real Fighting terrorism requires that we on my very grave concerns about how cases. That is why the Department of take strong and forceful steps to stop the so-called habeas reforms engrafted Justice—under both Republican and terrorists before they strike, and if into this bill aimed at speeding up exe- Democratic Presidents and Attorneys they do strike, to prosecute, convict cutions threaten the rights of the inno- General—has been asking for the au- and punish them. cent and raise the spectre of gross mis- thority granted by my bill—now title We need to make sure that law en- carriage of justice taking place. III of S. 735—since 1988. forcement officers have the resources There are also a number of other pro- Utilizing the existing definitions of to investigate and prosecute terrorist visions of this bill that I believe are ei- terrorism in the Immigration Act of acts; we need to give them tools to ap- ther not well thought out or mis- 1990 and of classified information in the prehend terrorists before they strike. guided. Classified Information Procedures Act, There are a number of provisions of For example, last night the Senate title III of S. 735 would establish a spe- this legislation that are aimed at adopted by a voice vote an amendment S 7854 CONGRESSIONAL RECORD — SENATE June 7, 1995 authorizing a greater role for the mili- that authority to certain cir- There are other provisions of the bill tary in domestic antiterrorism activi- cumstances. that may also have problems that I ties. Madam President, while I recognize will not take the time to outline here. Provisions dealing with this issue the authority being created is limited In sum, I think the bill was hastily were included in the administration’s to cases involving biological or chemi- crafted and goes beyond what is needed original proposal and they were of cal weapons, I am concerned that we to deal with a terrorist threat. great concern to me and a number of have opened a door that may be hard to Madam President, less than a year Senators who do not believe that the close in the future when the case is ago, I confronted this same situation military should be playing a role in do- made that the military can play a when the Clinton administration’s mestic law enforcement efforts. greater role, for example, in the war on crime bill came to a final vote on the Madam President, one of the hall- drugs or other areas which have been floor of the Senate. marks of a democratic society is the the subject of heightened public con- Just as with this bill, there were a number of provisions in that legisla- separation of the military—whose pri- cern. I do not believe that it is nec- tion that I supported. I supported the mary function is to defend the Nation essary to give the military arrest pow- concept of putting more police officers from outside threats—from internal ers within the U.S. If military needs to on the streets. I supported prevention law enforcement responsibilities. Mili- be involved in a domestic investiga- programs as sensible and cost-effective tary dictatorships use soldiers to en- tion, I believe that civilian law en- ways to head off criminal activity. force their laws; democracies do not. forcement officials should be present and available to make any arrests But I objected to other provisions. This country has a very closely de- I objected to the expansion of the fined set of rules, arising out of the Bill needed. The notion that military per- sonnel will be operating without ac- death penalty, a form of state-spon- of Rights itself and applied by our judi- sored violence that few civilized na- cial system, which guarantee due proc- companying civilian officials is very troubling. If authority is needed to de- tions practice. I note in today’s papers ess and fairness in the administration that the Supreme Court of South Afri- of justice. Law enforcement personnel tain an individual until a civilian law enforcement official arrives, argu- ca, a nation that has executed people are trained in carrying out these rules; for 350 years has ruled that the death soldiers are not. ments can be made for that authority, but that does not justify, in my mind, penalty violates that nation’s constitu- I recognized, Madam President, that granting a direct power to make an ar- tion. a very sincere effort was made by a rest under any type of circumstances. The pending legislation would also number of the principal authors of Madam President, in a similar vein, I add new death penalties to federal law. these provisions to craft a very narrow am concerned about the amendment I oppose those provisions as well. exception to the posse comitatus law, adopted yesterday which loosens the I also opposed some of the provisions the 1878 statute which limits the role requirements in current law for issu- of last year’s crime bill that I believed of the military in domestic law en- ance of a warrant for what is called a amounted to unnecessary and counter- forcement activities. ‘‘roaming’’ or ‘‘roving’’ wiretap. The productive Federal intrusion into the However, I believe that both the Fourth Amendment, in very explicit war on crime, which is best fought at process used to craft this amendment language, requires that no search war- the State and local level. Because of these objections, I voted and the substance of this amendment rant may issue unless ‘‘particularly de- against that bill. are flawed. This broadening of the au- scribing the place to be searched, and Because of my objections today, I am thority of the military, albeit in a nar- the persons or things to be seized.’’ voting against this one. row area, was not part of a bill re- The Fourth Amendment was written I believe that we are acting in haste, ported by the committees of jurisdic- in such precise terms because the making law from outrage and not from tion, but rather was introduced and drafters of the Constitution were aware voice voted within the span of a few deliberation. of the practice of British authorities of I believe that despite good intentions hours last night. There were no hear- obtaining sweeping search warrants ings on this specific proposal, no com- and provisions of the bill that would that allowed them to search wherever provide additional resources to law en- mittee report filed outlining the expec- and whenever they pleased. The rights tations of how it will operate, and no forcement personnel fighting terror- of the people to be secure in their ists, that we are not passing a thought- real public debate over its provisions. homes from government officials barg- Rather, we had a voice vote on lan- ful, meaningful response to a real ing in was not a right recognized before threat. Instead, we are rewriting ha- guage most of us had first seen a few the American revolution. It is perhaps hours earlier. beas corpus law because some pro- a unique American right, but it is one ponents of these changes saw an oppor- That is not the way to deal with such that many of us regard as sacrosanct. tunity in this bill to move their agen- a fundamental issue. There is no reason The requirement for specificity is es- da. We are opening the door to a great- for this hasty disposition of this kind pecially important with respect to wire er role for Federal Government take of important issue. tap authority because a wire tap is par- actions that will invade the lives of our Beyond the process used, I have con- ticularly invasive—no one knows that constituents without reasonable cerns about whether the amendment it- a government agent is listening to grounds. self may operate to open the door to your private conversations. The law When we act in haste, we multiply perhaps an even broader role for the has long required that a wire tap war- our chances of error and I see errors in military than even the administration rant be very narrowly and carefully this bill. I cannot support it. had initially proposed. The administra- drawn. Current law allows a roaming Mrs. MURRAY. Madam President, I tion’s proposal did not explicitly give wire tap—that is one that moves from rise today to speak in support of S. 735, the military the authority to make an place to place—only where there is an the antiterrorism bill. arrest, although it had language about allegation that the suspect is moving This bill poses serious dilemmas for disabling and disarming individuals form place to place with the intent to me, and for this Congress. It requires that was troublesome. The amendment avoid interception of the communica- us to face some of the real dangers that adopted last night gives the Depart- tion. The amendment adopted strikes exist in the modern world, and it moti- ment of Justice and the Department of the ‘‘intent’’ requirement and allows vates us to act in the interest of pro- Defense the authority to promulgate such a wiretap where the person’s ac- tecting the people. But it also makes regulations governing the role of the tions and conduct would have the ef- us face the cost of freedoms we enjoy military and provides that those regu- fect of thwarting interception from a as Americans. lations shall not authorize arrests by specified facility. Again, this provision It is disturbing to me when the Con- the military except under ‘‘exigent cir- opens the door to greater government gress is faced with a decision to in- cumstances’’ or as otherwise author- powers. I am not convinced that an crease protection for the people by ized by law. In other words, the mili- adequate case has been made that this chipping away at the edges of freedom. tary is given the power to make ar- broader and potentially abusive au- But in this case, the imperative is rests, but the regulations will limit thority is needed. clear. We have heard many compelling June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7855 stories on this floor about the horrors have a contribution to make toward so on a bipartisan basis. The problem is of Oklahoma City, the tragedy of the maintaining civil discourse. We can too dangerous to be treated in a par- World Trade Center. These stories are improve the environment dramatically tisan manner. We must stand together real; they involved real Americans in by simply toning down the rhetoric. If to protect the citizens of the United today’s world. I need not repeat these we are going to protect constitutional States. stories here. Let me simply acknowl- democracy and our rights as citizens to One of the greatest fears that we all edge what we all feel: These events express our opinions, we have to learn have for the safety of our citizens is have shaken every American to the to respect each other as people. the use of weapons of mass destruction core of their being. To reduce the like- Finally, Madam President, I would by terrorist elements. As demonstrated lihood of such events occurring in the like to add a comment regarding the by the recent Tokyo subway tragedy, future, and to preserve a peaceful exist- amendment offered by the ranking even very limited use of chemical ence for Americans, we must act. member of the Judiciary Committee, agents can cause widespread death and We must empower our law enforce- Senator BIDEN. He rightfully pointed disaster. We must ensure that our Na- ment officials to zero in on terrorist out that this legislation takes on an tion has the ability to marshall all organizations, at home and abroad. issue that is far too complicated to re- available assets and expertise to deal This bill does that. solve here: habeas corpus reform. This with the potential use of mass destruc- We must make these crimes a high is the wrong time and the wrong bill on tion by terrorists. priority within the judicial system, which to attempt to resolve a debate For that reason, I am pleased to join and clearly subject terrorist activities that has raged in this country for in cosponsoring an amendment to au- to prosecution. This bill does that. years. As I said before, I believe it is thorize Department of Defense assist- We must cripple the ability of terror- unwise to legislate in the heat of the ists to finance their activities in our ance to law enforcement authorities in moment. By including the limits on ha- emergency situations involving bio- own backyard. This bill does that. beas corpus in this bill, the majority is We must draw on all the expertise of logical and chemical weapons. This doing just that. I believe the Senate the Government, including the mili- amendment is patterned on authority should instead have a thorough, tary where appropriate. This bill does which currently exists for the Depart- thoughtful debate about habeas corpus that. ment of Defense to provide technical This bill contains many provisions independent of this legislation. It is assistance to incidents involving nu- that will improve our ability as a na- simply too important to run through clear weapons and materiel. The tion to prevent, combat, and prosecute the Senate on a bill narrowly targeting amendment has been carefully drawn against terrorist activities. As a result antiterrorism activities. to limit the involvement of the mili- of the World Trade Center and Okla- Therefore, I support the Biden tary in law enforcement activities. In- homa City bombings, we owe it to the amendment. While it is obvious the deed, we have focused on the critical victims to act. As Senators in an in- votes are not there to postpone the de- need to marshall the unique expertise creasingly dangerous world, we owe it bate over habeas corpus to a later of the military for use in these cata- to all citizens to protect the quality of time, at least the point has been made strophic situations. life unique to the United States of on the Senate floor. The legislation pending before the Madam President, I hope my remarks America. Therefore, I will support S. Senate today will lay the foundation are persuasive in pointing out the di- 735. for an antiterrorism plan for America. Madam President, having said that, I lemmas in passing this legislation. While we can take comfort knowing As the Senate considers legislation must add a few concerns. I do not think directed at antiterrorism, I am aware it is ever a good idea to legislate in the this bill strengthens the hand of law enforcement to aggressively pursue that we will also consider subsequently heat of the moment. Cases like this are during this session modified anticrime most susceptible to the laws of unin- terrorists, none of us should take com- fort in what it might mean for inno- legislation. I will continue to support tended consequences. As we broaden measures that will provide local and the reach of law enforcement, and as cents caught in the middle as the antiterrorism effort intensifies. I sup- State officials, and law enforcement we broaden the application of pen- personnel, the appropriate resources alties, we as elected officials have an port S. 735 with some reluctance, and sincerely hope that authorities will use needed to combat the rising crime rate. equal obligation to keep from This week, the Federal Bureau of In- unnerving the people we are trying to their new powers as judiciously as the spirit of freedom implores. vestigation released preliminary crime protect. We have no idea what kind of reports for 1994. The reports showed mistakes will be made, or whose rights Madam President, on Monday, June 5, the Senate adopted by a vote of 90–0 crime rates dropping from the year be- will be infringed, when this bill is im- fore. The crime rate may appear to de- plemented. It will be critically impor- an amendment by the Senator from California, Senator FEINSTEIN, to re- crease slightly, but not enough to calm tant for law enforcement officials of all the fears of many citizens. Crime will types to keep in mind the responsibil- quire the use of taggants to mark ma- terials used in the construction of ex- continue to terrorize Americans until ities to protect the citizens that go the Congress can assist the States with along with the kind of broad new pow- plosives. I was unavoidably detained, and therefore not present for that vote. adequate funds and legal tools nec- ers we are bestowing on them. essary to make a drastic reduction in Likewise, we have to recognize the I apologize to the leaders for my ab- the crime rate. dangers of internal hatred and anger. If sence; had I been present, I would have there is one thing we can conclude voted ‘‘aye’’ on the Feinstein amend- I have no doubt that the General from recent tragedies, it is this: We ment. If there is one straight-forward Services Administration has stepped up must remain vigilant against extre- thing we can do to help law enforce- security at our Federal buildings as a mism of all types. These are forces that ment investigate bombings, it is re- result of the tragic events which oc- may be motivated by legitimate feel- quiring the use of taggants. curred in Oklahoma City. The House ings of frustration with the Govern- Mr. WARNER. Madam President, the held hearings on Federal building secu- ment. But there are very clear lines horrific April 19 bombing of the Alfred rity shortly after the event. that we must not cross. Our system of P. Murrah Federal Building in Okla- As the chairman of the Subcommit- Government is geared toward discourse homa City shocked and stunned Ameri- tee on Transportation and Infrastruc- and debate; if we lose the ability to air cans. Every single one of us has been ture, it is my intention to hold a hear- out our differences through honest de- forced to confront the risks and the ing soon regarding building security bate, and if we cannot agree to disagree vulnerability of our open society. The under the auspices of the Federal Pro- when we have to, the entire country United States needs a systematic and tective Service of the GSA. will suffer. We all have a responsibility comprehensive counterterrorism policy I am increasingly concerned by re- to zealously defend our collective to detect, deter, prevent, and punish cent reports which have indicated that rights to democratic government. terrorist acts. memos produced within GSA have indi- To this end, I feel strongly that all of Congress must consider and pass an cated internal skepticism about how us—politicians, activists, citizens— effective antiterrorism bill; we must do reductions in the Federal Protective S 7856 CONGRESSIONAL RECORD — SENATE June 7, 1995 Service of the GSA could adversely af- have decided not to oppose the entire ports and hotel/motel and vehicle rent- fect the agency’s ability to assess and bill on this basis. However, I remain al records in foreign intelligence inves- analyze Federal building security in concerned about these provisions and tigations. It does not change the law the District of Columbia, Maryland, would hope they can be further im- governing such information for domes- and Virginia. proved before the Senate takes action tic investigations. It is my intention to review this mat- on a final bill. It gives the Government greater abil- ter for the Senate. Another section of the bill that I ity to exclude from entering the United Madam President, while the Senate think could be improved is the new lan- States those aliens who are involved in debates the legislation before us today, guage relating to taggants in explo- terrorist activities. we must all realize that no legislation sives. Although I joined a unanimous Let me also mention the amend- can make America totally safe. An Senate in voting for changes made on ments offered by Democrats to add open, democratic society simply will the floor during debate, I am not by tough law enforcement provisions to not allow for total and absolute secu- any means convinced this is the best the Republican bill. rity for our Nation. way to approach that issue. After the The Lieberman amendment, which Because of the freedom our society Senate acted, I was contacted by sev- was adopted, expands wiretap author- demands, we must be evervigilant con- eral resource-based industries in my ity. It gives new authority for mul- cerning possible threats to our citizens. State suggesting concerns that had not tiple-point wiretaps provided to Fed- I have always been totally committed been raised or reviewed previously. I eral law enforcement. to maintaining the readiness of our hope the House and any future con- Another Lieberman amendment, Armed Forces whenever a threat to our ference will take a close look at that which was defeated, with no Repub- national security becomes imminent. I section and make improvements that licans voting for it, gives authority for am also totally committed to main- will balance the interests of law en- emergency wiretaps—identical to au- taining the readiness of our Federal, forcement with those of the affected thority currently available for orga- State, and local law enforcement per- industries. nized crime investigations—in terrorist sonnel to confront any domestic threat There are other items in this bill investigations. which may arise anywhere in the Unit- that I question, but those are some of The Feinstein amendment, which was ed States. the most important, I do not think we adopted, requires taggants. It gives au- I do have a major concern with this would be sacrificing any tools needed thority to Secretary of the Treasury to legislation: we must ensure that its by law enforcement if we were to make require taggants in explosives. provisions do not violate the Constitu- improvements in these sections. Taggants assist law enforcement by tion or place inappropriate restrictions I commend the majority leader and providing a means to trace the source on the personal freedoms protected by Senator HATCH for their hard work to of an explosive. the first amendment. I will not support deliver a bill that will strengthen the The Nunn-Thurmond-Biden-Warner provisions which will prohibit free ex- hand of law enforcement in fighting amendment, also adopted, gives new ercise of religion or speech, or which terrorism. I hope the bill will be im- assistance against chemical and bio- impinge on the freedom of association. proved as it moves through the remain- logical weapons. The posse comitatus Mr. CRAIG. Madam President, I ing steps of the legislative process, so exception to allow the use of military abhor and condemn terrorism in any that I can vote for a truly effective to assist in the investigations of chem- form. Our Nation cannot tolerate ter- package. ical and biological weapons. rorism—be it foreign or domestic—and Mr. BIDEN. Madam President, the The Kerrey amendment, also adopt- our Nation’s law enforcement must Oklahoma City bombing and the ear- ed, increases funding for Federal have the tools it needs to fight this lier bombing of the World Trade Center antiterrorist enforcement. It adds $262 menace. demonstrate clearly that the United million for ATF new explosives inves- There are some very important re- States must respond seriously to tigators and for Secret Service security forms in this bill that would be helpful. those—whether foreign or domestic— initiatives. They include habeas corpus reform, who seek to make their point through The Boxer amendment, again, adopt- which is the only change that will real- the mass killing of Americans. ed, increases penalties for gun and ex- ly have an impact in the Oklahoma These events demand that we exam- plosives crimes. It extends statute of City case. ine our current laws and practices to limitations for National Firearms Act I will vote for this bill in order to ensure that we are doing everything offenses. send a strong message of support for that is necessary and appropriate to A Levin amendment, adopted by the those reforms to the House and any fu- guard against the threat. We must take Senate, increases penalties for the use ture House-Senate conference working strong action to counteract terrorism, of explosives. on this legislation. both foreign and domestic. A Feinstein amendment, again, However, for the record, my vote is There are steps we can take and adopted, prohibits the distribution of not an endorsement of each and every should take. bombmaking material intended to be provision of this bill. I am not con- Let me outline the key terrorism used for a crime. vinced that the bill before us today is proposals from the President’s bill that A Leahy amendment, first as adopt- the best we can do to assist law en- are contained in the substitute we will ed, assists victims of terrorist attacks. forcement in fighting against terror- vote on shortly. These provisions in- It provides assistance and compensa- ism, and I would like to discuss some of clude: tion for victims of terrorist attacks. the specific reservations I have. A new offense to assure Federal juris- The Leahy-McCain amendment, as First and foremost are potential con- diction over all violent acts which are adopted, raises special assessment on stitutional problems such as those re- motivated by international terrorism. criminal penalties. lating to the sections on restricting This provision will cover gaps in cur- The Specter-Simon-Kennedy amend- fundraising, excluding and deporting rent Federal law—for example, a ter- ment, as adopted, deports criminal aliens, the new wiretapping authority rorist who commits mass murder on aliens. It enhances protection of classi- we adopted last night, and acquisition private or State-owned property may fied information when deporting alien of information including consumer now be subject only to State court ju- terrorists. records. risdiction. Another Feinstein amendment, also In all fairness, there are conflicting This offense carries a new death pen- adopted, increases international efforts opinions even among my colleagues alty, complementing the terrorism against terrorism. It prohibits arms who are lawyers about whether some of death penalty in last year’s crime bill. sales to countries who are not cooper- these provisions will survive court re- The bill will implement an inter- ating fully with U.S. antiterrorist ef- view. I have been assured that the safe- national treaty to require a detection forts. guards contained in the bill are suffi- agent to be added to plastic explosives. Particularly with these tough cient to overcome potential constitu- It will enhance the Government’s amendments now added to the bill, this tional problems. For that reason, I ability to obtain consumer credit re- counterterrorism is a big step forward June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7857 in giving law enforcement new tools to Gorton Kerrey Pryor Sec. 302. Extradition of aliens. fight and prevent terrorism. I urge my Graham Kerry Reid Sec. 303. Changes to the Immigration and Gramm Kohl Robb Nationality Act to facilitate re- colleagues to support the bill. Grams Kyl Rockefeller Grassley Lautenberg moval of alien terrorists. The PRESIDING OFFICER. The Sen- Roth Sec. 304. Access to certain confidential im- ator majority leader. Gregg Leahy Santorum Harkin Levin migration and naturalization Mr. DOLE. Let me announce for my Sarbanes Hatch Lieberman Shelby files through court order. Heflin Lott colleagues, we are going to move to the Simpson TITLE IV—CONTROL OF FUNDRAISING Helms Lugar telecommunications bill after this Smith FOR TERRORISM ACTIVITIES Hollings Mack Snowe vote, and I understand Senator HOL- Hutchison McCain Sec. 401. Prohibition on terrorist fundrais- LINGS and Senator PRESSLER are ready Inhofe McConnell Specter ing. to do that. We will have opening state- Inouye Mikulski Stevens Sec. 402. Correction to material support pro- Thomas ments. I have an amendment that I Jeffords Murkowski vision. Johnston Murray Thompson will offer. I think the distinguished Kassebaum Nickles Thurmond TITLE V—ASSISTANCE TO FEDERAL LAW Democratic leader has an amendment Kempthorne Nunn Warner ENFORCEMENT AGENCIES he may offer. These amendments may Kennedy Pressler Subtitle A—Antiterrorism Assistance be accepted. But we are trying to find NAYS—8 Sec. 501. Disclosure of certain consumer re- a couple of bona fide amendments that Feingold Moynihan Simon ports to the Federal Bureau of can be offered tonight and voted on in Hatfield Packwood Wellstone Investigation for foreign coun- the morning. Moseley-Braun Pell terintelligence investigations. If that is the case, if we have a cou- NOT VOTING—1 Sec. 502. Access to records of common car- riers, public accommodation fa- ple, we can debate those amendments Conrad cilities, physical storage facili- tonight and not have any more votes So the bill (S. 735), as amended, was ties, and vehicle rental facili- tonight and have those votes in the passed as follows: ties in foreign counterintel- morning. S. 735 ligence and counterterrorism cases. I will assume we can find one addi- Be it enacted by the Senate and House of Rep- Sec. 503. Increase in maximum rewards for tional amendment so this will be the resentatives of the United States of America in information concerning inter- last vote tonight. Any votes that are Congress assembled, national terrorism. ordered tonight will occur probably SECTION 1. SHORT TITLE. fairly early in the morning, around 9 This Act may be cited as the ‘‘Comprehen- Subtitle B—Intelligence and Investigation o’clock. sive Terrorism Prevention Act of 1995’’. Enhancements Mr. HATCH. Madam President, are SEC. 2. TABLE OF CONTENTS. Sec. 511. Study and report on electronic sur- veillance. the yeas and nays ordered? The table of contents of this Act is as fol- lows: Sec. 512. Authorization for interceptions of The PRESIDING OFFICER. No, they communications in certain ter- have not been ordered. Sec. 1. Short title. rorism related offenses. Mr. HATCH. I ask for the yeas and Sec. 2. Table of contents. Sec. 513. Requirement to preserve evidence. TITLE I—SUBSTANTIVE CRIMINAL LAW nays on final passage. Subtitle C—Additional Funding for Law ENHANCEMENTS The PRESIDING OFFICER. Is there a Enforcement Sec. 101. Increased penalty for conspiracies sufficient second? Sec. 521. Federal Bureau of Investigation as- involving explosives. There is a sufficient second. Sec. 102. Acts of terrorism transcending na- sistance to combat terrorism. The yeas and nays were ordered. tional boundaries. Sec. 522. Authorization of additional appro- The PRESIDING OFFICER. The Sec. 103. Conspiracy to harm people and priations for the United States property overseas. Customs Service. question now occurs on agreeing to Sec. 523. Authorization of additional appro- amendment No. 1199, as amended. Sec. 104. Increased penalties for certain ter- rorism crimes. priations for the Immigration So the amendment (No. 1199), as Sec. 105. Mandatory penalty for transferring and Naturalization Service. amended, was agreed to. an explosive material knowing Sec. 524. Drug Enforcement Administration. The PRESIDING OFFICER. The that it will be used to commit a Sec. 525. Department of Justice. question is on the engrossment and crime of violence. Sec. 526. Authorization of additional appro- third reading of the bill. Sec. 106. Penalty for possession of stolen ex- priations for the Department of the Treasury. The bill was ordered to be engrossed plosives. Sec. 107. Enhanced penalties for use of ex- Sec. 527. Funding source. for a third reading and was read the plosives or arson crimes. Sec. 528. Deterrent against Terrorist Activ- third time. Sec. 108. Increased periods of limitation for ity Damaging a Federal Inter- The PRESIDING OFFICER. The bill National Firearms Act viola- est Computer. having been read the third time, the tions. TITLE VI—CRIMINAL PROCEDURAL question is, shall it pass? The yeas and TITLE II—COMBATING INTERNATIONAL IMPROVEMENTS nays have been ordered. The clerk will TERRORISM Subtitle A—Habeas Corpus Reform call the roll. Sec. 201. Findings. Sec. 601. Filing deadlines. The legislative clerk called the roll. Sec. 202. Prohibition on assistance to coun- Sec. 602. Appeal. tries that aid terrorist states. Sec. 603. Amendment of Federal Rules of Ap- Mr. FORD. I announce that the Sen- Sec. 203. Prohibition on assistance to coun- pellate Procedure. ator from North Dakota [Mr. CONRAD] tries that provide military Sec. 604. Section 2254 amendments. is necessarily absent. equipment to terrorist states. Sec. 605. Section 2255 amendments. Sec. 204. Opposition to assistance by inter- The PRESIDING OFFICER. Are there Sec. 606. Limits on second or successive ap- national financial institutions any other Senators in the Chamber plications. who desire to vote? to terrorist states. Sec. 205. Antiterrorism assistance. Sec. 607. Death penalty litigation proce- The result was announced—yeas 91, Sec. 206. Jurisdiction for lawsuits against dures. nays 8, as follows: terrorist states. Sec. 608. Technical amendment. [Rollcall Vote No. 242 Leg.] Sec. 207. Report on support for international Subtitle B—Criminal Procedural YEAS—91 terrorists. Improvements Sec. 208. Definition of assistance. Abraham Bryan Daschle Sec. 621. Clarification and extension of Sec. 209. Waiver authority concerning notice criminal jurisdiction over cer- Akaka Bumpers DeWine of denial of application for Ashcroft Burns Dodd tain terrorism offenses over- Baucus Byrd Dole visas. seas. Bennett Campbell Domenici Sec. 210. Membership in a terrorist organiza- Sec. 622. Expansion of territorial sea. Biden Chafee Dorgan tion as a basis for exclusion Sec. 623. Expansion of weapons of mass de- Bingaman Coats Exon from the United States under struction statute. Bond Cochran Faircloth the Immigration and National- Sec. 624. Addition of terrorism offenses to Boxer Cohen Feinstein ity Act. Bradley Coverdell Ford the RICO statute. Breaux Craig Frist TITLE III—ALIEN REMOVAL Sec. 625. Addition of terrorism offenses to Brown D’Amato Glenn Sec. 301. Alien terrorist removal. the money laundering statute. S 7858 CONGRESSIONAL RECORD — SENATE June 7, 1995 Sec. 626. Protection of current or former of- offense the commission of which was the ob- the maximum punishment that would have ficials, officers, or employees of ject of the conspiracy.’’. applied had the offense been completed; and the United States. SEC. 102. ACTS OF TERRORISM TRANSCENDING ‘‘(G) for threatening to commit the offense, Sec. 627. Addition of conspiracy to terrorism NATIONAL BOUNDARIES. by imprisonment for not more than 10 years. offenses. (a) REDESIGNATION.—(1) Chapter 113B of ‘‘(2) Notwithstanding any other provision Sec. 628. Clarification of Federal jurisdic- title 18, United States Code (relating to tor- of law, the court shall not place on probation tion over bomb threats. ture) is redesignated as chapter 113C. any person convicted of a violation of this TITLE VII—MARKING OF PLASTIC (2) The chapter analysis of title 18, United section. EXPLOSIVES States Code, is amended by striking ‘‘113B’’ ‘‘(d) LIMITATION ON PROSECUTION.—No in- the second place it appears and inserting dictment for any offense described in this Sec. 701. Findings and purposes. ‘‘113C’’. section shall be sought by the United States Sec. 702. Definitions. (b) OFFENSE.—Chapter 113B of title 18, except after the Attorney General, or the Sec. 703. Requirement of detection agents United States Code, is amended by inserting highest ranking subordinate of the Attorney for plastic explosives. after section 2332a the following new section: General with responsibility for criminal Sec. 704. Criminal sanctions. ‘‘§ 2332b. Acts of terrorism transcending na- prosecutions, has made a written certifi- Sec. 705. Exceptions. cation that, in the judgment of the certify- tional boundaries Sec. 706. Investigative authority. ing official— Sec. 707. Effective date. ‘‘(a) PROHIBITED ACTS.— ‘‘(1) such offense, or any activity pre- Sec. 708. Study and requirements for tagging ‘‘(1) Whoever, in a circumstance described paratory to its commission, transcended na- of explosive materials, and in subsection (b), commits an act within the tional boundaries; and study and recommendations for United States that if committed within the ‘‘(2) the offense appears to have been in- rendering explosive components special maritime and territorial jurisdiction tended to coerce, intimidate, or retaliate inert and imposing controls on of the United States would be in violation of against a government or a civilian popu- precursors of explosives. section 113(a), (1), (2), (3), (6), or (7), 114, 1111, lation, including any segment thereof. TITLE VIII—NUCLEAR MATERIALS 1112, 1201, or 1363 shall be punished as pre- ‘‘(e) INVESTIGATIVE RESPONSIBILITY.—Viola- scribed in subsection (c). Sec. 801. Findings and purpose. tions of this section shall be investigated by ‘‘(2) Whoever threatens, attempts, or con- Sec. 802. Expansion of scope and jurisdic- the Federal Bureau of Investigation. Nothing spires to commit an offense under paragraph tional bases of nuclear mate- in this section shall be construed to interfere (1) shall be punished under subsection (c). rials prohibitions. with the authority of the United States Se- ‘‘(b) JURISDICTIONAL BASES.— cret Service under section 3056, or with its TITLE IX—MISCELLANEOUS PROVISIONS ‘‘(1) This section applies to conduct de- investigative authority with respect to sec- Sec. 901. Prohibition on distribution of in- scribed in subsection (a) if— tions 871 and 879. formation relating to explosive ‘‘(A) the mail, or any facility utilized in ‘‘(f) EVIDENCE.—In a prosecution under this materials for a criminal pur- interstate commerce, is used in furtherance section, the United States shall not be re- pose. of the commission of the offense; quired to prove knowledge by any defendant Sec. 902. Designation of Cartney Koch ‘‘(B) the offense obstructs, delays, or af- of a jurisdictional base alleged in the indict- McRaven Child Development fects interstate or foreign commerce in any ment. Center. way or degree, or would have obstructed, de- ‘‘(g) EXTRATERRITORIAL JURISDICTION.— Sec. 903. Foreign air travel safety. layed, or affected interstate or foreign com- There is extraterritorial Federal jurisdiction Sec. 904. Proof of citizenship. merce if the offense had been consummated; over— Sec. 905. Cooperation of fertilizer research ‘‘(C) the victim or intended victim is the ‘‘(1) any offense under subsection (a); and centers. United States Government or any official, ‘‘(2) conduct that, under section 3, renders Sec. 906. Special assessments on convicted officer, employee, or agent of the legislative, any person an accessory after the fact to an persons. executive, or judicial branches, or of any de- offense under subsection (a). Sec. 907. Prohibition on assistance under partment or agency, of the United States; ‘‘(h) DEFINITIONS.—As used in this sec- Arms Export Control Act for ‘‘(D) the structure, conveyance, or other tion— countries not cooperating fully real or personal property was in whole or in ‘‘(1) the term ‘commerce’ has the meaning with United States part owned, possessed, or used by, or leased given such term in section 1951(b)(3); antiterrorism efforts. to the United States, or any department or ‘‘(2) the term ‘facility utilized in interstate Sec. 908. Authority to request military as- agency thereof; commerce’ includes means of transportation, sistance with respect to of- ‘‘(E) the offense is committed in the terri- communication, and transmission; fenses involving biological and torial sea (including the airspace above and ‘‘(3) the term ‘national of the United chemical weapons. the seabed and subsoil below, and artificial States’ has the meaning given such term in Sec. 909. Revision to existing authority for islands and fixed structures erected thereon) section 101(a)(22) of the Immigration and Na- multipoint wiretaps. of the United States; or tionality Act (8 U.S.C. 1101(a)(22)); Sec. 910. Authorization of additional appro- ‘‘(F) the offense is committed in places ‘‘(4) the term ‘serious bodily injury’ has priations for the United States within the United States that are in the spe- the meaning given such term in section Park Police. cial maritime and territorial jurisdiction of 1365(g)(3); and Sec. 911. Authorization of additional appro- the United States. ‘‘(5) the term ‘territorial sea of the United priations for the Administra- ‘‘(2) Jurisdiction shall exist over all prin- States’ means all waters extending seaward tive Office of the United States cipals, coconspirators, and accessories after to 12 nautical miles from the baselines of the Courts. the fact, of an offense under subsection (a) if United States determined in accordance with Sec. 912. Authorization of additional appro- at least one of the circumstances described international law.’’. priations for the United States in paragraph (1) is applicable to at least one (c) TECHNICAL AMENDMENT.—The chapter Customs Service. offender. analysis for Chapter 113B of title 18, United Sec. 913. Severability. ‘‘(c) PENALTIES.— States Code, is amended by inserting after TITLE X—VICTIMS OF TERRORISM ACT ‘‘(1) Whoever violates this section shall, in the item relating to section 2332a, the follow- addition to the punishment provided for any ing new item: Sec. 1001. Title. other crime charged in the indictment, be Sec. 1002. Authority to provide assistance ‘‘2332b. Acts of terrorism transcending na- punished— and compensation to victims of tional boundaries.’’. ‘‘(A) if death results to any person, by terrorism. (d) STATUTE OF LIMITATIONS AMENDMENT.— death, or by imprisonment for any term of Sec. 1003. Funding of compensation and as- Section 3286 of title 18, United States Code, years or for life; sistance to victims of terror- is amended— ‘‘(B) for kidnapping, by imprisonment for ism, mass violence, and crime. (1) by striking ‘‘any offense’’ and inserting any term of years or for life; Sec. 1004. Crime victims fund amendments. ‘‘any noncapital offense’’; ‘‘(C) for maiming, by imprisonment for not (2) by striking ‘‘36’’ and inserting ‘‘37’’; TITLE I—SUBSTANTIVE CRIMINAL LAW more than 35 years; (3) by striking ‘‘2331’’ and inserting ‘‘2332’’; ENHANCEMENTS ‘‘(D) for assault with intent to commit (4) by striking ‘‘2339’’ and inserting SEC. 101. INCREASED PENALTY FOR CONSPIR- murder or any other felony or with a dan- ‘‘2332a’’; and ACIES INVOLVING EXPLOSIVES. gerous weapon or assault resulting in serious (5) by inserting ‘‘2332b (acts of terrorism Section 844 of title 18, United States Code, bodily injury, by imprisonment for not more transcending national boundaries),’’ after is amended by adding at the end the follow- than 30 years; ‘‘(use of weapons of mass destruction),’’. ing new subsection: ‘‘(E) for destroying or damaging any struc- (e) PRESUMPTIVE DETENTION.—Section ‘‘(n) Except as otherwise provided in this ture, conveyance, or other real or personal 3142(e) of title 18, United States Code, is section, a person who conspires to commit property, by imprisonment for not more amended by inserting ‘‘or section 2332b’’ any offense defined in this chapter shall be than 25 years; after ‘‘section 924(c)’’. subject to the same penalties (other than the ‘‘(F) for attempting or conspiring to com- (f) EXPANSION OF PROVISION RELATING TO penalty of death) as those prescribed for the mit the offense, for any term of years up to DESTRUCTION OR INJURY OF PROPERTY WITHIN June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7859

SPECIAL MARITIME AND TERRITORIAL JURIS- (2) in subsection (c), by striking ‘‘5’’ and (B) by striking ‘‘not more than 40 years, DICTION.—Section 1363 of title 18, United inserting ‘‘15’’. fined the greater of a fine under this title or States Code, is amended by striking ‘‘any SEC. 105. MANDATORY PENALTY FOR TRANSFER- the cost of repairing or replacing any prop- building, structure or vessel, any machinery RING AN EXPLOSIVE MATERIAL erty that is damaged or destroyed,’’ and in- or building materials and supplies, military KNOWING THAT IT WILL BE USED TO serting ‘‘not less than 7 years and not more or naval stores, munitions of war or any COMMIT A CRIME OF VIOLENCE. than 40 years, fined the greater of $200,000 or structural aids or appliances for navigation Section 844 of title 18, United States Code, the cost of repairing or replacing any prop- or shipping’’ and inserting ‘‘any structure, is amended by adding at the end the follow- erty that is damaged or destroyed’’; and conveyance, or other real or personal prop- ing new subsection: (C) by striking ‘‘7 years’’ and inserting ‘‘10 ‘‘(n) Whoever knowingly transfers an ex- erty’’. years’’. plosive material, knowing or having reason- SEC. 103. CONSPIRACY TO HARM PEOPLE AND able cause to believe that such explosive ma- SEC. 108. INCREASED PERIODS OF LIMITATION PROPERTY OVERSEAS. terial will be used to commit a crime of vio- FOR NATIONAL FIREARMS ACT VIO- LATIONS. (a) IN GENERAL.—Section 956 of title 18, lence (as defined in section 924(c)(3)) or drug Section 6531 of the Internal Revenue Code United States Code, is amended to read as trafficking crime (as defined in section of 1986 is amended— follows: 924(c)(2)) shall be imprisoned for not less (1) by redesignating paragraphs (1) through ‘‘§ 956. Conspiracy to kill, kidnap, maim, or than 10 years, fined under this title, or (8) as subparagraphs (A) through (H), respec- injure certain property in a foreign country both.’’. tively; and ‘‘(a)(1) Whoever, within the jurisdiction of SEC. 106. PENALTY FOR POSSESSION OF STOLEN (2) by amending the matter immediately EXPLOSIVES. the United States, conspires with one or preceding subparagraph (A), as redesignated, more other persons, regardless of where such Section 842(h) of title 18, United States Code, is amended to read as follows: to read as follows: ‘‘No person shall be pros- other person or persons is located, to commit ecuted, tried, or punished for any criminal at any place outside the United States an act ‘‘(h) It shall be unlawful for any person to receive, possess, transport, ship, conceal, offense under the internal revenue laws un- that would constitute the offense of murder, store, barter, sell, dispose of, pledge, or ac- less the indictment is found or the informa- kidnapping, or maiming if committed in the cept as security for a loan, any stolen explo- tion instituted not later than 3 years after special maritime and territorial jurisdiction sive material that is moving in, part of, con- the commission of the offense, except that of the United States, shall, if he or any such stitutes, or has been shipped or transported the period of limitation shall be— other person commits an act within the ju- in, interstate or foreign commerce, either ‘‘(1) 5 years for offenses described in sec- risdiction of the United States to effect any before or after such material was stolen, tion 5861 (relating to firearms and other de- object of the conspiracy, be punished as pro- knowing or having reasonable cause to be- vices); and vided in paragraph (2). lieve that the explosive material was sto- ‘‘(2) 6 years—.’’. ‘‘(2) The punishment for an offense under len.’’. TITLE II—COMBATING INTERNATIONAL paragraph (1) is— SEC. 107. ENHANCED PENALTIES FOR USE OF EX- TERRORISM ‘‘(A) imprisonment for any term of years PLOSIVES OR ARSON CRIMES. SEC. 201. FINDINGS. or for life if the offense is conspiracy to mur- Section 844 of title 18, United States Code, der or kidnap; and The Congress finds that— is amended— (1) international terrorism is among the ‘‘(B) imprisonment for not more than 35 (1) in subsection (e), by striking ‘‘five’’ and most serious transnational threats faced by years if the offense is conspiracy to maim. inserting ‘‘10’’; the United States and its allies, far eclipsing ‘‘(b) Whoever, within the jurisdiction of (2) by amending subsection (f) to read as the dangers posed by population growth or the United States, conspires with one or follows: more persons, regardless of where such other ‘‘(f)(1) Whoever maliciously damages or de- pollution; person or persons is located, to injure or de- stroys, or attempts to damage or destroy, by (2) the President should continue to make stroy specific property situated within a for- means of fire or an explosive, any building, efforts to counter international terrorism a eign country and belonging to a foreign gov- vehicle, or other personal or real property in national security priority; ernment or to any political subdivision whole or in part owned or possessed by, or (3) because the United Nations has been an thereof with which the United States is at leased to, the United States, or any depart- inadequate forum for the discussion of coop- peace, or any railroad, canal, bridge, airport, ment or agency thereof, shall be imprisoned erative, multilateral responses to the threat airfield, or other public utility, public con- for not less than 5 years and not more than of international terrorism, the President veyance, or public structure, or any reli- 20 years. The court may order a fine of not should undertake immediate efforts to de- gious, educational, or cultural property so more than the greater of $100,000 or the cost velop effective multilateral responses to situated, shall, if he or any such other per- of repairing or replacing any property that is international terrorism as a complement to son commits an act within the jurisdiction damaged or destroyed. national counterterrorist efforts; of the United States to effect any object of ‘‘(2) Whoever engages in conduct prohibited (4) the President should use all necessary the conspiracy, be imprisoned not more than by this subsection, and as a result of such means, including covert action and military 25 years.’’. conduct directly or proximately causes per- force, to disrupt, dismantle, and destroy (b) CLERICAL AMENDMENT.—The chapter sonal injury to any person, including any international infrastructure used by inter- analysis for chapter 45 of title 18, United public safety officer performing duties, shall national terrorists, including overseas ter- States Code, is amended by striking the item be imprisoned not less than 7 years and not rorist training facilities and safe havens; relating to section 956 and inserting the fol- more than 40 years. The court may order a (5) the Congress deplores decisions to ease, lowing: fine of not more than the greater of $200,000 evade, or end international sanctions on or the cost of repairing or replacing any state sponsors of terrorism, including the re- ‘‘956. Conspiracy to kill, kidnap, maim, or in- property that is damaged or destroyed. cent decision by the United Nations Sanc- jure certain property in a for- ‘‘(3) Whoever engages in conduct prohibited tions Committee to allow airline flights to eign country.’’. by this subsection, and as a result of such and from Libya despite Libya’s noncompli- SEC. 104. INCREASED PENALTIES FOR CERTAIN conduct directly or proximately causes the ance with United Nations resolutions; and TERRORISM CRIMES. death of any person, including any public (6) the President should continue to under- (a) IN GENERAL.—Title 18, United States safety officer performing duties, shall be im- take efforts to increase the international Code, is amended— prisoned for a term of years or for life, or isolation of state sponsors of international (1) in section 114, by striking ‘‘maim or dis- sentenced to death. The court may order a terrorism, including efforts to strengthen figure’’ and inserting ‘‘torture (as defined in fine of not more than the greater of $200,000 international sanctions, and should oppose section 2340), maim, or disfigure’’; or the cost of repairing or replacing any any future initiatives to ease sanctions on (2) in section 755, by striking ‘‘two years’’ property that is damaged or destroyed.’’. Libya or other state sponsors of terrorism. and inserting ‘‘five years’’; (4) in subsection (h)— SEC. 202. PROHIBITION ON ASSISTANCE TO (3) in section 756, by striking ‘‘one year’’ (A) in the first sentence by striking ‘‘5 COUNTRIES THAT AID TERRORIST and inserting ‘‘five years’’; years but not more than 15 years’’ and in- STATES. (4) in section 878(a), by striking ‘‘by kill- serting ‘‘10 years’’; and The Foreign Assistance Act of 1961 (22 ing, kidnapping, or assaulting a foreign offi- (B) in the second sentence by striking ‘‘10 U.S.C. 151 et seq.) is amended by adding im- cial, official guest, or internationally pro- years but not more than 25 years’’ and in- mediately after section 620F the following tected person’’; serting ‘‘20 years’’; and new section: (5) in section 1113, by striking ‘‘three years (5) in subsection (i)— ‘‘SEC. 620G. PROHIBITION ON ASSISTANCE TO or fined’’ and inserting ‘‘seven years’’; and (A) by striking ‘‘not more than 20 years, COUNTRIES THAT AID TERRORIST (6) in section 2332(c), by striking ‘‘five’’ and fined the greater of a fine under this title or STATES. inserting ‘‘ten’’. the cost of repairing or replacing any prop- ‘‘(a) PROHIBITION.—No assistance under (b) PENALTY FOR CARRYING WEAPONS OR EX- erty that is damaged or destroyed,’’ and in- this Act shall be provided to the government PLOSIVES ON AN AIRCRAFT.—Section 46505 of serting ‘‘not less than 5 years and not more of any country that provides assistance to title 49, United States Code, is amended— than 20 years, fined the greater of $100,000 or the government of any other country for (1) in subsection (b), by striking ‘‘one’’ and the cost of repairing or replacing any prop- which the Secretary of State has made a de- inserting ‘‘10’’; and erty that is damaged or destroyed’’; termination under section 620A’’. S 7860 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘(b) WAIVER.—Assistance prohibited by national Development Association, and the ‘‘(A) the claimant must first afford the for- this section may be furnished to a foreign International Monetary Fund; eign state a reasonable opportunity to arbi- government described in subsection (a) if the ‘‘(2) wherever applicable, the Inter-Amer- trate the claim in accordance with accepted President determines that furnishing such ican Bank, the Asian Development Bank, the international rules of arbitration; and assistance is important to the national in- European Bank for Reconstruction and De- ‘‘(B) an action under this paragraph shall terests of the United States and, not later velopment, the African Development Bank, not be maintained unless the act upon which than 15 days before obligating such assist- and the African Development Fund; and the claim is based— ance, furnishes a report to the appropriate ‘‘(3) any similar institution established ‘‘(i) occurred while the individual bringing committees of Congress including— after the date of enactment of this section.’’. the claim was a national of the United ‘‘(1) a statement of the determination; SEC. 205. ANTITERRORISM ASSISTANCE. States (as that term is defined in section ‘‘(2) a detailed explanation of the assist- (a) FOREIGN ASSISTANCE ACT.—Section 573 101(a)(2) of the Immigration and Nationality ance to be provided; of the Foreign Assistance Act of 1961 (22 Act); and ‘‘(3) the estimated dollar amount of the as- U.S.C. 2349aa–2) is amended— ‘‘(ii) occurred while the foreign state was sistance; and (1) in subsection (c), by striking ‘‘develop- designated as a state sponsor of terrorism ‘‘(4) an explanation of how the assistance ment and implementation of the under section 6(j) of the Export Administra- furthers United States national interests.’’. antiterrorism assistance program under this tion Act of 1979 (50 App. U.S.C. 2405(j)) or sec- SEC. 203. PROHIBITION ON ASSISTANCE TO chapter, including’’; tion 620A of the Foreign Assistance Act of COUNTRIES THAT PROVIDE MILI- (2) by amending subsection (d) to read as 1961 (22 U.S.C. 2371).’’; and TARY EQUIPMENT TO TERRORIST (2) by adding at the end the following new STATES. follows: subsection: The Foreign Assistance Act of 1961 (22 ‘‘(d)(1) Arms and ammunition may be pro- U.S.C. 151 et seq.) is amended by adding im- vided under this chapter only if they are di- ‘‘(e) For purposes of paragraph (7)— mediately after section 620G the following rectly related to antiterrorism assistance. ‘‘(1) the terms ‘torture’ and ‘extrajudicial new section: ‘‘(2) The value (in terms of original acqui- killing’ have the meaning given those terms in section 3 of the Torture Victim Protection ‘‘SEC. 620H. PROHIBITION ON ASSISTANCE TO sition cost) of all equipment and commod- COUNTRIES THAT PROVIDE MILI- ities provided under this chapter in any fis- Act of 1991 (28 U.S.C. 350 note); TARY EQUIPMENT TO TERRORIST cal year shall not exceed 30 percent of the ‘‘(2) the term ‘hostage taking’ has the STATES. funds made available to carry out this chap- meaning given such term in Article 1 of the ‘‘(a) PROHIBITION.— ter for that fiscal year.’’; and International Convention Against the Tak- ‘‘(1) IN GENERAL.—No assistance under this (3) by striking subsection (f). ing of Hostages; and Act shall be provided to the government of (b) ASSISTANCE TO FOREIGN COUNTRIES TO ‘‘(3) the term ‘aircraft sabotage’ has the any country that provides lethal military PROCURE EXPLOSIVES DETECTION DEVICES AND meaning given such term in Article 1 of the equipment to a country the government of OTHER COUNTERTERRORISM TECHNOLOGY.—(1) Convention for the Suppression of Unlawful which the Secretary of State has determined Subject to section 575(b), up to $3,000,000 in Acts Against the Safety of Civil Aviation.’’. is a terrorist government for the purposes of any fiscal year may be made available— (b) EXCEPTION TO IMMUNITY FROM ATTACH- 6(j) of the Export Administration Act of 1979 (A) to procure explosives detection devices MENT.— (50 U.S.C. App. 2405(j)), or 620A of the Foreign and other counterterrorism technology; and (1) FOREIGN STATE.—Section 1610(a) of title Assistance Act of 1961 (22 U.S.C. 2371). (B) for joint counterterrorism research and 28, United States Code, is amended— ‘‘(2) APPLICABILITY.—The prohibition under development projects on such technology (A) by striking the period at the end of this section with respect to a foreign govern- conducted with NATO and major non-NATO paragraph (6) and inserting ‘‘, or’’; and ment shall terminate 1 year after that gov- allies under the auspices of the Technical (B) by adding at the end the following new ernment ceases to provide lethal military Support Working Group of the Department paragraph: equipment. This section applies with respect of State. ‘‘(7) the judgment relates to a claim for to lethal military equipment provided under (2) As used in this subsection, the term which the foreign state is not immune under a contract entered into after the date of en- ‘‘major non-NATO allies’’ means those coun- section 1605(a)(7), regardless of whether the actment of this Act. tries designated as major non-NATO allies property is or was involved with the act upon ‘‘(b) WAIVER.—Notwithstanding any other for purposes of section 2350a(i)(3) of title 10, which the claim is based.’’. provision of law, assistance may be furnished United States Code. (2) AGENCY OR INSTRUMENTALITY.—Section to a foreign government described in sub- (c) ASSISTANCE TO FOREIGN COUNTRIES.— 1610(b)(2) of such title is amended— section (a) if the President determines that Notwithstanding any other provision of law (A) by striking ‘‘or (5)’’ and inserting ‘‘(5), furnishing such assistance is important to (except section 620A of the Foreign Assist- or (7)’’; and the national interests of the United States ance Act of 1961) up to $1,000,000 in assistance (B) by striking ‘‘used for the activity’’ and and, not later than 15 days before obligating may be provided to a foreign country for inserting ‘‘involved in the act’’. such assistance, furnishes a report to the ap- counterterrorism efforts in any fiscal year (c) APPLICABILITY.—The amendments made propriate committees of Congress includ- if— by this title shall apply to any cause of ac- ing— (1) such assistance is provided for the pur- tion arising before, on, or after the date of ‘‘(1) a statement of the determination; pose of protecting the property of the United the enactment of this Act. ‘‘(2) a detailed explanation of the assist- States Government or the life and property SEC. 207. REPORT ON SUPPORT FOR INTER- ance to be provided; of any United States citizen, or furthering NATIONAL TERRORISTS. ‘‘(3) the estimated dollar amount of the as- the apprehension of any individual involved Not later than 60 days after the date of en- sistance; and in any act of terrorism against such property actment of this Act, and annually thereafter ‘‘(4) an explanation of how the assistance or persons; and in the report required by section 140 of the furthers United States national interests.’’. (2) the appropriate committees of Congress Foreign Relations Authorization Act, Fiscal SEC. 204. OPPOSITION TO ASSISTANCE BY INTER- are notified not later than 15 days prior to Years 1988 and 1989 (22 U.S.C. 2656f), the Sec- NATIONAL FINANCIAL INSTITU- the provision of such assistance. TIONS TO TERRORIST STATES. retary of State shall submit a report to the The International Financial Institutions SEC. 206. JURISDICTION FOR LAWSUITS AGAINST Speaker of the House of Representatives and Act (22 U.S.C. 262c et seq.) is amended by in- TERRORIST STATES. the Committee on Foreign Relations of the serting after section 1620 the following new (a) EXCEPTION TO FOREIGN SOVEREIGN IMMU- Senate that includes— section: NITY FOR CERTAIN CASES.—Section 1605 of (1) a detailed assessment of international ‘‘SEC. 1621. OPPOSITION TO ASSISTANCE BY title 28, United States Code, is amended— terrorist groups including their— INTERNATIONAL FINANCIAL INSTI- (1) in subsection (a)— (A) size, leadership, and sources of finan- TUTIONS TO TERRORIST STATES. (A) by striking the period at the end of cial and logistical support; ‘‘(a) IN GENERAL.—The Secretary of the paragraph (6) and inserting ‘‘; or’’ and (B) goals, doctrine, and strategy; Treasury shall instruct the United States ex- (B) by adding at the end the following new (C) nature, scope, and location of human ecutive director of each international finan- paragraph: and technical infrastructure; cial institution to vote against any loan or ‘‘(7) not otherwise covered by paragraph (2) (D) level of education and training; other use of the funds of the respective insti- in which money damages are sought against (E) bases of operation and recruitment; tution to or for a country for which the Sec- a foreign government for personal injury or (F) operational capabilities; and retary of State has made a determination death that was caused by an act of torture, (G) linkages with state and non-state ac- under section 6(j) of the Export Administra- extrajudicial killing, aircraft sabotage, hos- tors such as ethnic groups, religious commu- tion Act of 1979 (50 U.S.C. App. 2405(j)) or sec- tage taking, or the provision of material sup- nities, or criminal organizations; tion 620A of the Foreign Assistance Act of port or resources (as defined in section 2339A (2) a detailed assessment of any country 1961 (22 U.S.C. 2371). of title 18, United States Code) for a person that provided support of any type for inter- ‘‘(b) DEFINITION.—For purposes of this sec- carrying out such an act, by a foreign state national terrorism, terrorist groups, or indi- tion, the term ‘international financial insti- or by any official, employee, or agent of such vidual terrorists, including countries that tution’ includes— foreign state while acting within the scope of knowingly allowed terrorist groups or indi- ‘‘(1) the International Bank for Recon- his or her office, employment, or agency, ex- viduals to transit or reside in their territory, struction and Development, the Inter- cept that— regardless of whether terrorist acts were June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7861 committed on their territory by such indi- (b) ALIEN TERRORIST REMOVAL.—The Immi- cases arising under this section, in a manner viduals; gration and Nationality Act is amended by consistent with the designation of judges de- (3) a detailed assessment of individual adding at the end the following new title: scribed in section 103(a) of the Foreign Intel- country efforts to take effective action ‘‘TITLE V—ALIEN TERRORIST REMOVAL ligence Surveillance Act (50 U.S.C. 1803(a)). against countries named in section 6(j) of the PROCEDURES ‘‘(2) The Chief Justice may, in the Chief Justice’s discretion, designate the same Export Administration Act of 1979 (50 U.S.C. ‘‘SEC. 501. DEFINITIONS. App. 2405(j)), including the status of compli- judges under this section as are designated ‘‘As used in this title— pursuant to section 103(a) of the Foreign In- ance with international sanctions and the ‘‘(1) the term ‘alien terrorist’ means any status of bilateral economic relations; and telligence Surveillance Act of 1978 (50 U.S.C. alien described in section 241(a)(4)(B); 1803(a)). (4) United States Government efforts to ‘‘(2) the term ‘classified information’ has implement this title. ‘‘(d) INVOCATION OF SPECIAL COURT PROCE- the same meaning as defined in section 1(a) DURE.—(1) When the Attorney General makes SEC. 208. DEFINITION OF ASSISTANCE. of the Classified Information Procedures Act the application described in subsection (a), a For purposes of this title— (18 U.S.C. App. IV); single judge of the special court shall con- (1) the term ‘‘assistance’’ means assistance ‘‘(3) the term ‘national security’ has the sider the application in camera and ex parte. to or for the benefit of a government of any same meaning as defined in section 1(b) of ‘‘(2) The judge shall invoke the procedures country that is provided by grant, the Classified Information Procedures Act of subsection (e) if the judge determines that concessional sale, guaranty, insurance, or by (18 U.S.C. App. IV); there is probable cause to believe that— any other means on terms more favorable ‘‘(4) the term ‘special court’ means the ‘‘(A) the alien who is the subject of the ap- than generally available in the applicable court described in section 503(c); and plication has been correctly identified and is market, whether in the form of a loan, lease, ‘‘(5) the term ‘special removal hearing’ an alien as described in section 241(a)(4)(B); credit, debt relief, or otherwise, including means the hearing described in section and subsidies for exports to such country and fa- 503(e). ‘‘(B) a deportation proceeding described in vorable tariff treatment of articles that are ‘‘SEC. 502. APPLICABILITY. section 242, 242A, or 242B would pose a risk to the growth, product, or manufacture of such ‘‘(a) IN GENERAL.—The provisions of this the national security of the United States country; and title may be followed in the discretion of the because such proceedings would disclose (2) the term ‘‘assistance’’ does not include Attorney General whenever the Department classified information. assistance of the type authorized under chap- of Justice has classified information that an ‘‘(e) SPECIAL REMOVAL HEARING.—(1) Ex- ter 9 of part 1 of the Foreign Assistance Act alien described in section 241(a)(4)(B) is sub- cept as provided in paragraph (5), the special of 1961 (relating to international disaster as- ject to deportation because of such section. removal hearing authorized by a showing of sistance). ‘‘(b) PROCEDURES.—Whenever an official of probable cause described in subsection (d)(2) SEC. 209. WAIVER AUTHORITY CONCERNING NO- the Department of Justice files, under sec- shall be open to the public. TICE OF DENIAL OF APPLICATION tion 503(a), an application with the court es- ‘‘(2) The alien shall have a reasonable op- FOR VISAS. tablished under section 503(c) for authoriza- portunity to be present at such hearing and Section 212(b) of the Immigration and Na- tion to seek removal pursuant to this title, to be represented by counsel. Any alien fi- tionality Act (8 U.S.C. 1182(b)) is amended— the alien’s rights regarding removal and ex- nancially unable to obtain counsel shall be (1) by redesignating paragraphs (1) and (2) pulsion shall be governed solely by the provi- entitled to have counsel assigned to rep- as subparagraphs (A) and (B), respectively; sions of this title, except as specifically pro- resent such alien. Counsel may be appointed (2) by striking ‘‘If’’ and inserting ‘‘(1) Sub- vided. as described in section 3006A of title 18, Unit- ject to paragraph (2), if’’; and ed States Code. ‘‘SEC. 503. REMOVAL OF ALIEN TERRORISTS. ‘‘(3) The alien shall have a reasonable op- (3) by inserting at the end the following ‘‘(a) APPLICATION FOR USE OF PROCE- portunity to introduce evidence on his own paragraph: DURES.—This section shall apply whenever behalf, and except as provided in paragraph ‘‘(2) With respect to applications for visas, the Attorney General certifies under seal to (5), shall have a reasonable opportunity to the Secretary of State may waive the appli- the special court that— cross-examine any witness or request that cation of paragraph (1) in the case of a par- ‘‘(1) the Attorney General or Deputy Attor- the judge issue a subpoena for the presence ticular alien or any class or classes of ex- ney General has approved of the proceeding of a named witness. cludable aliens, except in cases of intent to under this section; ‘‘(4)(A) An alien subject to removal under immigrate.’’. ‘‘(2) an alien terrorist is physically present this section shall have no right— SEC. 210. MEMBERSHIP IN A TERRORIST ORGANI- in the United States; and ‘‘(i) of discovery of information derived ZATION AS A BASIS FOR EXCLUSION ‘‘(3) removal of such alien terrorist by de- from electronic surveillance authorized FROM THE UNITED STATES UNDER portation proceedings described in sections under the Foreign Intelligence Surveillance THE IMMIGRATION AND NATIONAL- 242, 242A, or 242B would pose a risk to the na- Act of 1978 (50 U.S.C. 801 et seq.) or otherwise ITY ACT. tional security of the United States because for national security purposes if disclosure Section 212(a)(3)(B) of the Immigration and such proceedings would disclose classified in- would present a risk to the national secu- Nationality Act (8 U.S.C. 1182(a)(3)(B)) is formation. rity; or amended— ‘‘(b) CUSTODY AND RELEASE PENDING HEAR- ‘‘(ii) to seek the suppression of evidence (1) in clause (i)— ING.—(1) The Attorney General may take that the alien alleges was unlawfully ob- (A) by striking ‘‘or’’ at the end of into custody any alien with respect to whom tained, except on grounds of credibility or subclause (I); a certification has been made under sub- relevance. (B) by inserting ‘‘or’’ at the end of section (a), and notwithstanding any other ‘‘(B) The Government is authorized to use, subclause (II); and provision of law, may retain such alien in in the removal proceedings, the fruits of (C) by inserting after subclause (II) the fol- custody in accordance with this subsection. electronic surveillance and unconsented lowing new subclause: ‘‘(2)(A) An alien with respect to whom a physical searches authorized under the For- ‘‘(III) is a member of a terrorist organiza- certification has been made under subsection eign Intelligence Surveillance Act of 1978 (50 tion or who actively supports or advocates (a) shall be given a release hearing before the U.S.C. 801 et seq.) without regard to sub- terrorist activity,’’; and special court designated pursuant to sub- sections 106 (c), (e), (f), (g), and (h) of such (2) by adding at the end the following new section (c). Act. clause: ‘‘(B) The judge shall grant the alien re- ‘‘(C) Section 3504 of title 18, United States ‘‘(iv) TERRORIST ORGANIZATION DEFINED.— lease, subject to such terms and conditions Code, shall not apply to procedures under As used in this subparagraph, the term ‘ter- prescribed by the court (including the post- this section if the Attorney General deter- rorist organization’ means an organization ing of any monetary amount), pending the mines that public disclosure would pose a that engages in, or has engaged in, terrorist special removal hearing if— risk to the national security of the United activity as designated by the Secretary of ‘‘(i) the alien is lawfully present in the States because it would disclose classified State, after consultation with the Secretary United States; information. of the Treasury.’’. ‘‘(ii) the alien demonstrates that the alien, ‘‘(5) The judge shall authorize the intro- TITLE III—ALIEN REMOVAL if released, is not likely to flee; and duction in camera and ex parte of any evi- ‘‘(iii) the alien demonstrates that release dence for which the Attorney General deter- SEC. 301. ALIEN TERRORIST REMOVAL. of the alien will not endanger national secu- mines that public disclosure would pose a (a) TABLE OF CONTENTS.—The Immigration rity or the safety of any person or the com- risk to the national security of the United and Nationality Act is amended by adding at munity. States because it would disclose classified the end of the table of contents the follow- ‘‘(C) The judge may consider classified in- information. With respect to such evidence, ing: formation submitted in camera and ex parte the Attorney General shall submit to the in making a determination whether to re- court an unclassified summary of the spe- ‘‘TITLE V—ALIEN TERRORIST REMOVAL lease an alien pending the special hearing. cific evidence prepared in accordance with PROCEDURES ‘‘(c) SPECIAL COURT.—(1) The Chief Justice paragraph (6). ‘‘501. Definitions. of the United States shall publicly designate ‘‘(6)(A) The information submitted under ‘‘502. Applicability. not more than 5 judges from up to 5 United paragraph (5)(B) shall contain an unclassi- ‘‘503. Removal of alien terrorists.’’. States judicial districts to hear and decide fied summary of the classified information S 7862 CONGRESSIONAL RECORD — SENATE June 7, 1995 that does not pose a risk to national secu- ‘‘(g) APPEALS.—(1) The alien may appeal a ‘‘(b) The provisions of this chapter shall be rity. final determination under subsection (f) to construed to permit, in the exercise of com- ‘‘(B) The judge shall approve the summary the United States Court of Appeals for the ity, the surrender of persons, other than citi- within 15 days of submission if the judge District of Columbia Circuit, by filing a no- zens, nationals, or permanent residents of finds that it is sufficient to inform the alien tice of appeal with such court not later than the United States, who have committed of the nature of the evidence that such per- 30 days after the determination is made. An crimes of violence against nationals of the son is an alien as described in section 241(a), appeal under this section shall be heard by United States in foreign countries without and to provide the alien with substantially the Court of Appeals sitting en banc. regard to the existence of any treaty of ex- the same ability to make his defense as ‘‘(2) The Attorney General may appeal a tradition with such foreign government if would disclosure of the classified informa- determination under subsection (d), (e), or (f) the Attorney General certifies, in writing, tion. to the Court of Appeals for the District of that— ‘‘(C) The Attorney General shall cause to Columbia Circuit, by filing a notice of appeal ‘‘(1) evidence has been presented by the for- be delivered to the alien a copy of the un- with such court not later than 20 days after eign government that indicates that had the classified summary approved under subpara- the determination is made under any one of offenses been committed in the United graph (B). such subsections. States, they would constitute crimes of vio- ‘‘(D) If the written unclassified summary is ‘‘(3) If the Department of Justice does not lence as defined under section 16 of this title; not approved by the court pursuant to sub- seek review, the alien shall be released from and paragraph (B), the Department of Justice custody, unless such alien may be arrested ‘‘(2) the offenses charged are not of a polit- shall be afforded 15 days to correct the defi- and taken into custody pursuant to title II ical nature. ciencies identified by the court and submit a as an alien subject to deportation, in which ‘‘(c) As used in this section, the term ‘na- revised unclassified summary. case such alien shall be treated in accord- tional of the United States’ has the meaning ‘‘(E) If the revised unclassified summary is ance with the provisions of this Act concern- given such term in section 101(a)(22) of the not approved by the court within 15 days of ing the deportation of aliens. Immigration and Nationality Act (8 U.S.C. its submission pursuant to subparagraph (B), ‘‘(4) If the application for the order is de- 1101(a)(22)).’’. the special removal hearing shall be termi- nied because the judge has not found prob- (b) FUGITIVES.—Section 3184 of title 18, nated unless the court, within that time, able cause to believe that the alien who is United States Code, is amended— after reviewing the classified information in the subject of the application has been cor- (1) in the first sentence by inserting after camera and ex parte, issues written findings rectly identified or is an alien as described in ‘‘United States and any foreign govern- that— paragraph 4(B) of section 241(a), and the De- ment,’’ the following: ‘‘or in cases arising ‘‘(i) the alien’s continued presence in the partment of Justice seeks review, the alien under section 3181(b),’’; United States would likely cause— shall be released from custody unless such (2) in the first sentence by inserting after ‘‘(I) serious and irreparable harm to the alien may be arrested and taken into cus- ‘‘treaty or convention,’’ the following: ‘‘or national security; or tody pursuant to title II as an alien subject provided for under section 3181(b),’’; and ‘‘(II) death or serious bodily injury to any to deportation, in which case such alien shall (3) in the third sentence by inserting after person; and be treated in accordance with the provisions ‘‘treaty or convention,’’ the following: ‘‘or ‘‘(ii) provision of either the classified infor- of this Act concerning the deportation of under section 3181(b),’’. mation or an unclassified summary that aliens simultaneously with the application meets the standard set forth in subparagraph SEC. 303. CHANGES TO THE IMMIGRATION AND of this title. NATIONALITY ACT TO FACILITATE (B) would likely cause— ‘‘(5)(A) If the application for the order is REMOVAL OF ALIEN TERRORISTS. ‘‘(I) serious and irreparable harm to the denied based on a finding that no probable (a) TERRORISM ACTIVITIES.—Section national security; or cause exists to find that adherence to the 212(a)(3)(B) of the Immigration and National- ‘‘(II) death or serious bodily injury to any provisions of title II regarding the deporta- ity Act (8 U.S.C. 1182(a)(3)(B)) is amended to person; and tion of the identified alien would pose a risk read as follows: ‘‘(iii) the unclassified summary prepared of irreparable harm to the national security ‘‘(B) TERRORISM ACTIVITIES.— by the Justice Department is adequate to of the United States, or death or serious bod- ‘‘(i) IN GENERAL.—Any alien who— allow the alien to prepare a defense. ily injury to any person, the judge shall re- ‘‘(I) has engaged in a terrorism activity, or ‘‘(F) If the court issues such findings, the lease the alien from custody subject to the ‘‘(II) a consular officer or the Attorney special removal proceeding shall continue, least restrictive condition or combination of General knows, or has reason to believe, is and the Attorney General shall cause to be conditions of release described in section likely to engage after entry in any terrorism delivered to the alien within 15 days of the 3142(b) and (c)(1)(B) (i) through (xiv) of title activity (as defined in clause (iii)), issuance of such findings a copy of the un- 18, United States Code, that will reasonably classified summary together with a state- is excludable. An alien who is an officer, offi- ensure the appearance of the alien at any fu- ment that it meets the standard set forth in cial, representative, or spokesman of any ture proceeding pursuant to this title and subparagraph (E)(iii). terrorist organization designated as a terror- ‘‘(G)(i) Within 10 days of filing of the ap- will not endanger the safety of any other ist organization by proclamation by the pealable order the Department of Justice person or the Community. President after finding such organization to may take an interlocutory appeal to the ‘‘(B) The alien shall remain in custody if be detrimental to the interest of the United United States Court of Appeals for the Dis- the court fails to make a finding under sub- States, or any person who directs, counsels, trict of Columbia Circuit of— paragraph (A), until the completion of any commands, or induces such organization or ‘‘(I) any determination made by the judge appeal authorized by this title. Sections 3145 its members to engage in terrorism activity, concerning the requirements set forth in through 3148 of title 18, United States Code, shall be considered, for purposes of this Act, subparagraph (B). pertaining to review and appeal of a release to be engaged in terrorism activity. ‘‘(II) any determination made by the judge or detention order, penalties for failure to ‘‘(ii) TERRORISM ACTIVITY DEFINED.—As concerning the requirements set forth in appear, penalties for an offense committed used in this Act, the term ‘terrorism activ- subparagraph (E). while on release, and sanctions for violation ity’ means any activity that is unlawful ‘‘(ii) In an interlocutory appeal taken of a release condition, shall apply to an alien under the laws of the place where it is com- under this paragraph, the entire record, in- to whom the previous sentence applies and— mitted (or which, if it had been committed in cluding any proposed order of the judge or ‘‘(i) for purposes of section 3145 of such the United States, would be unlawful under summary of evidence, shall be transmitted title, an appeal shall be taken to the United the laws of the United States or any State), to the Court of Appeals under seal, and the States Court of Appeals for the District of and that involves any of the following: matter shall be heard ex parte. The Court of Columbia Circuit; and ‘‘(I) The hijacking or sabotage of any con- Appeals shall consider the appeal as expedi- ‘‘(ii) for purposes of section 3146 of such veyance (including an aircraft, vessel, or ve- tiously as possible, but no later than 30 days title the alien shall be considered released in hicle). after filing of the appeal. connection with a charge of an offense pun- ‘‘(II) The seizing or detaining, and threat- ‘‘(f) DETERMINATION OF DEPORTATION.—The ishable by life imprisonment. ening to kill, injure, or continue to detain, judge shall, considering the evidence on the ‘‘(6) When requested by the Attorney Gen- another individual to compel a third person record as a whole (in camera and otherwise), eral, the entire record of the proceeding (including a governmental organization) to require that the alien be deported if the At- under this section shall be transmitted to do or abstain from doing any act as an ex- torney General proves, by clear and convinc- the court of appeals or the Supreme Court plicit or implicit condition for the release of ing evidence, that the alien is subject to de- under seal. The court of appeals or Supreme the individual seized or detained. portation because such alien is an alien as Court may consider such appeal in camera.’’. ‘‘(III) A violent attack upon an inter- described in section 241(a)(4)(B). If the judge SEC. 302. EXTRADITION OF ALIENS. nationally protected person (as defined in finds that the Department of Justice has met (a) SCOPE.—Section 3181 of title 18, United section 1116(b)(4) of title 18, United States this burden, the judge shall order the alien States Code, is amended— Code) or upon the liberty of such a person. removed and, if the alien was released pend- (1) by inserting ‘‘(a)’’ before ‘‘The provi- ‘‘(IV) An assassination. ing the special removal proceeding, order the sions of this chapter’’; and ‘‘(V) The use of any— Attorney General to take the alien into cus- (2) by adding at the end the following new ‘‘(aa) biological agent, chemical agent, or tody. subsections: nuclear weapon or device, or June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7863

‘‘(bb) explosive, firearm, or other weapon ing committed a criminal offense covered in (7) DEADLINES FOR DEPORTING ALIEN.—Sec- (other than for mere personal monetary section 241(a)(2) (A)(iii), (B), (C), or (D), or tion 242(c) of such Act (8 U.S.C. 1252(c)) is gain), any offense covered by section 241(a)(2)(A)(ii) amended— with intent to endanger, directly, or indi- for which both predicate offenses are covered (A) by striking ‘‘(c) When a final order’’ rectly, the safety of one or more individuals by section 241(a)(2)(A)(i), shall not be subject and inserting ‘‘(c)(1) Subject to paragraph or to cause substantial damage to property. to review by any court.’’. (2), when a final order’’; and ‘‘(VI) A threat, attempt, or conspiracy to (2) FINAL ORDER OF DEPORTATION DEFINED.— (B) by inserting at the end the following do any of the foregoing. Section 101(a) of such Act (8 U.S.C. 1101(a)) is new paragraph: ‘‘(iii) ENGAGE IN TERRORISM ACTIVITY DE- amended by adding at the end the following ‘‘(2) When a final order of deportation FINED.—As used in this Act, the term ‘engage new paragraph: under administrative process is made against in terrorism activity’ means to commit, in ‘‘(47)(A) The term ‘order of deportation’ any alien who is deportable by reason of hav- an individual capacity or as a member of an means the order of the special inquiry offi- ing committed a criminal offense covered in organization, an act of terrorism activity, or cer, or other such administrative officer to section 241(a)(2) (A)(iii), (B), (C), or (D) or an act that the actor knows affords material whom the Attorney General has delegated any offense covered by section 241(a)(2)(A)(ii) support to any individual, organization, or the responsibility for determining whether for which both predicate offenses are covered government that the actor knows plans to an alien is deportable, concluding that the by section 241(a)(2)(A)(i), the Attorney Gen- commit terrorism activity, including any of alien is deportable or ordering deportation. eral shall have 30 days from the date of the the following acts: order within which to effect the alien’s de- ‘‘(B) The order described under subpara- ‘‘(I) The preparation or planning of terror- parture from the United States. The Attor- graph (A) shall become final upon the earlier ism activity. ney General shall have sole and unreviewable of— ‘‘(II) The gathering of information on po- discretion to waive the foregoing provision ‘‘(i) a determination by the Board of Immi- tential targets for terrorism activity. for aliens who are cooperating with law en- gration Appeals affirming such order; or ‘‘(III) The providing of any type of mate- forcement authorities or for purposes of na- ‘‘(ii) the expiration of the period in which rial support, including a safe house, trans- tional security.’’. the alien is permitted to seek review of such portation, communications, funds, false doc- (f) EFFECTIVE DATE.—The amendments umentation or identification, weapons, ex- order by the Board of Immigration Ap- made by this section shall take effect on the plosives, or training. peals.’’. date of enactment of this Act and shall apply ‘‘(IV) The soliciting of funds or other (3) ARREST AND CUSTODY.—Section 242(a)(2) to cases pending before, on, or after such things of value for terrorism activity or for of such Act is amended— date of enactment. any terrorist organization. (A) in subparagraph (A)— SEC. 304. ACCESS TO CERTAIN CONFIDENTIAL IM- ‘‘(V) The solicitation of any individual for (i) by striking ‘‘(2)(A) The Attorney’’ and MIGRATION AND NATURALIZATION membership in a terrorist organization, ter- inserting ‘‘(2) The Attorney’’; FILES THROUGH COURT ORDER. rorist government, or to engage in a terror- (ii) by striking ‘‘an aggravated felony (a) CONFIDENTIALITY OF INFORMATION.—Sec- ism activity. upon’’ and all that follows through ‘‘of the tion 245A(c)(5) of the Immigration and Na- same offense)’’ and inserting ‘‘any criminal tionality Act (8 U.S.C. 1255a(c)(5)) is amend- ‘‘(iv) TERRORIST ORGANIZATION DEFINED.— As used in this Act, the term ‘terrorist orga- offense covered in section 241(a)(2) (A)(iii), ed— (1) by inserting ‘‘(i)’’ after ‘‘except the At- nization’ means— (B), (C), or (D), or any offense covered by sec- torney General’’; and ‘‘(I) an organization engaged in, or that tion 241(a)(2)(A)(ii) for which both predicate (2) by inserting after ‘‘Title 13’’ the follow- has a significant subgroup that engages in, offenses are covered by section 241(a)(2)(A)(i), ing: ‘‘and (ii) may authorize an application terrorism activity, regardless of any legiti- upon release of the alien from incarceration, to a Federal court of competent jurisdiction mate activities conducted by the organiza- shall deport the alien as expeditiously as for, and a judge of such court may grant, an tion or its subgroups; and possible’’; and order authorizing disclosure of information ‘‘(II) an organization designated by the (iii) by striking ‘‘but subject to subpara- contained in the application of the alien to Secretary of State under section 2339B of graph (B)’’; and (B) by striking subparagraph (B). be used— title 18.’’. ‘‘(I) for identification of the alien when (b) DEPORTABLE ALIENS.—Section (4) CLASSES OF EXCLUDABLE ALIENS.—Sec- there is reason to believe that the alien has 241(a)(4)(B) of the Immigration and National- tion 212(c) of such Act (8 U.S.C. 1182(c)) is been killed or severely incapacitated; or ity Act (8 U.S.C. 1251(a)(4)(B)) is amended to amended— ‘‘(II) for criminal law enforcement pur- read as follows: (A) by striking ‘‘The first sentence of this’’ poses against the alien whose application is ‘‘(B) TERRORISM ACTIVITIES.—Any alien and inserting ‘‘This’’; and to be disclosed.’’. who is engaged, or at any time after entry (B) by striking ‘‘has been convicted of one (b) APPLICATIONS FOR ADJUSTMENT OF STA- engages in, any terrorism activity (as de- or more aggravated felonies’’ and all that follows through the end and inserting ‘‘is de- TUS.—Section 210(b) of the Immigration and fined in section 212(a)(3)(B)) is deportable.’’. Nationality Act (8 U.S.C. 1160(b)) is amend- (c) BURDEN OF PROOF.—Section 291 of the portable by reason of having committed any criminal offense covered in section 241(a)(2) ed— Immigration and Nationality Act (8 U.S.C. (1) in paragraph (5), by inserting ‘‘, except 1361) is amended by inserting after ‘‘custody (A)(iii), (B), (C), or (D), or any offense cov- ered by section 241(a)(2)(A)(ii) for which both as allowed by a court order issued pursuant of the Service.’’ the following new sentence: to paragraph (6) of this subsection’’ after ‘‘The limited production authorized by this predicate offenses are covered by section 241(a)(2)(A)(i).’’. ‘‘consent of the alien’’; and provision shall not extend to the records of (2) in paragraph (6), by inserting the fol- any other agency or department of the Gov- (5) AGGRAVATED FELONY DEFINED.—Section 101(a)(43) of such Act is amended— lowing sentence before ‘‘Anyone who uses’’: ernment or to any documents that do not ‘‘Notwithstanding the preceding sentence, (A) in subparagraph (F)— pertain to the respondent’s entry.’’. the Attorney General may authorize an ap- (i) by inserting ‘‘, including forcible rape,’’ (d) APPREHENSION AND DEPORTATION OF plication to a Federal court of competent ju- after ‘‘offense)’’; and ALIENS.—Section 242(b) of the Immigration risdiction for, and a judge of such court may (ii) by striking ‘‘5 years’’ and inserting ‘‘1 and Nationality Act (8 U.S.C. 1252(b)(3)) is grant an order authorizing, disclosure of in- year’’; and amended by inserting immediately after formation contained in the application of (B) in subparagraph (G) by striking ‘‘5 paragraph (4) the following: ‘‘For purposes of the alien to be used for identification of the years’’ and inserting ‘‘1 year’’. paragraph (3), in the case of an alien who is alien when there is reason to believe that the (6) DEPORTATION OF CRIMINAL ALIENS.—Sec- not lawfully admitted for permanent resi- alien has been killed or severely incapaci- tion 242A(a) of such Act (8 U.S.C. 1252a) is dence and notwithstanding the provisions of tated, or for criminal law enforcement pur- amended— any other law, reasonable opportunity shall poses against the alien whose application is (A) in paragraph (1)— not include access to classified information, to be disclosed or to discover information (i) by striking ‘‘aggravated felonies (as de- whether or not introduced in evidence leading to the location or identity of the fined in section 101(a)(43) of this title)’’ and against the alien, except that any proceeding alien.’’. conducted under this section which involves inserting ‘‘any criminal offense covered in the use of classified evidence shall be con- section 241(a)(2) (A)(iii), (B), (C), or (D), or TITLE IV—CONTROL OF FUNDRAISING ducted in accordance with the procedures of any offense covered by section 241(a)(2)(A)(ii) FOR TERRORISM ACTIVITIES section 501. Section 3504 of title 18, United for which both predicate offenses are covered SEC. 401. PROHIBITION ON TERRORIST FUND- States Code, and 18 U.S.C. 3504 and the For- by section 241(a)(2)(A)(i).’’; and RAISING. eign Intelligence Surveillance Act of 1978 (50 (ii) by striking ‘‘, where warranted,’’; (a) IN GENERAL.—Chapter 113B of title 18, U.S.C. 1801 et seq.) shall not apply in such (B) in paragraph (2), by striking ‘‘aggra- United States Code, is amended by adding at cases.’’. vated felony’’ and all that follows through the end the following new section: (e) CRIMINAL ALIEN REMOVAL.— ‘‘before any scheduled hearings.’’ and insert- ‘‘§ 2339B. Fundraising for terrorist organiza- (1) JUDICIAL REVIEW.—Section 106 of the ing ‘‘any criminal offense covered in section tions Immigration and Nationality Act (8 U.S.C. 241(a)(2) (A)(iii), (B), (C), or (D), or any of- ‘‘(a) FINDINGS AND PURPOSE.— 1105a(a)(10)) is amended to read as follows: fense covered by section 241(a)(2)(A)(ii) for ‘‘(1) The Congress finds that— ‘‘(10) Any final order of deportation against which both predicate offenses are covered by ‘‘(A) terrorism is a serious and deadly an alien who is deportable by reason of hav- section 241(a)(2)(A)(i).’’. problem which threatens the interests of the S 7864 CONGRESSIONAL RECORD — SENATE June 7, 1995 United States overseas and within our terri- shall be published in the Federal Register must prove these elements by clear and con- tory; not later than 7 calendar days after the Sec- vincing evidence. ‘‘(B) the Nation’s security interests are retary of State makes the designation. ‘‘(B) If the court finds, under the standards gravely affected by the terrorist attacks car- ‘‘(6) Not later than 7 calendar days after stated in subparagraph (A) that the control ried out overseas against United States Gov- making a designation under this subsection, group of the organization has actual knowl- ernment facilities and officials, and against the Secretary of State shall give the organi- edge that the organization or its resources American citizens present in foreign coun- zation actual notice of— are being used for terrorism activities, the tries; ‘‘(A) the designation; court shall affirm the designation of the Sec- ‘‘(C) United States foreign policy and eco- ‘‘(B) the consequences of the designation retary. nomic interests are profoundly affected by for the organization’s ability to raise funds ‘‘(C)(i) If the court finds by a preponder- terrorist acts overseas directed against for- in the United States; and ance of the evidence that the organization or eign governments and their people; ‘‘(C) the availability of judicial review. its resources have been used for terrorism ‘‘(D) international cooperation is required ‘‘(7) Any revocation or lapsing of a designa- activities without the knowledge of the con- for an effective response to terrorism, as tion shall not affect any action or proceeding trol group, but that the control group is now demonstrated by the numerous multilateral based on any conduct committed prior to the aware of these facts, the court may condi- conventions in force providing universal effective date of such revocation or lapsing. tion revocation of the designation on the prosecutive jurisdiction over persons in- ‘‘(8) Classified information may be used in control group’s undertaking or completing volved in a variety of terrorist acts, includ- making a designation under this subsection. all steps within its power to prevent the or- ing hostage taking, murder of an inter- Such information shall not be disclosed to ganization or its resources from being used nationally protected person, and aircraft pi- the public or to any party, but may be dis- for terrorism activities. Such steps may in- racy and sabotage; closed to a court ex parte and in camera. clude— ‘‘(E) some foreign terrorist organizations, ‘‘(9) No question concerning the validity of ‘‘(I) maintaining financial records ade- acting through affiliated groups or individ- the issuance of a designation issued under quate to document the use of the organiza- uals, raise significant funds within the Unit- this subsection may be raised by a defendant tion’s resources; and ed States or use the United States as a con- in a criminal prosecution as a defense in or ‘‘(II) making records available to the Sec- duit for the receipt of funds raised in other as an objection to any trial or hearing if retary for inspection. nations; and such designation was issued and published in ‘‘(ii) If a designation is revoked under sub- ‘‘(F) the provision of funds to organiza- the Federal Register. section (B)(4) and the organization fails to tions that engage in terrorism serves to fa- comply with any condition imposed, the des- cilitate their terrorist endeavors, regardless ‘‘(c) JUDICIAL REVIEW.— ‘‘(1) Organizations designated by the Sec- ignation may be reinstated by the Secretary of whether the funds, in whole or in part, are of State upon a showing that the organiza- intended or claimed to be used for nonviolent retary of State as engaging in, or supporting, terrorism activities under this section may tion failed to comply with the condition. purposes. ‘‘(5)(A) The information submitted under seek review of the designation in the District ‘‘(2) The purpose of this section is to pro- paragraph (3)(B) shall contain an unclassi- Court for the District of Columbia not later vide the Federal Government the fullest pos- fied summary of the classified information than 30 days after receipt of actual notice sible basis, consistent with the Constitution, that does not pose a risk to national secu- under subsection (b)(6). to prevent persons within the United States rity. or subject to the jurisdiction of the United ‘‘(2) In reviewing a designation under this ‘‘(B) The judge shall approve the unclassi- States from providing funds, directly or indi- subsection, the court shall receive relevant fied summary if the judge finds that the rectly, to foreign organizations, including oral or documentary evidence, unless the summary is sufficient to inform the organi- subordinate or affiliated persons, that en- court finds that the probative value is sub- zation of the activities described in section gage in terrorism activities. stantially outweighed by the danger of un- 212(a)(3)(B) in which the organization is al- ‘‘(b) DESIGNATION.— fair prejudice, confusion of the issues, or leged to engage, and to permit the organiza- ‘‘(1) The Secretary of State, after consulta- considerations of undue delay, waste of time, tion to defend against the designation. tion with the Secretary of the Treasury, is or needless presentation of cumulative evi- ‘‘(C) The Attorney General shall cause to authorized to designate under this section dence, or unless its introduction or consider- be delivered to the organization a copy of the any foreign organization based on finding ation is prohibited by a common law privi- unclassified summary approved under sub- that— lege or by the Constitution or laws of the paragraph (B). ‘‘(A) the organization engages in terrorism United States. A party shall be entitled to ‘‘(6) The court shall decide the case on the activity as defined in section 212(a)(3)(B) of present its case or defense by oral or docu- basis of the evidence on the record as a the Immigration and Nationality Act (8 mentary evidence, to submit rebuttal evi- whole, in camera or otherwise. U.S.C. 1182(a)(3)(B)); and dence, and to conduct such cross-examina- ‘‘(d) PROHIBITED ACTIVITIES.—It shall be ‘‘(B) the organization’s terrorism activities tion as may be required for a full and true unlawful for any person within the United threaten the security of United States citi- disclosure of the facts. States, or any person subject to the jurisdic- zens, national security, foreign policy, or the ‘‘(3) The judge shall authorize the intro- tion of the United States anywhere, to di- economy of the United States. duction in camera and ex parte of any item rectly or indirectly, raise, receive, or collect ‘‘(2) Not later than 7 days after making a of evidence containing classified information on behalf of, or furnish, give, transmit, designation under paragraph (1), the Sec- for which the Attorney General determines transfer, or provide funds to or for an organi- retary of State shall prepare and transmit to that public disclosure would pose a risk to zation or person designated by the Secretary Congress a report containing a list of the the national security of the United States. of State under subsection (b), or to attempt designated organizations and a summary of With respect to such evidence, the Attorney to do any of the foregoing. the facts underlying the designation. The General shall submit to the court either— ‘‘(e) SPECIAL REQUIREMENTS FOR FINANCIAL designation shall take effect 30 days after ‘‘(A) a statement identifying relevant facts INSTITUTIONS.— the receipt of actual notice under subsection that the specific evidence would tend to ‘‘(1) Except as authorized by the Secretary (b)(6), unless otherwise provided by law. prove; or of State, after consultation with the Sec- ‘‘(3) A designation or redesignation under ‘‘(B) an unclassified summary of the spe- retary of the Treasury, by means of direc- this subsection shall be in effect for 1 year cific evidence prepared in accordance with tives, regulations, or licenses, any financial following its effective date, unless revoked paragraph (5). institution that becomes aware that it has under paragraph (4). ‘‘(4)(A)(i) The Secretary of State shall have possession of or control over any funds in ‘‘(4)(A) If the Secretary of State, after con- the burden of demonstrating that there are which an organization or person designated sultation with the Secretary of the Treas- specific and articulable facts giving reason under subsection (b) has an interest, shall— ury, finds that the conditions that were the to believe that the organization engages in ‘‘(A) retain possession of or maintain con- basis for any designation issued under this or supports terrorism activity (as that term trol over such funds; and subsection have changed in such a manner as is defined in section 212(a)(3)(B)). ‘‘(B) report to the Secretary the existence to warrant revocation of such designation, or ‘‘(ii) The organization shall have the bur- of such funds in accordance with the regula- that the national security, foreign relations, den of proving that its purpose is to engage tions prescribed by the Secretary. or economic interests of the United States so in religious, charitable, literary, edu- ‘‘(2) Any financial institution that know- warrant, the Secretary of State may revoke cational, or nonterrorism activities and that ingly fails to report to the Secretary the ex- such designation in whole or in part. it engages in such activities. istence of such funds shall be subject to a ‘‘(B) Not later than 7 calendar days after ‘‘(iii) The Secretary shall have the burden civil penalty of $250 per day for each day the Secretary of State finds that an organi- of proving that the control group of the or- that it fails to report to the Secretary— zation no longer engages in, or supports, ter- ganization has actual knowledge that the or- ‘‘(A) in the case of funds being possessed or rorism activity, the Secretary of State shall ganization or its resources are being used for controlled at the time of the designation of prepare and transmit to Congress a supple- terrorism activities. the organization or person, within 10 days mental report stating the reasons for the ‘‘(iv) If any portion of the Secretary’s evi- after the designation; and finding. dence consists of classified information that ‘‘(B) in the case of funds whose possession ‘‘(5) Any designation, or revocation of a cannot be revealed to the organization for of or control over arose after the designation designation, issued under this subsection national security reasons, the Secretary of the organization or person, within 10 days June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7865 after the financial institution obtained pos- scripts of arguments made ex parte to the error, reversal by the trial court on remand session of or control over the funds. court in connection therewith, shall be of a ruling appealed from during trial. ‘‘(f) INVESTIGATIONS.—Any investigation maintained under seal and delivered to the ‘‘(4) CONSTRUCTION.—Nothing in this sub- emanating from a possible violation of this appellate court. section shall prevent the United States from section shall be conducted by the Attorney ‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA- seeking protective orders or asserting privi- General, except that investigations relating TION; PRECAUTIONS BY COURT.— leges ordinarily available to the United to— ‘‘(A) EXHIBITS.—The United States, to pre- States to protect against the disclosure of ‘‘(1) a financial institution’s compliance vent unnecessary or inadvertent disclosure classified information, including the invoca- with the requirements of subsection (e); and of classified information in a civil trial or tion of the military and State secrets privi- ‘‘(2) civil penalty proceedings authorized other proceeding brought by the United lege. pursuant to subsection (g)(2), States under this section, may petition the ‘‘(k) DEFINITIONS.—As used in this sec- shall be conducted in coordination with the court ex parte to admit, in lieu of classified tion— Attorney General by the office within the writings, recordings or photographs, one or ‘‘(1) the term ‘classified information’ Department of the Treasury responsible for more of the following: means any information or material that has civil penalty proceedings authorized by this ‘‘(i) copies of those items from which clas- been determined by the United States Gov- section. Any evidence of a criminal violation sified information has been deleted; ernment pursuant to an Executive order, of this section arising in the course of an in- ‘‘(ii) stipulations admitting relevant facts statute, or regulation, to require protection vestigation by the Secretary or any other that specific classified information would against unauthorized disclosure for reasons Federal agency shall be referred imme- tend to prove; or of national security and any restricted data, diately to the Attorney General for further ‘‘(iii) an unclassified summary of the spe- as defined in paragraph (r) of section 11 of investigation. The Attorney General shall cific classified information. the Atomic Energy Act of 1954 (42 U.S.C. timely notify the Secretary of any action The court shall grant such a motion of the 2014(y)); taken on referrals from the Secretary, and United States if the court finds that the re- ‘‘(2)(A) the term ‘control group’ means the may refer investigations to the Secretary for dacted item, stipulation, or unclassified officers or agents charged with directing the remedial licensing or civil penalty action. summary will provide the defendant with affairs of the organization; ‘‘(B) if a single officer or agent is author- ‘‘(g) PENALTIES.— substantially the same ability to make his ‘‘(1) Any person who, with knowledge that defense as would disclosure of the specific ized to conduct the affairs of the organiza- the donee is a designated entity, violates classified information. tion, the knowledge of the officer or agent that the organization or its resources are subsection (d) shall be fined under this title, ‘‘(B) TAKING OF TRIAL TESTIMONY.—During or imprisoned for up to ten years, or both. the examination of a witness in any civil being used for terrorism activities shall con- ‘‘(2) Any financial institution that know- proceeding brought by the United States stitute knowledge of the control group; ingly fails to comply with subsection (e), or under this section, the United States may ‘‘(C) if a single officer or agent is a member by regulations promulgated thereunder, object to any question or line of inquiry that of a group empowered to conduct the affairs shall be subject to a civil penalty of $50,000 may require the witness to disclose classified of the organization but cannot conduct the per violation, or twice the amount of money information not previously found to be ad- affairs of the organization on his or her own of which the financial institution was re- missible. Following such an objection, the authority, that person’s knowledge shall not quired to retain possession or control, which- court shall take suitable action to determine constitute knowledge by the control group ever is greater. whether the response is admissible and, in unless that person’s knowledge is shared by a sufficient number of members of the group ‘‘(h) INJUNCTION.— doing so, shall take precautions to guard ‘‘(1) Whenever it appears to the Secretary against the compromise of any classified in- so that the group with knowledge has the au- or the Attorney General that any person is formation. Such action may include permit- thority to conduct the affairs of the organi- engaged in, or is about to engage in, any act ting the United States to provide the court, zation; which constitutes, or would constitute, a ex parte, with a proffer of the witness’s re- ‘‘(3) the term ‘financial institution’ has the violation of this section, the Attorney Gen- sponse to the question or line of inquiry, and meaning prescribed in section 5312(a)(2) of eral may initiate civil action in a district requiring the defendant to provide the court title 31, United States Code, including any court of the United States to enjoin such with a proffer of the nature of the informa- regulations promulgated thereunder; violation. tion the defendant seeks to elicit. ‘‘(4) the term ‘funds’ includes coin or cur- rency of the United States or any other ‘‘(2) A proceeding under this subsection is ‘‘(C) APPEAL.—If the court enters an order governed by the Federal Rules of Civil Pro- denying relief to the United States under country, traveler’s checks, personal checks, cedure, except that, if an indictment has this subsection, the United States may take bank checks, money orders, stocks, bonds, been returned against the respondent, dis- an immediate interlocutory appeal in ac- debentures, drafts, letters of credit, any covery is governed by the Federal Rules of cordance with paragraph (3). other negotiable instrument, and any elec- tronic representation of any of the foregoing; Criminal Procedure. ‘‘(3) INTERLOCUTORY APPEAL.— ‘‘(5) the term ‘national security’ means the ‘‘(i) EXTRATERRITORIAL JURISDICTION.— ‘‘(A) An interlocutory appeal by the United There is extraterritorial Federal jurisdiction States shall lie to a court of appeals from a national defense and foreign relations of the over an offense under this section. decision or order of a district court— United States; ‘‘(6) the term ‘person’ includes an individ- ‘‘(j) CLASSIFIED INFORMATION IN CIVIL PRO- ‘‘(i) authorizing the disclosure of classified ual, partnership, association, group, corpora- CEEDINGS BROUGHT BY THE UNITED STATES.— information; tion, or other organization; ‘‘(1) DISCOVERY OF CLASSIFIED INFORMATION ‘‘(ii) imposing sanctions for nondisclosure ‘‘(7) the term ‘Secretary’ means the Sec- BY DEFENDANTS.—A court, upon a sufficient of classified information; or showing, may authorize the United States to ‘‘(iii) refusing a protective order sought by retary of the Treasury; and delete specified items of classified informa- the United States to prevent the disclosure ‘‘(8) the term ‘United States’, when used in tion from documents to be introduced into of classified information. a geographical sense, includes all common- evidence or made available to the defendant ‘‘(B) An appeal taken pursuant to this wealths, territories, and possessions of the through discovery under the Federal Rules of paragraph either before or during trial shall United States.’’. (b) TECHNICAL AMENDMENT.—The analysis Civil Procedure, to substitute an unclassified be expedited by the court of appeals. Prior to for chapter 113B of title 18, United States summary of the information for such classi- trial, an appeal shall be taken not later than Code, is amended by adding at the end the fied documents, or to substitute a statement 10 days after the decision or order appealed following new item: admitting relevant facts that the classified from, and the trial shall not commence until information would tend to prove. The court the appeal is resolved. If an appeal is taken ‘‘2339B. Fundraising for terrorist organiza- shall permit the United States to make a re- during trial, the trial court shall adjourn the tions.’’. quest for such authorization in the form of a trial until the appeal is resolved. The court (c) CLASSIFIED INFORMATION IN CIVIL PRO- written statement to be inspected by the of appeals— CEEDINGS.—Section 2339B(k) of title 18, Unit- court alone. If the court enters an order ‘‘(i) shall hear argument on such appeal ed States Code (relating to classified infor- granting relief following such an ex parte not later than 4 days after the adjournment mation in civil proceedings brought by the showing, the entire text of the statement of of the trial; United States), shall also be applicable to the United States shall be sealed and pre- ‘‘(ii) may dispense with written briefs civil proceedings brought by the United served in the records of the court to be made other than the supporting materials pre- States under the International Emergency available to the appellate court in the event viously submitted to the trial court; Economic Powers Act (50 U.S.C. 1701 et seq.). of an appeal. If the court enters an order de- ‘‘(iii) shall render its decision not later SEC. 402. CORRECTION TO MATERIAL SUPPORT nying relief to the United States under this than 4 days after argument on appeal; and PROVISION. paragraph, the United States may take an ‘‘(iv) may dispense with the issuance of a Section 2339A of title 18, United States immediate, interlocutory appeal in accord- written opinion in rendering its decision. Code, is amended to read as follows: ance with the provisions of paragraph (3). ‘‘(C) An interlocutory appeal and decision ‘‘§ 2339A. Providing material support to ter- For purposes of such an appeal, the entire under this paragraph shall not affect the rorists text of the underlying written statement of right of the defendant, in a subsequent ap- ‘‘(a) DEFINITION.—In this section, ‘material the United States, together with any tran- peal from a final judgment, to claim as support or resources’ means currency or S 7866 CONGRESSIONAL RECORD — SENATE June 7, 1995

other financial securities, financial services, issue the order if the Director or the Direc- ‘‘(g) RULES OF CONSTRUCTION.—Nothing in lodging, training, safehouses, false docu- tor’s designee, certifies in writing that— this section shall be construed to prohibit in- mentation or identification, communica- ‘‘(A) such information is necessary to the formation from being furnished by the Fed- tions equipment, facilities, weapons, lethal conduct of an authorized foreign counter- eral Bureau of Investigation pursuant to a substances, explosives, personnel, transpor- intelligence investigation; and subpoena or court order, or in connection tation, and other physical assets, but does ‘‘(B) there is information giving reason to with a judicial or administrative proceeding not include humanitarian assistance to per- believe that the consumer has been, or is to enforce the provisions of this Act. Noth- sons not directly involved in such violations. about to be, in contact with a foreign power ing in this section shall be construed to au- ‘‘(b) OFFENSE.—A person who, within the or an agent of a foreign power (as defined in thorize or permit the withholding of infor- United States, provides material support or section 101 of the Foreign Intelligence Sur- mation from the Congress. resources or conceals or disguises the nature, veillance Act of 1978). location, source, or ownership of material ‘‘(2) An order issued under this subsection ‘‘(h) REPORTS TO CONGRESS.—On an annual support or resources, knowing or intending shall not disclose that it is issued for pur- basis, the Attorney General shall fully in- that they are to be used in preparation for, poses of a counterintelligence investigation. form the Permanent Select Committee on or in carrying out, a violation of section 32, ‘‘(c) COURT ORDER FOR DISCLOSURE OF Intelligence and the Committee on Banking 37, 351, 844(f) or (i), 956, 1114, 1116, 1203, 1361, CONSUMER REPORTS.—(1) Notwithstanding and Financial Services of the House of Rep- 1363, 1751, 2280, 2281, 2332, or 2332a of this title section 604 or any other provision of this resentatives, and the Select Committee on or section 46502 of title 49, or in preparation title, if requested in writing by the Director Intelligence and the Committee on Banking, for or carrying out the concealment or an es- of the Federal Bureau of Investigation, or an Housing, and Urban Affairs of the Senate cape from the commission of any such viola- authorized designee of the Director, a court concerning all requests made pursuant to tion, shall be fined under this title, impris- may issue an order ex parte directing a subsections (a), (b), and (c). consumer reporting agency to furnish a oned not more than 10 years, or both.’’. ‘‘(i) DAMAGES.—Any agency or department consumer report to the Federal Bureau of In- TITLE V—ASSISTANCE TO FEDERAL LAW of the United States obtaining or disclosing vestigation, upon a showing in camera that— ENFORCEMENT AGENCIES any consumer reports, records, or informa- ‘‘(A) the consumer report is necessary for Subtitle A—Antiterrorism Assistance the conduct of an authorized foreign coun- tion contained therein in violation of this section is liable to the consumer to whom SEC. 501. DISCLOSURE OF CERTAIN CONSUMER terintelligence investigation; and REPORTS TO THE FEDERAL BUREAU ‘‘(B) there are specific and articulable facts such consumer reports, records, or informa- OF INVESTIGATION FOR FOREIGN giving reason to believe that the consumer tion relate in an amount equal to the sum COUNTERINTELLIGENCE INVES- whose consumer report is sought— of— TIGATIONS. ‘‘(i) is an agent of a foreign power; and ‘‘(1) $100, without regard to the volume of (a) IN GENERAL.—The Fair Credit Report- ‘‘(ii) is engaging or has engaged in inter- consumer reports, records, or information in- ing Act (15 U.S.C. 1681 et seq.) is amended by national terrorism (as that term is defined in volved; adding after section 623 the following new section 101(c) of the Foreign Intelligence ‘‘(2) any actual damages sustained by the section: Surveillance Act of 1978) or clandestine in- consumer as a result of the disclosure; ‘‘SEC. 624. DISCLOSURES TO THE FEDERAL BU- telligence activities that involve or may in- ‘‘(3) if the violation is found to have been REAU OF INVESTIGATION FOR FOR- volve a violation of criminal statutes of the willful or intentional, such punitive damages EIGN COUNTERINTELLIGENCE PUR- United States. as a court may allow; and POSES. ‘‘(2) An order issued under this subsection ‘‘(4) in the case of any successful action to ‘‘(a) IDENTITY OF FINANCIAL INSTITUTIONS.— shall not disclose that it is issued for pur- enforce liability under this subsection, the (1) Notwithstanding section 604 or any other poses of a counterintelligence investigation. costs of the action, together with reasonable provision of this title, a court or magistrate ‘‘(d) CONFIDENTIALITY.—(1) No consumer re- attorney fees, as determined by the court. judge may issue an order ex parte directing porting agency or officer, employee, or agent ‘‘(j) DISCIPLINARY ACTIONS FOR VIOLA- a consumer reporting agency to furnish to of a consumer reporting agency shall dis- TIONS.—If a court determines that any agen- the Federal Bureau of Investigation the close to any person, other than officers, em- names and addresses of all financial institu- cy or department of the United States has ployees, or agents of a consumer reporting violated any provision of this section and the tions (as that term is defined in section 1101 agency necessary to fulfill the requirement court finds that the circumstances surround- of the Right to Financial Privacy Act of to disclose information to the Federal Bu- ing the violation raise questions of whether 1978) at which a consumer maintains or has reau of Investigation under this section, that or not an officer or employee of the agency maintained an account, to the extent that the Federal Bureau of Investigation has or department acted willfully or inten- information is in the files of the agency. The sought or obtained the identity of financial tionally with respect to the violation, the court or magistrate judge shall issue the institutions or a consumer report respecting agency or department shall promptly initi- order if the Director of the Federal Bureau of any consumer under subsection (a), (b), or ate a proceeding to determine whether or not Investigation, or the Director’s designee, (c). certifies in writing to the court or mag- ‘‘(2) No consumer reporting agency or offi- disciplinary action is warranted against the istrate judge that— cer, employee, or agent of a consumer re- officer or employee who was responsible for ‘‘(A) such information is necessary for the porting agency shall include in any the violation. conduct of an authorized foreign counter- consumer report any information that would ‘‘(k) GOOD-FAITH EXCEPTION.—Notwith- intelligence investigation; and indicate that the Federal Bureau of Inves- standing any other provision of this title, ‘‘(B) there are specific and articulable facts tigation has sought or obtained such infor- any consumer reporting agency or agent or giving reason to believe that the consumer— mation or a consumer report. employee thereof making disclosure of ‘‘(i) is a foreign power (as defined in sec- ‘‘(e) PAYMENT OF FEES.—The Federal Bu- consumer reports or identifying information tion 101 of the Foreign Intelligence Surveil- reau of Investigation is authorized, subject pursuant to this subsection in good-faith re- lance Act of 1978) or a person who is not a to the availability of appropriations, pay to liance upon a certification of the Federal Bu- United States person (as defined in such sec- the consumer reporting agency assembling reau of Investigation pursuant to provisions tion 101) and is an official of a foreign power; or providing reports or information in ac- of this section shall not be liable to any per- or cordance with procedures established under son for such disclosure under this title, the ‘‘(ii) is an agent of a foreign power and is this section, a fee for reimbursement for constitution of any State, or any law or reg- engaging or has engaged in international ter- such costs as are reasonably necessary and ulation of any State or any political subdivi- rorism (as that term is defined in section which have been directly incurred in search- sion of any State notwithstanding. 101(c) of the Foreign Intelligence Surveil- ing, reproducing, or transporting books, pa- lance Act of 1978) or clandestine intelligence pers, records, or other data required or re- ‘‘(l) INJUNCTIVE RELIEF.—In addition to any activities that involve or may involve a vio- quested to be produced under this section. other remedy contained in this section, in- lation of criminal statutes of the United ‘‘(f) LIMIT ON DISSEMINATION.—The Federal junctive relief shall be available to require States. Bureau of Investigation may not disseminate compliance with the procedures of this sec- ‘‘(2) An order issued under this subsection information obtained pursuant to this sec- tion. In the event of any successful action shall not disclose that it is issued for pur- tion outside of the Federal Bureau of Inves- under this subsection, costs together with poses of a counterintelligence investigation. tigation, except— reasonable attorney fees, as determined by ‘‘(b) IDENTIFYING INFORMATION.—(1) Not- ‘‘(1) to the Department of Justice, as may the court, may be recovered.’’. withstanding section 604 or any other provi- be necessary for the approval or conduct of a (b) CLERICAL AMENDMENT.—The table of sion of this title, a court or magistrate judge foreign counterintelligence investigation; or sections at the beginning of the Fair Credit shall issue an order ex parte directing a ‘‘(2) where the information concerns a per- Reporting Act (15 U.S.C. 1681a et seq.) is consumer reporting agency to furnish identi- son subject to the Uniform Code of Military amended by adding after the item relating to fying information respecting a consumer, Justice, to appropriate investigative au- section 623 the following new item: limited to name, address, former addresses, thorities within the military department places of employment, or former places of concerned as may be necessary for the con- ‘‘624. Disclosures to the Federal Bureau of employment, to the Federal Bureau of Inves- duct of a joint foreign counterintelligence Investigation for foreign coun- tigation. The court or magistrate judge shall investigation. terintelligence purposes.’’. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7867 SEC. 502. ACCESS TO RECORDS OF COMMON CAR- (2) in section 3075, by striking ‘‘$5,000,000’’ (4) by inserting after paragraph (o), as so RIERS, PUBLIC ACCOMMODATION and inserting ‘‘$10,000,000’’. redesignated by section 512(a)(2), the follow- FACILITIES, PHYSICAL STORAGE FA- (c) GENERAL REWARD AUTHORITY OF THE ing new subparagraphs: CILITIES, AND VEHICLE RENTAL FA- ‘‘(p) any violation of section 956 or section CILITIES IN FOREIGN COUNTER- ATTORNEY GENERAL.— INTELLIGENCE AND (1) IN GENERAL.—Chapter 203 of title 18, 960 of title 18, United States Code (relating COUNTERTERRORISM CASES. United States Code, is amended by adding to certain actions against foreign nations); Title 18, United States Code, is amended by immediately after section 3059A the follow- ‘‘(q) any violation of section 46502 of title inserting after chapter 121 the following new ing section: 49, United States Code; and’’. chapter: SEC. 513. REQUIREMENT TO PRESERVE EVI- ‘‘§ 3059B. General reward authority DENCE. ‘‘CHAPTER 122—ACCESS TO CERTAIN ‘‘(a) Notwithstanding any other provision Section 2703 of title 18, United States Code, RECORDS of law, the Attorney General may pay re- is amended by adding at the end the follow- ‘‘§ 2720. Access to records of common carriers, wards and receive from any department or ing new subsection: public accommodation facilities, physical agency funds for the payment of rewards ‘‘(f) REQUIREMENT TO PRESERVE EVI- storage facilities, and vehicle rental facili- under this section to any individual who as- DENCE.—A provider of wire or electronic ties in counterintelligence and sists the Department of Justice in perform- communication services or a remote comput- counterterrorism cases ing its functions. ing service, upon the request of a govern- ‘‘(a)(1) A court or magistrate judge may ‘‘(b) Not later than 30 days after authoriz- mental entity, shall take all necessary steps issue an order ex parte directing any com- ing a reward under this section that exceeds to preserve records and other evidence in its mon carrier, public accommodation facility, $100,000, the Attorney General shall give no- possession pending the issuance of a court physical storage facility, or vehicle rental tice to the respective chairmen of the Com- order or other process. Such records shall be facility to furnish any records in its posses- mittees on Appropriations and the Commit- retained for a period of 90 days, which period sion to the Federal Bureau of Investigation. tees on the Judiciary of the Senate and the shall be extended for an additional 90-day pe- The court or magistrate judge shall issue the House of Representatives. riod upon a renewed request by the govern- order if the Director of the Federal Bureau of ‘‘(c) A determination made by the Attor- mental entity.’’. Investigation or the Director’s designee ney General to authorize an award under this Subtitle C—Additional Funding for Law (whose rank shall be no lower than Assistant section and the amount of any reward au- Enforcement Special Agent in Charge) certifies in writing thorized shall be final and conclusive, and SEC. 521. FEDERAL BUREAU OF INVESTIGATION that— not subject to judicial review.’’. ASSISTANCE TO COMBAT TERROR- ‘‘(A) such records are sought for foreign ISM. counterintelligence purposes; and Subtitle B—Intelligence and Investigation Enhancements (a) IN GENERAL.—With funds made avail- ‘‘(B) there are specific and articulable facts able pursuant to subsection (b), the Attorney giving reason to believe that the person to SEC. 511. STUDY AND REPORT ON ELECTRONIC General shall— whom the records pertain is a foreign power SURVEILLANCE. (1) develop digital telephony technology; or an agent of a foreign power as defined in (a) STUDY.—The Attorney General and the (2) support and enhance the technical sup- section 101 of the Foreign Intelligence Sur- Director of the Federal Bureau of Investiga- port center and tactical operations; veillance Act of 1978 (50 U.S.C. 801). tion shall study all applicable laws and (3) create a Federal Bureau of Investiga- ‘‘(2) An order issued under this subsection guidelines relating to electronic surveillance tion counterterrorism and counterintel- shall not disclose that it is issued for pur- and the use of pen registers and other trap ligence fund for costs associated with terror- poses of a counterintelligence investigation. and trace devices. ‘‘(b) No common carrier, public accommo- ism cases; (b) REPORT.—Not later than 90 days after (4) expand and improve the instructional, dation facility, physical storage facility, or the date of enactment of this Act, the Attor- vehicle rental facility, or any officer, em- operational support, and construction of the ney General shall submit a report to the Federal Bureau of Investigation academy; ployee, or agent of such common carrier, Congress that includes— public accommodation facility, physical (5) construct an FBI laboratory, provide (1) the findings of the study conducted pur- laboratory examination support, and provide storage facility, or vehicle rental facility, suant to subsection (a); shall disclose to any person, other than for a Command Center; (2) recommendations for the use of elec- (6) make funds available to the chief execu- those officers, agents, or employees of the tronic devices in conducting surveillance of common carrier, public accommodation fa- tive officer of each State to carry out the ac- terrorist or other criminal organizations, tivities described in subsection (d); and cility, physical storage facility, or vehicle and for any modifications in the law nec- rental facility necessary to fulfill the re- (7) enhance personnel to support essary to enable the Federal Government to counterterrorism activities. quirement to disclose the information to the fulfill its law enforcement responsibilities Federal Bureau of Investigation under this (b) AUTHORIZATION OF APPROPRIATIONS.— within appropriate constitutional param- There are authorized to be appropriated for section. eters; and ‘‘(c) As used in this chapter— the activities of the Federal Bureau of Inves- (3) a summary of efforts to use current ‘‘(1) the term ‘common carrier’ means a lo- tigation, to help meet the increased demands wiretap authority, including detailed exam- comotive, rail carrier, bus carrying pas- for activities to combat terrorism— ples of situations in which expanded author- sengers, water common carrier, air common (1) $300,000,000 for fiscal year 1996; ity would have enabled law enforcement au- carrier, or private commercial interstate (2) $225,000,000 for fiscal year 1997; carrier for the delivery of packages and thorities to fulfill their responsibilities. (3) $328,000,000 for fiscal year 1998; other objects; SEC. 512. AUTHORIZATION FOR INTERCEPTIONS (4) $190,000,000 for fiscal year 1999; and ‘‘(2) the term ‘public accommodation facil- OF COMMUNICATIONS IN CERTAIN (5) $183,000,000 for fiscal year 2000. ity’ means any inn, hotel, motel, or other es- TERRORISM RELATED OFFENSES. (c) AVAILABILITY OF FUNDS.— tablishment that provides lodging to tran- Section 2516(1) of title 18, United States (1) IN GENERAL.—Funds made available pur- sient guests; Code, is amended— suant to subsection (b), in any fiscal year, ‘‘(3) the term ‘physical storage facility’ (1) in paragraph (c)— shall remain available until expended. means any business or entity that provides (A) by inserting before ‘‘or section 1992 (re- (d) STATE GRANTS.— space for the storage of goods or materials, lating to wrecking trains)’’ the following: (1) IN GENERAL.—Any funds made available or services related to the storage of goods or ‘‘section 2332 (relating to terrorist acts for purposes of subsection (a)(6) may be ex- materials, to the public or any segment abroad), section 2332a (relating to weapons of pended— thereof; and mass destruction, section 2332b (relating to (A) by the Director of the Federal Bureau ‘‘(4) the term ‘vehicle rental facility’ acts of terrorism transcending national of Investigation to expand the combined means any person or entity that provides ve- boundaries), section 2339A (relating to pro- DNA Identification System (CODIS) to in- hicles for rent, lease, loan, or other similar viding material support to terrorists), sec- clude Federal crimes and crimes committed use, to the public or any segment thereof.’’. tion 37 (relating to violence at international in the District of Columbia; and SEC. 503. INCREASE IN MAXIMUM REWARDS FOR airports),’’; and (B) by the Attorney General, in consulta- INFORMATION CONCERNING INTER- (B) by inserting after ‘‘section 175 (relating tion with the Director of the Federal Bureau NATIONAL TERRORISM. to biological weapons),’’ the following: ‘‘or a of Investigation to make funds available to (a) TERRORISM ABROAD.—Section 36 of the felony violation under section 1028 (relating the chief executive officer of each State to State Department Basic Authorities Act of to production of false identification docu- carry out the activities described in para- 1956 (22 U.S.C. 2708) is amended— mentation), sections 1541, 1542, 1543, 1544, and graph (2). (1) in subsection (c), by striking 1546 (relating to passport and visa of- (2) GRANT PROGRAM.— ‘‘$2,000,000’’ and inserting ‘‘$10,000,000’’; and fenses),’’; (A) USE OF FUNDS.—The executive officer of (2) in subsection (g), by striking (2) by striking ‘‘and’’ at the end of para- each State shall use any funds made avail- ‘‘$5,000,000’’ and inserting ‘‘$10,000,000. graph (o), as so redesignated by section able under paragraph (1)(B) in conjunction (b) DOMESTIC TERRORISM.—Title 18, United 512(a)(2); with units of local government, other States, States Code, is amended— (3) by redesignating paragraph (p), as so re- or combinations thereof, to carry out all or (1) in section 3072, by striking ‘‘$500,000’’ designated by section 512(a)(2), as paragraph part of a program to establish, develop, up- and inserting ‘‘$10,000,000’’; and (s); and date, or upgrade— S 7868 CONGRESSIONAL RECORD — SENATE June 7, 1995 (i) computerized identification systems for each of the fiscal years 1996, 1997, 1998, rent effect within 60 calendar days. Further- that are compatible and integrated with the 1999, and 2000. more, the Commission shall promulgate databases of the National Crime Information (b) AVAILABILITY OF FUNDS.—Funds made guideline amendments that will ensure that Center of the Federal Bureau of Investiga- available pursuant to subsection (a), in any individuals convicted under sections tion; fiscal year, shall remain available until ex- 1030(a)(4) and 1030(a)(5) of title 18, United (ii) ballistics identification programs that pended. States Code, are incarcerated for not less are compatible and integrated with the SEC. 524. DRUG ENFORCEMENT ADMINISTRA- than 6 months. Drugfire Program of the Federal Bureau of TION. TITLE VI—CRIMINAL PROCEDURAL Investigation; (a) ACTIVITIES OF DRUG ENFORCEMENT AD- IMPROVEMENTS (iii) the capability to analyze MINISTRATION.—With funds made available Subtitle A—Habeas Corpus Reform deoxyribonucleic acid (DNA) in a forensic pursuant to subsection (b), the Attorney laboratory in ways that are compatible and General shall— SEC. 601. FILING DEADLINES. integrated with the combined DNA Identi- (1) fund antiviolence crime initiatives; Section 2244 of title 28, United States Code, fication System (CODIS) of the Federal Bu- (2) fund major violators’ initiatives; and is amended by adding at the end the follow- reau of Investigation; and (3) enhance or replace infrastructure. ing new subsection: (iv) automated fingerprint identification (b) AUTHORIZATION OF APPROPRIATIONS.— ‘‘(d)(1) A 1-year period of limitation shall systems that are compatible and integrated There are authorized to be appropriated to apply to an application for a writ of habeas with the Integrated Automated Fingerprint the Drug Enforcement Administration, to corpus by a person in custody pursuant to Identification System (IAFIS) of the Federal help meet the increased needs of the Drug the judgment of a State court. The limita- Bureau of Investigation. Enforcement Administration— tion period shall run from the latest of— (B) ELIGIBILITY.—To be eligible to receive (1) $60,000,000 for fiscal year 1996; ‘‘(A) the date on which the judgment be- funds under this paragraph, a State shall re- (2) $70,000,000 for fiscal year 1997; came final by the conclusion of direct review quire that each person convicted of a felony (3) $80,000,000 for fiscal year 1998; or the expiration of the time for seeking of a sexual nature shall provide to appro- (4) $90,000,000 for fiscal year 1999; and such review; priate State law enforcement officials, as (5) $100,000,000 for fiscal year 2000. ‘‘(B) the date on which the impediment to designated by the chief executive officer of (c) AVAILABILITY OF FUNDS.—Funds made filing an application created by State action the State, a sample of blood, saliva, or other available pursuant to this section, in any fis- in violation of the Constitution or laws of specimen necessary to conduct a DNA analy- cal year, shall remain available until ex- the United States is removed, if the appli- sis consistent with the standards established pended. cant was prevented from filing by such State action; for DNA testing by the Director of the Fed- SEC. 525. DEPARTMENT OF JUSTICE. ‘‘(C) the date on which the constitutional eral Bureau of Investigation. (a) IN GENERAL.—Subject to the availabil- right asserted was initially recognized by the (C) INTERSTATE COMPACTS.—A State may ity of appropriations, the Attorney General Supreme Court, if the right has been newly enter into a compact or compacts with an- shall— recognized by the Supreme Court and made other State or States to carry out this sub- (1) hire additional Assistant United States retroactively applicable to cases on collat- section. Attorneys, and eral review; or (D) ALLOCATION.—(i) Of the total amount (2) provide for increased security at court- ‘‘(D) the date on which the factual predi- appropriated pursuant to this section in a houses and other facilities housing Federal cate of the claim or claims presented could fiscal year— workers. have been discovered through the exercise of (I) $500,000 or 0.25 percent, whichever is (b) AUTHORIZATION OF ADDITIONAL APPRO- due diligence. greater, shall be allocated to each of the par- PRIATIONS.—There are authorized to be ap- ‘‘(2) The time during which a properly filed ticipating States; and propriated for the activities of the Depart- application for State post-conviction or (II) of the total funds remaining after the ment of Justice, to hire additional Assistant other collateral review with respect to the allocation under subclause (I), there shall be United States Attorneys and personnel for pertinent judgment or claim shall not be allocated to each State an amount which the Criminal Division of the Department of counted toward any period of limitation bears the same ratio to the amount of re- Justice and provide increased security to under this subsection.’’. maining funds described in this subpara- meet the needs resulting from this Act graph as the population of such State bears $20,000,000 for each of the fiscal years 1996, SEC. 602. APPEAL. to the population of all States. 1997, 1998, 1999, and 2000. Section 2253 of title 28, United States Code, (ii) DEFINITION.—For purposes of this sub- (c) AVAILABILITY OF FUNDS.—Funds made is amended to read as follows: paragraph, the term ‘‘State’’ means any available pursuant to this section, in any fis- ‘‘§ 2253. Appeal State of the United States, the District of cal year, shall remain available until ex- ‘‘(a) In a habeas corpus proceeding or a Columbia, the Commonwealth of Puerto pended. proceeding under section 2255 before a dis- Rico, the Virgin Islands, American Samoa, SEC. 526. AUTHORIZATION OF ADDITIONAL AP- trict judge, the final order shall be subject to Guam, and the Northern Mariana Islands, ex- PROPRIATIONS FOR THE DEPART- review, on appeal, by the court of appeals for cept that for purposes of the allocation MENT OF THE TREASURY. the circuit in which the proceeding is held. under this subparagraph, American Samoa (a) IN GENERAL.—There are authorized to ‘‘(b) There shall be no right of appeal from and the Commonwealth of the Northern Mar- be appropriated for the activities of the Bu- a final order in a proceeding to test the va- iana Islands shall be considered as one State reau of Alcohol, Tobacco and Firearms, to lidity of a warrant to remove to another dis- and that for these purposes, 67 percent of the augment counterterrorism efforts— trict or place for commitment or trial a per- amounts allocated shall be allocated to (1) $20,000,000 for fiscal year 1996; son charged with a criminal offense against American Samoa, and 33 percent to the Com- (2) $20,000,000 for fiscal year 1997; the United States, or to test the validity of monwealth of the Northern Mariana Islands. (3) $20,000,000 for fiscal year 1998; such person’s detention pending removal pro- SEC. 522. AUTHORIZATION OF ADDITIONAL AP- (4) $20,000,000 for fiscal year 1999; and ceedings. PROPRIATIONS FOR THE UNITED (5) $20,000,000 for fiscal year 2000. ‘‘(c)(1) Unless a circuit justice or judge is- STATES CUSTOMS SERVICE. (b) IN GENERAL.—There are authorized to sues a certificate of appealability, an appeal (a) IN GENERAL.—There are authorized to be appropriated for the activities of the may not be taken to the court of appeals be appropriated for the activities of the United States Secret Service, to augment United States Customs Service, to help meet from— White House security and expand Presi- ‘‘(A) the final order in a habeas corpus pro- the increased needs of the United States Cus- dential protection activities— toms Service— ceeding in which the detention complained (1) $62,000,000 for fiscal year 1996; of arises out of process issued by a State (1) $6,000,000 for fiscal year 1996; (2) $25,000,000 for fiscal year 1997; (2) $6,000,000 for fiscal year 1997; court; or (3) $25,000,000 for fiscal year 1998; ‘‘(B) the final order in a proceeding under (3) $6,000,000 for fiscal year 1998; (4) $25,000,000 for fiscal year 1999; and (4) $5,000,000 for fiscal year 1999; and section 2255. (5) $25,000,000 for fiscal year 2000. ‘‘(2) A certificate of appealability may (5) $5,000,000 for fiscal year 2000. SEC. 527. FUNDING SOURCE. (b) AVAILABILITY OF FUNDS.—Funds made issue under paragraph (1) only if the appli- available pursuant to subsection (a), in any Notwithstanding any other provision of cant has made a substantial showing of the fiscal year, shall remain available until ex- law, funding for authorizations provided in denial of a constitutional right. pended. this subtitle may be paid for out of the Vio- ‘‘(3) The certificate of appealability under paragraph (1) shall indicate which specific SEC. 523. AUTHORIZATION OF ADDITIONAL AP- lent Crime Reduction Trust Fund. PROPRIATIONS FOR THE IMMIGRA- SEC. 528. DETERRENT AGAINST TERRORIST AC- issue or issues satisfy the showing required TION AND NATURALIZATION SERV- TIVITY DAMAGING A FEDERAL IN- by paragraph (2).’’. ICE. TEREST COMPUTER. SEC. 603. AMENDMENT OF FEDERAL RULES OF (a) IN GENERAL.—There are authorized to The United States Sentencing Commission APPELLATE PROCEDURE. be appropriated for the activities of the Im- shall review existing guideline levels as they Rule 22 of the Federal Rules of Appellate migration and Naturalization Service, to apply to sections 1030(a)(4) and 1030(a)(5) of Procedure is amended to read as follows: help meet the increased needs of the Immi- title 18, United States Code, and report to ‘‘Rule 22. Habeas corpus and section 2255 gration and Naturalization Service $5,000,000 Congress on their findings as to their deter- proceedings June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7869

‘‘(a) APPLICATION FOR THE ORIGINAL WRIT.— facts in light of the evidence presented in the ity. Appointment of counsel under this sec- An application for a writ of habeas corpus State court proceeding.’’; tion shall be governed by section 3006A of shall be made to the appropriate district (4) by amending subsection (e), as redesig- title 18. court. If application is made to a circuit nated by paragraph (2), to read as follows: ‘‘A second or successive motion must be judge, the application shall be transferred to ‘‘(e)(1) In a proceeding instituted by an ap- certified as provided in section 2244 by a the appropriate district court. If an applica- plication for a writ of habeas corpus by a panel of the appropriate court of appeals to tion is made to or transferred to the district person in custody pursuant to the judgment contain— court and denied, renewal of the application of a State court, a determination of a factual ‘‘(1) newly discovered evidence that, if before a circuit judge shall not be permitted. issue made by a State court shall be pre- proven and viewed in light of the evidence as The applicant may, pursuant to section 2253 sumed to be correct. The applicant shall a whole, would be sufficient to establish by of title 28, United States Code, appeal to the have the burden of rebutting the presump- clear and convincing evidence that no rea- appropriate court of appeals from the order tion of correctness by clear and convincing sonable factfinder would have found the of the district court denying the writ. evidence. movant guilty of the offense; or ‘‘(b) CERTIFICATE OF APPEALABILITY.—In a ‘‘(2) If the applicant has failed to develop ‘‘(2) a new rule of constitutional law, made habeas corpus proceeding in which the deten- the factual basis of a claim in State court retroactive to cases on collateral review by tion complained of arises out of process is- proceedings, the court shall not hold an evi- the Supreme Court, that was previously un- sued by a State court, an appeal by the ap- dentiary hearing on the claim unless the ap- available.’’. plicant for the writ may not proceed unless plicant shows that— SEC. 606. LIMITS ON SECOND OR SUCCESSIVE AP- a district or a circuit judge issues a certifi- ‘‘(A) the claim relies on— PLICATIONS. cate of appealability pursuant to section ‘‘(i) a new rule of constitutional law, made (a) CONFORMING AMENDMENT TO SECTION 2253(c) of title 28, United States Code. If an retroactive to cases on collateral review by 2244(a).—Section 2244(a) of title 28, United appeal is taken by the applicant, the district the Supreme Court, that was previously un- States Code, is amended by striking ‘‘and the judge who rendered the judgment shall ei- available; or petition’’ and all that follows through ‘‘by ther issue a certificate of appealability or ‘‘(ii) a factual predicate that could not such inquiry.’’ and inserting ‘‘, except as pro- state the reasons why such a certificate have been previously discovered through the vided in section 2255.’’. should not issue. The certificate or the state- exercise of due diligence; and (b) LIMITS ON SECOND OR SUCCESSIVE APPLI- ment shall be forwarded to the court of ap- ‘‘(B) the facts underlying the claim would CATIONS.—Section 2244(b) of title 28, United peals with the notice of appeal and the file of be sufficient to establish by clear and con- States Code, is amended to read as follows: the proceedings in the district court. If the vincing evidence that but for constitutional ‘‘(b)(1) A claim presented in a second or district judge has denied the certificate, the error, no reasonable factfinder would have successive habeas corpus application under applicant for the writ may then request issu- found the applicant guilty of the underlying section 2254 that was presented in a prior ap- ance of the certificate by a circuit judge. If offense.’’; and plication shall be dismissed. such a request is addressed to the court of (5) by adding at the end the following new ‘‘(2) A claim presented in a second or suc- appeals, it shall be deemed addressed to the subsections: cessive habeas corpus application under sec- judges thereof and shall be considered by a ‘‘(h) Except as provided in title 21, United tion 2254 that was not presented in a prior circuit judge or judges as the court deems States Code, section 848, in all proceedings application shall be dismissed unless— appropriate. If no express request for a cer- brought under this section, and any subse- ‘‘(A) the applicant shows that the claim re- tificate is filed, the notice of appeal shall be quent proceedings on review, the court may lies on a new rule of constitutional law, deemed to constitute a request addressed to appoint counsel for an applicant who is or made retroactive to cases on collateral re- the judges of the court of appeals. If an ap- becomes financially unable to afford counsel, view by the Supreme Court, that was pre- peal is taken by a State or its representa- except as provided by a rule promulgated by viously unavailable; or tive, a certificate of appealability is not re- the Supreme Court pursuant to statutory au- ‘‘(B)(i) the factual predicate for the claim quired.’’. thority. Appointment of counsel under this could not have been discovered previously SEC. 604. SECTION 2254 AMENDMENTS. section shall be governed by section 3006A of through the exercise of due diligence; and Section 2254 of title 28, United States Code, title 18. ‘‘(ii) the facts underlying the claim, if is amended— ‘‘(i) The ineffectiveness or incompetence of proven and viewed in light of the evidence as (1) by amending subsection (b) to read as counsel during Federal or State collateral a whole, would be sufficient to establish by follows: post-conviction proceedings shall not be a ‘‘(b)(1) An application for a writ of habeas clear and convincing evidence that, but for ground for relief in a proceeding arising corpus on behalf of a person in custody pur- constitutional error, no reasonable under section 2254.’’. suant to the judgment of a State court shall factfinder would have found the applicant not be granted unless it appears that— SEC. 605. SECTION 2255 AMENDMENTS. guilty of the underlying offense. ‘‘(A) the applicant has exhausted the rem- Section 2255 of title 28, United States Code, ‘‘(3)(A) Before a second or successive appli- edies available in the courts of the State; or is amended— cation permitted by this section is filed in ‘‘(B)(i) there is an absence of available (1) by striking the second and fifth undes- the district court, the applicant shall move State corrective process; or ignated paragraphs; and in the appropriate court of appeals for an ‘‘(ii) circumstances exist that render such (2) by adding at the end the following new order authorizing the district court to con- process ineffective to protect the rights of undesignated paragraphs: sider the application. the applicant. ‘‘A 1-year period of limitation shall apply ‘‘(B) A motion in the court of appeals for ‘‘(2) An application for a writ of habeas to a motion under this section. The limita- an order authorizing the district court to corpus may be denied on the merits, not- tion period shall run from the latest of— consider a second or successive application withstanding the failure of the applicant to ‘‘(1) the date on which the judgment of shall be determined by a three-judge panel of exhaust the remedies available in the courts conviction becomes final; the court of appeals. of the State. ‘‘(2) the date on which the impediment to ‘‘(C) The court of appeals may authorize ‘‘(3) A State shall not be deemed to have making a motion created by governmental the filing of a second or successive applica- waived the exhaustion requirement or be es- action in violation of the Constitution or tion only if it determines that the applica- topped from reliance upon the requirement laws of the United States is removed, if the tion makes a prima facie showing that the unless the State, through counsel, expressly movant was prevented from making a mo- application satisfies the requirements of this waives the requirement.’’; tion by such governmental action; subsection. (2) by redesignating subsections (d), (e), ‘‘(3) the date on which the right asserted ‘‘(D) The court of appeals shall grant or and (f) as subsections (e), (f), and (g), respec- was initially recognized by the Supreme deny the authorization to file a second or tively; Court, if that right has been newly recog- successive application not later than 30 days (3) by inserting after subsection (c) the fol- nized by the Supreme Court and made retro- after the filing of the motion. lowing new subsection: actively applicable to cases on collateral re- ‘‘(E) The grant or denial of an authoriza- ‘‘(d) An application for a writ of habeas view; or tion by a court of appeals to file a second or corpus on behalf of a person in custody pur- ‘‘(4) the date on which the facts supporting successive application shall not be appeal- suant to the judgment of a State court shall the claim or claims presented could have able and shall not be the subject of a petition not be granted with respect to any claim been discovered through the exercise of due for rehearing or for a writ of certiorari. that was adjudicated on the merits in State diligence. ‘‘(4) A district court shall dismiss any court proceedings unless the adjudication of ‘‘Except as provided in title 21, United claim presented in a second or successive ap- the claim— States Code, section 848, in all proceedings plication that the court of appeals has au- ‘‘(1) resulted in a decision that was con- brought under this section, and any subse- thorized to be filed unless the applicant trary to, or involved an unreasonable appli- quent proceedings on review, the court may shows that the claim satisfies the require- cation of, clearly established Federal law, as appoint counsel for a movant who is or be- ments of this section.’’. determined by the Supreme Court of the comes financially unable to afford counsel SEC. 607. DEATH PENALTY LITIGATION PROCE- United States; or shall be in the discretion of the court, except DURES. ‘‘(2) resulted in a decision that was based as provided by a rule promulgated by the Su- (a) ADDITION OF CHAPTER TO TITLE 28, UNIT- on an unreasonable determination of the preme Court pursuant to statutory author- ED STATES CODE.—Title 28, United States S 7870 CONGRESSIONAL RECORD — SENATE June 7, 1995 Code, is amended by inserting after chapter tion 2261(c), a warrant or order setting an claim for State or Federal post-conviction 153 the following new chapter: execution date for a State prisoner shall be review. ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS stayed upon application to any court that ‘‘(b) Following review subject to sub- PROCEDURES IN CAPITAL CASES would have jurisdiction over any proceedings sections (a), (d), and (e) of section 2254, the court shall rule on the claims properly be- ‘‘Sec. filed under section 2254. The application ‘‘2261. Prisoners in State custody subject to shall recite that the State has invoked the fore it. capital sentence; appointment post-conviction review procedures of this ‘‘§ 2265. Application to State unitary review of counsel; requirement of rule chapter and that the scheduled execution is procedure of court or statute; procedures subject to stay. ‘‘(a) For purposes of this section, a ‘uni- for appointment. ‘‘(b) A stay of execution granted pursuant tary review’ procedure means a State proce- ‘‘2262. Mandatory stay of execution; dura- to subsection (a) shall expire if— dure that authorizes a person under sentence tion; limits on stays of execu- ‘‘(1) a State prisoner fails to file a habeas of death to raise, in the course of direct re- tion; successive petitions. corpus application under section 2254 within view of the judgment, such claims as could ‘‘2263. Filing of habeas corpus application; the time required in section 2263; be raised on collateral attack. This chapter time requirements; tolling ‘‘(2) before a court of competent jurisdic- shall apply, as provided in this section, in re- rules. tion, in the presence of counsel, unless the lation to a State unitary review procedure if ‘‘2264. Scope of Federal review; district court prisoner has competently and knowingly the State establishes by rule of its court of adjudications. waived such counsel, and after having been last resort or by statute a mechanism for the ‘‘2265. Application to State unitary review advised of the consequences, a State prisoner appointment, compensation, and payment of procedure. under capital sentence waives the right to reasonable litigation expenses of competent ‘‘2266. Limitation periods for determining pursue habeas corpus review under section counsel in the unitary review proceedings, applications and motions. 2254; or including expenses relating to the litigation ‘‘§ 2261. Prisoners in State custody subject to ‘‘(3) a State prisoner files a habeas corpus of collateral claims in the proceedings. The capital sentence; appointment of counsel; petition under section 2254 within the time rule of court or statute must provide stand- requirement of rule of court or statute; pro- required by section 2263 and fails to make a ards of competency for the appointment of cedures for appointment substantial showing of the denial of a Fed- such counsel. ‘‘(a) This chapter shall apply to cases aris- eral right or is denied relief in the district ‘‘(b) To qualify under this section, a uni- ing under section 2254 brought by prisoners court or at any subsequent stage of review. tary review procedure must include an offer ‘‘(c) If one of the conditions in subsection in State custody who are subject to a capital of counsel following trial for the purpose of (b) has occurred, no Federal court thereafter sentence. It shall apply only if the provisions representation on unitary review, and entry shall have the authority to enter a stay of of subsections (b) and (c) are satisfied. of an order, as provided in section 2261(c), ‘‘(b) This chapter is applicable if a State execution in the case, unless the court of ap- concerning appointment of counsel or waiver establishes by statute, rule of its court of peals approves the filing of a second or suc- or denial of appointment of counsel for that last resort, or by another agency authorized cessive application under section 2244(b). purpose. No counsel appointed to represent by State law, a mechanism for the appoint- ‘‘§ 2263. Filing of habeas corpus application; the prisoner in the unitary review proceed- ment, compensation, and payment of reason- time requirements; tolling rules ings shall have previously represented the able litigation expenses of competent coun- ‘‘(a) Any application under this chapter for prisoner at trial in the case for which the ap- sel in State post-conviction proceedings habeas corpus relief under section 2254 must pointment is made unless the prisoner and counsel expressly request continued rep- brought by indigent prisoners whose capital be filed in the appropriate district court not resentation. convictions and sentences have been upheld later than 180 days after final State court af- ‘‘(c) Sections 2262, 2263, 2264, and 2266 shall firmance of the conviction and sentence on on direct appeal to the court of last resort in apply in relation to cases involving a sen- direct review or the expiration of the time the State or have otherwise become final for tence of death from any State having a uni- for seeking such review. State law purposes. The rule of court or stat- tary review procedure that qualifies under ute must provide standards of competency ‘‘(b) The time requirements established by subsection (a) shall be tolled— this section. References to State ‘post-con- for the appointment of such counsel. viction review’ and ‘direct review’ in such ‘‘(c) Any mechanism for the appointment, ‘‘(1) from the date that a petition for cer- sections shall be understood as referring to tiorari is filed in the Supreme Court until compensation, and reimbursement of counsel unitary review under the State procedure. the date of final disposition of the petition if as provided in subsection (b) must offer The reference in section 2262(a) to ‘an order a State prisoner files the petition to secure counsel to all State prisoners under capital under section 2261(c)’ shall be understood as review by the Supreme Court of the affirm- sentence and must provide for the entry of referring to the post-trial order under sub- ance of a capital sentence on direct review an order by a court of record— section (b) concerning representation in the by the court of last resort of the State or ‘‘(1) appointing one or more counsels to unitary review proceedings, but if a tran- other final State court decision on direct re- represent the prisoner upon a finding that script of the trial proceedings is unavailable view; the prisoner is indigent and accepted the at the time of the filing of such an order in offer or is unable competently to decide ‘‘(2) from the date on which the first peti- the appropriate State court, then the start whether to accept or reject the offer; tion for post-conviction review or other col- of the 180-day limitation period under sec- ‘‘(2) finding, after a hearing if necessary, lateral relief is filed until the final State tion 2263 shall be deferred until a transcript that the prisoner rejected the offer of coun- court disposition of such petition; and is made available to the prisoner or counsel sel and made the decision with an under- ‘‘(3) during an additional period not to ex- of the prisoner. standing of its legal consequences; or ceed 30 days, if— ‘‘§ 2266. Limitation periods for determining ‘‘(3) denying the appointment of counsel ‘‘(A) a motion for an extension of time is applications and motions upon a finding that the prisoner is not indi- filed in the Federal district court that would gent. have jurisdiction over the case upon the fil- ‘‘(a) The adjudication of any application ‘‘(d) No counsel appointed pursuant to sub- ing of a habeas corpus application under sec- under section 2254 that is subject to this sections (b) and (c) to represent a State pris- tion 2254; and chapter, and the adjudication of any motion oner under capital sentence shall have pre- ‘‘(B) a showing of good cause is made for under section 2255 by a person under sen- viously represented the prisoner at trial or the failure to file the habeas corpus applica- tence of death, shall be given priority by the on direct appeal in the case for which the ap- tion within the time period established by district court and by the court of appeals pointment is made unless the prisoner and this section. over all noncapital matters. ‘‘(b)(1)(A) A district court shall render a counsel expressly request continued rep- ‘‘§ 2264. Scope of Federal review; district final determination and enter a final judg- resentation. court adjudications ment on any application for a writ of habeas ‘‘(e) The ineffectiveness or incompetence of ‘‘(a) Whenever a State prisoner under cap- corpus brought under this chapter in a cap- counsel during State or Federal post-convic- ital sentence files a petition for habeas cor- ital case not later than 180 days after the tion proceedings in a capital case shall not pus relief to which this chapter applies, the date on which the application is filed. be a ground for relief in a proceeding arising district court shall only consider a claim or ‘‘(B) A district court shall afford the par- under section 2254. This limitation shall not claims that have been raised and decided on ties at least 120 days in which to complete preclude the appointment of different coun- the merits in the State courts, unless the all actions, including the preparation of all sel, on the court’s own motion or at the re- failure to raise the claim properly is— pleadings and briefs, and if necessary, a hear- quest of the prisoner, at any phase of State ‘‘(1) the result of State action in violation ing, prior to the submission of the case for or Federal post-conviction proceedings on of the Constitution or laws of the United decision. the basis of the ineffectiveness or incom- States; ‘‘(C)(i) A district court may delay for not petence of counsel in such proceedings. ‘‘(2) the result of the Supreme Court rec- more than one additional 30-day period be- ‘‘§ 2262. Mandatory stay of execution; dura- ognition of a new Federal right that is made yond the period specified in subparagraph tion; limits on stays of execution; succes- retroactively applicable; or (A), the rendering of a determination of an sive petitions ‘‘(3) based on a factual predicate that could application for a writ of habeas corpus if the ‘‘(a) Upon the entry in the appropriate not have been discovered through the exer- court issues a written order making a find- State court of record of an order under sec- cise of due diligence in time to present the ing, and stating the reasons for the finding, June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7871 that the ends of justice that would be served ‘‘(B)(i) A court of appeals shall decide (1) in paragraph (1), by striking ‘‘and later by allowing the delay outweigh the best in- whether to grant a petition for rehearing or found in the United States’’; terests of the public and the applicant in a other request for rehearing en banc not later (2) by amending paragraph (2) to read as speedy disposition of the application. than 30 days after the date on which the peti- follows: ‘‘(ii) The factors, among others, that a tion for rehearing is filed unless a responsive ‘‘(2) The courts of the United States have court shall consider in determining whether pleading is required, in which case the court jurisdiction over the offense in paragraph (1) a delay in the disposition of an application is shall decide whether to grant the petition if— warranted are as follows: not later than 30 days after the date on ‘‘(A) a national of the United States was ‘‘(I) Whether the failure to allow the delay which the responsive pleading is filed. aboard the aircraft; would be likely to result in a miscarriage of ‘‘(ii) If a petition for rehearing or rehear- ‘‘(B) an offender is a national of the United justice. ing en banc is granted, the court of appeals States; or ‘‘(II) Whether the case is so unusual or so shall hear and render a final determination ‘‘(C) an offender is afterwards found in the complex, due to the number of defendants, of the appeal not later than 120 days after United States.’’; and the nature of the prosecution, or the exist- the date on which the order granting rehear- (3) by adding at the end the following new ence of novel questions of fact or law, that it ing or rehearing en banc is entered. paragraph: is unreasonable to expect adequate briefing ‘‘(2) The time limitations under paragraph ‘‘(3) For purposes of this subsection, the within the time limitations established by (1) shall apply to— term ‘national of the United States’ has the subparagraph (A). ‘‘(A) an initial application for a writ of ha- meaning given such term in section 101(a)(22) ‘‘(III) Whether the failure to allow a delay beas corpus; of the Immigration and Nationality Act (8 in a case, that, taken as a whole, is not so ‘‘(B) any second or successive application U.S.C. 1101(a)(22)).’’. unusual or so complex as described in for a writ of habeas corpus; and (b) DESTRUCTION OF AIRCRAFT OR AIRCRAFT subclause (II), but would otherwise deny the ‘‘(C) any redetermination of an application applicant reasonable time to obtain counsel, FACILITIES.—Section 32(b) of title 18, United for a writ of habeas corpus or related appeal States Code, is amended— would unreasonably deny the applicant or following a remand by the court of appeals the government continuity of counsel, or (1) by striking ‘‘(b) Whoever’’ and inserting en banc or the Supreme Court for further ‘‘(b)(1) Whoever’’; would deny counsel for the applicant or the proceedings, in which case the limitation pe- government the reasonable time necessary (2) by redesignating paragraphs (1) through riod shall run from the date the remand is (4) as subparagraphs (A) through (D), respec- for effective preparation, taking into ac- ordered. count the exercise of due diligence. tively; ‘‘(3) The time limitations under this sec- (3) by striking ‘‘, if the offender is later ‘‘(iii) No delay in disposition shall be per- tion shall not be construed to entitle an ap- missible because of general congestion of the found in the United States,’’; and plicant to a stay of execution, to which the (4) by adding at the end the following new court’s calendar. applicant would otherwise not be entitled, ‘‘(iv) The court shall transmit a copy of paragraphs: for the purpose of litigating any application any order issued under clause (i) to the Di- or appeal. ‘‘(2) The courts of the United States have rector of the Administrative Office of the ‘‘(4)(A) The failure of a court to meet or jurisdiction over an offense described in this United States Courts for inclusion in the re- comply with a time limitation under this subsection if— port under paragraph (5). ‘‘(A) a national of the United States was on ‘‘(2) The time limitations under paragraph section shall not be a ground for granting re- lief from a judgment of conviction or sen- board, or would have been on board, the air- (1) shall apply to— craft; ‘‘(A) an initial application for a writ of ha- tence. ‘‘(B) The State may enforce a time limita- ‘‘(B) an offender is a national of the United beas corpus; States; or ‘‘(B) any second or successive application tion under this section by applying for a writ of mandamus to the Supreme Court. ‘‘(C) an offender is afterwards found in the for a writ of habeas corpus; and United States. ‘‘(C) any redetermination of an application ‘‘(5) The Administrative Office of United for a writ of habeas corpus following a re- States Courts shall submit to Congress an ‘‘(3) For purposes of this subsection, the mand by the court of appeals or the Supreme annual report on the compliance by the term ‘national of the United States’ has the Court for further proceedings, in which case courts of appeals with the time limitations meaning given such term in section 101(a)(22) the limitation period shall run from the date under this section.’’. of the Immigration and Nationality Act (8 the remand is ordered. (b) TECHNICAL AMENDMENT.—The part anal- U.S.C. 1101(a)(22)).’’. ‘‘(3)(A) The time limitations under this ysis for part IV of title 28, United States (c) MURDER OR MANSLAUGHTER OF INTER- section shall not be construed to entitle an Code, is amended by adding after the item NATIONALLY PROTECTED PERSONS.—Section applicant to a stay of execution, to which relating to chapter 153 the following new 1116 of title 18, United States Code, is amend- the applicant would otherwise not be enti- item: ed— tled, for the purpose of litigating any appli- ‘‘154. Special habeas corpus pro- (1) in subsection (a), by striking ‘‘, except cation or appeal. cedures in capital cases ...... 2261.’’. that’’; ‘‘(B) No amendment to an application for a (c) EFFECTIVE DATE.—Chapter 154 of title (2) in subsection (b), by adding at the end writ of habeas corpus under this chapter 28, United States Code (as added by sub- the following new paragraph: shall be permitted after the filing of the an- section (a)) shall apply to cases pending on ‘‘(7) ‘National of the United States’ has the swer to the application, except on the or after the date of enactment of this Act. meaning given such term in section 101(a)(22) grounds specified in section 2244(b). SEC. 608. TECHNICAL AMENDMENT. of the Immigration and Nationality Act (8 ‘‘(4)(A) The failure of a court to meet or Section 408(q) of the Controlled Substances U.S.C. 1101(a)(22)).’’; and comply with a time limitation under this Act (21 U.S.C. 848(q)) is amended by amend- (3) in subsection (c), by striking the first section shall not be a ground for granting re- ing paragraph (9) to read as follows: sentence and inserting the following: ‘‘If the lief from a judgment of conviction or sen- ‘‘(9) Upon a finding that investigative, ex- victim of an offense under subsection (a) is tence. an internationally protected person outside ‘‘(B) The State may enforce a time limita- pert, or other services are reasonably nec- the United States, the United States may ex- tion under this section by petitioning for a essary for the representation of the defend- ercise jurisdiction over the offense if (1) the writ of mandamus to the court of appeals. ant, whether in connection with issues relat- victim is a representative, officer, employee, The court of appeals shall act on the petition ing to guilt or the sentence, the court may or agent of the United States, (2) an offender for a writ or mandamus not later than 30 authorize the defendant’s attorneys to ob- is a national of the United States, or (3) an days after the filing of the petition. tain such services on behalf of the defendant offender is afterwards found in the United ‘‘(5)(A) The Administrative Office of Unit- and, if so authorized, shall order the pay- States.’’. ed States Courts shall submit to Congress an ment of fees and expenses therefor under annual report on the compliance by the dis- paragraph (10). No ex parte proceeding, com- (d) PROTECTION OF INTERNATIONALLY PRO- trict courts with the time limitations under munication, or request may be considered TECTED PERSONS.—Section 112 of title 18, this section. pursuant to this section unless a proper United States Code, is amended— ‘‘(B) The report described in subparagraph showing is made concerning the need for con- (1) in subsection (c), by inserting ‘‘national (A) shall include copies of the orders submit- fidentiality. Any such proceeding, commu- of the United States,’’ before ‘‘and’’; and ted by the district courts under paragraph nication, or request shall be transcribed and (2) in subsection (e), by striking the first (1)(B)(iv). made a part of the record available for appel- sentence and inserting the following: ‘‘If the ‘‘(c)(1)(A) A court of appeals shall hear and late review.’’. victim of an offense under subsection (a) is render a final determination of any appeal of Subtitle B—Criminal Procedural an internationally protected person outside an order granting or denying, in whole or in Improvements the United States, the United States may ex- part, an application brought under this chap- SEC. 621. CLARIFICATION AND EXTENSION OF ercise jurisdiction over the offense if (1) the ter in a capital case not later than 120 days CRIMINAL JURISDICTION OVER CER- victim is a representative, officer, employee, after the date on which the reply brief is TAIN TERRORISM OFFENSES OVER- or agent of the United States, (2) an offender filed, or if no reply brief is filed, not later SEAS. is a national of the United States, or (3) an than 120 days after the date on which the an- (a) AIRCRAFT PIRACY.—Section 46502(b) of offender is afterwards found in the United swering brief is filed. title 49, United States Code, is amended— States.’’. S 7872 CONGRESSIONAL RECORD — SENATE June 7, 1995

(e) THREATS AGAINST INTERNATIONALLY ‘‘(c) Whenever any waters of the territorial funds),’’ the following: ‘‘section 831 (relating PROTECTED PERSONS.—Section 878 of title 18, sea of the United States lie outside the terri- to prohibited transactions involving nuclear United States Code, is amended— tory of any State, Commonwealth, territory, materials), section 844 (f) or (i) (relating to (1) in subsection (c), by inserting ‘‘national possession, or district, such waters (includ- destruction by explosives or fire of govern- of the United States,’’ before ‘‘and’’; and ing the airspace above and the seabed and ment property or property affecting inter- (2) in subsection (d), by striking the first subsoil below, and artificial islands and fixed state or foreign commerce),’’; sentence and inserting the following: ‘‘If the structures erected thereon) shall be deemed (D) by inserting after ‘‘sections 891–894 (re- victim of an offense under subsection (a) is for purposes of subsection (a) to lie within lating to extortionate credit transactions),’’ an internationally protected person outside the area of that State, Commonwealth, terri- the following: ‘‘section 956 (relating to con- the United States, the United States may ex- tory, possession, or district it would lie with- spiracy to kill, kidnap, maim, or injure cer- ercise jurisdiction over the offense if (1) the in if the boundaries of such State, Common- tain property in a foreign country),’’; victim is a representative, officer, employee, wealth, territory, possession, or district were (E) by inserting after ‘‘section 1084 (relat- or agent of the United States, (2) an offender extended seaward to the outer limit of the ing to the transmission of gambling informa- is a national of the United States, or (3) an territorial sea of the United States.’’. tion),’’ the following: ‘‘section 1111 (relating offender is afterwards found in the United SEC. 623. EXPANSION OF WEAPONS OF MASS DE- to murder), section 1114 (relating to murder States.’’. STRUCTION STATUTE. of United States law enforcement officials), Section 2332a of title 18, United States (f) KIDNAPPING OF INTERNATIONALLY PRO- section 1116 (relating to murder of foreign of- Code, is amended— TECTED PERSONS.—Section 1201(e) of title 18, ficials, official guests, or internationally (1) in subsection (a)— United States Code, is amended— protected persons), section 1203 (relating to (A) by inserting ‘‘threatens,’’ before ‘‘at- (1) by striking the first sentence and in- hostage taking),’’; tempts’’; serting the following: ‘‘If the victim of an of- (F) by inserting after ‘‘section 1344 (relat- (B) in paragraph (2), by striking ‘‘; or’’ and fense under subsection (a) is an internation- ing to financial institution fraud),’’ the fol- ally protected person outside the United inserting the following: ‘‘and the results of such use affect interstate or foreign com- lowing: ‘‘section 1361 (relating to willful in- States, the United States may exercise juris- jury of government property within the spe- diction over the offense if (1) the victim is a merce or, in the case of a threat, attempt, or conspiracy, would have affected interstate or cial maritime and territorial jurisdiction),’’; representative, officer, employee, or agent of (G) by inserting after ‘‘section 1513 (relat- the United States, (2) an offender is a na- foreign commerce if such use had occurred;’’; (C) by redesignating paragraph (3) as para- ing to retaliating against a witness, victim, tional of the United States, or (3) an offender or an informant),’’ the following: ‘‘section is afterwards found in the United States.’’; graph (4); (D) by inserting after paragraph (2) the fol- 1751 (relating to Presidential assassina- and tion),’’; (2) by adding at the end the following: ‘‘For lowing: ‘‘(3) against a victim, or intended victim, (H) by inserting after ‘‘section 1958 (relat- purposes of this subsection, the term ‘na- that is the United States Government, a ing to use of interstate commerce facilities tional of the United States’ has the meaning member of the uniformed services, or any of- in the commission of murder-for-hire),’’ the given such term in section 101(a)(22) of the ficial, officer, employee, or agent of the leg- following: ‘‘section 2280 (relating to violence Immigration and Nationality Act (8 U.S.C. islative, executive, or judicial branches, or against maritime navigation), section 2281 1101(a)(22).’’. any department or agency, of the United (relating to violence against maritime fixed (g) VIOLENCE AT INTERNATIONAL AIR- States; and’’; and platforms),’’; and PORTS.—Section 37(b)(2) of title 18, United (E) in paragraph (4), as redesignated, by in- (I) by inserting after ‘‘2321 (relating to States Code, is amended to read as follows: serting before the comma at the end the fol- trafficking in certain motor vehicles or ‘‘(2) the prohibited activity takes place lowing: ‘‘, or is within the United States and motor vehicle parts),’’ the following: ‘‘sec- outside the United States, and— is used in any activity affecting interstate or tion 2332 (relating to terrorist acts abroad ‘‘(A) the offender is later found in the Unit- foreign commerce’’. against United States nationals), section ed States; or (2) by redesignating subsection (b) as sub- 2332a (relating to use of weapons of mass de- ‘‘(B) an offender or a victim is a national of section (c); struction), section 2332b (relating to acts of the United States (as defined in section (3) by adding immediately after subsection terrorism transcending national boundaries), 101(a)(22) of the Immigration and Nationality (a) the following new subsection: section 2339A (relating to providing material Act (8 U.S.C. 1101(a)(22))).’’. ‘‘(b) USE OUTSIDE UNITED STATES.—Any na- support to terrorists),’’; (h) NATIONAL OF THE UNITED STATES DE- tional of the United States who outside of (2) by striking ‘‘or’’ before ‘‘(E)’’; and FINED.—Section 178 of title 18, United States the United States uses, threatens, attempts, (3) by inserting before the semicolon at the Code, is amended— or conspires to use, a weapon of mass de- end the following: ‘‘, or (F) section 46502 of (1) by striking the ‘‘and’’ at the end of struction, shall be imprisoned for any term title 49, United States Code’’. paragraph (3); of years or for life, and if death results, shall (2) by striking the period at the end of be punished by death or imprisonment for SEC. 625. ADDITION OF TERRORISM OFFENSES paragraph (4) and inserting ‘‘; and’’; and any term of years or for life. The preceding TO THE MONEY LAUNDERING STAT- UTE. (3) by adding at the end the following new sentence does not apply to a person perform- paragraph: ing an act that, as performed, is within the Section 1956(c)(7) of title 18, United States ‘‘(5) the term ‘national of the United scope of the person’s official duties as an of- Code, is amended— States’ has the meaning given such term in ficer or employee of the United States or as (1) in subparagraph (B), by amending section 101(a)(22) of the Immigration and Na- a member of the Armed Forces of the United clause (ii) to read as follows: tionality Act (8 U.S.C. 1101(a)(22)).’’. States, or to a person employed by a con- ‘‘(ii) murder, kidnapping, robbery, extor- SEC. 622. EXPANSION OF TERRITORIAL SEA. tractor of the United States for performing tion, or destruction of property by means of (a) TERRITORIAL SEA EXTENDING TO TWELVE an act that, as performed, is authorized explosive or fire;’’; and MILES INCLUDED IN SPECIAL MARITIME AND under the contract.’’; and (2) in subparagraph (D)— TERRITORIAL JURISDICTION.—The Congress (4) by amending subsection (c)(2)(B), as re- (A) by inserting after ‘‘an offense under’’ declares that all the territorial sea of the designated by paragraph (3), by striking the following: ‘‘section 32 (relating to the de- United States, as defined by Presidential ‘‘poison gas’’ and inserting ‘‘any poisonous struction of aircraft), section 37 (relating to Proclamation 5928 of December 27, 1988, for chemical agent or substance, regardless of violence at international airports), section purposes of criminal jurisdiction is part of form or delivery system, designed for caus- 115 (relating to influencing, impeding, or re- the United States, subject to its sovereignty, ing widespread death or injury;’’. taliating against a Federal official by and, for purposes of Federal criminal juris- SEC. 624. ADDITION OF TERRORISM OFFENSES threatening or injuring a family member),’’; diction, is within the special maritime and TO THE RICO STATUTE. (B) by inserting after ‘‘section 215 (relating territorial jurisdiction of the United States Section 1961(1) of title 18, United States to commissions or gifts for procuring wherever that term is used in title 18, United Code, is amended— loans),’’ the following: ‘‘section 351 (relating States Code. (1) in subparagraph (B)— to congressional or Cabinet officer assassina- (b) ASSIMILATED CRIMES IN EXTENDED TER- (A) by inserting after ‘‘Section’’ the follow- tion),’’; RITORIAL SEA.—Section 13 of title 18, United ing: ‘‘32 (relating to the destruction of air- (C) by inserting after ‘‘section 798 (relating States Code (relating to the adoption of craft), section 37 (relating to violence at to espionage),’’ the following: ‘‘section 831 State laws for areas within Federal jurisdic- international airports), section 115 (relating (relating to prohibited transactions involv- tion), is amended— to influencing, impeding, or retaliating ing nuclear materials), section 844 (f) or (i) (1) in subsection (a), by inserting after against a Federal official by threatening or (relating to destruction by explosives or fire ‘‘title,’’ the following: ‘‘or on, above, or injuring a family member), section’’; of Government property or property affect- below any portion of the territorial sea of (B) by inserting after ‘‘section 224 (relating ing interstate or foreign commerce),’’; the United States not within the jurisdiction to sports bribery),’’ the following: ‘‘section (D) by inserting after ‘‘section 875 (relating of any State, Commonwealth, territory, pos- 351 (relating to congressional or Cabinet offi- to interstate communications),’’ the follow- session, or district’’; and cer assassination),’’; ing: ‘‘section 956 (relating to conspiracy to (2) by adding at the end the following new (C) by inserting after ‘‘section 664 (relating kill, kidnap, maim, or injure certain prop- subsection: to embezzlement from pension and welfare erty in a foreign country),’’; June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7873 (E) by inserting after ‘‘section 1032 (relat- 721(b)(2), is amended by inserting ‘‘or con- (2) plastic explosives can be used with lit- ing to concealment of assets from conserva- spires’’ after ‘‘attempts’’. tle likelihood of detection for acts of unlaw- tor, receiver, or liquidating agent of finan- (b) VIOLENCE AT INTERNATIONAL AIR- ful interference with civil aviation, mari- cial institution),’’ the following: ‘‘section PORTS.—Section 37(a) of title 18, United time navigation, and other modes of trans- 1111 (relating to murder), section 1114 (relat- States Code, is amended by inserting ‘‘or portation; ing to murder of United States law enforce- conspires’’ after ‘‘attempts’’. (3) the criminal use of plastic explosives ment officials), section 1116 (relating to mur- (c) INFLUENCING, IMPEDING, OR RETALIATING places innocent lives in jeopardy, endangers der of foreign officials, official guests, or AGAINST A FEDERAL OFFICIAL BY THREATEN- national security, affects domestic tran- internationally protected persons),’’; ING OR INJURING A FAMILY MEMBER.—(1) Sec- quility, and gravely affects interstate and (F) by inserting after ‘‘section 1203 (relat- tion 115(a)(1)(A) of title 18, United States foreign commerce; ing to hostage taking)’’ the following: ‘‘sec- Code, is amended by inserting ‘‘or conspires’’ (4) the marking of plastic explosives for tion 1361 (relating to willful injury of Gov- after ‘‘attempts’’. the purpose of detection would contribute ernment property), section 1363 (relating to (2) Section 115(a)(2) of title 18, United significantly to the prevention and punish- destruction of property within the special States Code, as amended by section 729, is ment of such unlawful acts; and maritime and territorial jurisdiction),’’; further amended by inserting ‘‘or conspires’’ (5) for the purpose of deterring and detect- (G) by inserting after ‘‘section 1708 (relat- after ‘‘attempts’’. ing such unlawful acts, the Convention on ing to theft from the mail)’’ the following: (3) Section 115(b)(2) of title 18, United the Marking of Plastic Explosives for the ‘‘section 1751 (relating to Presidential assas- States Code, is amended by striking both Purpose of Detection, Done at Montreal on 1 sination),’’; times it appears ‘‘or attempted kidnapping’’ March 1991, requires each contracting State (H) by inserting after ‘‘2114 (relating to and inserting both times ‘‘, attempted kid- to adopt appropriate measures to ensure that bank and postal robbery and theft),’’ the fol- napping or conspiracy to kidnap’’. plastic explosives are duly marked and con- (4)(A) Section 115(b)(3) of title 18, United lowing: ‘‘section 2280 (relating to violence trolled. States Code, is amended by striking ‘‘or at- against maritime navigation), section 2281 (b) PURPOSE.—The purpose of this title is tempted murder’’ and inserting ‘‘, attempted (relating to violence against maritime fixed to fully implement the Convention on the murder or conspiracy to murder’’. platforms),’’; and Marking of Plastic Explosives for the Pur- (B) Section 115(b)(3) of title 18, United (I) by striking ‘‘of this title’’ and inserting pose of Detection, Done at Montreal on 1 States Code, is further amended by striking the following: ‘‘section 2332 (relating to ter- March 1991. ‘‘and 1113’’ and inserting ‘‘, 1113, and 1117’’. rorist acts abroad against United States na- (d) PROHIBITIONS WITH RESPECT TO BIOLOGI- SEC. 702. DEFINITIONS. tionals), section 2332a (relating to use of CAL WEAPONS.—Section 175(a) of title 18, Section 841 of title 18, United States Code, weapons of mass destruction), section 2332b United States Code, is amended by inserting is amended by adding at the end the follow- (relating to international terrorist acts tran- ‘‘, or conspires to do so,’’ after ‘‘any organi- ing new subsections: scending national boundaries), 2339A (relat- zation to do so,’’. ‘‘(o) ‘Convention on the Marking of Plastic ing to providing material support to terror- (e) HOSTAGE TAKING.—Section 1203(a) of Explosives’ means the Convention on the ists) of this title, section 46502 of title 49, title 18, United States Code, is amended by Marking of Plastic Explosives for the Pur- United States Code,’’. inserting ‘‘or conspires’’ after ‘‘attempts’’. pose of Detection, Done at Montreal on 1 SEC. 626. PROTECTION OF CURRENT OR FORMER (f) VIOLENCE AGAINST MARITIME NAVIGA- March 1991. OFFICIALS, OFFICERS, OR EMPLOY- TION.—Section 2280(a)(1)(H) of title 18, United ‘‘(p) ‘Detection agent’ means any one of EES OF THE UNITED STATES. States Code, is amended by inserting ‘‘or the substances specified in this subsection (a) AMENDMENT TO INCLUDE ASSAULTS, conspires’’ after ‘‘attempts’’. when introduced into a plastic explosive or MURDERS, AND THREATS AGAINST FAMILIES OF (g) VIOLENCE AGAINST MARITIME FIXED formulated in such explosive as a part of the FEDERAL OFFICIALS.—Section 115(a)(2) of PLATFORMS.—Section 2281(a)(1)(F) of title 18, manufacturing process in such a manner as title 18, United States Code, is amended by United States Code, is amended by inserting to achieve homogeneous distribution in the inserting ‘‘, or threatens to assault, kidnap, ‘‘or conspires’’ after ‘‘attempts’’. finished explosive, including— or murder, any person who formerly served (h) AIRCRAFT PIRACY.—Section 46502 of ‘‘(1) Ethylene glycol dinitrate (EGDN), as a person designated in paragraph (1), or’’ title 49, United States Code, is amended— C2H4(NO3)2, molecular weight 152, when the after ‘‘assaults, kidnaps, or murders, or at- (1) in subsection (a)(2), by inserting ‘‘, con- minimum concentration in the finished ex- tempts to kidnap or murder’’. spiring,’’ after ‘‘committing’’ and plosive is 0.2 percent by mass; (b) MURDER OR ATTEMPTS TO MURDER CUR- (2) in subsection (b)— ‘‘(2) 2,3-Dimethyl-2,3-dinitrobutane RENT OR FORMER FEDERAL OFFICERS OR EM- (A) in paragraph (1), by inserting ‘‘or con- (DMNB), C6H12(NO2)2, molecular weight 176, PLOYEES.—Section 1114 of title 18, United spiring to commit’’ after ‘‘committing’’; when the minimum concentration in the fin- States Code, is amended to read as follows: (B) in paragraph (2), by inserting ‘‘con- ished explosive is 0.1 percent by mass; ‘‘§ 1114. Protection of officers and employees spired or’’ after ‘‘has placed,’’; and ‘‘(3) Para-Mononitrotoluene (p-MNT), of the United States (C) in paragraph (3), by inserting ‘‘con- C7H7NO2, molecular weight 137, when the ‘‘Whoever kills or attempts to kill a cur- spired or’’ after ‘‘has placed,’’. minimum concentration in the finished ex- rent or former officer or employee of the (i) CLARIFICATION OF MARITIME VIOLENCE plosive is 0.5 percent by mass; United States or its instrumentalities, or an JURISDICTION.—Section 2280(b)(1)(A) of title ‘‘(4) Ortho-Mononitrotoluene (o-MNT), 18, United States Code, is amended— immediate family member of such officer or C7H7NO2, molecular weight 137, when the employee, or any person assisting such an of- (1) in clause (ii), by striking ‘‘and the ac- minimum concentration in the finished ex- ficer or employee in the performance of offi- tivity is not prohibited as a crime by the plosive is 0.5 percent by mass; and cial duties, during or on account of the per- State in which the activity takes place’’; and ‘‘(5) any other substance in the concentra- formance of such duties or the provision of (2) in clause (iii), by striking ‘‘the activity tion specified by the Secretary, after con- such assistance, shall be punished— takes place on a ship flying the flag of a for- sultation with the Secretary of State and ‘‘(1) in the case of murder, as provided eign country or outside the United States,’’. the Secretary of Defense, which has been under section 1111; SEC. 628. CLARIFICATION OF FEDERAL JURISDIC- added to the table in part 2 of the Technical ‘‘(2) in the case of manslaughter, as pro- TION OVER BOMB THREATS. Annex to the Convention on the Marking of vided under section 1112; and Section 844(e) of title 18, United States Plastic Explosives. ‘‘(3) in the case of attempted murder or Code, is amended— ‘‘(q) ‘Plastic explosive’ means an explosive manslaughter as provided in section 1113, not (1) by striking ‘‘(e) Whoever’’ and inserting material in flexible or elastic sheet form for- more than 20 years.’’. ‘‘(e)(1) Whoever’’; and mulated with one or more high explosives (c) AMENDMENT TO CLARIFY THE MEANING (2) by adding at the end the following new which in their pure form have a vapor pres- OF THE TERM DEADLY OR DANGEROUS WEAPON paragraph: sure less than 10¥4 Pa at a temperature of ‘‘(2) Whoever willfully makes any threat, IN THE PROHIBITION ON ASSAULT ON FEDERAL 25°C., is formulated with a binder material, or maliciously conveys false information OFFICERS OR EMPLOYEES.—Section 111(b) of and is as a mixture malleable or flexible at title 18, United States Code, is amended by knowing the same to be false, concerning an normal room temperature.’’. attempt or alleged attempt being made, or to inserting after ‘‘deadly or dangerous weap- SEC. 703. REQUIREMENT OF DETECTION AGENTS on’’ the following: ‘‘(including a weapon in- be made to violate subsection (f) or (i) of this FOR PLASTIC EXPLOSIVES. tended to cause death or danger but that section or section 81 of this title shall be Section 842 of title 18, United States Code, fails to do so by reason of a defective or fined under this title, imprisoned for not is amended by adding after subsection (k) missing component)’’. more than 5 years, or both.’’. the following new subsections: SEC. 627. ADDITION OF CONSPIRACY TO TERROR- TITLE VII—MARKING OF PLASTIC ‘‘(l) It shall be unlawful for any person to ISM OFFENSES. EXPLOSIVES manufacture any plastic explosive that does (a) DESTRUCTION OF AIRCRAFT OR AIRCRAFT SEC. 701. FINDINGS AND PURPOSES. not contain a detection agent. FACILITIES.—(1) Section 32(a)(7) of title 18, (a) FINDINGS.—The Congress finds that— ‘‘(m)(1) It shall be unlawful for any person United States Code, is amended by inserting (1) plastic explosives were used by terror- to import or bring into the United States, or ‘‘or conspires’’ after ‘‘attempts’’. ists in the bombings of Pan Am flight 103 in export from the United States, any plastic (2) Section 32(b)(D) of title 18, United December 1988 and UTA flight 722 in Septem- explosive that does not contain a detection States Code, as redesignated by section ber 1989; agent. S 7874 CONGRESSIONAL RECORD — SENATE June 7, 1995 ‘‘(2) This subsection does not apply to the ‘‘(B) training in explosives detection or de- ‘‘(l)(1) It shall be unlawful for any person importation or bringing into the United velopment or testing of explosives detection to manufacture, import, ship, transport, re- States, or the exportation from the United equipment; or ceive, possess, transfer, or distribute any ex- States, of any plastic explosive that was im- ‘‘(C) forensic science purposes; or plosive material that does not contain a ported, brought into, or manufactured in the ‘‘(2) was plastic explosive that, within 3 tracer element as prescribed by the Sec- United States prior to the date of enactment years after the date of enactment of the retary pursuant to regulation, knowing or of title VII of the Comprehensive Terrorism Comprehensive Terrorism Prevention Act of having reasonable cause to believe that the Prevention Act of 1995 by or on behalf of any 1995, will be or is incorporated in a military explosive material does not contain the re- agency of the United States performing mili- device within the territory of the United quired tracer element. tary or police functions (including any mili- States and remains an integral part of such ‘‘(2) For purposes of this subsection, explo- tary reserve component) or by or on behalf of military device, or is intended to be, or is in- sive material does not include smokeless or the National Guard of any State, not later corporated in, and remains an integral part black powder manufactured for uses set forth than 15 years after the date of entry into of a military device that is intended to be- in section 845(a) (4) and (5) of this chapter.’’. force of the Convention on the Marking of come, or has become, the property of any (d) Section 844, of title 18, United States Plastic Explosives, with respect to the Unit- agency of the United States performing mili- Code, is amended by inserting after ‘‘(a) ed States. tary or police functions (including any mili- through (i)’’ the phrase ‘‘and (l)’’. (e) Section 846, of title 18, United States ‘‘(n)(1) It shall be unlawful for any person tary reserve component) or the National Code, is amended by designating the present to ship, transport, transfer, receive, or pos- Guard of any State, wherever such device is section as ‘‘(a)’’ and by adding a new sub- sess any plastic explosive that does not con- located. tain a detection agent. section (b) reading as follows: ‘‘(3) For purposes of this subsection, the ‘‘(b) to facilitate the enforcement of this ‘‘(2) This subsection does not apply to— term ‘military device’ includes, but is not re- ‘‘(A) the shipment, transportation, trans- chapter the Secretary shall, within 6 months stricted to, shells, bombs, projectiles, mines, fer, receipt, or possession of any plastic ex- after submission of the study required by missiles, rockets, shaped charges, grenades, plosive that was imported, brought into, or subsection (a), promulgate regulations for perforators, and similar devices lawfully manufactured in the United States prior to the addition of tracer elements to explosive manufactured exclusively for military or po- the date of enactment of the Comprehensive materials manufactured in or imported into lice purposes.’’. Terrorism Prevention Act of 1995 by any per- the United States. Tracer elements to be son during a period not exceeding 3 years SEC. 706. INVESTIGATIVE AUTHORITY. added to explosive materials under provi- after the date of enactment of title VII of Section 846 of title 18, United States Code, sions of this subsection shall be of such char- the Comprehensive Terrorism Prevention is amended— acter and in such quantity as the Secretary Act of 1995; or (1) in the last sentence, by inserting in the may authorize or require, and such as will ‘‘(B) the shipment, transportation, trans- last sentence before ‘‘subsection’’ the phrase not substantially impair the quality of the fer, receipt, or possession of any plastic ex- ‘‘subsection (m) or (n) of section 842 or;’’, and explosive materials for their intended lawful plosive that was imported, brought into, or (2) by adding at the end the following: use, adversely affect the safety of these ex- manufactured in the United States prior to ‘‘The Attorney General shall exercise au- plosives, or have a substantially adverse ef- the date of enactment of title VII of the thority over violations of subsection (m) or fect on the environment.’’. Comprehensive Terrorism Prevention Act of (n) of section 842 only when they are com- (f) The penalties provided herein shall not 1995 by or on behalf of any agency of the mitted by a member of a terrorist or revolu- take effect until ninety days after the date United States performing a military or po- tionary group. In any matter involving a ter- of promulgation of the regulations provided lice function (including any military reserve rorist or revolutionary group or individual, for herein. component) or by or on behalf of the Na- as determined by the Attorney General, the TITLE VIII—NUCLEAR MATERIALS tional Guard of any State, not later than 15 Attorney General shall have primary inves- SEC. 801. FINDINGS AND PURPOSE. years after the date of entry into force of the tigative responsibility and the Secretary (a) FINDINGS.—The Congress finds that— Convention on the Marking of Plastic Explo- shall assist the Attorney General as re- (1) nuclear materials, including byproduct sives, with respect to the United States. quested.’’. materials, can be used to create radioactive ‘‘(o) It shall be unlawful for any person, SEC. 707. EFFECTIVE DATE. dispersal devices that are capable of causing other than an agency of the United States Except as otherwise provided in this title, serious bodily injury as well as substantial (including any military reserve component) this title and the amendments made by this damage to property and the environment; or the National Guard of any State, possess- title shall take effect 1 year after the date of (2) the potential use of nuclear materials, ing any plastic explosive on the date of en- enactment of this Act. including byproduct materials, enhances the actment of title VII of the Comprehensive SEC. 708. STUDY AND REQUIREMENTS FOR TAG- threat posed by terrorist activities and Terrorism Prevention Act of 1995, to fail to GING OF EXPLOSIVE MATERIALS, thereby has a greater effect on the security report to the Secretary within 120 days after AND STUDY AND RECOMMENDA- interests of the United States; such effective date the quantity of such ex- TIONS FOR RENDERING EXPLOSIVE (3) due to the widespread hazards presented plosives possessed, the manufacturer or im- COMPONENTS INERT AND IMPOSING by the threat of nuclear contamination, as porter, any marks of identification on such CONTROLS ON PRECURSORS OF EX- well as nuclear bombs, the United States has explosives, and such other information as PLOSIVES. a strong interest in ensuring that persons the Secretary may by regulations pre- (a) The Secretary of the Treasury shall who are engaged in the illegal acquisition scribe.’’. conduct a study and make recommendations and use of nuclear materials, including by- concerning— SEC. 704. CRIMINAL SANCTIONS. product materials, are prosecuted for their Section 844(a) of title 18, United States (1) the tagging of explosive materials for offenses; Code, is amended to read as follows: purposes of detection and identification; (4) the threat that nuclear materials will ‘‘(a) Any person who violates any of sub- (2) whether common chemicals used to be obtained and used by terrorist and other sections (a) through (i) or (l) through (o) of manufacture explosive materials can be ren- criminal organizations has increased sub- section 842 shall be fined under this title or dered inert and whether it is feasible to re- stantially since the enactment in 1982 of the imprisoned not more than 10 years, or quire it; and legislation that implemented the Convention both.’’. (3) whether controls can be imposed on cer- on the Physical Protection of Nuclear Mate- SEC. 705. EXCEPTIONS. tain precursor chemicals used to manufac- rial, codified at section 831 of title 18, United Section 845 of title 18, United States Code, ture explosive materials and whether it is States Code; is amended— feasible and cost-effective to require it. (5) the successful efforts to obtain agree- (1) in subsection (a), by inserting ‘‘(l), (m), In conducting the study, the Secretary shall ments from other countries to dismantle nu- (n), or (o) of section 842 and subsections’’ consult with other Federal, State and local clear weapons have resulted in increased after ‘‘subsections’’; officials with expertise in this area and such packaging and transportation of nuclear ma- (2) in paragraph (1), by inserting before the other individuals as shall be deemed nec- terials, thereby decreasing the security of semicolon ‘‘, and which pertain to safety’’; essary. Such study shall be completed within such materials by increasing the opportunity and twelve months after the enactment of this for unlawful diversion and theft; (3) by adding at the end the following new Act and shall be submitted to the Congress (6) the illicit trafficking in the relatively subsection: and made available to the public. Such study more common, commercially available and ‘‘(c) It is an affirmative defense against may include, if appropriate, recommenda- usable nuclear and byproduct materials any proceeding involving subsections (l) tions for legislation. poses a potential to cause significant loss of through (o) of section 842 if the proponent (b) There are authorized to be appropriated life and environmental damage; proves by a preponderance of the evidence for the study and recommendations con- (7) reported trafficking incidents in the that the plastic explosive— tained in paragraph (a) such sums as may be early 1990’s suggest that the individuals in- ‘‘(1) consisted of a small amount of plastic necessary. volved in trafficking these materials from explosive intended for and utilized solely in (c) Section 842, of title 18, United States Eurasia and Eastern Europe frequently con- lawful— Code, is amended by inserting after sub- ducted their black market sales of these ma- ‘‘(A) research, development, or testing of section (k), a new subsection (l) which reads terials within the Federal Republic of Ger- new or modified explosive materials; as follows: many, the Baltic States, the former Soviet June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7875 Union, Central Europe, and to a lesser extent ‘‘(5) the governmental entity under sub- deemed to be a reference to the ‘‘Cartney in the Middle European countries; section (a)(5) is the United States or the Koch McRaven Child Development Center’’. (8) the international community has be- threat under subsection (a)(6) is directed at SEC. 903. FOREIGN AIR TRAVEL SAFETY. come increasingly concerned over the illegal the United States.’’; and Section 44906 of title 49, United States possession of nuclear and nuclear byproduct (3) in subsection (f)— Code, is amended to read as follows: materials; (A) in paragraph (1)— ‘‘§ 44906. Foreign air carrier security pro- (9) the potentially disastrous ramifications (i) in subparagraph (A), by striking ‘‘with grams of increased access to nuclear and nuclear an isotopic concentration not in excess of 80 byproduct materials pose such a significant percent plutonium 238’’; and ‘‘The Administrator of the Federal Avia- future threat that the United States must (ii) in subparagraph (C), by striking ‘‘(C) tion Administration shall continue in effect use all lawful methods available to combat uranium’’ and inserting ‘‘(C) enriched ura- the requirement of section 129.25 of title 14, the illegal use of such materials; nium, defined as uranium’’; Code of Federal Regulations, that a foreign (10) the United States has an interest in (B) by redesignating paragraphs (2), (3), air carrier must adopt and use a security encouraging United States corporations to and (4) as paragraphs (4), (5), and (6), respec- program approved by the Administrator. The do business in the countries that comprised tively; Administrator shall only approve a security the former Soviet Union, and in other devel- (C) by inserting after paragraph (1) the fol- program of a foreign air carrier under sec- oping democracies; lowing new paragraph: tion 129.25, or any successor regulation, if (11) protection of such United States cor- ‘‘(2) the term ‘nuclear byproduct material’ the Administrator decides the security pro- porations from threats created by the unlaw- means any material containing any radio- gram provides passengers of the foreign air ful use of nuclear materials is important to active isotope created through an irradiation carrier a level of protection identical to the the success of the effort to encourage such process in the operation of a nuclear reactor level those passengers would receive under business ventures, and to further the foreign or accelerator;’’; the security programs of air carriers serving relations and commerce of the United (D) by striking ‘‘and’’ at the end of para- the same airport. The Administrator shall States; graph (4), as redesignated; prescribe regulations to carry out this sec- (12) the nature of nuclear contamination is (E) by striking the period at the end of tion.’’. such that it may affect the health, environ- subsection (f)(5), as redesignated, and insert- SEC. 904. PROOF OF CITIZENSHIP. ment, and property of United States nation- ing a semicolon; and Notwithstanding any other provision of als even if the acts that constitute the ille- (F) by adding at the end the following new law, a Federal, State, or local government gal activity occur outside the territory of paragraphs: agency may not use a voter registration card the United States, and are primarily directed ‘‘(6) the term ‘national of the United (or other related document) that evidences toward foreign nationals; and States’ has the meaning given such term in registration for an election for Federal of- (13) there is presently no Federal criminal section 101(a)(22) of the Immigration and Na- fice, as evidence to prove United States citi- statute that provides adequate protection to tionality Act (8 U.S.C. 1101(a)(22)); and zenship. United States interests from nonweapons ‘‘(7) the term ‘United States corporation or SEC. 905. COOPERATION OF FERTILIZER RE- grade, yet hazardous radioactive material, other legal entity’ means any corporation or SEARCH CENTERS. and from the illegal diversion of nuclear ma- other entity organized under the laws of the In conducting any portion of the study re- terials that are held for other than peaceful United States or any State, Commonwealth, lating to the regulation and use of fertilizer purposes. territory, possession, or district of the Unit- as a pre-explosive material, the Secretary of (b) PURPOSE.—The purpose of this title is ed States.’’. the Treasury shall consult with and receive input from non-profit fertilizer research cen- to provide Federal law enforcement agencies TITLE IX—MISCELLANEOUS PROVISIONS the necessary tools and fullest possible basis ters and include their opinions and findings SEC. 901. PROHIBITION ON DISTRIBUTION OF IN- in the report required under subsection (c). allowed under the Constitution to combat FORMATION RELATING TO EXPLO- the threat of nuclear contamination and pro- SIVE MATERIALS FOR A CRIMINAL SEC. 906. SPECIAL ASSESSMENTS ON CONVICTED liferation that may result from illegal pos- PURPOSE. PERSONS. session and use of radioactive materials. (a) Section 842 of title 18, United States Section 3013(a)(2) of title 18, United States Code, is amended— SEC. 802. EXPANSION OF SCOPE AND JURISDIC- Code, is amended by adding at the end the TIONAL BASES OF NUCLEAR MATE- following new subsection: (A) in subparagraph (A), by striking ‘‘$50’’ RIALS PROHIBITIONS. ‘‘(l) It shall be unlawful for any person to and inserting ‘‘not less than $100’’; and Section 831 of title 18, United States Code, teach or demonstrate the making of explo- (B) in subparagraph (B), by striking ‘‘$200’’ is amended— sive materials, or to distribute by any means and inserting ‘‘not less than $400’’. (1) in subsection (a)— information pertaining to, in whole or in SEC. 907. PROHIBITION ON ASSISTANCE UNDER (A) by striking ‘‘nuclear material’’ each part, the manufacture of explosive mate- ARMS EXPORT CONTROL ACT FOR COUNTRIES NOT COOPERATING place it appears and inserting ‘‘nuclear ma- rials, if the person intends or knows, that FULLY WITH UNITED STATES terial or nuclear byproduct material’’; such explosive materials or information will ANTITERRORISM EFFORTS. (B) in paragraph (1)— be used for, or in furtherance of, an activity Chapter 3 of the Arms Export Control Act (i) in subparagraph (A), by inserting ‘‘or that constitutes a Federal criminal offense (22 U.S.C. 2771 et seq.) is amended by adding the environment’’ after ‘‘property’’; and or a criminal purpose affecting interstate at the end the following: (ii) by amending subparagraph (B) to read commerce.’’. ‘‘Sec. 40A. Transactions with Countries Not as follows: (b) Section 844 of title 18, United States Fully Cooperating with United States ‘‘(B)(i) circumstances exist that are likely Code, is amended by designating subsection Antiterrorism Efforts. to cause the death or serious bodily injury to (a) as subsection (a)(1) and by adding the fol- ‘‘(a) PROHIBITED TRANSACTIONS.—No de- any person or substantial damage to prop- lowing new subsection: fense article or defense service may be sold erty or the environment, or such cir- ‘‘(a)(2) Any person who violates subsection or licensed for export under this Act to a for- cumstances have been represented to the de- (l) of section 842 of this chapter shall be fined eign country in a fiscal year unless the fendant to exist;’’; and under this title or imprisoned not more than President determines and certifies to Con- (C) in paragraph (6), by inserting ‘‘or the twenty years, or both.’’. gress at the beginning of that fiscal year, or environment’’ after ‘‘property’’; SEC. 902. DESIGNATION OF CARTNEY KOCH at any other time in that fiscal year before (2) in subsection (c)— MCRAVEN CHILD DEVELOPMENT such sale or license, that the country is co- (A) by amending paragraph (2) to read as CENTER. operating fully with United States follows: (a) DESIGNATION.— antiterrorism efforts. ‘‘(2) an offender or a victim is a national of (1) IN GENERAL.—The Federal building at ‘‘(b) WAIVER.—The President may waive the United States or a United States cor- 1314 LeMay Boulevard, Ellsworth Air Force the prohibition set forth in subsection (a) poration or other legal entity;’’; Base, South Dakota, shall be known and des- with respect to a specific transaction if the (B) in paragraph (3)— ignated as the ‘‘Cartney Koch McRaven President determines that the transaction is (i) by striking ‘‘at the time of the offense Child Development Center’’. essential to the national security interests the nuclear material is in use, storage, or (2) REPLACEMENT BUILDING.—If, after the of the United States.’’. transport, for peaceful purposes, and’’; and date of enactment of this Act, a new Federal SEC. 908. AUTHORITY TO REQUEST MILITARY AS- (ii) by striking ‘‘or’’ at the end of the para- building is built at the location described in SISTANCE WITH RESPECT TO OF- graph; paragraph (1) to replace the building de- FENSES INVOLVING BIOLOGICAL (C) in paragraph (4)— scribed in the paragraph, the new Federal AND CHEMICAL WEAPONS. (i) by striking ‘‘nuclear material for peace- building shall be known and designated as (a) BIOLOGICAL WEAPONS OF MASS DESTRUC- ful purposes’’ and inserting ‘‘nuclear mate- the ‘‘Cartney Koch McRaven Child Develop- TION.—Section 175 of title 18, United States rial or nuclear byproduct material’’; and ment Center’’. Code, is amended by adding at the end the (ii) by striking the period at the end of the (b) REFERENCES.—Any reference in a law, following: paragraph and inserting ‘‘; or’’; and map, regulation, document, paper, or other ‘‘(c)(1) MILITARY ASSISTANCE.—The Attor- (D) by adding at the end the following new record of the United States to a Federal ney General may request that the Secretary paragraph: building referred to in subsection (a) shall be of Defense provide assistance in support of S 7876 CONGRESSIONAL RECORD — SENATE June 7, 1995 Department of Justice activities relating to amended by inserting after section 2332a the ‘‘(5) The Secretary of Defense shall require the enforcement of this section in an emer- following: reimbursement as a condition for providing gency situation involving biological weapons ‘‘§ 2332b. Use of chemical weapons assistance under this subsection in accord- of mass destruction. Department of Defense ‘‘(a) OFFENSE.—A person who without law- ance with section 377 of title 10. resources, including personnel of the Depart- ful authority uses, or attempts or conspires ‘‘(6)(A) Except to the extent otherwise pro- ment of Defense, may be used to provide to use, a chemical weapon— vided by the Attorney General, the Deputy such assistance if— ‘‘(1) against a national of the United States Attorney General may exercise the author- ‘‘(A) the Secretary of Defense and the At- while such national is outside of the United ity of the Attorney General under this sub- torney General determine that an emergency States; section. The Attorney General may delegate situation involving biological weapons of ‘‘(2) against any person within the United the Attorney General’s authority under this mass destruction exists; and States; or subsection only to the Associate Attorney ‘‘(B) the Secretary of Defense determines ‘‘(3) against any property that is owned, General or an Assistant Attorney General that the provision of such assistance will not leased or used by the United States or by any and only if the Associate Attorney General adversely affect the military preparedness of department or agency of the United States, or Assistant Attorney General to whom dele- the United States. whether the property is within or outside of gated has been designated by the Attorney ‘‘(2) As used in this section, ‘emergency the United States, General to act for, and to exercise the gen- situation involving biological weapons of shall be imprisoned for any term of years or eral powers of, the Attorney General. mass destruction’ means a circumstance in- for life, and if death results, shall be pun- ‘‘(B) Except to the extent otherwise pro- volving a biological weapon of mass destruc- ished by death or imprisoned for any term of vided by the Secretary of Defense, the Dep- tion— years or for life. uty Secretary of Defense may exercise the ‘‘(A) that poses a serious threat to the in- ‘‘(b) DEFINITIONS.—For purposes of this sec- authority of the Secretary of Defense under terests of the United States; and tion— this subsection. The Secretary of Defense ‘‘(B) in which— ‘‘(1) the term ‘national of the United may delegate the Secretary’s authority ‘‘(i) civilian expertise is not readily avail- States’ has the meaning given in section under this subsection only to an Under Sec- able to provide the required assistance to 101(a)(22) of the Immigration and Nationality retary of Defense or an Assistant Secretary counter the threat posed by the biological Act (8 U.S.C. 1101(a)(22)); and of Defense and only if the Under Secretary or weapon of mass destruction involved; ‘‘(2) the term ‘chemical weapon’ means any Assistant Secretary to whom delegated has ‘‘(ii) Department of Defense special capa- weapon that is designed to cause widespread been designated by the Secretary to act for, bilities and expertise are needed to counter death or serious bodily injury through the and to exercise the general powers of, the the threat posed by the biological weapon of release, dissemination, or impact of toxic or Secretary.’’. mass destruction involved; and poisonous chemicals or their precursors. (c)(1) CIVILIAN EXPERTISE.—The President ‘‘(iii) enforcement of the law would be seri- ‘‘(c)(1) MILITARY ASSISTANCE.—The Attor- shall take reasonable measures to reduce ci- ously impaired if the Department of Defense ney General may request that the Secretary vilian law enforcement officials’ reliance on assistance were not provided. of Defense provide assistance in support of Department of Defense resources to counter ‘‘(3) The assistance referred to in para- Department of Justice activities relating to the threat posed by the use or potential use graph (1) includes the operation of equip- the enforcement of this section in an emer- of biological and chemical weapons of mass ment (including equipment made available gency situation involving chemical weapons destruction within the United States, includ- under section 372 of title 10) to monitor, con- of mass destruction. Department of Defense ing— tain, disable, or dispose of a biological weap- resources, including personnel of the Depart- (A) increasing civilian law enforcement ex- on of mass destruction or elements of the ment of Defense, may be used to provide pertise to counter such threat; weapon. such assistance if— (B) improving coordination between civil- ‘‘(4) The Attorney General and the Sec- ‘‘(A) the Secretary of Defense and the At- ian law enforcement officials and other civil- retary of Defense shall jointly issue regula- torney General determine that an emergency ian sources of expertise, both within and out- tions concerning the types of assistance that situation involving chemical weapons of side the Federal Government, to counter may be provided under this subsection. Such mass destruction exists; and such threat. regulations shall also describe the actions ‘‘(B) the Secretary of Defense determines (2) REPORT REQUIREMENT.—The President that Department of Defense personnel may that the provision of such assistance will not shall submit to the Congress— take in circumstances incident to the provi- adversely affect the military preparedness of (A) ninety days after the date of enact- sion of assistance under this subsection. the United States. ment of this Act, a report describing the re- ‘‘(2) As used in this section, ‘emergency Such regulations shall not authorize arrest spective policy functions and operational situation involving chemical weapons of or any assistance in conducting searches and roles of Federal agencies in countering the mass destruction’ means a circumstance in- seizures that seek evidence related to viola- threat posed by the use or potential use of volving a chemical weapon of mass destruc- tions of this section, except for the imme- biological and chemical weapons of mass de- tion— struction within the United States; diate protection of human life. ‘‘(A) that poses a serious threat to the in- ‘‘(5) The Secretary of Defense shall require (B) one year after the date of enactment of terests of the United States; and this Act, a report describing the actions reimbursement as a condition for providing ‘‘(B) in which— assistance under this subsection in accord- planned to be taken and the attendant cost ‘‘(i) civilian expertise is not readily avail- pertaining to paragraph (1); and ance with section 377 of title 10. able to provide the required assistance to (C) three years after the date of enactment ‘‘(6)(A) Except to the extent otherwise pro- counter the threat posed by the chemical of this Act, a report updating the informa- vided by the Attorney General, the Deputy weapon of mass destruction involved; tion provided in the reports submitted pursu- Attorney General may exercise the author- ‘‘(ii) Department of Defense special capa- ant to subparagraphs (A) and (B), including ity of the Attorney General under this sub- bilities and expertise are needed to counter measures taken pursuant to paragraph (1). section. The Attorney General may delegate the threat posed by the biological weapon of (d) CLERICAL AMENDMENT.—The chapter the Attorney General’s authority under this mass destruction involved; and analysis for chapter 113B of title 18, United subsection only to the Associate Attorney ‘‘(iii) enforcement of the law would be seri- States Code, is amended by inserting after General or an Assistant Attorney General ously impaired if the Department of Defense the item relating to section 2332a the follow- and only if the Associate Attorney General assistance were not provided. or Assistant Attorney General to whom dele- ‘‘(3) The assistance referred to in para- ing: gated has been designated by the Attorney graph (1) includes the operation of equip- ‘‘2332b. Use of chemical weapons.’’. General to act for, and to exercise the gen- ment (including equipment made available (e) USE OF WEAPONS OF MASS DESTRUC- eral powers of, the Attorney General. under section 372 of title 10) to monitor, con- TION.—Section 2332a(a) of title 18, United ‘‘(B) Except to the extent otherwise pro- tain, disable, or dispose of a chemical weap- States Code, is amended by inserting ‘‘with- vided by the Secretary of Defense, the Dep- on of mass destruction or elements of the out lawful authority’’ after ‘‘A person who’’. uty Secretary of Defense may exercise the weapon. SEC. 909. REVISION TO EXISTING AUTHORITY authority of the Secretary of Defense under ‘‘(4) The Attorney General and the Sec- FOR MULTIPOINT WIRETAPS. this subsection. The Secretary of Defense retary of Defense shall jointly issue regula- (a) Section 2518(11)(b)(ii) of title 18 is may delegate the Secretary’s authority tions concerning the types of assistance that amended: by deleting ‘‘of a purpose, on the under this subsection only to an Under Sec- may be provided under this subsection. Such part of that person, to thwart interception retary of Defense or an Assistant Secretary regulations shall also describe the actions by changing facilities.’’ and inserting ‘‘that of Defense and only if the Under Secretary or that Department of Defense personnel may the person had the intent to thwart intercep- Assistant Secretary to whom delegated has take in circumstances incident to the provi- tion or that the person’s actions and conduct been designated by the Secretary to act for, sion of assistance under this subsection. would have the effect of thwarting intercep- and to exercise the general powers of, the Such regulations shall not authorize arrest tion from a specified facility.’’. Secretary.’’. or any assistance in conducting searches and (b) Section 2518(11)(b)(iii) is amended to (b) CHEMICAL WEAPONS OF MASS DESTRUC- seizures that seek evidence related to viola- read: TION.—The chapter 113B of title 18, United tions of this section, except for the imme- ‘‘(iii) the judge finds that such showing has States Code, that relates to terrorism, is diate protection of human life. been adequately made.’’. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7877 SEC. 910. AUTHORIZATION OF ADDITIONAL AP- coordination with State victims compensa- tors of this vicious crime should face PROPRIATIONS FOR THE UNITED tion and assistance efforts in providing justice that was ‘‘swift, certain, and se- STATES PARK POLICE. emergency relief.’’. (a) IN GENERAL.—There are authorized to vere.’’ SEC. 1003. FUNDING OF COMPENSATION AND AS- I am pleased to report to the Amer- be appropriated from the General Fund of SISTANCE TO VICTIMS OF TERROR- the Treasury for the activities of the United ISM, MASS VIOLENCE, AND CRIME. ican people and to the President that, States Park Police, to help meet the in- Section 1402(d)(4) of the Victims of Crime with today’s passage of the creased needs of the United States Park Po- Act of 1984 (42 U.S.C. 10601(d)(4)) is amended antiterrorism bill, we are one giant lice, $1,000,000 for each of the fiscal years to read as follows: step closer to achieving this important 1996, 1997, 1998, 1999, and 2000. ‘‘(4)(A) If the sums available in the Fund goal. (b) AVAILABILITY OF FUNDS.—Funds made are sufficient to fully provide grants to the The most critical element of this available pursuant to this section, in any fis- States pursuant to section 1403(a)(1), the Di- bill, and the one that bears most di- cal year, shall remain available until ex- rector may retain any portion of the Fund pended. rectly on the tragic events in Okla- that was deposited during a fiscal year that homa City, is the provision reforming SEC. 911. AUTHORIZATION OF ADDITIONAL AP- was in excess of 110 percent of the total PROPRIATIONS FOR THE ADMINIS- amount deposited in the Fund during the the so-called habeas corpus rules. TRATIVE OFFICE OF THE UNITED preceding fiscal year as an emergency re- By imposing filing deadlines on all STATES COURTS. serve. Such reserve shall not exceed death row inmates, and by limiting (a) IN GENERAL.—There are authorized to $50,000,000. condemned killers convicted in State be appropriated from the General Fund of ‘‘(B) The emergency reserve may be used or Federal court to one Federal habeas the Treasury for the activities of the Admin- for supplemental grants under section 1404B istrative Office of the United States Courts, petition—one bite of the apple—these and to supplement the funds available to to help meet the increased needs of the Ad- landmark reforms will go a long, long provide grants to States for compensation ministrative Office of the United States way to streamline the lengthy appeals and assistance in accordance with sections Courts, $4,000,000 for each of the fiscal years 1403 and 1404 in years in which supplemental process and bridge the gap between 1996, 1997, 1998, 1999, and 2000. grants are needed.’’. crime and punishment in America. (b) AVAILABILITY OF FUNDS.—Funds made It is dead wrong that we must wait 8, available pursuant to this section, in any fis- SEC. 1004. CRIME VICTIMS FUND AMENDMENTS. (a) UNOBLIGATED FUNDS.—Section 1402 of or 9, or even 10 years before a capital cal year, shall remain available until ex- sentence is actually carried out. And, pended. the Victims of Crime Act of 1984 (42 U.S.C. 10601) is amended— of course, it is terribly unjust to the SEC. 912. AUTHORIZATION OF ADDITIONAL AP- PROPRIATIONS FOR THE UNITED (1) in subsection (c), by striking ‘‘sub- innocent victims of violent crime and STATES CUSTOMS SERVICE. section’’ and inserting ‘‘chapter’’; and their families. (a) IN GENERAL.—There are authorized to (2) by amending subsection (e) to read as As I said yesterday, if the Federal be appropriated from the General Fund of follows: Government prosecutes the Oklahoma the Treasury for the activities of the United ‘‘(e) AMOUNTS AWARDED AND UNSPENT.— City case and the death penalty is States Customs Service, to help meet the in- Any amount awarded as part of a grant under this chapter that remains unspent at sought and imposed, the execution of creased needs of the United States Customs the sentence could take as a little as 1 Service, $10,000,000 for each of the fiscal the end of a fiscal year in which the grant is years 1996, 1997, 1998, 1999, and 2000. made may be expended for the purpose for year once these reforms are enacted (b) AVAILABILITY OF FUNDS.—Funds made which the grant is made at any time during into law. available pursuant to this section, in any fis- the 2 succeeding fiscal years, at the end of I want to thank President Clinton for cal year, shall remain available until ex- which period, any remaining unobligated his efforts this past week in pended. sums shall be returned to the Fund.’’. discrouraging Democratic amend- (b) BASE AMOUNT.—Section 1404(a)(5) of SEC. 913. SEVERABILITY. ments. No doubt about it, the Presi- such Act (42 U.S.C. 10603(a)(5)) is amended to If any provision of this Act, an amendment dent’s involvement has helped speed up read as follows: made by this Act, or the application of such ‘‘(5) As used in this subsection, the term the process here in the Senate. I par- provision or amendment to any person or ‘base amount’ means— ticularly commend the President for fi- circumstance is held to be unconstitutional, ‘‘(A) except as provided in subparagraph nally coming around to the view that the remainder of this Act, the amendments (B), $500,000; and made by this Act, and the application of the habeas reform is an essential ingredi- ‘‘(B) for the territories of the Northern provisions of such to any person or cir- ent of any serious anti-terrorism plan. Mariana Islands, Guam, American Samoa, cumstance shall not be affected thereby. I want to thank the two managers, and Palau, $200,000.’’. TITLE X—VICTIMS OF TERRORISM ACT Senator HATCH and Senator BIDEN, for Mr. HATCH. Madam President, I their persistence in guiding this legis- SEC. 1001. TITLE. would like to thank BOB DOLE for his lation through the Senate. On this side This title may be cited as the ‘‘Victims of Terrorism Act of 1995’’. strong leadership. It was an honor to of aisle, Senator HATCH has provided work with him. ARLEN SPECTER for his SEC. 1002. AUTHORITY TO PROVIDE ASSISTANCE the intellectual glue that has kept this AND COMPENSATION TO VICTIMS OF legal acumen, JOE BIDEN for his states- effort together. And, of course, I want TERRORISM. manship and DON NICKLES and JAMES to thank my two colleagues from Okla- The Victims of Crime Act of 1984 (42 U.S.C. INHOFE for their able input. All of these homa, Senator NICKLES and Senator 10601 et seq.) is amended by inserting after Senators were vital to the passage of INHOFEE, whose help in this process has section 1404A the following new section: this bill. also been invaluable. ‘‘SEC. 1404B. COMPENSATION AND ASSISTANCE I would also like to commend the fol- Finally, I commend the good people TO VICTIMS OF TERRORISM OR MASS VIOLENCE. lowing staffers for their long, hard of Oklahoma City, who self-sacrifice ‘‘(a) VICTIMS OF ACTS OF TERRORISM OUT- work: and resiliency during this very difficult SIDE THE UNITED STATES.—The Director may Democrats: Cynthia Hogan, Ankor time has been an inspiration for us all. make supplemental grants to States to pro- Gouel, Chris Putals, Demetra Lambros, The families of some of the bombing vide compensation and assistance to the resi- Mimi Murphy, Tracy Doherty, and victims travelled all the way to Wash- dents of such States who, while outside the Mike O’Leary. ington this past Monday to let us know territorial boundaries of the United States, Republicans: Mike O’Neill and Mike that we must take action now to put are victims of a terrorist act or mass vio- Kennedy. These two men worked, lit- an end to the endless delays and ap- lence and are not persons eligible for com- pensation under title VIII of the Omnibus erally, around the clock. Also, Ashley peals that have done so much to weak- Diplomatic Security and Antiterrorism Act Disque, John Gibbons, Dennis Shea, en public confidence in our system of of 1986. Richard Hertling, Lee Otis, Eric criminal justice. It is gratifying to see ‘‘(b) VICTIMS OF DOMESTIC TERRORISM.—The Mayfield, and Manus Cooney. that their efforts have had such a pro- Director may make supplemental grants to All of these people helped make this found impact here in the Senate. States for eligible crime victim compensa- bill possible. The President called on Mr. HATFIELD. Madam President, it tion and assistance programs to provide Congress for swift action, and we deliv- has been a difficult process, but we emergency relief, including crisis response ered. have now reached the conclusion of efforts, assistance, training, and technical assistance, for the benefit of victims of ter- Mr. DOLE. Madam President, imme- this worthy debate. I want to commend rorist acts or mass violence occurring within diately after the Oklahoma City trag- Majority Leader DOLE and Minority the United States and may provide funding edy, President Clinton was right on Leader DASCHLE and the managers of to United States Attorney’s Offices for use in target when he said that the perpetra- this legislation, Chairman HATCH and S 7878 CONGRESSIONAL RECORD — SENATE June 7, 1995

Senator BIDEN, the ranking member of tinues down the road of support for Save Habeas Corpus, and the list of its the Judiciary Committee, for their capital punishment. It is my hope that members, be printed in the RECORD. skill and resolve in moving this impor- some day my colleagues will realize There being no objection, the letter tant and complex measure through the this is a failed, primitive and sickening was ordered to be printed in the Senate. policy. I regret that, on that basis, I RECORD, as follows: It is proper for the Senate, at the re- am unable to support S. 735. EMERGENCY COMMITTEE quest of the President, to undertake THE COMPREHENSIVE TERRORISM PREVENTION TO SAVE HABEAS CORPUS, this legislative action to put in place ACT Washington, DC, June 1, 1995. safeguards to ensure, to the extent we Mr. MOYNIHAN. Madam President, I Hon. Daniel Patrick Moynihan, can, that terrorism does not occur in am deeply concerned that the Senate Russell Senate Office Building, Washington, DC. the future. It is my hope that this leg- has chosen in this legislation to radi- DEAR SENATOR MOYNIHAN: We understand islation will provide one more avenue cally alter the ancient writ of habeas that the Senate may act next week on the toward the national healing that is corpus an subjiciendum. Four separate habeas corpus provisions in Senator Dole’s needed in the aftermath of one of the Democratic amendments that would terrorism legislation. Among these provi- most senseless and disturbing acts in have moderated the bill’s extreme ha- sions is a requirement that federal courts the history of man. beas corpus provisions were rejected must defer to state courts incorrectly apply- I have joined with all my colleagues today. ing federal constitutional law, unless it can to condemn this act in the harshest It is troubling that the Senate has be said that the state ruling was ‘‘unreason- ably’’ incorrect. This is a variation of past terms. However, despite my abhorrence undertaken to revise the Great Writ of proposals to strip the federal courts of the of this horrible crime, I am unable to Liberty in a bill designed as a response power to enforce the Constitution when the support this legislation. As many of to the Oklahoma City bombing. Habeas state court’s interpretation of it, though my colleagues are aware, I am a long- corpus reform has very little to do with clearly wrong, had been issued after a ‘‘full time opponent of capital punishment. terrorism. The Oklahoma City bombing and fair’’ hearing. This legislation, under section 2332b, was a Federal crime and will be tried in The Emergency Committee was formed in on page 7 of the bill, provides for the Federal courts. The controversy over 1991 to fight this extreme proposal. Our membership consists of both supporters and imposition of the death penalty in the habeas corpus is a result of excess liti- opponents of the death penalty, Republicans following manner: gation by State court prisoners who be- and Democrats, united in the belief that the (1) Whoever violates this section shall, in lieve they were wrongly convicted in federal habeas corpus process can be dra- addition to the punishment provided for any State courts. According to the Emer- matically streamlined without jeopardizing other crime charged in the indictment, be gency Committee to Save Habeas Cor- its constitutional core. At a time when pro- punished— pus, a group of 100 of the Nation’s most posals to curtail civil liberties in the name (A) if death results to any person, by distinguished attorneys, scholars, and of national security are being widely viewed death, or by life imprisonment for any term civic leaders, ‘‘Cutting back the en- with suspicion, we believe it is vital to en- of years or for life; sure that habeas corpus—the means by forcement of constitutional liberties which all civil liberties are enforced—is not Madam President, I could support for people unlawfully held in State cus- this provision if the clause ‘‘by death’’ substantively diminished. tody is neither necessary to habeas re- The habeas corpus reform bill President were excluded. Because it has not been form nor relevant to terrorism.’’ Clinton proposed in 1993, drafted in close co- deleted, and because the death penalty Article I, section 9 of the U.S. Con- operation with the nation’s district attor- is so repugnant me, I am unable to sup- stitution provides that: neys and state attorneys general, appro- port this legislation which has many The Privilege of the Writ of Habeas Corpus priately recognizes this point. It would cod- meritorious provisions. shall not be suspended, unless when in Cases ify the long-standing principal of independ- I would like my colleagues to take of Rebellion or Invasion the public Safety ent federal review of constitutional ques- note of a recent event in the country of may require it. tions, and specifically reject the ‘‘full and fair’’ deference standard. South Africa. I am informed that the The Habeas Corpus Act of 1867 per- Independent federal review of state court highest court in South Africa has mitted State prisoners convicted in judgments has existed since the founding of struck down the death penalty in that State courts to challenge the constitu- the Republic, whether through writ of error country on the basis that it constitutes tionality of their imprisonment in Fed- or writ of habeas corpus. It has a proud his- cruel and inhumane punishment. In his eral district court. This is a right we tory of guarding against injustices born of opinion, Chief Justice Arthur have honored in the United States for racial prejudice and intolerance, of saving Chaskalson said, ‘‘Retribution cannot well over a century. the innocent from imprisonment or execu- be accorded the same weight under our tion, and in the process, ensuring the rights The legislation before us will require of all law-abiding citizens. Independent fed- constitution as the right to life and our Federal courts to defer to State eral review was endorsed by the committee dignity.’’ He went on to make a point court judgments unless a State court’s chaired by Justice Powell on which all subse- made by death penalty opponents on application of Federal law is unreason- quent reform proposals have been based, and this floor many times: ‘‘It has not been able. Our Federal courts will be power- the Supreme Court itself specifically consid- shown that the death sentence would less to correct State court decisions— ered but declined to require deference to the be materially more effective to deter even if a State court decision is wrong. states, in Wright v. West in 1992. or prevent murder than the alternative The bill requires deference by the Fed- We must emphasize that this issue of def- erence to state rulings has absolutely no sentence of life imprisonment.’’ eral courts unless a State court’s deci- bearing on the swift processing of terrorism I believe it is time for this country to sion is unreasonably wrong. This is a offenses in the federal system. For federal follow the lead of the South Africans. I standard that will effectively preclude inmates, the pending habeas reform legisla- have long held that capital punishment Federal review. tion proposes dramatic procedural reforms is a barbaric penalty, certainly one This Senator understands the need but appropriately avoids any curtailment of that should be abhorrent to a society for habeas corpus reform, and I would the federal courts’ power to decide federal such as our own. support legislation to impose reason- constitutional issues. This same framework I have marveled at the strides the able limitations on appeals. But this of reform will produce equally dramatic re- sults in state cases. Cutting back the en- South Africans have made over the bill goes far too far. It will in many forcement of constitutional liberties for peo- past decade. It was not too many years cases transform the State courts—not ple unlawfully held in state custody is nei- ago that the United States put great the Federal courts established under ther necessary to habeas reform nor relevant pressure on the Government of South article III of the U.S. Constitution— to terrorism. Africa to improve their horrible human into the arbiters of Federal constitu- We are confident that the worthwhile goal rights record. While this new decision tionality. of streamlining the review of criminal cases is being met with the expected cries of This legislation will eviscerate the can be accomplished without diminishing opposition, it now appears to me that writ of habeas corpus, and that is constitutional liberties. Please support the continuation of independent federal review the South Africans are setting an ex- something this Senator in good con- of federal constitutional claims through ha- ample for us on human rights. science must oppose. Mr. President, I beas corpus. I merely make note of this enlighten- ask unanimous consent that a letter Sincerely, ment in South Africa as this body con- from the Emergency Committee to BENJAMIN CIVILETTI. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7879

EDWARD H. LEVI. Albert Brewer, Former Governor of Ala- William W. Kilgarlin, former Justice, Su- NICHOLAS DEB. bama. preme Court of Texas. KATZENBACH. Allen E. Broussard, Former Justice, Cali- Coretta Scott King, President, Martin Lu- ELLIOT L. RICHARDSON. fornia Supreme Court. ther King Center. John Buchanan, Former Member of Con- Lane Kirkland, President, AFL–CIO. STATEMENTS ON PROPOSALS REQUIRING FED- gress, Alabama. Richard H. Kuh, former Manhattan Dis- ERAL COURTS IN HABEAS CORPUS CASES TO Haywood Burns, Dean, City University of trict Attorney. DEFER TO STATE COURTS ON FEDERAL CON- New York Law School. Phillip Kurland, Professor, University of STITUTIONAL QUESTIONS Guido Calabresi, Dean, Yale Law School. Chicago Law School. Capital cases should be subject to one fair Julius Chambers, Director-Counsel, Phillip Lacovara, former Deputy Solicitor and complete course of collateral review NAACP Legal Defense and Educational General of the United States. Shelby Lanier, Jr., Chairman, National through the state and federal system * * * . Fund. L. Stanley Chauvin, Jr., Former President, Black Police Association. Where the death penalty is involved, fairness American Bar Association. William Leech, former Attorney General, means a searching and impartial review of Dick Clark, Former United States Senator, Tennessee. the propriety of the sentence—Justice Lewis Iowa. George N. Leighton, former U.S. District F. Powell, Jr., presenting the 1989 report of W.J. Michael Cody, Former Attorney Gen- Judge, Illinois. the Ad Hoc Committee on Federal Habeas eral, Tennessee. Arthur Liman, former Chief Counsel, U.S. Corpus in Capital Cases, chaired by him and William T. Coleman, Jr., Former U.S. Sec- Senate Iran/Contra Committee. appointed by Chief Justice William retary of Transportation. Hans Linde, former Justice, Oregon Su- Rehnquist. Joseph Curran, Attorney General, Mary- preme Court. The federal courts should continue to re- land. Robert MacCrate, former President, Amer- view de novo mixed and pure questions of John J. Curtin, Jr., Former President, ican Bar Association. federal law. Congress should codify this re- American Bar Association. Charles McC. Mathias, former U.S. Sen- view standard ** *. Senator Dole’s bill [con- Lloyd N. Cutler, Former Counsel to the ator, Maryland. taining the ‘‘full and fair’’ deference require- President. Darrell McGraw, Attorney General, West ment’ would rather straightforwardly elimi- Talbot D’Alemberte, Former President, Virginia. nate federal habeas jurisdiction over most American Bar Association. Robert S. McNamara, former U.S. Sec- constitutional claims by state inmates—150 Samuel Dash, Professor, Georgetown Law retary of Defense; former President, World former state and federal prosecutors, in a School; Former Chief Counsel, Senate Water- Bank. December 7, 1993 letter to Judiciary Commit- gate Committee; Former District Attorney Jim Mattox, former Attorney General and tee Chairman Biden and Brooks. of Philadelphia. Member of Congress, Texas. Racial distinctions are evident in every as- John A. Dixon, Jr., Former Chief Justice, Harry McPherson, former Counsel to the pect of the process that leads to Louisiana Supreme Court. President. execution * * *. [W]e feverently and respect- John Douglas, Former Assistant Attorney Walter F. Mondale, former U.S. Vice Presi- fully urge a steadfast review by federal judi- General of the United States. dent; former U.S. Senator and Attorney Gen- ciary in state death penalties as absolutely Father Robert Drinan, Former Member of eral, Minnesota. essential to ensure justice—Rev. Dr. Joseph Congress, Massachusetts. James Neal, former Chief Watergate Spe- E. Lowery, President, Southern Christian Thomas Eagleton, Former U.S. Senator, cial Prosecutor; former United States Attor- Leadership Conference, U.S. House Judiciary Missouri. ney. Committee hearing on capital habeas corpus Raymond Ehrlich, Former Chief Justice, William G. Paul, General Counsel, Phillips reform, June 6, 1990. Florida Supreme Court. Petroleum Company. The State court cannot have the last say Arthur J. England, Jr., Former Justice, John H. Pickering, Attorney. when it, though on fair consideration and Florida Supreme Court. Jack Pope, former Chief Justice, Texas Su- what procedurally may be deemed fairness, Marvin Frankel, Former U.S. District preme Court. may have misconceived a federal constitu- Judge, New York. Edward E. Pringle, former Chief Justice, tional right—Justice Felix Frankfurter, for John Hope Franklin, Historian. Colorado Supreme Court. the Court, in Brown v. Allen, 344 U.S. 443, Donald Fraser, Mayor of Minneapolis; Thomas Railsback, former Member of Con- 508(1953) Former Member of Congress, Minnesota. gress, Illinois. [There is no case in which] a state court’s Stanley H. Fuld, Former Chief Judge, New Joseph Rauh, Attorney (deceased). incorrect legal determination has ever been York Court of Appeals. Robert Raven, former President, American allowed to stand because it was reasonable. Susan Getzendanner, Former U.S. District Bar Association. We have always held that federal courts, Judge, Illinois. Cruz Reynoso, former Justice, California even on habeas, have an independent obliga- Joseph I. Giarrusso, Former Superintend- Supreme Court. tion to say what the law is—Justice Sandra ent, New Orleans Police Department. Leroy C. Richie, Vice President, General Day O’Connor, concurring in Wright v. West, John J. Gibbons, Former Chief Judge, Counsel, Chrysler Corporation. 112 S.Ct. 2482(1992), citing 29 Supreme Court United States Court of Appeals for the Third Peter W. Rodino, Jr., former Chairman, cases and ‘‘many others’’ to reject the urging Circuit. U.S. House Judiciary Committee. of Justices Thomas, Scalia and Rhenquist to William A. Grimes, Former Justice, New Stephen Sachs, former Attorney General adopt a standard of deference to state courts Hampshire Supreme Court. and former United States Attorney, Mary- on federal constitutional matters. Joseph R. Grodin, Former Justice, Califor- land. nia Supreme Court. Carl Sagan, Astronomer. EMERGENCY COMMITTEE TO SAVE HABEAS Gerald Gunther, Professor, Stanford Law Whitney North Seymour, Jr., former Unit- CORPUS School. ed States Attorney, New York. William J. Guste, Former Attorney Gen- James Shannon, former Attorney General, CHAIRS eral, Louisiana. Massachusetts. Benjamin Civiletti, Former Attorney Gen- Reverend Theodore Hesburgh, C.S.C., Robert L. Shevin, former Attorney Gen- eral of the United States. President Emeritus, University of Notre eral, Florida. Nicholas DeB. Katzenbach, Former Attor- Dame. Seymour Simon, former Justice, Illinois ney General of the United States. L. Eades Hogue, Former Trial Attorney, Supreme Court. Edward H. Levi, Former Attorney General Criminal Division, U.S. Department of Jus- Chesterfield Smith, former President, of the United States. tice. American Bar Association. Elliot L. Richardson, Former Attorney Elizabeth Holtzman, New York City Comp- Nicholas Spaeth, former Attorney General, General of the United States. troller; Former Member of Congress, New North Dakota. MEMBERS York. Robert Spire, former Attorney General, Floyd Abrams, Attorney. Shirley Hufstedler, Former Judge, United Nebraska (deceased). Robert Abrams, Former Attorney General, States Court of Appeals for the Ninth Cir- Geoffrey Stone, Dean, University of Chi- New York. cuit, Former U.S. Secretary of Education. cago Law School. Philip S. Anderson, Attorney. Richard J. Hughes, Former Governor and Alan Sundberg, former Chief Justice, Flor- Dennis W. Archer, Mayor of Detroit; Supreme Court Chief Justice, New Jersey ida Supreme Court. Former Justice, Michigan Supreme Court. (deceased). Leonard v.B. Sutton, former Chief Justice, Birch Bayh, Former U.S. Senator, Indiana. Charles J. Hynes, District Attorney for Colorado Supreme Court. Francis X. Bellotti, Former Attorney Gen- Kings County (Brooklyn), New York. Telford Taylor, Professor, Columbia Law eral, Massachusetts. Thomas Johnson, Former County Attor- School; former Prosecutor, Nuremburg War Lindy Boggs, Former Member of Congress, ney, Hennepin County, Minnesota. Crimes Tribunal. Louisiana. Barbara Jordan, former Member of Con- James Tierney, former Attorney General, Hyman Bookbinder, Washington Rep- gress, Texas. Maine. resentative Emeritus, American Jewish Robert W. Kastenmeier, former Member of Joseph D. Tydings, former U.S. Senator Committee. Congress, Wisconsin. and United States Attorney, Maryland. S 7880 CONGRESSIONAL RECORD — SENATE June 7, 1995 Harold R. Tyler, Jr., former U.S. District dreams of families for their children. the conflict, it seems to me that the Judge, New York; former Deputy Attorney They undermine the Nation’s future United States has plenty of experience General of the United States. strength. Our schools, colleges, and from Central America to Afghanistan Cyrus Vance, former U.S. Secretry of students deserve a helping Federal State. in providing military assistance with- James Vollers, former Judge, Texas Court hand—not the back of Republican out being drawn into a quagmire with of Criminal Appeals. hands. American troops on the ground. The Andrew Young, former Ambassador to the This veto is right, and I am confident real recipe for getting bogged down is United Nations, former Mayor, Atlanta, it will be sustained by the Congress. to send United States ground troops Georgia. f into Bosnia without a mission, which is EXECUTIVE DIRECTOR why the resolution I intend to submit ADMINISTRATION POLICY ON H. Scott Wallace, 1625 K Street, N.W., would authorize, with strict condi- BOSNIA Suite 800, Washington, D.C. 20006. tions, the use of United States ground Mr. GRASSLEY addressed the Chair. Mr. DOLE. Madam President, it is in- forces for the clearly stated purpose of The PRESIDING OFFICER. The Sen- deed ironic that the Clinton adminis- withdrawing U.N. protection forces ator from Iowa is recognized. tration—whose policy on Bosnia needs from Bosnia—not for peacekeeping, not Mr. GRASSLEY. I ask unanimous to be checked hourly—is on the attack for reconfiguration, not for strengthen- consent to speak as in morning busi- against those in Congress like myself ing, or any other proposed deployments ness briefly for the purpose of introduc- who have consistently argued for a pol- supported by the Clinton administra- ing a bill. icy that candidate Clinton advocated. tion. The PRESIDING OFFICER. Without Maybe administration officials are Furthermore, Bosnian officials have objection, it is so ordered. tired of attacking each other in the repeated time and time again that they (The remarks of Mr. GRASSLEY per- press and have decided to take their do not want United States ground taining to the introduction of S. 888 frustration out on the Congress. troops. Just a couple days ago, in re- The administration’s arguments are located in today’s RECORD under sponse to news that a European quick against withdrawing the U.N. protec- ‘‘Statements on Introduced Bills and reaction force would be created, tion forces and lifting the arms embar- Joint Resolutions.’’) Bosnian Prime Minister Haris Silajdzic f go are neither based on fact nor on American experience. said ‘‘Please untie our hands, arm the Bosnians. We do not want your boys to PRESIDENT CLINTON’S VETO OF First we have a statement from the die for us’’—British boys, French boys, THE RESCISSIONS BILL Secretary of Defense today that with- drawing U.N. forces would lead to a hu- or American boys. Mr. KENNEDY. Madam President, I manitarian disaster. I do not know if Finally, when those of us who advo- commend President Clinton for his the Pentagon has been keeping up with cate lifting the arms embargo—and I veto of the rescissions bill this after- the news over the last few months, but am talking about Republicans and noon. Once again, the President has the situation in Bosnia is and has been Democrats; this has never been a par- made clear his strong commitment to a humanitarian disaster for the last tisan issue on this floor, it has been education and to the students and couple of years, despite the presence of supported by many Democrats and a working families of the Nation. 22,000 U.N. troops. The U.N. mission in great number of Republicans—point By vetoing this bill, the President Bosnia has failed. Bandages like the out that other countries would also has said ‘‘no’’ to the elimination of vio- quick reaction force will not change participate in arming the Bosnians, we lence and drug prevention programs for that fact. are told this would allow Iran to arm 20 million students in 90 percent of our Secretary Perry also told the Armed the Bosnians. The fact is the arms em- schools. Services Committee today that the bargo has guaranteed that Iran is a key He has said ‘‘no’’ to the elimination casualty rate in Bosnia dramatically supplier of arms to Bosnia and admin- of school reform grants to 2,000 schools dropped, which he attributed to the istration officials have actually used in 47 States. presence of U.N. forces. As the recent that fact to argue that there is no need He has said ‘‘no’’ to the drastic cuts hostage taking has painfully dem- to lift the arms embargo. in reading and math assistance for onstrated, the U.N. forces cannot even What other choices do the Bosnians 135,000 pupils. protect themselves let alone the have? They are going to find weapons He has said ‘‘no’’ to the elimination Bosnians. And I say this understanding where they can find weapons. of community service support for 15,000 the bravery of each of the individuals young men and women ready, willing, From statements made by State De- who are there. They are in a very, very partment officials to the press, one and able to serve their communities difficult situation. They cannot protect and earn money for their education. gets the impression that Iran is the themselves. They are placed there by Clinton administration’s preferred pro- He has said ‘‘no’’ to the elimination their governments. of opportunities for thousands of young vider of weapons to the Bosnians. If the Furthermore, the heaviest Bosnian administration has a problem with Iran high school students to participate in casualties were in areas where U.N. school-to-work programs. arming Bosnia, it should be prepared to forces were either not deployed or de- do something about it. He has said ‘‘no’’ to ending the prom- ployed too late—in northern and east- We can do something about it. It ising start we have made on putting ern Bosnia. modern technology in schools. So it seems to me that the real rea- would not take very long. He has said ‘‘no’’ to deep cuts like son casualties dropped is because the If the arms embargo is lifted, Amer- this to pay for tax cuts for the rich. Bosnians, over time, have acquired ica would not be the only country to The battle has now been squarely more weapons and have been able to provide assistance. Countries like Tur- joined against drastic anti-education better defend themselves. That is why key, Malaysia, Saudi Arabia, Kuwait, Republican budget proposals that the casualty rate has gone down. and Pakistan would offer financial and would mean the largest education cuts The second argument made by the military assistance. In addition, former in the Nation’s history. administration is that the lifting of the Warsaw Pact countries would be free to These Republican budgets are inde- arms embargo would Americanize the sell their vast arsenal of Soviet-style fensible—they would cut 33 percent of war and make the United States re- weapons that have been designated for the Federal investment in education by sponsible for events in Bosnia. export pursuant to the Conventional the year 2002, and slash over $30 billion Let us not fool ourselves—America is Forces in Europe Treaty. Since the in Federal aid to college students. responsible now. We already have a re- Bosnians presently use Soviet-style Every student, every parent, every sponsibility. America is responsible be- equipment, acquiring former Soviet American understands that education cause it has not been a leader, rather it bloc equipment would minimize the is the indispensable foundation of a has meekly followed the Europeans’ amount of training they would require. better life for themselves and their failed approach. Furthermore, any training, whether by children. Deep Republican cuts in edu- As for the accusation that lifting the United States military advisers or cation are a betrayal of the hopes and arms embargo would ‘‘Americanize’’ other country military advisers, could June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7881 be conducted outside of Bosnia—in Cro- The PRESIDING OFFICER (Mr. BEN- the New Deal era Communications Act atia or Slovenia, for example. NETT). The bill will be stated by title. of 1934. The 1934 Act incorporated the Madam President, administration of- The legislative clerk read as follows: premise that telephone services were a ficials should quit fighting amongst A bill (S. 652) to provide for a pro-competi- natural monopoly, whereby only a sin- themselves and begin real consulta- tive, deregulatory national policy frame- gle firm could provide better services tions with the Congress, consultations work designed to accelerate rapidly private at a lower cost than a number of com- based on the facts and not on wild ac- sector deployment of advanced telecommuni- peting suppliers. Tight government cusations or unrealistic scenarios. It is cations and information technologies and control over spectrum based services time to take sides—with the victims of services to all Americans by opening all tele- was justified on a scarcity theory. Nei- communications markets to competition, this aggression. It is also high time for and for other purposes. ther theory for big government regula- America to exercise leadership and end tion holds true today, if it ever did. its participation in this international The PRESIDING OFFICER. Is there The 1934 Act was intended to ensure failure. objection to the immediate consider- that AT&T and other monopoly tele- ation of the bill? f phone companies did not abuse their There being no objection, the Senate monopoly power. However, regulatory VETO OF RESCISSIONS BILL proceeded to consider the bill. protection from competition also en- Mr. DOLE. Madam President, I will Mr. PRESSLER. Mr. President, I rise sured that AT&T would remain a gov- just say that on the rescissions veto by to begin Senate floor consideration of ernment-sanctioned monopoly. In ex- the President today, it is highly regret- S. 652—the comprehensive communica- change for this government-sanctioned table President Clinton chose a bill tions bill which the Committee on monopoly, AT&T was to provide uni- cutting spending for the first veto. The Commerce, Science, and Transpor- versal service. AT&T retained its gov- $16.4 billion rescissions bill would have tation overwhelmingly approved late ernment-sanctioned monopoly until provided for $9 billion—$9 billion, a lot last month on a vote of 17 to 2—The antitrust enforcement broke up the of money in real savings—an important Telecommunications Competition and Bell System and transferred the mo- downpayment in getting our country’s Deregulation Act of 1995. nopoly over local services to the Bell financial house in order. The future of America’s economy and Operating Companies. The President made a serious mis- society is inextricably linked to the The Communications Act has become take in judgment in vetoing this meas- universe of telecomunications and the cornerstone of communications law ure. It would have provided funding to computer technology. Telecommuni- in the United States. The 1934 Act es- the Federal Emergency Management cations and computer technology is a tablished the Federal Communications Agency for disaster relief, to Oklahoma potent force for progress and freedom, Commission, and granted it regulatory for reconstruction, and debt relief for more powerful than Gutenberg’s inven- power over communications by wire, Jordan to support the peace process, tion of the printing press five centuries radio, telephone, and cable within the money for California. ago, or Bell’s telephone and Marconi’s United States. The Act also charged Speaker GINGRICH and I have pre- radio in the last century. the Federal Communications Commis- viously said we met the administration This force has helped us reach to- sion with the responsibility of main- more than halfway. The President day’s historic turning point in Amer- taining, for all the people of the United asked for Jordan debt relief, we met his ica. States, a rapid, efficient, Nationwide request. The President asked for FEMA The telecommunications and com- and worldwide wire and radio commu- funds for disaster relief in 40 States, puter technology of 21st-Century nications service with adequate facili- and we met his request. The President America will be hair-thin strands of ties and reasonable charges. threatened to veto if striker replace- glass and fiber below; the magical Prior to 1934, communications regu- ment language was included in the bill, crackling of stratospheric spectrum lation had come under the jurisdiction we took it out. We left AIDS funding, above; and the orbit of satellites 23,000 of three separate Federal agencies. breast cancer screening, childhood im- miles beyond. With personal computers Radio stations were licensed and regu- munization, Head Start, and other pro- interconnected, telephones untethered, lated by the Federal Radio Commis- grams untouched, and still we came up televisions and radios reinvented, and sion; the Interstate Commerce Com- with $9 billion in net real savings. other devices yet to be invented bring- mission had jurisdiction over tele- We, in the Congress, held up our end ing digitized information to life, the phone, telegraph, and wireless common of the bargain, but President Clinton telecommunications and computer carriers; and the Postmaster General missed a valuable opportunity—a gold- technology unleashed by S. 652 will for- had certain jurisdiction over the com- en opportunity—to join us cutting ever change our economy and society. panies that provided these services. As spending. At stake is our ability to compete the number of communications provid- Now, with three-quarters of the fiscal and win in an international informa- ers in the United States grew, Congress year almost gone, we are losing the op- tion marketplace estimated to be over determined that a commission with portunity to enact real savings this $3 trillion by the close of the decade. unified jurisdiction would serve the year. In the face of the budget deficit The information industry already con- American people more effectively. that mortgages our children’s future, stitutes one-seventh of our economy, The 1934 Communications Act com- we in the Congress will proceed to pass and is growing. bined the powers that the Interstate a budget that puts us on the path to As chairman of the Committee on Commerce Commission and the Federal balance by the year 2002. We owe it to Commerce, Science and Transpor- Radio Commission then exercised over our children, and we owe it to our tation, the core of my agenda is to pro- communications under a single, inde- grandchildren. mote creativity in telecommunications pendent Federal agency. For the sake of generations to come, and computer technology by rolling The Communications Act of 1934 was it is time for the President to stop back the cost and reach of government. based, in part, on the Interstate Com- being an obstacle in the road and join Costly big-government laws designed merce Act of 1888. For example, the re- us in our responsibility to secure our for another era restrain telecommuni- quirement for approval of construction Nation’s economic future. cations and computer technology from or extension of lines for railroads was f realizing its full potential. My top pri- taken directly from the ICC Act. Prior ority this year is to modernize and lib- to 1934, wire communications were reg- THE TELECOMMUNICATIONS COM- eralize communications law through ulated by the same set of laws that reg- PETITION AND DEREGULATION passage of the bill before us today, S. ulated the railroads. Radio commu- ACT 652: Telecommunications Competition nications were regulated under the 1927 Mr. LOTT. Mr. President, I ask unan- and Deregulation Act of 1995. Federal Radio Act. In 1934, the Federal imous consent that the Senate proceed A. THE ADVENT OF TELECOMMUNICATONS Communications Commission was cre- to the immediate consideration of cal- REGULATIONS ated to oversee both the wireline com- endar No. 45, S. 652, the telecommuni- Most telecommunications policy and munications and radio communica- cations bill. regulation in America is based upon tions. S 7882 CONGRESSIONAL RECORD — SENATE June 7, 1995 The telecommunications industry Moreover, given the vulnerability of final judgment by Judge Harold today is a dynamic and innovative in- the telephone industry to selective, Greene, which was negotiated by AT&T dustry, with new technology being in- cherry-picking competition, it is likely and the Justice Department. troduced on daily basis. The tele- that the limited nature of today’s com- The debate about the proper role of communications industry, however, is petition will have a significant effect the Bell operating companies in the regulated under a set of laws that are on the industry’s revenues in general, communications industry has often antiquated and never designed to han- and on local telephone rates in particu- overshadowed the larger question of dle the challenges of today’s industry. lar. which government bodies should be es- Telecommunications laws and regu- Consequently, although the consent tablishing national telecommuni- lations are not able to adequately take decree served a useful purpose ini- cations policy. Courts make rulings, as into account the advent of tele- tially, it no longer serves the public in- they should, solely on the narrow ques- communications competition, and, in- terest at this dynamic time in the eval- tions confronting them. Consequently, deed, have slowed the introduction of uation of the communications and in- courts do not and cannot ensure that competition into many segments of the formation industry. In place of a proc- broader concerns about sound eco- industry. These laws did not con- ess that subjects the communications nomic goals are fully considered. template the development of fiber op- industry to the terms of a consent de- As a result of these concerns, which tics, the microchip, digital compres- cree entered 12 years ago and adminis- have been fueled by a period of sion, and the explosion of wireless serv- tered by a single district court, the globalization and intense international ices. It is time to revise and amend the Congress will reassert its proper policy competition in the telecommuni- 1934 act to fit the new and future com- role and administer a new Federal pol- cations industry, I believe, and the petitive telecommunications industry. icy designed to promote competition, committee believes that we in Con- B. THE MODIFICATION OF FINAL JUDGMENT innovation, and protect consumers. gress as the expert in the oversight of Since 1984, the Bell operating compa- Prior to the implementation of the the telecommunications industry, nies have been restricted from entering MFJ in 1984, as noted previously, AT&T should have authority to manage these various lines of businesses as a result was the monopoly telecommunications issues in order to develop tele- of the consent decree entered in the provider in the United States. AT&T’s communications and information pol- antitrust case, United States versus Long Lines Department provided long icy in a coordinated manner. Western Electric. distance telephone service to virtually At this juncture in the evolution of The consent decree, commonly re- everyone in the country. AT&T main- the communications industry the Con- ferred to as the modification of final tained owership of the 22 Bell operating gress should be the locus of authority judgment, or the MFJ, places the U.S. companies, which provided local tele- on questions involving telecommuni- District Court for the District of Co- phone service on a monopoly basis to cations competition, deregulation and lumbia and Judge Harold Greene as the approximately 85 percent of the popu- consumer protection. We have the abil- administrator of the decree, and estab- lation. ity to see a more complete spectrum of lishes a procedure by which the Bell In addition, AT&T owned Western issues, as compared to the narrow view operating companies can obtain waiv- Electric, which manufactured almost of discrete issues which a court and the ers from the decree’s restrictions. all the equipment needed for the oper- Department to Justice necessarily Recent years have seen a prolifera- ation of the telephone network. AT&T takes in the context of litigation. tion of legislative and judicial action also owned Bell Telephone Labora- Moreover, we can consider broad policy to change the provisions of the original tories, Bell Labs, which conducted the goals in establishing and administering consent decree that divested American most extensive research involving high telecommunications policy. Telephone and Telegraph of its local technologies and telecommunications C. REGULATORY LAG exchange service and created the re- of any industrial research center in the While America is still the world’s gional Bell operating companies. Cur- world. leader in information technology, we rently prohibited from providing long The roots of the MFJ go back over are no longer in the position of being distance service, manufacturing tele- 100 years. In 1882, Bell Telephone, the unchallenged. Historically we were an communications equipment, and, up predecessor of AT&T, designated West- economic and technological Gulliver until July 1991, providing information ern Electric Co. as the exclusive manu- standing astride a world of competitive services, the Bell operating companies facturer of its patented telecommuni- Lilliputians. But that’s just not true and others have long advocated open cations equipment. During the early any longer. America—especially we in entry into these new lines of business, 1900’s Bell Telephone maintained a ma- the American legislative and regu- contending that such action would in- jority interest in Western Electric; by latory system—must respond and re- vigorate the telecommunications mar- 1925 it had 100 percent owership of the spond now. ketplace. company. At a minimum, government should In opposition, certain consumer orga- By that same year, Bell Telephone try to avoid doing harm. Unfortu- nizations, electronic publishers, long established Bell Telephone Labora- nately, government and regulators distance carriers, the Justice Depart- tories to conduct its research and de- have a rather sorry history of slowing ment, and other industry groups over velopment. The Bell system’s rapid ex- the introduction of new technologies the past few years have opposed entry pansion triggered interest from the De- and competition. The examples of this on the grounds that the courts should partment of Justice and the Interstate regulatory lag are numerous and all administer an antitrust consent decree Commerce Commission—which then too common. Regulatory lag means we and that so long as the Bell operating had jurisdiction over interstate tele- don’t get investment stimulus that companies face little or no competition phone service—for possible antitrust competition and new entry spur and, in their core business of providing local violations. more importantly, the public is denied telephone service, they should not be Following other antitrust action, in new service and product options. permitted to enter competitive lines of 1974, the Department of Justice filed an 1. Competition in customer premises business. antitrust suit against AT&T. The suit equipment: During the past 10 years a number of claimed that AT&T misused its Bell Competition and open entry first waivers have been granted, but the system monopoly of the local exchange came to telecommunications with re- process has slowed in recent years. network to restrict competition in the spect to customer premises equipment More fundamentally, the judicial proc- manufacturing of telecommunications (CPE). This competition, however, was ess is necessarily limited; the district equipment, and in the market for initially resisted by the FCC. For many courts constitutional role is simply to interchange service through refusal to years, AT&T prohibited customers or apply the law and administer the de- provide competitors with interconnec- anyone else from connecting any equip- cree, and not make informed policy de- tion to the local networks and, there- ment to its telephone network or to cisions about how communications law fore, access to end customers. After telephones themselves that AT&T did and the communications and computer years of litigation, the case was settled not supply. Bell tariffs forbade all for- industry should develop. in 1982 with entry of a modification of eign attachments—meaning equipment June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7883 not provided by Bell itself. Unfortu- also brought pressure for entry into AT&T to provide physical interconnec- nately, regulators endorsed this anti- other fields. tion to the public network. competitive practice for almost 70 MCI applied to the FCC for authority The Execunet decisions opened vir- years. to provide private, non-switched com- tually all interstate IXC markets to Through prodding from the Federal munications service between St. Louis competition. In response to this new courts, the commission eventually al- and Chicago. This service still did not judicially imposed reality, the FCC lowed devices deemed not injurious to involve interconnection with AT&T’s lowered entry barriers, eliminated the telephone network to be connected public network. In 1969, the commis- rules prohibiting sharing of heavy use, to the network. This was only after the sion approved MCI’s limited point-to- bulk rate circuits, and directed AT&T courts conferred on subscribers the point system, saying it was designed to to permit the resale and sharing of right to use their telephones in a way meet the interoffice and interplant these circuits by competitors. that had private benefits without being communications needs of small busi- During this same era, the commis- publicly detrimental nesses. Again, however, the decision sion approved interstate packet- It took the Commission more than a was narrow. switched communications network of- decade to extend the new law to in- The commission was concerned about ferings that introduced value-added clude equipment that was connected permitting unregulated carriers to en- networks which resold data processing electronically, not just physically, to gage in creamskimming, and it gen- functions through basic private line the network. The Commission limited erally still adhered strongly to the phi- circuits, and unlimited resale and restrictions on interconnection to pro- losophy that the public network should shared use of private line services and tecting the network from harm. The remain a regulated monopoly. None- facilities. Tariff restrictions against details of equipment interconnection theless, it prompted a deluge of appli- the resale and shared use of public were not fully implemented until the cations seeking authorization of simi- switched long distance services were commission adopted part 68 of its rules lar microwave facilities, reflecting a removed in 1980. Since this time, the in 1975, nearly 20 years after the origi- public demand for competitive alter- FCC has strongly supported the growth nal court determination so that car- natives. of competition. riers themselves would be free to com- A few years later, the commission The resulting competition has had pete on equal terms in the open mar- formalized a policy of allowing entry of well documented public benefits of ket. new carriers into the private line, or great scale and scope. 3. Enhanced Services: 2. Competition in long distance serv- Specialized Common Carrier (SCC), The MFJ Consent Decree’s informa- ices: field to provide alternatives to certain tion services restriction required the interstate transmission services tradi- The commission was equally slow in Bell Companies to seek waivers for the tionally offered only by the telephone authorizing interexchange—or long dis- provision of voice answering services, company. The commission did not, tance—competition. In the 1940s, long electronic mail, videotext, electronic however, define the scope of services it distance service was provided exclu- versions of Yellow Pages directories, was opening up to competition, a mat- sively over wires, and the same basic E911 emergency service, and directory ter that would prove troublesome as economics that seemed to preclude assistance services provided to cus- pressures for increased competition competition in local service applied tomers of nonassociated independent rose. equally to long distance service. The telephone companies. development of microwave and sat- Although each time emphasizing the The restriction on the provision of ellite technologies radically changed limited nature of its decision, the com- voice mail services was lifted in the that picture, making competition both mission had, over the course of 2 dec- late 1980’s. In the first 2 years of RBOC practical and inevitable. The first few, ades, continued to approve the entry of participation, the voice mail equip- faltering steps in the direction of a new providers of telephone services, ment market grew threefold and prices competitive marketplace, were taken albiet at times reluctantly and with declined dramatically. Between 1988 by the commission in 1959 but it wasn’t prodding by the courts, and only in (when the RBOCs were permitted until 1980 that the commission for- provision of private line services. entry) and 1989, the market for voice mally adopted an open entry policy for When it came to permitting direct mail services grew by 40 percent, with all interstate services. competition with AT&Ts public total revenues rising from $452 million Competition in the interexchange switched long distance service, the to $635 million. market developed slowly as the com- Commission’s reluctance hardened. Prices have also fallen. For example, mission gradually and incrementally MCI had eventually obtained approval telephone companies today charges as responded to changes in market pres- for its private line offerings, but when little as $5 per month for its residential sures, technology, and consumer de- it later proposed new switched service voice messaging service. Similar serv- mand for new and varied long distance in direct competition with AT&T’s ices in 1987 cost 2 to 10 times more. services. Microwave relay technology, MTS services, the FCC refused ap- Output has risen. The U.S. market for developed by Bell Laboratories during proval. voice mail and voice response equip- World War II, prompted the beginning In doing so, the Commission reiter- ment increased from $300 million in of IXC competition by offering a via- ated that its Specialized Common Car- 1988 to over $900 million in 1989. The ble, less expensive alternative to rier decision was meant to allow entry number of voice message mailboxes in- AT&Ts existing wireline facilities for only into private line service and not creased from 5.3 million in 1987 to 7.7 transmitting long distance commu- into direct competition with the public million in 1988 to 11.6 million in 1989. nications. network. The Court of Appeals, how- 4. Spectrum Allocation: The commission first permitted ever, reversed the commission’s failure The introduction of both FM radio entry of non-AT&T services for provi- to approve MCI’s proposed offering, re- and television was significantly de- sion of private services. In 1959, the jecting the commission’s argument layed by years of FCC equivocation FCC, finding a need for private services that its Specialized Common Carrier over which bands would be assigned to and foreseeing no risk of harm to es- decision authorized only private line which uses. Equally egregious delays tablished services, authorized certain services. preceded the introduction of cellular private companies to provide micro- After Execunet I, the commission telephone service. wave services and to establish private still refused to order AT&T to inter- FM Radio. FM radio technology was microwave networks for their own in- connect with MCI. The Court of Ap- invented in 1933, but did not receive ternal use. Although described as a peals, in Execunet II, then explicitly widespread use until the 1960s. Lack of narrow, limited decision, the Above 890 mandated interconnect, emphasizing FCC support contributed to FM’s lack decision prompted a flood of applica- that Specialized Common Carrier was a of popularity. One glaring example oc- tions from private organizations seek- broad decision to permit competition curred in 1945. By 1945, 500,000 FM re- ing authorization to establish private in the long distance market and that ceivers had been built, but were all ren- microwave long-distance networks. It such competition necessarily required dered useless when the FCC decided to S 7884 CONGRESSIONAL RECORD — SENATE June 7, 1995 move FM channels to a different spec- By defining video dialtone service as manded Judge Greene’s decision to trum band. FM languished for so long common carriage, not broadcast, the continue the ban on RBOC information that the inventor of FM eventually FCC has successfully preempted a raft services. Eventually, on July 25, 1991, committed suicide in despair. of State cable regulation and franchise Judge Greene relented and permitted TV. The modern television was devel- fees. It has also subjected these serv- RBOCs to provide information services. oped in the 1930s and exhibited by RCA ices to a raft of regulations. Telephone RBOCs were finally granted the right in 1939, but the FCC took 2 more years companies have been invited to provide to provide information services more to adopt initial standards. It was then a basic platform that delivers video than 4 years after the Justice Depart- discovered that channel allocation was programming and basic adjunct serv- ment recommended that the restric- inadequate, and the FCC froze all appli- ices to end users, under Federal, com- tion be removed. cations for TV licenses for 4 years, mon-carrier tariff. There have been numerous examples until 1952. In the year after the freeze Video dialtone providers must offer of egregious delays in granting even alone, the number of stations tripled. sufficient capacity to serve multiple non-controversial decree waivers. For It took another 10 years before regula- video programmers; they must make example, Bell Atlantic sought a waiver tions for UHF/VHF frequencies were fi- provision for increased programmer de- in 1985 to allow it to serve Cecil Coun- nalized. mand for transmission services over ty, Maryland as part of its Philadel- Cellular. In 1947 Bell Labs developed time; and they must offer their basic phia cellular system. Bell Atlantic sub- the concept of cellular communica- platform services on a nondiscrim- mitted another waiver to provide cel- tions and by 1962, AT&T had developed inatory basis. The dial tone moniker is lular service to 3 New Jersey counties an experimental cellular system. It misleading; the video connections are through its Philadelphia-Wilmington took another 15 years for regulation to strictly between the telco central of- system on October 24, 1986. catch up with the new technology; in fice and customers. But the number of These waivers were necessary to the 1977 the FCC finally granted Illinois programs offered from a video dialtone provision of uninterrupted cellular Bell’s application to construct a devel- server can be expanded indefinitely. service between Washington and New opmental celluar system in Chicago. The commission has attempted to York. Judge Greene finally granted the The FCC took 8 years to finalize the maintain strict separation between the second waiver on February 2, 1989, al- boundaries of cellular service areas. provision of video dialtone conduit, and most two-and-a-half years after it was The delay cost the cellular industry an provision of the programming itself. filed and the Cecil County waiver was estimated $86 billion. Video dialtone as defined by the com- not approved until 1991, nearly 5 years 5. Out of Region Competition by Bell mission is plainly more like telephone after it was first sought. Companies: carriage than like cable or broadcast- RBOCs have filed more than 200 MFJ The Department of Justice, with the ing. waivers that Judge Greene has ruled concurrence of Judge Greene, origi- 9. Direct Broadcast Satellite: on. These waiver requests first go to nally held that the MFJ consent decree When the FCC first considered licens- the Department of Justice, and then forbade the RBOCs from providing ing Direct Broadcast Satellite service move to Judge Greene. Unfortunately, services outside their own regions. The (DBS) in the early 1980s, the National the waiver process is also very time D.C. Circuit however overruled them Associate of Broadcasters raised the consuming. The average age of an both and found that the BOCs are not specter of siphoning. DBS would result RBOC waiver request pending before in the loss of service to minorities, restricted to providing service only the Department of Justice is about 21⁄2 rural areas, and special audiences by within their home territories; they are years old. siphoning programming, fragmenting free to offer intraLATA services any- Once the Justice Department passes audiences, and reducing advertising where in the country. The RBOCs now the waiver on to Judge Greene, it takes support. It would rob free local tele- compete heavily against one another in approximately 2 years before Judge vision service of advertising revenues. cellular service. The provision of other Greene rules on it. This has made the UHF stations would be especially local services, however, is impeded by average waiver process more than 41⁄2 threatened. The cable television indus- the interexchange restriction, which years to work its way through the sys- try joined in the assault on DBS by de- the Department and the decree court tem. nying access to programming. The have so far refused to lift even outside D. THE NEW COMPETITIVE LANDSCAPE service has only recently become avail- The competitive landscape is chang- the service areas of the individual able. RBOCs. 10. Computer and Software: ing, and, if Congress does not act to 6. Bell Company Manufacturing: AT&T—which invented the transistor overhaul the telecommunications legal In June 1991, outages in 5 states and and in the 1960s and 1970s developed landscape, consumers will once again the District of Columbia forced Bell some of the most powerful computers— be denied benefits of competition and Atlantic and other Bell companies to was barred for years (by the 1956 anti- new technology. Wireless services have work closely with a switch manufac- trust consent decree) from competing exploded since the Bell System break- turer to determine the cause of the in the computer market against IBM. up. Wireless counted less than 100,000 outages and prevent their recurrence. The upshot was that IBM completely customers at that time. The Department of Justice told Bell dominated computing for many years. Today, there are more than 25 mil- Atlantic that, notwithstanding the AT&T had also developed the Unix op- lion cellular subscribers. Additionally, emergency, Bell Atlantic could not erating system around which the companies just spent more than $7.7 work with the manufacturer without a Internet was built—it couldn’t com- billion for the major trading area PCS waiver of the decree’s manufacturing mercialize that aggressively either. licenses. There is obviously a market restriction. On July 9, 1991, Judge Now Microsoft is being accused of mo- for more wireless communications. Greene ordered a hearing with Bell At- nopolizing the industry with the MS– Cable has more than doubled its sub- lantic, the Department of Justice, DOS and Windows alternatives. scriber base since the MFJ. AT&T, and MCI and granted the waiver 11. Delay in RBOCC Information and For local telephone services, States on July 10, 1991. Inter-LATA Services Relief: such as New York, Illinois, and Califor- 7. Cable Networks: In 1987, the Justice Department rec- nia, have been leading the way in open- The FCC—at the behest of broad- ommended the removal of the informa- ing the local market to competition. casters—crippled and almost killed tion services restriction on the RBOCs. Competitive access providers did not cable television, by means of a number This was not opposed by AT&T. In Sep- even exist at the time of the MFJ. of regulatory restrictions such anti-si- tember of 1987, Judge Greene permitted Today, CAP’s are in 72 cities, and have phoning rules. The commission’s stated the RBOCs to enter non-telecommuni- built 133 competing networks. Rapid justification for restricting cable was cations businesses without obtaining a changes in technology have broken that it did not want to jeopardize the waiver, but did not lift the information down the natural monopoly Congress basic structure of over-the-air tele- services ban. based the 1934 act on. Competition is vision. On April 3, 1990, the U.S. Court of Ap- still slow to fully develop in some 8. Video Dialtone: peals for the District of Columbia re- areas, and in some markets. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7885 History teaches us that, under exist- percent of homes with PC’s and 36 per- Blue’s small beige machines have been ing law, the FCC and the courts have cent with video games. Multimedia and open, standardized, and widely copied not been able to respond to market and CD–ROM sales are flourishing. from the day they were introduced. Be- technology changes in an expeditious The Internet and computer on-line tween 1985 and 1992, IBM shed 100,000 manner. This delay prevents the services are reaching millions of Amer- employees. IBM’s stock, worth $176 a consumer from gaining the benefits of icans. DBS has been successfully share in 1987, collapsed to $52 by year’s competition, such as lower rates, bet- launched with 150 channels of digital end 1992. In 1992, the New York Times ter services, and deployment of new video and audio programming services. would announce ‘‘The End of I.B.M.’s and better technologies. A vibrant new wireless communica- Overshadowing Role.’’ ‘‘IBM’s prob- The courts, FCC and Justice Depart- tions industry is growing with cel- lems,’’ the Times noted, ‘‘are due to its ment have been micro-managing the lular—25 million subscribers—and pag- failure to realize that its core business, growth of competition in the tele- ing—20 million users—soon to be joined mainframe computers, had been sup- communications industry. That is why by Enhanced Specialized Mobile Radio, planted by cheap, networked PC’s and the committee believes it is incumbent Global Satellite Systems, and Personal faster networked workstations.’’ In a upon Congress to exercise its rightful Communications Services. desperate scramble for survival, IBM is authority in this area, and pass legisla- First. Digitization and industry con- breaking itself into autonomous units tion that will open the entire tele- vergence meet—Regulatory apartheid: and spinning off some of its more suc- communications industry to full com- Telecommunications policy in Amer- cessful divisions. IBM itself is only one petition. Without legislation, it may be ica, under the 1934 Communications of many first-tier vendors of PC’s years, or decades, before America sees Act, has long been based on the now today, with a market share of 8 per- the benefits of a truly open and com- faulty premise that information trans- cent. petitive telecommunications industry. mitted over wires could be easily dis- The impact on the computer indus- Meanwhile our foreign competitors tinguished from information transmit- try, however, has been intense com- are moving ahead aggressively. In ted over the air. Different regulatory petition spawning rapid technological Great Britain, cable-telco competition regimes were erected around these dif- advancement. A $5,000 PC in 1990—fea- is growing rapidly. The major cable ferent information media. turing Intel’s 80486 running at 25 MHz— players in the UK are, in fact, Amer- This scheme might best be described had the processing power of a $250,000 ican telco and cable companies. Prices as ‘‘regulatory apartheid’’—each tech- minicomputer in the mid-1980’s, and a for telephony provided over cable lines nology had its own native homeland. million-dollar mainframe of the 1970’s. are 10 to 15 percent lower than that These once neat separations and dis- Five years later, that same $5,000 PC is provided over British Telecoms net- tinctions between the media no longer two generations out of date—with a work. Here in the United States by make sense. third new generation on the horizon. contrast, the combination of the 1984 The explanation for the rapid conver- Systems with nearly twice the process- cable-telco prohibition and entry bar- gence of previously distinct media lies ing power of that 1990 system—using riers into the local telephone market with digitization. Digitization allows Intel’s 486DX2–66 chip—are available prevent such competition from devel- all media to become tanslatable into for under $1,500, and Intel runs adver- oping. each other. As Congress’ Office of Tech- tisements encouraging owners of these In Japan the government is providing nology Assessment stated in a recent chips to upgrade to newer ones. Sys- interest free loans to cover 30 percent study: ‘‘A movie, phone call, letter, or tems with more than twice the process- of the investment for Japan’s magazine article may be sent digitally ing power of that system—featuring broadband optical fiber network. Also via phone line, coaxial cable, fiber- Intel’s 120 MHz Pentium chip—are now planned are favorable tax measures for optic cable, microwave, satellite, the available, most for under $5,000. Intel is optical fiber and related investments. broadcast air, or a physical storage me- currently promising faster and faster Meanwhile in the United States when dium such as tape or disk.’’ iterations of its Pentium chips—run- American companies say they’ll invest The same technological phenomenon ning at 133 and 150 MHz—before it re- their own money in new networks, the to sweep the computer industry during leases commercial versions of its next- government at both the Federal and the 1980’s is now sweeping the tele- generation P6, which promises to move State level visits endless regulatory communications industry—we can the price-performance curve astonish- hassle on the proponents. learn valuable lessons from the experi- ingly farther out than today. The com- E. IMPORTANCE OF TELECOMMUNICATIONS TO ence in the computer industry. puter industry is still firmly in the ECONOMIC GROWTH Second. Computers and phones: grip of Moore’s Law, which holds that At the heart our actions in the 104th By the early 1980’s, AT&T and IBM the number of transistors that can be Congress is private sector economic were two of the largest and more pow- placed on a microchip—a rough esti- growth and private sector jobs through erful companies in the world. On Janu- mator of the power of the chip—dou- less Government regulation. To ary 8, 1982, the Federal Government bles every 18 months. achieve our goal, we need increased chose two different destinies for the The upshot is that consumers can capital investment. mammoth companies. The Government purchase systems with four times the Telecommunications is an especially agreed to dismiss its case against IBM; power of the 1980’s mainframes at one- important sector to spur investment by contrast, AT&T would be divested, fiftieth of the price. Put another way, because it provides a big multiplier ef- freed from all antitrust quarantines systems today have over 200 times the fect. The Japanese Government has es- and so permitted to enter the computer value of systems in 1984. By contrast, timated that for each dollar—or yen— business. long-distance calls today represent invested in telecommunications, you At the time, Intel was already over a only twice the value of long-distance get 3 dollars’ worth of economic decade old. Apple was growing fast. calls in 1984. Had price-performance growth—a real telecom kicker. And IBM had just introduced a brand- gains of the same magnitude occurred America’s edge has always been our new machine, based on an Intel in the long-distance market since 1984, grasp of technology. Today, tele- microprocessor. Big Blue’s new ma- the results would have been equally communications and computers are at chine—its personal computer—was stunning. For example, in 1984, a 10 the cutting edge. Americans today small and beige. Three weeks after the minute call at day rates between New have the broadest choice and best break-up of AT&T was complete, in York and Los Angeles cost a little less prices for these information economy January 1984, Steve Jobs stepped out than $5, today it costs $2.50. Had com- products and services in the world. on the podium at the annual stockhold- petition and technological advances de- For instance, 98 percent of American ers’ meeting of Apple Computer and veloped in the long distance market as homes have television and radio, 94 unveiled the new Macintosh. it did in the computer market, that percent a telephone. Close to 80 percent The impact of unfettered competi- same call would cost less than 3 cents. have a VCR, while 65 percent subscribe tion has devastated IBM. The only Alternatively, a 10 minute call from to cable TV—96 percent have the op- thriving parts of its hardware business New York to Japan—cost roughly $17 tion. We are rapidly approaching 40 today are at the bottom end, where Big in 1984 and $14 today. Had long-distance S 7886 CONGRESSIONAL RECORD — SENATE June 7, 1995 service advanced as rapidly as the per- In addition, layered on top of these ever-increasing buffet of choices. This sonal computer industry, that call and many other deals and alliances is implicit subsidy scheme must be re- would cost less than 9 cents. the globalization phenomenon—a formed and fixed. We cannot afford to Third. Lessons learned: breakdown of geographic barriers: all wait any longer to start that reform Yet as the United States stands at the RBOC’s have foreign investments; process. this critical crossroads—the dawn of a British Telecom and MCI in partner- F. WHAT S. 652 DOES: CHIEF REFORM FEATURES new era in high technology, entertain- ship; Sprint planning the same with First. Universal telephone service: ment, information and telecommuni- France Telecom and Deutsche The need to preserve widely available cations—America continues to operate Telecom; AT&T also working with and reasonably priced telephone serv- under an antiquated regulatory regime. Singapore Telecom, Cable & Wireless’s ice is one of the fundamental concerns Our current regulatory scheme in Hong Kong Telephone, and the Nether- addressed in The Telecommunications America simply does not take many lands Telecom. Competition and Deregulation Act of dramatic technological changes into We can no longer keep trying to fit 1995. The legislation as reported re- account. everything into the old traditional reg- quires all telecommunications carriers Progress is being stymied by a mo- ulatory boxes—unless we want to incur to contribute to the support of univer- rass of regulatory barriers which bal- unacceptable economic costs, competi- sal service. Only telecommunications kanize the telecommunications indus- tiveness losses, and deny American carriers designated by the FCC or a try into protective enclaves. We need consumers access to the latest prod- State as ‘‘essential telecommuni- to devise a new national policy frame- ucts and services. cations carriers’’ are eligible to receive work—a new regulatory paradigm for Since becoming chairman of the com- support payments. telecommunications—which accommo- mittee I have been actively working The bill directs the FCC to institute dates and accelerates technological with leaders in the telecommuni- and refer to a Federal-State joint board change and innovation. cations and information industry to re- a proceeding to recommend rules to The very same digitization phenome- form this outmoded and antiquated, implement universal service and to es- non supports the prospect of competi- regulatory apartheid system in order tablish a minimum definition of uni- tion by telephone companies and to make exciting new information, versal service. A State may add to the against telephone companies, by cable telecommunications and entertain- definition for its local needs. companies and against cable compa- ment services available for America. Second. Local telephone competition: nies, by long distance companies and It is time for American policymakers The Telecommunications Competi- against long distance companies. In- to meet this new challenge much the tion and Deregulation Act of 1995 re- cumbents on opposite sides of the tra- way an earlier generation responded forms the regulatory process to allow ditional regulatory apartheid scheme when the Russians launched Sputnik. competition for local telephone service have quite different views about which The response must be rooted in the by cable companies, long distance com- kind of competition should come first. panies, electric companies, and other If Congress cannot come to grips American tradition of free enterprise, entities. with digitization and convergence, the de-regulation, competition, and open Upon enactment the legislation pre- private sector cannot be expected to markets—to let technology follow or empts all State and local barriers to wait. Indeed, the multifaceted deals create new markets, rather than Gov- competing with the telephone compa- and alliances of the last several years ernment micromanaging and stunting nies. In addition it requires local ex- indicates that industry is not waiting. developments in telecommunications Look at a short list of some of these and information technology. change carriers [LEC’s] having market deals: By reforming U.S. telecommuni- power to negotiate, in good faith, US West/Time Warner. The world’s cations policy we in Congress have an interconnection agreements for access largest entertainment company, and unparalleled opportunity to unleash a to unbundled network features and second ranking cable company, digital, multimedia technology revolu- functions at reasonable and non- teaming up with the RBOC for the tion in America. By freeing American discriminatory rates. This would allow western United States. technological know-how, we can pro- other parties to provide competitive AT&T/McCaw. The biggest long dis- vide Americans with immediate access local telephone service through inter- tance and equipment maker joining to and manipulation of a bounty of en- connection with the LEC’s facilities. with the biggest cellular carrier. That tertainment, informational, edu- The bill establishes minimum stand- came on the heels of AT&T acquiring cational, and health care applications ards relating to types of interconnec- one of the biggest computer compa- and services. tion that a LEC with market power nies—NCR. Passing S. 652, The Telecommuni- must agree to provide if requested, in- Sprint/Cable Alliance. The third larg- cations Competition and Deregulation cluding: unbundled access to network est long distance company—and only Act of 1995, will have profound implica- functions and services, unbundled ac- company with local, long distance and tions for America’s economic and so- cess to facilities and information, nec- wireless capability—joining cable’s cial welfare well into the 21st Century. essary for transmission, routing, and TCI, Comcast, Cox, and Continental to Fourth. Universal service: interoperability of both carriers’ net- form an alliance to provide a nation- An additional, but often overlooked, works, interconnection at any techno- wide wireless communications serv- reason for immediately moving for- logically feasible point, access to poles, ice—and the prospect for joining ward with S. 652 and telecommuni- ducts, conduits and rights-of-way, tele- Sprint’s broadband long distance lines cations regulatory reform concerns the phone number portability, and local di- with cable’s high capacity local facili- problems affecting the centerpiece of aling parity. ties. American communications policy— As an assurance that the parties ne- Microsoft. There has been an almost maintaining universal voice telephone gotiate in good faith, either party may endless series of strategic alliances service at reasonable and affordable ask the State to arbitrate any dif- being struck between Microsoft, the prices. ferences, and the State must review world’s largest computer software com- The explicit subsidies—those of and approve any interconnection agree- pany, and companies in numerous in- known magnitude and direction—can ment. formation and telecommunications and should be maintained. These are The bill requires that a Bell company businesses for the purpose of delivering the ‘‘Universal Service Fund,’’ the use a separate subsidiary to provide interactive services. ‘‘Link-Up America’’ program, and oth- certain information services, equip- HDTV Grand Alliance. The compa- ers the FCC made part of the overall ment manufacturing, in-region nies teaming up to bring HDTV to access charge system. interLATA services authorized by the America include AT&T—the largest The implicit—or hidden—subsidies FCC, and alarm monitoring. In addi- telecom equipment maker—General In- are much more at risk. The present tion a Bell company may not market a strument—the largest cable TV equip- scheme cannot be maintained when subsidiary’s service until the Bell com- ment maker—and Phillips—the world’s new technology is changing so rapidly pany is authorized by the FCC to pro- largest TV set maker. and customers are provided with an vide in-region interLATA services. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7887 S. 652 also ensures that regulations ices may be provided by Bell companies tem not open to all programmers—the applicable to the telecommunications upon enactment. telephone company will be treated as a industry remain current and necessary S. 652 allows the Bell companies to cable operator under title VI of the 1934 in light of changes in the industry. provide interLATA services in connec- act. First, the legislation permits the FCC tion with the provision of certain other Whether a telephone company uses a to forbear from regulating carriers services immediately, with safeguards video dialtone network or a cable sys- when forbearance is in the public inter- to ensure that the Bell companies do tem, it must comply with the same est. This will allow the FCC to reduce not use this authority to provide other- must-carry requirements for local the regulatory burdens on a carrier wise prohibited interLATA services. broadcast stations that currently apply when competition develops, or when For example the reported bill requires to cable companies. A separate subsidi- the FCC determines that relaxed regu- a Bell company to lease facilities from ary is not required for a Bell company lation is in the public interest. Second, existing long distance companies if it carrying or providing video program- the bill requires a Federal-State joint uses interLATA service in the provi- ming over a common carrier platform board to periodically review the uni- sion of wireless services and certain in- if the company provides nondiscrim- versal service policies. Third, the FCC, formation services. inatory access and does not cross-sub- with respect to its regulations under Finally, the bill requires a Bell com- sidize its video operations. the 1934 act, and a Federal-State joint pany providing in-region interLATA The bill maintains rate regulation board with respect to State regula- service authorized by the FCC to use a for the basic tier of programming tions, are required in odd-numbered separate subsidiary for such services. where the cable operator does not face years beginning in 1997 to review all Fourth. Manufacturing authority for effective competition—defined as the regulations issued under the act or the Bell companies: provision of video services by a local State laws applicable to telecommuni- The judicial consent decree that gov- telephone company or 15 percent pene- cations services. The FCC and joint erned the breakup of AT&T in 1984, the tration by another multichannel video board are to determine whether any MFJ, also prohibited the Bell compa- provider. The bill minimizes regulation such regulation is no longer in the pub- nies from manufacturing telephones of expanded tier services. Specifically the bill eliminates the lic interest as a result of competition. and telephone equipment. The AT&T breakup itself, the globalization of the ability of a single subscriber to initiate The bill modifies the foreign owner- at the FCC a rate complaint proceeding ship restrictions of section 310 of the communications equipment market, the concentration of equipment suppli- concerning expanded tier services. In 1934 act, if the FCC determines that the addition, the FCC may only find rates applicable foreign government provides ers, the increasing foreign penetration of the U.S. market, and the continued for expanded tier service unreasonable, equivalent market opportunities to and subject to regulation, if the rates U.S. citizens and entities. dispersal of equipment consumption have greatly diminished any potential substantially exceed the national aver- The bill also requires that equipment age rates for comparable cable pro- manufacturers and telecommuni- market power of the Bell companies over the equipment market. gramming services. cations service providers ensure that States may impose sales taxes on di- The bill permits a Bell company to telecommunications equipment and rect-to-home satellite services that engage in manufacturing of tele- services are accessible and usable by provide services to subscribers in the communications equipment once the individuals with disabilities, if readily State. The right of State and local au- FCC authorizes the Bell company to achievable, a standard found in the thorities to impose other taxes on di- provide interLATA services. A Bell Americans with Disabilities Act. rect-to-home satellite services is lim- company can engage in equipment re- Third. Long distance relief for the ited by the bill. search and design activities upon en- Bell companies: Sixth. Entry by registered utilities actment. The Telecommunications Competi- into telecommunications: In conducting its manufacturing ac- Under current law, gas and electric tion and Deregulation Act of 1995 es- tivities, a Bell company must comply tablishes a process under which the re- utility holding companies that are not with the following safeguards: registered may provide telecommuni- gional Bell companies may apply to A separate manufacturing affiliate. the FCC to enter the long distance or cation services to consumers. There Requirements for establishing stand- does not appear to be sufficient jus- interLATA market. Since the 1984 ards and certifying equipment. breakup of AT&T, the Bell companies tification to continue to preclude reg- Protections for small telephone com- istered utility holding companies from have been prohibited from providing panies—a Bell manufacturing affiliate services between geographical areas providing this same competition. must make its equipment available to The bill provides that affiliates of known as LATAs, [Local Access and other telephone companies without dis- registered public utility holding com- Transport Areas]. The legislation crimination or self-preference as to panies may engage in the provision of reasserts congressional authority over price delivery, terms, or conditions. telecommunications services, notwith- Bell company provision of long dis- Fifth. Cable competition, video standing the Public Utility Holding tance and restores the FCC authority dialtone and direct-to-home satellite Company Act of 1935. The affiliate en- to set communications policy over services: gaged in providing telecommunications these issues. The Attorney General has The bill permits telephone companies must keep separate books and records, a consulting role. to compete against local cable compa- and the States are authorized to re- The reported bill requires Bell local nies upon enactment, although until 1 quire independent audits on an annual companies and other LEC’s having year after enactment the FCC would be basis. market power to open and unbundle required to approve Bell company plans Seventh. Alarm services: their local networks, to increase the to construct facilities for common car- The bill prohibits a Bell company likelihood that competition will de- rier video dialtone operations. The bill from providing alarm monitoring serv- velop for local telephone service. It also removes at enactment all State or ices. Beginning 3 years after enact- also sets forth a competitive checklist local barriers to cable companies pro- ment, a Bell company may provide of unbundling and interconnection re- viding telecommunications services, such services if it has received author- quirements. without additional franchise require- ization from the FCC to provide in-re- If a Bell company satisfies the com- ments. gion interLATA service. The bill re- petitive checklist, the FCC is author- The reported bill does not require quires the FCC to establish rules gov- ized to permit the Bell company to pro- telephone companies to obtain a local erning Bell company provision of vide interLATA services originating in franchise for video services as long as alarm monitoring services. A Bell com- areas where it provides wireline local they employ a video dialtone system pany that was in the alarm service telephone service, if the FCC also finds that is operated on a common carrier business as of December 31, 1994 is al- that Bell company provision of such basis, that is, open to all programmers. lowed to continue providing that serv- interLATA service is in the public in- If a telephone company provides serv- ice, as long as certain conditions are terest. Out-of-region interLATA serv- ice over a cable system—that is, a sys- met. S 7888 CONGRESSIONAL RECORD — SENATE June 7, 1995 Eighth: Spectrum flexibility and reg- ican economy, and our global competi- panded tiers, is peeled back. That rep- ulatory reform for broadcasters: tiveness. resents a major step toward deregula- If the FCC permits a broadcast tele- The stakes are high for everyone. tion and more reliance on competitive vision licensee to provide advanced tel- And it is the sheer number of issues markets. evision services, the bill requires the and concerns that accounts for the Third, this bill contains a competi- FCC to adopt rules to permit such complexity of any legislation. tive checklist for determining Bell Co. broadcasters flexibility to use the ad- First. A major step forward: entry into currently prohibited mar- vanced television spectrum for ancil- But let me talk briefly about some of kets like long distance and manufac- lary and supplementary services, if the the major steps forward which are en- turing. After Bell companies satisfy all licensee provides to the public at least visioned in this bill. the requirements, the FCC must, in ef- one free advanced television program When the former head of the Na- fect, certify compliance by making a service. The FCC is authorized to col- tional Telecommunications & Informa- public interest determination. lect an annual fee from the broadcaster tion Administration testified before This is not—contrary to some allega- if the broadcaster offers ancillary or the Senate, he commented that, ‘‘Ev- tions—more regulation. At least one of supplementary services for a fee to sub- erything in the world is compared to the Bell companies—NYNEX—can scribers. what.’’ probably fulfill all the checklist’s re- A single broadcast licensee is per- Well, virtually all of the bills which quirements very soon, because State mitted to reach 35 percent of the na- the Senate or the House has dealt with regulators have already required that tional audience, up from the current 25 over the past generation took the con- company to make the most of the nec- percent. Moreover, the FCC is required cept of regulated monopoly as a given. essary changes in the way it does busi- to review all of its ownership rules bi- Whether we are talking about Con- ness. The bill also explicitly says that ennially. Broadcast license terms are gressman Lionel Van Deerlin’s bill, the competitive checklist cannot be ex- lengthened for television licenses from H.R. 1315 in the House in the 1970’s; or panded. 5 to 10 years and for radio licenses from Senator PACKWOOD’s effort back in So, if you read all the provisions in 7 to 10 years. Finally, new broadcast li- 1981—S. 898: All of these bills assumed the bill in context, you will see that cense renewal procedures are estab- that monopoly, like the poor, would al- there simply is no broad grant of dis- lished. ways be with us. cretion to the Federal or State regu- Ninth. Obscenity and other wrongful Second. A paradigm shift: lators here. We have essentially spelled uses of telecommunications: My bill changes that. Instead of con- out the recipe for competition, and it is The decency provisions in the re- ceding that concern, this bill: incumbent on them to follow it. Removes virtually all legal barriers ported bill modernize the protections Fourth.—Future orientation: to competition in all communications in the 1934 act against obscene, lewd, Let me mention another critical as- markets—local exchange, long dis- indecent, and harassing use of a tele- pect of this bill, it is future oriented. tance, wireless, cable, and manufactur- phone. The decency provisions increase Too many of the earlier measures ing. the penalties for obscene, harassing, were focused on the status quo. What It establishes a process that will re- and wrongful utilization of tele- they basically did was rearrange exist- quire continuing justification for rules communications facilities, protect ing markets and services. The 1984 and and regulations each 2 years. Every 2 families from uninvited cable program- 1992 Cable Television Acts, for in- years, in other words, all the rules and ming which is unsuitable for children, stance, did not take steps to encourage regulations will be on the table. If they and give cable operators authority to competition, it kept in place all the re- don’t make sense, there is a process es- refuse to transmit programs or por- strictions on telephone company and tablished to terminate them. tions of programs on public or leased broadcast competition. Moreover, the It restores full responsibility to Con- access channels which contain obscen- 1984 Cable Act also maintained exclu- gress and the FCC for regulating com- ity, indecency, or nudity. sive franchising for cable television. munications. Under the bill that the This bill essentially seeks to change The bill provides defenses to compa- House passed last spring, for example, that focus. We assumed that cable tele- nies that merely provide transmission you would have still had a substantial, vision might become an effective com- services, navigational tools for the continuing involvement in communica- petitor to local phone companies, for Internet, or intermediate storage for tions policy on the part of the Justice instance, so we sought to get rid of any customers moving material from one Department and the Federal courts. regulations that would block that. We location to another. It also allows an This bill brings the troops home. also assumed that local phone compa- on-line service to defend itself in court Third. Genuinely deregulatory: nies might be effective cable competi- by showing a good-faith effort to lock I understand the concerns that some tors, so we tried to get rid of restric- out adult material and to provide of my colleagues have raised. Senator tions on that kind of competition. warnings about adult material before it MCCAIN has raised the question of In the case of broadcasting, we recog- is downloaded. whether this bill is deregulatory nized that this important industry is G. THE DEREGULATORY NATURE OF S. 652 enough. Senator PACKWOOD has asked if going to need much more flexibility to Ronald Reagan once joked—in the we could not speed up the transition to compete effectively in tomorrow’s mul- midst of a debate over the budget—that full, unregulated competition. These tichannel world. So, we will allow the only reason Our Lord was able to are valid concerns. broadcasters to offer more than just create the World in 6 days was that he But let me highlight some of the de- pictures and sound as well as multiple didn’t have to contend with the embed- regulatory steps which this bill makes channels of pictures and sound, if they ded base. possible now. so choose. Under this bill, they will I have been wrestling with the com- First, it will make it possible for the have the flexibility they need to com- munications issues since I came to FCC immediately to forebear from eco- pete in evolving markets. Congress. We all have. This has become nomically regulating each and every Fifth. Safeguarding core values: the congressional equivalent of Chair- competitive long-distance operator. This bill is aggressively deregula- man Mao’s famous ‘‘Long March.’’ The Federal courts have ruled that the tory. It seeks to achieve genuine, long- Nothing in the field is easy. We are FCC cannot deregulate. This bill solves term reductions in the level and inten- dealing with basic services—telephone, that problem and makes deregulation sity of Federal, State and local govern- TV, and cable TV—that touch virtually legal and desirable. mental involvement in telecommuni- every American family. We are dealing Second, this bill envisions removing cations. with massive investment—more than a whole chunk of unnecessary cable But this bill is also responsibly de- half a trillion dollars. We are dealing television price controls now. We leave regulatory. When it comes to main- with industries which provide almost the power to control basic service taining universal access to tele- two million American jobs. We are charges, until local video markets are communications services, for instance, dealing with high-tech enterprises that more competitive. But the authority to it does that, It establishes a process are critical to the future of the Amer- regulate the nonbasic services, the ex- that will make sure that rural and June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7889 small-town America doesn’t get left in allowing broadcasters and cable opera- to millions more. The average Amer- the lurch. tors, for instance, greater competitive ican family now has access to some 30 This bill also maintains significant flexibility, and giving local and long video channel choices. Much more is on Federal oversight. Telecommuni- distance phone companies more the way if the Pressler Bill is enacted cations, remember, isn’t like trucking, chances to compete as well. into law. or railroads, or airline transportation. Fifth, it terminates the involvement More News and Public Affairs. Cable The services we are talking about here of the Justice Department and the Fed- deregulation—spurred by satellite com- are marketed and consumed directly by eral courts in the making of national munications deregulation—made more the public. telecommunications policy. news and public affairs programming This bill seeks to advance core val- Sixth, the bill emphasizes effective available. CNN, C–SPAN, and ESPN are ues. I know that the Exon Amend- competition while also safeguarding prime examples. Local all news chan- ment—which places limits on obscene core values, such as universal service nels and local C–SPAN-oriented pro- and indecent computer communica- access and limitations on indecency; gramming is on its way if deregulation tions—has sparked controversy. All and, occurs. that amendment actually does is apply Finally, it maintains the responsibil- More Jobs. Relaxing broadcast rules to computer communications the same ity of Congress to continue to work and regulations—spurred by the growth guidelines and limitations which al- through the budget, oversight, and con- of cable TV—made it possible for some ready apply to telephone communica- firmation processes to move this criti- 300 new TV and 2,000 new radio outlets tions. cal sector toward full competition and to emerge. This created 10,000 new jobs Sixth. Further responsibility: deregulation. in broadcasting. Small town and rural America par- This bill also recognizes the fact that H. BENEFITS OF S. 652 deregulation is always a gradual, tran- In General. Competition and deregu- ity. Satellites and cable TV service sitional process—and that Congress has lation in telecommunications as a re- means small town and rural Americans the responsibility to stay involved. sult of the Pressler Bill means: command nearly the same media All of us know that good legislation Lower prices for local, cellular, and choices only big city residents once en- is only one facet of the overall deregu- long distance phone service, and lower joyed. This democratization has latory process. Other requirements are cable television prices, too. spurred public awareness of national careful scrutiny of budgets, of appoint- More and less costly business and and international events—as well as ments to the FCC and other agencies, consumer electronics to make U.S. encouraged fuller participation in the and effective Congressional oversight. business more competitive and Amer- political process. Political shift. Satellites, cable, talk No one should try to fool themselves ican citizens better informed. radio, and C–SPAN, which were a spe- into believing that we can get away on Expanded customer options, as busi- cific result of deregulation and com- the cheap. We can’t. ness is spurred to bring new technology petition in communications, were If we are serious about deregulating to the marketplace faster. In addition prime ingredients to last year’s land- this marketplace and—more impor- to more choices for long distance, cel- mark national political shift. Further tantly—expanding the range of com- lular, broadcast, and other services decentralization of media control petitive choices available to the Amer- where competition already exists, com- through deregulation will accelerate ican public, Congress is going to have petition and choice in local phone and this democratization phenomenon. to stay a central player. cable services will be introduced. In telephone service. Competition Seventh. Summary of affirmative as- High technology jobs with a future and deregulation in the telephone busi- pects: for more Americans, economic growth, ness means: Let me summarize, then, what I see and continued U.S. leadership in this Lower prices. Deregulation of phone as very positive, affirmative aspects of critical field. The President’s Council equipment resulting in faster deploy- this bill: of Economic Advisors estimates that ment of advanced equipment has made First, it dispenses with the old gov- deregulating telecommunications laws it possible to reduce local phone rates ernment-sanctioned monopoly model will create 1.4 million new jobs in the by $4 billion since 1987. More long dis- and replaces it with a process of open services sector of the economy alone by tance competition has meant nearly access which will lead to more com- the year 2003. In a Bell Company fund- $20 billion in price cuts since 1987. Vir- petition across-the-board, in every part ed study, WEFA concluded that tele- tually all Americans now have far of the communications business. It communications deregulation would more choices in phone equipment and flattens all regulatory barriers to mar- cause the U.S. economy to grow 0.5 per- long distance service—and with the ket entry in all telecommunications cent faster on average over the next 10 Pressler Bill will see choices in local markets. The more open access takes years, creating 3.4 million new jobs by phone services. hold, the less other government inter- the year 2005, and generating a cumu- New options. Sixty million American vention is needed to protect competi- lative increase of $1.8 trillion in real families now have cordless phones. tion. Open access is the principle estab- GDP. Finally, George Gilder has esti- Twenty-five million now have cellular lishing a fair method to move local mated $2 trillion in additional eco- phones. Fifty million have answering phone monopolies and the oligopolistic nomic activity with the Pressler Bill. machines. Twenty million have pagers. long distance industry into full com- More exports of high-value products, Deregulation has allowed technology petition with one another. Completion and greater success on the part of U.S.- to evolve to meet the demands of an in- of the steps on the pro-competitive based telecommunications equipment creasingly mobile society. checklist will give both the long dis- $10.25 billion, and services $3.3 billion, Special benefits. Cellular phones tance firms and the local telephone companies as well as computer equip- have helped millions of American companies confidence that neither side ment $29.2 billion, companies as they women feel safer and more secure. is gaming the system. leverage their domestic gains to make They have made it possible to drive Second, it eliminates a number of un- more sales overseas. safely under even the most severe necessary rules and regulations now— In Media. Competition and deregula- weather conditions, because now help by giving the FCC the discretion to tion in electronic media including can be called. forebear from regulating competitive broadcasting, cable, and satellite serv- Computer services. Competition and communications services, by removing ices means: deregulation in telecommunications unneeded, high-tier, cable price con- More Networks and Channels. In the will speed the deployment of the so- trols. early 1970s, there were three national called information superhighway. Cur- Third, it establishes a process for TV networks and virtually no cable rently, 40 percent of American homes continuing attic-to-basement review of systems. Today, there are 6 national have a personal computer. Computers all regulations on a 2 year cycle. TV networks, plus 10,000 cable TV sys- are ubiquitous for American business. Fourth, it seeks to create an environ- tems serving 65 percent of American There is one school computer for every ment that is more conducive to more homes—96% have the cable option— nine students. Competition and deregu- new services and more competitors—by with DBS now offering digital service lation will mean new communications S 7890 CONGRESSIONAL RECORD — SENATE June 7, 1995 facilities that will magnify the power center cities, and to allow many work- telecommunications and information of these computers. ers, especially working mothers, to technologies help police, fire depart- International competitiveness. Tele- telecommute thus reducing urban traf- ment and emergency medical services communications is a prime leverage fic congestion, pollution problems, and drastically reduce response times. In technology. Competition and deregula- easing child care problems. the case of emergency medical services tion expands business access to this Expanding markets. Fax, 800-num- far better on-the-spot service will be new technology. That makes American bers, United Parcel, and Federal Ex- provided. business more competitive globally. press have made it possible for even the For South Dakota and other small Deregulation also spurs U.S. produc- smallest companies today to compete city and rural areas: tion and export of high value-added on a state-wide, regional, national, and The bill is designed to rapidly accel- products like computers, advanced even international scale. erate private sector development of ad- telephone switches, mobile radios, and Working smarter. Satellite networks, vanced telecommunications and infor- fiber optics. Each dollar invested in computerized point-of-sale terminals— mation technologies and services to all telecommunications results in $3 of cash registers—and computerized in- Americans by opening all tele- economic growth. ventory systems often linked directly communications markets to competi- For agriculture. For agriculture, to suppliers make it possible for U.S. tion. competition and deregulation in com- retailers and other businesses to stay Recent series of television commer- munications means: very competitive without being over- cials have shown people sending faxes Efficiency. Farms today are the most stocked or understocked. Technology from the beach, having meetings via technology-intensive small businesses. which will be made more available computer with people in a foreign American farmers will be able to har- through deregulation has also allowed country, using their computer to ness computer, communications, and stores to operate in once remote areas. search for theater tickets and a host of satellite technology to stay the world’s Wal-Mart has become America largest other services that soon will be avail- most efficient lowest cost food produc- retailer, despite its largely rural ori- able. My bill would make those serv- ers. gins, chiefly because the company was ices available even sooner by removing Integration with the national com- able to harness the best in contem- restrictive regulations. munity. Communications advances porary communications. A person living in Brandon could help integrate the farm community For educators. For educators, com- work at a job in Minneapolis or Chi- with Americans nationwide. Farm fam- petition and deregulation in tele- cago, students in Lemmon would be ilies will have the same news, public communications means: able to take classes from teachers in affairs, and entertainment choices Greater parity. Students in small Omaha, and doctors in Freeman could nearly any American does. town and rural America, and in inner consult with specialists at the Mayo Distance learning/telemedicine. cities, will be able to access the same Clinic. Telecommunications can bring Schools in small town and rural areas information and instructional re- new economic growth, education, will be able to offer the same schooling sources only wealthy suburban dis- health care and other opportunities to options as those in the suburbs and tricts have. Advanced math, science, South Dakota. major cities. Telemedicine systems and foreign language courses that Competition in the information and will improve the quality of health care many schools could not offer pre- communications industries means available in small town and rural viously are available through tele- more choices for people in South Da- America, especially for the home communications. This reduces the kota. It will also mean lower costs and bound elderly in our society. pressures to close or consolidate small a greater array of services and tech- More jobs. Deregulation means more town and rural schools and other insti- nologies. For instance, competing for modern communications systems as tutions, which helps communities customers will compel companies to costs drop for small town and rural maintain their unique local character. offer more advanced services like caller areas which, in turn, help these areas Lower costs. Competition lowers the ID or local connections to on-line serv- attract and retain businesses and jobs. cost of telecommunications equipment ices such as Prodigy and America On- Communications deregulation in Ne- and services. This makes it possible for Line. braska meant thousands of new jobs for schools to adopt communications tech- It hasn’t been that long since Ma Bell the State. Deregulation in North Da- niques without needing to expand was everyone’s source for local phone kota did the same—one of the coun- budgets and local taxes. service, long-distance service, and try’s biggest travel agencies now oper- For law enforcement. For law en- phone equipment. Now there are over ate out of Linder and employs several forcement, competition and deregula- 400 long-distance companies and people hundred local people. tion in telecommunications means: can buy phone equipment at any de- For Government. For Government Efficiencies. Communications equip- partment or discount store. Under my agencies, competition and deregulation ment prices will continue to fall. Po- bill, eventually people would be able to in telecommunications means: lice will be able to afford to buy on choose from more than one local phone Better service. With voice mail, board computers, advanced service or cable television operator. smart phone services—for example, to radiocommunications, and other high- This new competition also should renew your library book, press 1, fac- tech systems. This magnifies the effec- lead to economic development opportu- simile, and electronic mail, Federal, tiveness of law enforcement budgets. nities in South Dakota. People will be State and local agencies will be able to Better coordination. Advanced com- able to locate businesses in towns like provide the public better service. munications and computer systems Groton and Humboldt and serve cus- Reduced cost. Technology through will result in far better coordination tomers in Hong Kong or New York deregulation and competition also among Federal, State, and local law City. We are entering an exciting era. I helps Government curb costs. Tax- enforcement agencies. Nationwide want to spur growth and bring new op- payers thus get better service without criminal records, drunk driving, stolen portunities to South Dakota and every- having to pay more. The right-sizing of car, and other checks can be under- where in America. Government agencies is made possible. taken quickly and cheaply. This means J. CONCLUSION Responsiveness. Using all the latest law breakers will face a higher risk of S. 652 is legislation providing for the communications technologies, Govern- apprehension, which means a stronger most comprehensive deregulation in ment offices will be able to greatly ex- deterrent against crime. the history of the telecommunications pand their constituent services, includ- Personal security. Advanced com- industry. ing here on Capitol Hill. puter and communications technology Enacting this bill means ending regu- For business. For business, competi- place home security systems within latory apartheid. Under the Commu- tion and deregulation in telecommuni- reach of more and more American fam- nications Act of 1934 and the Federal cations means: ilies. Easier access to cellular phones judiciary’s Modification of Final Judg- No geographical disadvantage. The will help Americans stay safer and feel ment, sectors of the communications ability to locate businesses away from more secure. At the same time, these industry are forcibly separated and June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7891 segregated. This created Government- tems; cellular radio telephones; radio to reform regulations of our telephone, imposed and sanctioned monopoly transmitters, transceivers and receiv- cable, and broadcasting industries is models for the telecommunications ers; fiber optics equipment; satellite surely one of the most important mat- sector. communications systems; closed-cir- ters the 104th Congress will consider. S. 652 tears down all the segregation cuit and cable TV equipment—ac- OPEN, DELIBERATE PROCESS barriers to competition and ends the counted for $10.25 billion in exports. Fi- Mr. President, this reform legislation monopoly model for telecommuni- nally, computer equipment accounted was years in the making. It is the cations. It opens up unprecedented new for $29.2 billion in exports. With this handiwork of numerous Senators from freedom for access, affordability, flexi- new legislation, telecommunications both parties, who have shared a com- bility, and creativity in telecommuni- and computer equipment and services mon recognition that our laws are out- cations and information products and will be America’s No. 1 export sector. dated and anticompetitive. services. S. 652 will spur economic growth, cre- The recent hearing process which in- Passing S. 652 will hasten the arrival ate new jobs, and substantially in- formed the Commerce Committee and of a powerful network of two-way crease productivity. As noted earlier, led to development of S. 652 began in broadband communications links for each dollar invested in telecommuni- February 1994. During 1994 and 1995 the homes, schools, and small and large cations results in 3 dollars’ worth of Commerce Committee held 14 days of businesses. For my home State of economic growth. The Clinton/Gore ad- hearings on telecommunications re- South Dakota, and other States away ministration estimates that with tele- form. The committee heard testimony from the big population centers, this communications deregulation the tele- from 109 witnesses during this process. reform bill will make the Internet and communications and information sec- The overwhelming message we received other computer communications more tor of the economy would double its was that Americans want urgent ac- easily accessible and affordable. share of the GDP by 2003 and employ- tion to open up our Nation’s tele- Local phone companies, long-dis- ment would rise from 3.6 million today communications markets. tance phone companies, cable TV sys- to 5 million by 2003. The WEFA Group, At the beginning of the 104th Con- tems, broadcasters, wireless and sat- in a Bell Company funded study, stated gress, on January 31 of this year, I cir- ellite communications entities, and that with telecommunications deregu- culated a discussion draft of a tele- electric utility companies all will gain lation 3.4 million jobs would be created communications deregulation bill freedom to compete with one another in the next 10 years. In addition, the which reflected ideas from all the Re- in the communications business. GDP would be approximately $300 bil- S. 652 is not only a deregulation bill, publican members of the Commerce lion higher, and consumers would save Committee. I invited the comments of it is a procompetitive bill. There is an approximately $550 billion. Finally, important distinction. The 1984 Cable ranking Democratic member HOLLINGS George Gilder recently testified before and other Democratic members. In just Act; for instance, deregulated rates for the Senate Commerce Committee that the cable industry but explicitly kept 2 weeks time, Senator HOLLINGS pre- if telecommunications deregulation sented a comprehensive response. He intact the barriers keeping telephone, like that contemplated in S. 652 does electric companies, broadcasters, and has been a tremendous ally in this ef- not take place, America will lose up to fort, as have many of my colleagues on others from competing for cable TV $2 trillion in new economic activity in service. Keeping the monopoly model the committee. the 1990s. Senator HOLLINGS and I and Demo- in place while lifting the lid on prices S. 652 will also assist in delivering cratic and Republican members of the led directly to a backlash and reregula- better quality of life through more effi- committee, together with the majority tion in the Cable Act of 1992. cient provision of educational, health and minority leaders, then engaged in This reform law will open the door care and other social services. Distance an open, deliberate, productive process for billions of dollars of new invest- learning and telemedicine applications of discussion and negotiation. ment and growth. The United States is are especially important in rural and Mr. President, it is accurate to say the world leader in telecommuni- small city areas of America. With the that staff from both parties have cations products, software, and serv- advent of digital wireless technologies worked night after night, weekend ices. Still, we labor under self-defeat- the cost of providing service will be after weekend, with scarcely any res- ing limits on our ability to grow at lowered tenfold thus closing the gap pite, since before Christmas on this home and compete abroad. Most for- between the costs of serving urban and bill. eign countries retaliate for the strict rural areas. U.S. limits on foreign investment. This If we in Congress do our job right, by Mr. President, just as it won over- keeps us out of markets where we passing this legislation, we have the whelming bipartisan support in com- would have the natural competitive ad- potential to be America’s new high- mittee, S. 652 deserves passage by a vantage and leaves them open to our tech pioneers—an opportunity to ex- strong bipartisan vote here on the floor competitors. Telecommunications in- plore the new American frontier of of the Senate. novation and productivity is flourish- high-tech telecommunications and When I travel around my State of ing in such countries as the United computers that will be unleashed South Dakota and see the craving for Kingdom, which has eliminated many through bold free enterprise, de-regu- distance learning, for telemedicine, for barriers to foreign investment. The latory, procompetitive, open entry better access to the Internet and the new legislation will lift limits on for- policies. By taking a balanced ap- other networks taking shape to im- eign investment in U.S. common car- proach which doesn’t favor any indus- prove our productivity and quality of rier enterprises on a fair, reciprocal try segment over any other, we will life, it helps me understand the need basis. First, stimulate economic growth, jobs, for this legislation, the need to work To maintain our world leadership po- and capital investment; second, help and fight for this reform. sition we need new legislation. S. 652 American competitiveness; third, mini- Mr. President, the obstacles for will improve international competi- mize transitional inequities and dis- progress in telecommunications are tiveness markedly by expanding ex- locations; and fourth, actually do not technical. They are political. We ports. In 1994, according to the Depart- something very good for universal serv- have it in our power to tear those ob- ment of Commerce, telecommuni- ice goals. stacles down. S. 652 does a substantial cations services—local exchange, long Mr. President, on March 28, the Com- part of the job of tearing them all distance, international, cellular and mittee on Commerce, Science, and down. mobile radio, satellite, and data com- Transportation voted 17 to 2 to report RESTORING CONGRESSIONAL RESPONSIBILITY munications—accounted for $3.3 billion S. 652, the Telecommunications Com- S. 652 returns responsibility for com- in exports. Telecommunications equip- petition and Deregulation Act of 1995. munications policy to Congress after ment—switching and transmission Telecommunications policy usually years of micromanagement by the equipment; telephones; facsimile ma- rates attention on the business pages, courts. This bill will terminate judicial chines; radio and TV broadcasting not as a front-page story. Still, for the control of telecommunications policy, equipment, fixed and mobile radio sys- average American family, legislation in particular, Federal Judge Harold S 7892 CONGRESSIONAL RECORD — SENATE June 7, 1995 Greene’s ‘‘Modification of Final Judg- The status quo preserves monopolies The personal computer success story ment’’ regime which has governed the and keeps American consumers from is especially important in my State of telephone business since the breakup of access to an array of products and serv- South Dakota. Because a firm that was AT&T in 1984. ice options. The existing system of law, a tiny start-up in South Dakota a few When the courts control policy, they regulation, and court decrees, holds years ago, Gateway 2000, is now a are restricted to narrow consider- back the American telecommuni- major player in personal computer ations. Congress, on the other hand, cations industry from its full potential markets. It is one of the quality lead- takes into account a whole range of to compete in world markets. ers in home computing products. economic and social implications in es- S. 652 would change all this. It would Computer industry entrepreneurs tablishing a national policy frame- bring about the most fundamental were free to gamble on the personal work. S. 652 provides such an approach overhaul of communications policy in computer. No Federal or State regu- to telecommunications reform. more than 60 years. It will break up the lator told them what they could and Piecemeal policymaking by the monopolies and increase competition. could not build, what specifications courts severely delays productive eco- S. 652 immediately lifts regulations they had to meet, what markets to tar- nomic activity. The average waiver barring local telephone companies’ get. Market competition was fierce. process before the Department of Jus- entry into cable service and cable’s Technological progress was breath- tice and the court takes an average of entry into the local phone business. taking. 41⁄2 to 5 years to complete. Such delays It allows electric utilities to offer By 1990, the upstart personal com- cause uncertainty in markets and sig- service in both the phone and cable puter industry was selling for $5,000 a nificantly reduce investment in tele- markets, and provides fair, effective, computer with as much processing communications, an increasingly vital and rapid means to make certain that power as a $250,000 minicomputer of the sector of our economy. local Bell companies abandon all mid-1980’s, more than that of a million- PROFOUNDLY PRO-CONSUMER vestiges of monopoly. Then it allows dollar mainframe of the 1970’s. Now Our electronic media are in a cre- those companies into the long-distance personal computers with more than ative tumult known as the digital revo- and phone equipment manufacturing twice the processing power are avail- lution. New technology is erasing old markets. able for $1,500. The upshot, in terms of price and distinctions between cable TV, tele- This bill ends decades of protection- power, is that today’s computer sys- phone service, broadcasting, audio and ism in the telephone investment mar- tems have over 200 times the value of video recording, and interactive per- kets. This will help assure access to systems in 1994. Even with the historic sonal computers. In many instances, capital to build the Nation’s next gen- breakup of the AT&T long-distance the only thing standing in the way of eration informational networking. monopoly, the telephone business has consumers and businesses enjoying On a reciprocal basis, it will give remained heavily regulated, and con- cheaper and more flexible tele- Americans more freedom to profit by sumers have gained value. In 1984, a 10- communications services are outdated making major investments in the tele- communications projects of growing minute call from New York to Los An- laws and regulations. geles cost $5. Today it cost $2.50. It Mr. President, S. 652 is profoundly markets abroad. For households and business in my home State of South should cost less, and will cost less. proconsumer. The bill breaks up mo- If competition and technological ad- Dakota and all around the Nation, S. nopolies—that’s proconsumer. The bill vances have developed in the long-dis- 652 means lower prices for local, cel- sweeps away burdensome regulations. tance market, as they had in the com- lular, and long-distance phone service This will lower consumer costs—that’s puter market over the same period, and lower cable television prices, too. proconsumer. that same phone call would cost less The bill opens up world investment The new competition also will spur than 3 cents today, rather than $2.50. markets for the U.S. telecommuni- companies to bring new technology and Three cents. cations business. The impact will be services to the marketplace faster. The regulatory status quo needs more jobs, new services, lower costs— Phone customers would be assured shaking up. That is what S. 652 would that’s proconsumer. the same number of digits and the do. It would do less for big existing Mr. President, American consumers same listing in directory assistance companies than for the businesses and and businesses want to enjoy the full and the white pages, whether they services that are still waiting to be cre- benefits of the digital revolution. They choose the local Bell company or a new ated, and many of those will be small want more communicating power, competitor. What is more, phone num- businesses. Most important, it would more services, more openings, and bers will be portable. A customer will help bring about an explosion of new lower prices. They want wide-open keep the same number even if he or she job opportunities and services for the competition. moves among phone companies to get American people. It is possible for Americans to have better prices. Let me take just a moment to de- all of these. The obstacles in their way S. 652 promotes competition in cable scribe in detail the key reforms in S. are not technical. We have the most markets while protecting consumers 652. First, universal telephone service, powerful economy, the most advanced from surges in rates. The outcome, I the need to preserve widely available technological base in the world. The fully expect for consumers, perhaps as and reasonably priced services is a fun- obstacles are political. soon as a year from enactment of the damental concern addressed in S. 652. The information industry already bill, is plentiful competition and low The bill preserves universal service, constitutes one-seventh of the U.S. rates without Federal controls. improves it, and makes it cost less. economy. Worldwide, the information Freeing business from overregulation It requires all telecommunications marketplace is projected to exceed $3 is creative and it is proconsumer. carriers to contribute to the support of trillion by the close of the decade. To- There was heavy skepticism 15 years universal service. Only telecommuni- day’s Federal laws prevent different ago about deregulating natural gas cation carriers designated by the FCC media from competing in one another’s prices, but look at the results. I re- or a State as ‘‘essential telecommuni- markets, although they have the tech- member I was in the House of Rep- cation carriers’’ are eligible to receive nical ability to do so. resentatives in those days and every- support payments. The bill directs the The regional Bell operating compa- body said if we deregulate natural gas, FCC to institute and refer to a Federal- nies are protected with monopoly sta- prices are going to soar. They did not. State joint board, a proceeding to rec- tus in the local residential phone serv- They went down. Natural gas prices are ommend rules to implement universal ice markets. But they are barred from lower than ever. service and to establish a minimum manufacturing phone equipment, offer- Now consider how dramatic the dif- definition of universal service. A State ing long-distance service, or competing ference in proconsumer advances have may add to the definition for its local in a cable video market. Cable compa- been between an unregulated part of needs. nies, though technically capable, are the information sector—personal com- Mr. President, to smaller cities and forbidden to offer competing phone puters—compared with the heavily-reg- rural communities and others who de- service. ulated telephone sector. pend upon universal service nothing is June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7893 changed. They continue to enjoy af- quirements. If a Bell company satisfies one free advanced television program fordable access to phone service as be- the checklist, the FCC is authorized to service. The FCC is authorized to col- fore. The most important impact of S. permit the Bell company to long-dis- lect an annual fee from the broadcaster 652 is structural and management re- tance service if this is found to be in if the broadcaster offers ancillary or form in universal service that will save the public interest. supplementary services for a fee to sub- the American taxpayers $3 billion over Once a Bell company has met the scribers. the next 5 years. I think that is impor- checklist requirements, it also will be A single broadcast licensee is per- tant to say. The universal service of allowed to enter the markets for manu- mitted to reach 35 percent of the na- this will cost less in these years. facturing phone equipment. tional audience, up from the current 25 For local telephone competition, S. In conducting its manufacturing ac- percent. Moreover, the FCC is required 652 gives a green light to local tele- tivities, a Bell company must comply to review all of its ownership rules bi- phone competition. The bill breaks up with the following safeguards: ennially. Broadcast license terms are the old monopoly system for local A separate manufacturing affiliate; lengthened for television licenses from phone service. All Federal barriers to Requirements for establishing stand- 5 to 10 years and for radio licenses from competition will be removed, and all ards and certifying equipment; 7 to 10 years. Finally, new broadcast li- State and local barriers will be pre- Protections for small telephone com- cense renewal procedures are estab- empted. Cable companies, long-dis- panies. A Bell manufacturing affiliate lished. tance companies, electric companies must make its equipment available to Entry by registered utilities into and other entities will gain a chance to other telephone companies without dis- telecommunications is allowed. offer lower prices and better service for crimination or self-preference as to Under current law, gas and electric local phone service. price delivery, terms, or conditions. utility holding companies that are not Upon enactment, the legislation pre- This bill also opens international in- registered may provide telecommuni- empts all State and local barriers to vestment markets. cation services to consumers. There competing with the telephone compa- S. 652 lifts limits on foreign owner- does not appear to be sufficient jus- nies. In addition, it requires local ex- ship of U.S. common carriers. The bill tification to continue to preclude reg- change carriers having market powers establishes a reciprocity formula istered utility holding companies from to negotiate, in good faith, inter- whereby a foreign national or foreign- providing this same competition. The connection agreements for access to owned company would be able to invest bill provides that affiliates of reg- unbundled network features and func- more than the current 25 percent limit istered public utility holding compa- tions that reasonable and nondiscrim- in a U.S. telephone company if Amer- nies may engage in the provision of inatory rates. ican citizens or firms enjoyed com- telecommunications services, notwith- This allows other parties to provide parable opportunities. This would standing the Public Utility Holding competitive service through inter- allow increased investment in and by Company Act of 1935. The affiliate en- connection with the LEC’s facilities. the U.S. telecommunications industry, gaged in providing telecommunications The bill establishes minimum stand- which enjoys worldwide comparative must keep separate books and records, ards relating to types of interconnec- advantage. and the States are authorized to re- tion that an LEC with market power Finally, in the area of cable competi- quire independent audits on an annual must agree to provide if requested, in- tion, the bill permits telephone compa- basis. cluding the following: Unbundled ac- nies to compete against local cable ALARM SERVICES cess to network functions and services; companies upon enactment, although Beginning 3 years after enactment, a unbundled access to facilities and in- until 1 year after enactment the FCC Bell company may provide such serv- formation; necessary for transmission, would be required to approve Bell com- ices if it has received authorization routing, and interoperability of both pany plans to construct facilities for from the FCC to provide in-region carriers’ networks; interconnection at common carrier ‘‘video dialtone’’ oper- interLATA service. The bill requires any technological feasible point; access ations. The bill also removes at enact- the FCC to establish rules governing of polls, ducts, conduits, and rights of ment all State or local barriers to Bell company provision of alarm mon- way; telephone number portability; and cable companies providing tele- itoring services. A Bell company that local dialing parity. communications services, without ad- was in the alarm service business as of As an assurance that the parties ne- ditional franchise requirements. December 31, 1994 is allowed to con- gotiate in good faith, either party may The bill maintains rate regulation tinue providing that service, as long as ask the State to arbitrate any dif- for the basic tier of programming certain conditions are met. ferences, and the State must review where the cable operator does not face Finally, continuous review and re- and approve any interconnection agree- ‘‘effective competition,’’ defined as the duction of regulation. ment. provision of video services by a local The bill also ensures that regulations There is long distance and manufac- telephone company or 15 percent pene- applicable to the telecommunications turing relief for the Bell companies. tration by another multichannel video industry remain current and necessary The Telecommunications Competition provider. The bill minimizes regulation in light of changes in the industry. and Deregulation Act of 1995 estab- of expanded tier services. Specifically First, the legislation permits the FCC lishes a process under which the re- the bill eliminates the ability of a sin- to forbear from regulating carriers gional Bell companies may apply to gle subscriber to initiate at the FCC a when forbearance is in the public inter- the FCC to enter the long-distance rate complaint proceeding concerning est. This will allow the FCC to reduce market. Since the 1984 breakup of expanded tier services. In addition, the the regulatory burdens on a carrier AT&T, the Bell companies have been FCC may only find rates for expanded when competition develops, or when prohibited from providing long-dis- tier service unreasonable, and subject the FCC determines that relaxed regu- tance service. S. 652 reasserts congres- to regulation, if the rates substantially lation is in the public interest. sional authority over Bell company exceed the national average rates for Second, the bill requires a Federal- provision of long distance and restores comparable cable programming serv- State Joint Board to periodically re- the FCC authority to set communica- ices. view the universal service policies. tion policy over those issues. The At- In the area of spectrum flexibility Third, the FCC, with respect to its torney General has a consulting role. and regulatory reform for broadcasters, regulations under the 1934 act, and a The bill requires Bell local compa- if the FCC permits a broadcast tele- Federal-State Joint Board with respect nies and other LEC’s with marketing vision licensee to provide advanced tel- to State regulations, are required in power to open and unbundle their local evision services, the bill requires the odd-numbered years beginning in 1997 networks to increase the likelihood FCC to adopt rules to permit such to review all regulations issued under that competition will develop for local broadcasters flexibility to use the ad- the act or State laws applicable to tele- telephone service. vanced television spectrum for ancil- communications services. The FCC and It sets forth a competitive checklist lary and supplementary services, if the Joint Board are to determine whether of unbundling and interconnection re- licensee provides to the public at least any such regulation is no longer in the S 7894 CONGRESSIONAL RECORD — SENATE June 7, 1995 public interest as a result of competi- We do not extend such thanks cas- restores regulatory authority over the tion. ually. This effort started in the fall of industry to the Federal Communica- In short, Mr. President, this bill pro- 1993, and every Friday morning we tions Commission. That administrative motes deregulation as far as it logi- would meet with the Bell companies, entity has also been outstanding in cally should go. It provides a kind of the regional Bell operating companies. their rendering of decisions and moving ‘‘sunset’’ process for all regulations Every Tuesday morning the staffs forward as best they could with the which the bill does not abolish imme- would meet again with the competing technological developments. But the diately. interests of long distance and all the competition of the communications I welcome the coming debate and other industry interests. We have con- and regular telephonic service and long vote on S. 652. I urge my colleagues to tinued those meetings right up to this distance evolved into a heck of a mo- reassert congressional responsibility afternoon. We have been working, nopoly that we could not deregulate. I for telecommunications policy. meeting, reconciling, trying our dead- was on the teams that worked all dur- Let me say, in summary and in con- level best to bring a complicated meas- ing the 1970’s and the early 1980’s. Fi- clusion, Mr. President, what we are ure up to the modern age of tele- nally, the Department of Justice had trying to do here is to get everyone communications. to bust it up. We found out that they into everyone else’s business. The eco- To this Senator, they have all done were so strong politically and finan- nomic apartheid that has been a part of an outstanding job. So it is not a cas- cially that they could cancel out any telecommunications since the act of ual ‘‘thanks,’’ but it is one that is very and everybody. Senator DOLE on the 1934 should be brought to an end. genuine and sincere. We thank them all majority side, this Senator on the mi- I believe the passage of this bill for their cooperation and understand- nority side, all during the 1980’s tried would be like the Oklahoma land rush, ing. to get it back to the FCC, and we were the going off of the gun, because pres- As this bill is called up, it is good to blocked. This Senate passed the manu- ently a lot of investment in the United note and emphasize that the Commerce facturing bill to allow the Bell compa- States is paralyzed because we do not Committee reported it by a vote of 17 nies to get into manufacturing, passed have a roadmap for the next 5, 10, or 15 to 2 on March 23. It is a product of by a vote of 74, bipartisan, and it was years until we get into the wireless months and months of consideration blocked over on the House side. age. and discussion by the committee and So the difficulty has really been in What is happening is that many of by Senators all involved. In the last trying to get it from Judge Greene our companies are investing in Europe Congress, Senators INOUYE, Danforth, back into the administrative body or abroad because they are prohibited and I sponsored S. 1822, which was ap- where the people’s decisions and poli- from manufacturing or doing some- proved at that time by the Commerce cies are made by the Congress, admin- thing here. As a result, American jobs Committee by a vote 18 to 2. istered by the Federal Communications are being lost. The committee held 31 hours of testi- Commission, but blocked by the indus- This particular bill, if we can pass it, mony, 11 days of hearings, and heard try itself time and time again. will provide a roadmap which business- from 86-plus witnesses. In this Con- Let me also mention Judge Greene men and investors will be able to in- gress, the committee on S. 652 has held who has done an outstanding job. I vest in and make an explosion of new 3 days of hearings on telecommuni- want to make note that it was just an- devices, an explosion of new jobs, and cations reform, heard from a number of nounced that Judge Greene will enter will help our country a great deal. witnesses representing a broad variety senior status this August. I just could I think it will help consumers by low- of interests. not give him enough kudos in the way ering prices and providing more de- S. 652 achieves a very, very impor- he has handled this, almost a one-man vices, and it will also help labor by pro- tant objective. Most important of all administrative responsibility for over viding more jobs of the type that we the objectives was the requirement of 10 years now in his deliberate approach need in our country. universal telephone service that would to the needs of the public by maintain- I wish to pay tribute again to Sen- be available and affordable and contin- ing at the same time universal service. ator HOLLINGS and his staff and all the ued to be outstanding. We have the fin- The basic thrust of this bill is clear. Senators on the committee who have est communications services in the Competition is the best regulator of worked so hard—and Senators in this world. the marketplace. But until that com- Chamber. I have spoken to all 100 Sen- This Senator went through the expe- petition exists, until the markets are ators at some point on this bill and it rience of airline deregulation. And opened, monopoly-provided services has been a long time getting it up. I truth is truth, and facts are facts. Do must not be able to exploit the monop- hope we can proceed through today and not come and tell me how airline de- oly power to the consumers’ disadvan- tomorrow. regulation is working. All of the air- tage. Competitors are ready and will- The PRESIDING OFFICER. The Sen- lines have just about gone broke. And I ing to enter the new markets as soon ator from South Carolina. can tell you from paying just to go as they are opened. Competition is Mr. HOLLINGS. Mr. President, as the from Charleston to Washington and spurred by S. 652’s provisions, specify- communications bill, S. 652, comes up Washington to Charleston and back, it ing criteria for entry into the various for consideration, my first urge is one is just an inordinate 600 and some odd markets. of gratitude. I want to thank the ma- dollars. What has happened is 85 per- For example, on a broad scale, cable jority leader and minority leader for cent of America is subsidizing some 15 companies will provide telephone serv- their leadership in calling up this bill percent for the long haul. They talk ice; telephone companies will offer and, of course, I particularly want to about market forces, market forces. video services, as pointed out by our thank the chairman of our committee We had a good arrangement on the reg- distinguished chairman; and telephone who has been outstanding in working ulated airline service, and we have companies will, in addition, provide to all day long in getting this bill to the come full circle now with regulating the consumers the continued universal floor. foreign airlines and KLM taking over service; the consumers will be able to Senator LOTT on the majority side Northwest, British Air coming in on purchase local telephone service from and Senator INOUYE, who was the USAir, and all the rest being saved several competitors; electric utility chairman of our Communications Sub- while we proudly stand up as politi- companies will offer telecommuni- committee, now the ranking member, cians blowing hot and hard how won- cations services; the regional Bell oper- have been working around the clock. Of derful airline deregulation is working. ating companies will engage in manu- course, particular thanks goes, again, That is hooey. facturing activities. All of these par- for our staff members. I thank the I wanted to make sure that we did ticipants will foster competition with chairman’s staff—Paddy Link, Katie not fall in and mess up in this particu- each other and create jobs along the King, and Donald McLellan. On my lar one with the wonderful tele- way. Of course, long distance will enter staff particular gratitude must go to communications service that we have the local exchange, and as the local ex- Kevin Curtin, John Windhausen, and had. This bill promotes competition in change is opened, the regional Bell op- Kevin Joseph for all their efforts. the telecommunications market and erating companies will enter into long June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7895 distance. So we are really moving very of a calendar ruling there would be no substantial possibility that the re- expeditiously into the competitive consideration of the competitive cir- gional Bell operating company will im- market. cumstances in the marketplace. pede competition through use of its We should not attempt to micro- So S. 652 specifies that the FCC may monopoly power or any other standard manage the marketplace. Rather, we approve any application to provide under the antitrust law. The report ac- must set the rules in a way that neu- long distance if it finds, one, that the companying this bill makes it clear. tralizes any party’s inherent market RBOC has fully implemented the I might emphasize at this particular power so that robust and fair competi- unbundling features specified in the point the leadership that already this tion can ensue. This is Congress’ re- competitive checklist in the new sec- year has been given by the antitrust di- sponsibility. tion 255 of the Federal Communica- vision, by the Department of Justice So this bill transfers jurisdiction tions Act of 1934; two, the RBOC will and the outstanding director, Assistant over the modified final judgment from provide long distance using a separate Attorney General, Ms. Anne Bingaman. the courts to the Federal Communica- subsidiary; and, three, application is She has obtained what we as politi- tions Commission. Judge Greene, as I consistent with the public interest, cians have been trying over 4 years to mentioned, has been overseeing that convenience, and necessity. get together, and that is about a month modified final judgment in an out- Mr. President, when I mentioned that ago on national TV there appeared the standing fashion. He was doing yeo- section 255 is a new section under the regional Bell operating company, man’s work in attempting to ensure Communications Act, I should say of Ameritech, the long distance company that monopolies do not abuse that 1934. It is good to point out that we AT&T, the Department of Justice and market power. Now it is time for the have used the original Communica- the Consumer Federation of America, Congress to reassert its responsibilities tions Act of 1934, as amended, for the all four entities important to the en- in this area. simple reason that over the 60 plus tire process agreeing on the steps of Let me address some of the specific years we now have a complex body of unbundling, dialing parity, access, areas of importance. The need to pro- law, special rulings, interpretations of interconnection, all of these things all tect advanced universal service is one legal expressions and requirements by ironed out that in the technological fundamental concern of the committee the courts. We are now tasked with the world of communications we have de- in reporting S. 652. Universal service job of trying to bring competition to a bated back and forth over these many must be guaranteed, the world’s best regulatory structure based on a monop- years. They have gotten together. They telephone system must continue to oly and open up the marketplace. are going into Grand Rapids and Chi- grow and develop, and we must ensure I remember in an earlier debate we cago, and, of course, the RBOC is get- the widest availability of telephone had this year it was brought out that ting into long distance. 60,000 lawyers are registered to practice service. Under this bill, all tele- And so while we politicians on the before the District of Columbia bar, communications carriers must contrib- floor of the Senate will be debating in 59,000 of whom are probably members ute to their universal service fund. A the next few days, no doubt it should of the federal communications bar. Federal-State joint board will define be mentioned that the Department of That is why you will see every effort to universal service. This definition will Justice, under the leadership of Ms. change every little word and analyze evolve. It is a flexible requirement—a Anne Bingaman, has already gotten every phrase. So we have really had a requirement, I should say rather, of the parties together. I am convinced difficult task trying to break up the flexibility so that the definition will that their consent decree now before monopoly of the local telephone com- evolve over time as technologies Judge Greene will be affirmed. change so that consumers have access panies and to open the market so com- S. 652 requires that an RBOC must to the best possible services. petition could ensue and yet it is the Special provisions in the legislation monopoly that has provided us with provide long distance using a subsidi- address universal service in rural areas the universal service we all enjoy. We ary separate from itself to avoid any to guarantee that harm to universal do not want to penalize or jeopardize in cross-subsidization between local and service is avoided there. One of the any sense the regional Bell operating long-distance rates. These and other most contentious issues in this whole companies that have been doing an safeguards in the bill should prevent discussion has been when the regional outstanding job because there is no against RBOC abuses in the long-dis- Bell operating companies should be al- shortcut there. If you penalize them tance market. lowed to enter the long distance mar- and put them into an uncompetitive The committee-approved bill also in- ket. position, then, of course, your rates are cludes some deregulation rates for Under section VII(C) of the modified bound to go up. cable television. The Democratic pro- final judgment consented to buy all the So S. 652 is a balanced bill. The pub- posal at the beginning of the year did RBOC’s and attested to in the hearings lic interest test is fundamental to my not suggest any such deregulation be- that we have had on this bill, as a support for the legislation. In making cause from 1986 to 1992 cable rates had group the test has been whether the this public interest evaluation, the risen three times faster than the rate RBOC’s seeking entry into long dis- FCC is instructed to consult with the of inflation, so that the Congress back tance could have a substantial possibil- Department of Justice which may fur- in 1992 overwhelmingly imposed rate ity of impeding competition in that nish the Federal Communications regulation and new service standards long distance market which it seeks to Commission with advice on the appli- on the cable operators. enter. cation using whatever standard it finds We passed the 1992 Cable Act largely Last year, S. 1822 contained a re- appropriate, including antitrust analy- in response to the complaints from quirement that the Department of Jus- sis under the Clayton and Sherman consumers that rates had soared be- tice utilize this test in considering any Acts and also section VIII(C) under the yond reason and service was poor. The application for the regional Bell oper- Modified Final Judgment. bill actually became law with the bi- ating companies’ entry into long dis- Mr. President, this is great leap from partisan vote to override President tance. In addition, the FCC was to uti- the actual and demonstrable competi- Bush’s veto. lize a public interest test for consider- tion test originally proposed in S. 1822 Now, since the 1992 act was adopted, ing any such application. This was an from the last Congress. While I would the cable industry has experienced sig- approach to which the regional Bell op- prefer a more active Department of nificant growth. Subscribership is up, erating companies agreed during the Justice role, and an explicit reference stock values in cable companies have last Congress. This year, earlier draft in the statute to the section VIII(C) risen dramatically, and debt financing provisions, however, set a date certain test, I support the provisions of S. 652 by the cable industry rose in 1994 by al- for entry by the RBOC’s into the long because the FCC will have the benefit most $4 billion over the 1993 levels. But distance market. of the Department of Justice views the Consumer Federation of America So after all the hearings and much prior to making any decision. The De- estimates that $3 billion has been saved discussion and negotiation, we deter- partment of Justice may well decide to for American consumers through the mined that this self-defeating approach base its decision on whether there is a rate regulation that has been put into S 7896 CONGRESSIONAL RECORD — SENATE June 7, 1995 place. Yet some in the industry main- consumers will be better served by hav- Mr. GORTON. Mr. President, it may tain that cable regulation produces un- ing choices among providers and serv- well be that the two distinguished certainty in financial markets and that ices. southern managers of this bill, the cable operators will need to be able to I urge my colleagues to support the Senators from South Dakota and respond to new competitors through bill. I myself would have gone further South Carolina, may never have imag- additional revenues. in several areas covered by the legisla- ined that this day would come. This is S. 652, therefore, changes the stand- tion, but I have seen that any one sec- probably the first occasion on which a ard of regulation for the upper tiers of tor of the telecommunications industry thorough philosophical change in di- cable programming. It makes no can stop this bill and checkmate the rection in communications law has changes in the regulation of the basic others, as I have stated before. Tele- been debated on the floor of the U.S. tier. Under the bill, a rate for the upper communications reform is too impor- Senate since the Communications Act tier cannot be found to be unreasonable tant to let this opportunity go by. of 1934, some 61 years ago. unless it substantially exceeds the na- Finally, Mr. President, it should be In 1934, of course, communications tional average rate for comparable emphasized that here is one industry was via old-fashioned dial or operator- cable programming. that suffered from deregulation. You assisted telephone through radio sta- This standard will allow cable opera- cannot approach this problem in S. 652 tions and through Western Union tele- tors greater regulatory flexibility for as we bring it into the technological grams. The technological situation of the upper tiers. The bill retains the age without thinking back to 1912 when the time called for monopoly commu- FCC’s authority to regulate excessive David Sarnoff was a clerk in Wana- nications systems and the necessity of rates charged to the upper tiers. maker’s store and the sinking of the regulation of those systems in the pub- In addition, the bill changes the defi- Titanic was occurring. They raced him lic interest to see that prices were not nition of effective competition in the up to the roof of Wanamaker’s. He set too high. 1992 act to allow cable rates to be de- up his wireless, made radio contact Today, of course, technology is so to- regulated as soon as the telephone with the sinking ship and contacted tally and completely different that an company begins to offer competing rescue vessels, directing not only some entirely different regime is needed. cable services in the franchise area. of the rescue effort but the names of Perhaps the greatest difficulty in Once consumers have a choice among survivors, working almost 72 hours bringing this day on which we start entities offering cable service, the need around the clock. this debate to pass has been the fact for regulation no longer exists. Everyone then got a wireless. There that in each long set of hearings in the S. 652 increases the ability of any en- was not any regulation. And by 1924, Senate Commerce Committee over a tity including television networks to when Herbert Hoover was the Sec- year or more, each tentative set of con- own more broadcast stations. Today, retary of Commerce, all of those wire- clusions on the part of these two Sen- the FCC rules allow an entity to own less operators came rushing to the Sec- ators, and others, by the time those broadcast stations that reach no more retary of Commerce and said, ‘‘For conclusions had been reached, the tech- than 25 percent of the Nation’s popu- heaven’s sake, we have nothing but nology has gone beyond those conclu- lation. This limit was imposed out of jamming.’’ The radio broadcasters, who sions. concern that broadcast stations would have a tremendous interest in this S. So there seems to be a broad agree- be owned by a few individuals, and that 652, went begging to be regulated. So ment across both parties and many po- concentration would not be beneficial they were in the act of 1927 and litical philosophies that there should to our local communities or yield the brought into that age then with the be a large degree of deregulation as a benefits that result from the expres- 1934 act. part of any bill, based on the propo- sion of diverse points of view. S. 652 So those who are now talking about sition that we cannot tell how much would increase that level to 35 percent. getting rid of the Government and, in- the technology will change in the next Any modification in the national cidentally, by the way, we can save 6 months, much less the next 10 years, ownership cap is important because of money by getting rid of the FCC, ought and that we should accommodate it localism concerns. Local television sta- to stop, look and listen. They have to without constantly trying to regulate tions provide vitally important serv- have a sense of history. We can get rid it through some form of statutory lan- ices in our communities. Because local of total deregulation, jamming each guage. That is the philosophy of this programming informs our citizens other and all that sort of thing, but, bill, a philosophy of competition rather about natural disasters, brings news of after all, the public airways belong to than of regulated monopoly. local events, and provides other com- the public, on the one hand, and they It has been a difficult process and it munity-building benefits, we cannot af- need a modicum of administration, on is likely to be a difficult process for ford to undermine this valuable local the other hand, for this finest, finest of the next 3 or 4 days. resource. communications systems in the entire So rather than repeat anything that Earlier drafts of the legislation world. the two leaders in this debate have would have eliminated many of the Let us not talk about the FCC cost- said, I would simply like to say from FCC regulatory limits on the broadcast ing money. They are the entity this the perspective of this Senator, as a industry. By contrast, S. 1822, as ap- year that already by auction has member of the Commerce Committee, proved by the Commerce Committee brought in $7 billion to the Federal there have been three guiding prin- last year, required the FCC to conduct Government. If you can find any other ciples in dealing with the many con- a proceeding to review the desirability bureau, commission, administration, flicts among groups who would like to of changing these rules. I think the bill department of Government or other- provide communication services, and with 35 percent permeation is an ac- wise that has reaped 7 billion bucks, I those three guiding principles are, of ceptable compromise between those po- would like to find it. course, deregulation, competition and sitions. We have the money to administer all the interests of the consumers, the In addition, the bill repeals a prohibi- of these things and bring it into a de- users of these various services. tion on cable broadcast regulatory, competitive position, but it Mr. President, there are a number of crossownership. S. 652 makes no change has to be done in an orderly fashion, areas covered by this bill in which in the other broadcast ownership rules and everyone connected and working those three interests lead to the same such as the duopoly rule or the one-in- on this understands that. So let us not conclusion: Deregulation will promote the-marketplace rule. Rather, the FCC start talking about getting rid of the competition, competition will promote is instructed to review these rules FCC and act like you are doing some- the consumer interest. every 2 years, and they can change it thing sensible. Those parts of the bill probably will upon review. I thank my colleagues and yield the not be the subject of much discussion This comprehensive bill strikes a bal- floor. during the course of this debate. They ance between competition and regula- Mr. GORTON addressed the Chair. have been worked out. But the three tion. New markets will be open, com- The PRESIDING OFFICER. The Sen- considerations are at least slightly dif- petitors will begin to offer services, ator from Washington. ferent and move in slightly different June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7897 directions. Because of the nature of the Now, the new companies, the entre- here for nearly a decade. In fact, I first communications industry, which still preneurs, those who are just beginning introduced telecommunications de- includes huge regulated monopolies, a in the field, or wish to get in the field, regulation legislation in 1986. total and complete deregulation at simply want it opened up. They want But rather than seeing this bill as an least carries with it the risk not of to be able to compete, where today end to the process, I see it as a begin- competition but of an unregulated mo- they cannot. Few of them are large ning: A beginning of a new era of lead- nopoly substituting itself for a regu- enough to demand some kind of special ership for the telecommunications in- lated monopoly. So there must be a de- privileges or another. And we need to dustry and for America. gree of caution in the speed and the encourage both. And one person who deserves a good completeness of any kind of deregula- We need to encourage the continued deal of credit for making this new era tion. investment in this new technology on a reality is Senator PRESSLER. As all Almost always, it seems to me, Mr. the part of those companies that have Members know, this is a tough, com- President, that competition is in the been in the business literally forever. plex, and often contentious issue. And consumer interest, though ironically We cannot lose their expertise and that Senator PRESSLER and Senator HOL- many of the so-called organized tremendous investment. We need to see LINGS have done an outstanding job at consumer groups have little faith in to it that those large companies are bringing the competing interests to- competition and in the free market and able to compete against one another in gether—or as close together as pos- believe in various forms of state social- the consumer interest. At the same sible. ism and want in many respects more time, we also need to see to it that the Senator HOLLINGS was the chairman regulation. I believe, Mr. President, niche companies, the new companies, and came very close last year to get- that those so-called consumer rep- the people with bright new ideas, are ting a bill. This year, under the chair- resentatives rarely represent the ac- able to get into this business and if manship of Senator PRESSLER, we are tual consumer interest. they are tremendously successful, be- on the floor with the bill. We have not So as we go through this debate over come large companies as well. passed it yet, but my understanding is particular proposed amendments dur- So, Mr. President, we search for de- that there is a lot of bipartisan sup- ing the course of the next week, it regulation, we search for competition, port. It is not a partisan measure, a seems to me we all have to attempt to and we search for the consumer inter- Democrat or Republican partisan fight. judge them on the basis of those three ests. I think we all do so sincerely, de- So we ought to be able to complete it principles: Are they deregulatory in termined that we need to make major quickly, because they have done an nature in a constructive fashion that is changes, and perhaps with a degree of outstanding job of bringing the com- consistent with the march of new tech- humility, that we do not know what is peting interests as close together as nologies? Do they promote competi- going to happen tomorrow, and we wish possible. tion? And are they in the consumer in- to craft an outline which will allow to- Mr. President, leadership in tele- terest? morrow to take place without our hav- communications, whether it was in- Mr. President, there is only one other ing crushed it by unanticipated con- venting the telegraph or the microchip, major point that I want to make at sequences to the actions we take here. has been an American tradition. And this time, and that is that of all of the I want to close by congratulating we will continue that tradition with proposals with which I have had to deal both of my colleagues, the Senator passage of this bill. in my career in the Senate, this is per- from South Dakota and also the Sen- As I have said before, telecom reform haps the most important for the future ator from South Carolina, who has will be the real jobs stimulus package of our economy. Perhaps as much as 20 spent a major part of his career in this of this decade. percent of our economy is connected field and who now has, I think, the en- Building the necessary infrastructure with communications in some respect viable task of attempting to manage will require thousands of private sector or another. And, of course, the lobby- this legislation wisely and successfully jobs. And that is just the beginning. ing, the attempt to influence all of us to a conclusion that will benefit all of Millions more will be created because on the part of people who are in the the American people. information will become more acces- communications business or wish to be Mr. DOLE addressed the Chair. sible. Jobs that will make America in the communications business is The PRESIDING OFFICER. The ma- more efficient, more productive, and fierce, is overwhelming in nature. At jority leader is recognized. ultimately more powerful. the same time, the actual consumers of Mr. DOLE. First, I thank and con- Looking back on Congress’ track these goods, our constituents, who are gratulate the chairman and the rank- record, a casual observer would think not in the business, are almost totally ing member of the committee, Senator that we have a grudge against the com- silent. PRESSLER and Senator HOLLINGS. We munications industry. Fortunately, I have hardly gotten a handful of have been promising week after week this image is changing and Republicans telephone calls or letters from ordinary that this bill was coming to the floor. are glad to see that traditional ‘‘pro- citizens about this bill. It is too big. It I do not believe it now that it is on the regulators’’ are finally coming around is too complicated. It is about the fu- floor and pending. I have every expec- to our competitive way of thinking. ture. It is very difficult to come up tation, with their management skills, We must develop a flexible policy with an intelligent opinion off the top that we can probably finish this bill by that will accommodate the explosion of of one’s head on some of the particular Friday noon. If that is the case, we new technology. That policy, of course, controversial areas in it. And so it is probably would not have any votes on is promoting competition. It is irre- up to us to weigh the consumer inter- Monday—if that is an incentive for sponsible to think we can do anything est as we work our way through this anybody. We might have debate on more. legislation, along with those features some other bill but no votes on Mon- No one knows the benefits of free and that will lead to competition, gen- day. So if we can consider those incen- open competition better than the com- erally speaking, through deregulation. tive programs as we go along, it will be puter and semi-conductor industries. My observation is that the large helpful. But it is a very important Just take a look at a few of the players companies and groups which are al- piece of legislation. It is probably the in the U.S. communications industry. ready in the communications business most important bill we have considered Last year, the computer industry do sincerely favor competition. But, all year, no doubt about it. It will cre- earned revenues close to $360 billion. generally speaking, they would like to ate jobs, opportunity, all of the things Two things are amazing about that fig- create a competitive atmosphere in we have talked about. I have listened ure. First, it is twice the telephone in- which they are at least even, and per- to both managers’ opening statements. dustry’s revenues. And second, reve- haps have a little bit of an advantage. Mr. President, some may consider S. nues from the personal computer in- And so the mythical even playing field 652 to be the end of a long, long, proc- dustry, which for all intents and pur- is something to which all give lip- ess. And no doubt about it, tele- poses was non-existent in 1980, account service but each defines in a different communications deregulation legisla- for almost half of that figure. In other fashion. tion has been an idea debated around words, revenues in personal computers S 7898 CONGRESSIONAL RECORD — SENATE June 7, 1995 have grown as much in 14 years as the 90-days—60 more can be added if the tional 60 days, the petition shall be deemed entire telephone industry did in 100. issue requires additional scrutiny. granted. If petition is rejected, it must be It is not too difficult to figure out Most importantly, it must provide a with a written explanation. In short, it will that the computer industry benefitted written determination to justify its ac- force the commission to justify any and all of its regulations. from fierce competition and minimal tions. Eliminate the number of TV stations any government regulation. Phone compa- Third, eliminate the number of TV one entity can own. nies did not. stations that any one entity can own. Force the Commission to change its rules Cable TV also exploded after it was Currently, the limit is capped at 12. so that any entity can reach up to 35% of de-regulated in 1984. At that time, its This amendment removes that cap. I Americans with TV broadcast systems (the revenues were $7.8 billion and it em- want to point out, however, that this current cap is at 25%). ployed 67,381 persons. Fast-forward to amendment does not, I repeat, does not Eliminate the number of radio stations 1992. Revenues tripled and employment increase the percentage of national any one entity can own, unless it would harm competition. numbers jumped to 108,280. While these viewership beyond the 35 percent that Have FCC consider eliminating rate regu- numbers are also good, I would suggest is included in the chairman’s mark. lation in long distance market. that the cable TV industry would have The amendment also eliminates the Regulatory relief. Speed up FCC action for done much better if it had faced com- number of radio stations one can own, phone companies by making any revised petition. More importantly, I would unless the Commission finds that issu- charge that reduces rates effective 7 days also suggest that there would not have ing or transferring a license will harm after it is filed with commission. Rate in- been the abuses which prompted Con- competition. creases will be effective 15 days after submis- gress to enact re-regulation in 1992. The measure also privatizes or elimi- sion. To block such changes, FCC must jus- tify its actions. My point is simple: competition, not nates a number of FCC functions. The Eliminate arcane requirement that phone regulation, has the best record for cre- Commission deserves credit for making companies must File any line extension with ating new jobs, spurring new innova- these suggestions that comprise this Commission. As it stands now, companies tion, and creating new wealth. provision. In other words they came have to get the commission to approve any Mr. President, America is at the from the FCC. line extension which often takes more than a cross roads, and Congress must make a I could go on at length, but I believe year. choice. A touch choice, as we all know. I have given my colleagues a flavor of Phone companies will only have to file cost But I believe that if we ask the right what this amendment is about. I know allocation manuals on a yearly basis. question, we will get the right Answer. Eliminate the following FCC functions: Re- the managers and members of their peal setting of Depreciation rates; Have As I see it, we must ask ourselves, staffs are well acquainted with it. Commission subcontract out its audit func- ‘‘who will decide the communications This amendment does represent the tions; Simplify coordination between Feds industry’s future.’’ hard work of many Members, obviously and States; Privatize Ship radio inspections; I say we allow the real technical ex- Members on both sides of the aisle. Permit Commission to waive construction perts to decide. And I am not talking Senator BURNS has been working on permits for broadcast stations as long as li- cense application is submitted 10 days after about government bureaucrats. In- this for a couple years, Senator CRAIG, construction is completed. stead, we should look to the experts in Senator PACKWOOD, Senator MCCAIN on the field, the entrepreneurs, the engi- Also terminate broadcast licenses if a sta- our side, just to name a few, and, of tion is silent for more that 12 consecutive neers, and the innovators. It seems to course, Senator PRESSLER and Senator months. Subcontract out testing and certifi- me that they will do a far better job for HOLLINGS. cation of equipment. Permit operation of do- our country if big government leaves It does not matter how long we work mestic ship and aircraft radios without li- them alone. on it, if we cannot get it accepted, it cense. Eliminate FCC jurisdiction over gov- I, for one, cannot allow government does not make any difference. We hope ernment owned radio stations. Eliminate to become the biggest player in the at the appropriate time that it can be burdensome paperwork involved in Amateur telecommunications industry. Too accepted. I hope that we will continue Radio examination. Streamline non-broad- cast radio licenses renewals. much is at stake. It is nonsense to on the procompetitive, deregulatory AMENDMENT NO. 1255 gamble away millions of new jobs. It is course that we have taken in a biparti- nonsense to gamble away America’s san way, and in only that way will we Mr. DOLE. Mr. President, I send my ability to compete, and win, around the ensure that today is beginning a new amendment to the desk and ask for its world. And it is nonsense to gamble renaissance for America. immediate consideration. away the spoils that the information Mr. President, I ask that a summary The PRESIDING OFFICER. The age will bring. of the deregulation package be printed clerk will report. To get there, I have worked with the in the RECORD following my statement. The bill clerk read as follows: committee to develop a comprehensive There being no objection, the mate- The Senator from Kansas [Mr. DOLE] pro- deregulatory amendment that touches rial was ordered to be printed in the poses an amendment numbered 1255. all sectors of the communications in- RECORD, as follows: Mr. DOLE. Mr. President, I ask unan- dustry. It is my understanding that the SUMMARY OF DEREGULATION PACKAGE imous consent further reading be dis- managers are not quite ready to accept Transfers Judge Green’s MFJ (consent de- pensed with. it now. cree) to the FCC. The PRESIDING OFFICER. Without I have a list describing each provi- Eliminates GTE’s consent decree. objection, it is so ordered. sion that I will insert in the RECORD at Adopts definition to restrict expansion of The amendment is as follows: the end of my remarks, but for now, I universal service so that it does not spiral (c) TRANSFER OF MFJ.—After the date of will just highlight a few of the provi- out of control. enactment of this Act, the Commission shall sions. Greater deregulation for small cable TV. administer any provision of the Modification First, deregulate small cable TV sys- As the bill stands now, small cable can’t of Final Judgment not overridden or super- tems. This has bipartisan support. Al- take advantage of any rate deregulation be- seded by this Act. The District Court for the cause of the way their systems are set-up. To District of Columbia shall have no further though views differ on deregulating the take care of them, the deregulatory amend- jurisdiction over any provision of the Modi- entire cable TV industry, most of us ment would completely eliminate rate regu- fication of Final Judgment administered by can agree that rural and small systems lation for cable operators who serve less the Commission under this Act or the Com- need rate relief in order to survive. than 35,000 in one franchise area, and do not munications Act of 1934. The Commission This provision gets it done. serve more than 1% of all subscribers nation- may, consistent with this Act (and the Second, force the Federal Commu- wide (650,000 subscribers). Obviously, this is a amendments made by this Act), modify any nications Commission to eliminate pretty broad definition of a ‘‘small’’ cable provision of the Modification of Final Judg- outdated regulations, and do so in a company. ment that it administers. timely manner. Currently, there is no Increase the Commission’s ability to for- (d) GTE CONSENT DECREE.—This Act shall bear on regulation. supersede the provisions of the Final Judg- guarantee that the Commission will Establish a petition driven process to force ment entered in United States v. GTE Corp., ever act on requests that it forbear on the commission to forbear on regulation No. 83–1298 (D.C. D.C.), and such Final Judg- regulations. Under this amendment, within a 90-day period. If the Commission ment shall not be enforced after the effective the Commission must respond within does not act, or extend period by an addi- date of this Act. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7899 On page 40, line 9, strike ‘‘to enable them’’ On page 116, line 3, strike ‘‘(b)’’ and insert ance of devices or home electronic equip- and insert ‘‘which are determined by the ‘‘(c)’’. ment and systems with regulations promul- Commission to be essential in order for On page 117, line 1, strike ‘‘(c)’’ and insert gated under this section; Americans’’. ‘‘(d)’’. ‘‘(2) accept as prima facie evidence of such On page 40, beginning on line 11, strike On page 117, line 22, strike ‘‘REGULA- compliance the certification by any such or- ‘‘Nation. At a minimum, universal service TIONS.’’ and insert ‘‘REGULATIONS; ELIMI- ganization; and shall include any telecommunications serv- NATION OF UNNECESSARY REGULATIONS ‘‘(3) establish such qualifications and ices that’’ and insert ‘‘Nation, and which’’. AND FUNCTIONS.’’ standards as it deems appropriate for such On page 70, between lines 21 and 22, insert On page 117, line 23, insert ‘‘(a) BIENNIAL private organizations, testing, and certifi- the following: REVIEW.—’’ before ‘‘Part’’. cation.’’. (b) GREATER DEREGULATION FOR SMALLER On page 118, between lines 20 and 21, insert (9) MAKING LICENSE MODIFICATION UNI- CABLE COMPANIES.—Section 623 (47 U.S.C. the following: FORM.—Section 303(f) (47 U.S.C. 303(f)) is 543) is amended by adding at the end thereof (b) ELIMINATION OF UNNECESSARY COMMIS- amended by striking ‘‘unless, after a public the following: SION REGULATIONS AND FUNCTIONS.— hearing,’’ and inserting ‘‘unless’’. ‘‘(m) SPECIAL RULES FOR SMALL COMPA- (1) REPEAL SETTING OF DEPRECIATION (10) PERMIT OPERATION OF DOMESTIC SHIP NIES.— RATES.—The first sentence of section 220(b) AND AIRCRAFT RADIOS WITHOUT LICENSE.—Sec- ‘‘(1) IN GENERAL.—Subsection (a), (b), or (c) (47 U.S.C. 220(b)) is amended by striking tion 307(e) (47 U.S.C. 307(e)) is amended by— does not apply to a small cable operator with ‘‘shall prescribe for such carriers’’ and in- (A) striking ‘‘service and the citizens band respect to— serting ‘‘may prescribe, for such carriers as radio service’’ in paragraph (1) and inserting ‘‘(A) cable programming services, or it determines to be appropriate,’’. ‘‘service, citizens band radio service, domes- ‘‘(B) a basic service tier that was the only (2) USE OF INDEPENDENT AUDITORS.—Section tic ship radio service, domestic aircraft radio service tier subject to regulation as of De- 220(c) (47 U.S.C. 220(c)) is amended by adding service, and personal radio service’’; and cember 31, 1994, at the end thereof the following: ‘‘The Com- (B) striking ‘‘service’ and ‘citizens band in any franchise area in which that operator mission may obtain the services of any per- radio service’ ’’ in paragraph (3) and inserting serves 35,000 or fewer subscribers. son licensed to provide public accounting ‘‘service’, ‘citizens band radio service’, ‘do- ‘‘(2) DEFINITION OF SMALL CABLE OPERA- services under the law of any State to assist mestic ship radio service’, ‘domestic aircraft TOR.—For purposes of this subsection, the with, or conduct, audits under this section. radio service’, and ‘personal radio service’ ’’. term ‘small cable operator’ means a cable While so employed or engaged in conducting (11) EXPEDITED LICENSING FOR FIXED MICRO- operator that, directly or through an affili- an audit for the Commission under this sec- WAVE SERVICE.—Section 309(b)(2) (47 U.S.C. ate, serves in the aggregate fewer than 1 per- tion, any such person shall have the powers 309(b)(2)) is amended by striking subpara- cent of all subscribers in the United States granted the Commission under this sub- graph (A) and redesignating subparagraphs and does not, directly or through an affili- section and shall be subject to subsection (f) (B) through (G) as (A) through (F), respec- ate, own or control a daily newspaper or a in the same manner as if that person were an tively. tier 1 local exchange carrier.’’. employee of the Commission.’’. (12) ELIMINATE FCC JURISDICTION OVER GOV- On page 70, line 22, strike ‘‘(b)’’ and insert (3) SIMPLICATION OF FEDERAL-STATE CO- ERNMENT-OWNED SHIP RADIO STATIONS.— ‘‘(c)’’. ORDINATION PROCESS.—The Commission shall (A) Section 305 (47 U.S.C. 305) is amended On page 71, line 3, strike ‘‘(c)’’ and insert simplify and expedite the Federal-State co- by striking subsection (b) and redesignating ‘‘(d)’’. ordination process under section 410 of the subsections (c) and (d) as (b) and (c), respec- On page 79, strike lines 7 through 11 and in- Communications Act of 1934. tively. sert the following: (4) PRIVATIZATION OF SHIP RADIO INSPEC- (B) Section 382(2) (47 U.S.C. 382(2)) is (1) IN GENERAL.—The Commission shall TIONS.—Section 385 (47 U.S.C. 385) is amended amended by striking ‘‘except a vessel of the modify its rules for multiple ownership set by adding at the end thereof the following: United States Maritime Administration, the forth in 47 CFR 73.3555 by— ‘‘In accordance with such other provisions of Inland and Coastwise Waterways Service, or (A) eliminating the restrictions on the law as apply to government contracts, the the Panama Canal Company,’’. number of television stations owned under Commission may enter into contracts with (13) MODIFICATION OF AMATEUR RADIO EXAM- subdivisions (e)(1) (ii) and (iii); and any person for the purpose of carrying out INATION PROCEDURES.— (B) changing the percentage set forth in such inspections and certifying compliance (A) Section 4(f)(H)(N) (47 U.S.C. 4(f)(4)(B)) subdivision (e)(2)(ii) from 25 percent to 35 with those requirements, and may, as part of is amended by striking ‘‘transmissions, or in percent. any such contract, allow any such person to the preparation or distribution of any publi- (2) RADIO OWNERSHIP.—The Commission accept reimbursement from the license hold- cation used in preparation for obtaining shall modify its rules set forth in 47 CFR er for travel and expense costs of any em- amateur station operator licenses,’’ and in- 73.3555 by eliminating any provisions limit- ployee conducting and inspection or certifi- serting ‘‘transmission’’. ing the number of AM or FM broadcast sta- cation.’’. (B) The Commission shall modify its rules tions which may be owned or controlled by (5) MODIFICATION OF CONSTRUCTION PERMIT governing the amateur radio examination one entity either nationally or in a particu- REQUIREMENT.—Section 319(d) (47 U.S.C. process by eliminating burdensome record lar market. The Commission may refuse to 319(d)) is amended by striking the third sen- maintenance and annual financial certifi- approve the transfer of issuance of an AM or tence and inserting the following: ‘‘The Com- cation requirements. FM broadcast license to a particular entity mission may waive the requirement for a (14) STREAMLINE NON-BROADCAST RADIO LI- if it finds that the entity would thereby ob- construction permit with respect to a broad- CENSE RENEWALS.—The Commission shall tain an undue concentration of control or casting station in circumstances in which it modify its rules under section 309 of the would thereby harm competition. Nothing in deems prior approval to be unnecessary. In Communications Act of 1934 (47 U.S.C. 309) this section shall require or prevent the those circumstances, a broadcaster shall file relating to renewal of nonbroadcast radio li- Commission from modifying its rules con- any related license application within 10 censes so as to streamline or eliminate com- tained in 47 CFR 73.3555(c) governing the days after completing construction.’’. parative renewal hearings where such hear- ownership of both a radio and television (6) LIMITATION ON SILENT STATION AUTHOR- ings are unnecessary or unduly burdensome. broadcast stations in the same market. IZATIONS.—Section 312 (47 U.S.C. 312) is On page 117, between lines 21 and 22, insert On page 79, line 12, strike ‘‘(2)’’ and insert amended by adding at the end the following: the following: ‘‘(3)’’. ‘‘(g) If a broadcasting station fails to (d) STREAMLINED PROCEDURES FOR CHANGES On page 79, line 18, strike ‘‘(3)’’ and insert transmit broadcast signals for any consecu- IN CHARGES, CLASSIFICATIONS, REGULATIONS, ‘‘(4)’’. tive 12-month period, then the station li- OR PRACTICES.— On page 79, line 21, strike ‘‘(4)’’ and insert cense granted for the operation of that (A) Section 204(a) (47 U.S.C. 204(a)) is ‘‘(5)’’. broadcast station expires at the end of that amended— On page 79, line 22, strike ‘‘modification re- period, notwithstanding any provision, term, (i) by striking ‘‘12 months’’ the first place quired by paragraph (1)’’ and insert ‘‘modi- or condition of the license to the contrary.’’. it appears in paragraph (2)(A) and inserting fications required by paragraphs (1) and (2)’’. (7) EXPEDITING INSTRUCTIONAL TELEVISION ‘‘5 months’’; On page 116, between lines 2 and 3, insert FIXED SERVICE PROCESSING.—The Commission (ii) by striking ‘‘effective,’’ and all that the following: shall delegate, under section 5(c) of the Com- follows in paragraph (2)(A) and inserting ‘‘ef- (b) DOMINANT INTEREXCHANGE CARRIER.— munications Act of 1934, the conduct of rou- fective.’’; and The Commission, within 270 days after the tine instructional television fixed service (iii) by adding at the end thereof the fol- date of enactment of this Act, shall complete cases to its staff for consideration and final lowing: a proceeding to consider modifying its rules action. ‘‘(3) A local exchange carrier may file with for determining which carriers shall be clas- (8) DELEGATION OF EQUIPMENT TESTING AND the Commission a new or revised charge, sified as ‘‘dominant carriers’’ and to consider CERTIFICATION TO PRIVATE LABORATORIES.— classification, regulation, or practice on a excluding all interexchange telecommuni- Section 302 (47 U.S.C. 302) is amended by add- streamlined basis. Any such charge, classi- cations carriers from some or all of the re- ing at the end the following: fication, regulation, or practice shall be quirements associated with such classifica- ‘‘(e) The Commission may— deemed lawful and shall be effective 7 days tion to the extent that such carriers provide ‘‘(1) authorize the use of private organiza- (in the case of a reduction in rates) or 15 interexchange telecommunications service. tions for testing and certifying the compli- days (in the case of an increase in rates) S 7900 CONGRESSIONAL RECORD — SENATE June 7, 1995 after the date on which it is filed with the Mr. DOLE. I think the managers may industry with appropriate safeguards, Commission unless the Commission takes be ready to accept it by tomorrow set the stages for a new era in the action under paragraph (1) before the end of morning. United States. that 7-day or 15-day period, as is appro- Mr. HOLLINGS. If the Senator will priate.’’ I want to call the attention of the (B) Section 208(b) (47 U.S.C. 208(b)) is yield. That is correct. In fact, about 2 Senate to a provision that is very amended— hours ago we had it worked out, but meaningful to my area, the universal (i) by striking ‘‘12 months’’ the first place there is some further interest on our service provision. This is a concept it appears in paragraph (1) and inserting ‘‘5 side that we have yet to clear. The dis- that, through the existing interstate months’’; and tinguished minority leader has another rate pool, has brought telephone serv- (ii) by striking ‘‘filed,’’ and all that follows amendment that he wanted to present ice to all parts of this Nation, includ- in paragraph (1) and inserting ‘‘filed.’’. at the same time, and I think we can ing remote villages in Alaska and (2) EXTENSIONS OF LINES UNDER SECTION 214; work that out. ARMIS REPORTS.—Notwithstanding section throughout the Nation wherever you 305, the Commission shall permit any local That is the idea, to temporarily lay are. exchange carrier— it aside and move on. The concept is preserved in this bill (A) to be exempt from the requirements of Mr. KERREY. I will not object, but I in a new manner. It opens up the local section 214 of the Communications Act of will inform the manager of this bill market to competition while still pre- 1934 for the extension of any line; and that I will not give unanimous consent serving the concept of universal serv- (B) to file cost allocation manuals and to this being accepted until I have read ice. It does so by taking advantage of ARMIS reports annually, to the extent such it and signed off on it. carrier is required to file such manuals or re- new technologies which are intended to ports. Mr. DOLE. I have obviously no prob- reduce the cost of all services, includ- (3) FOREBEARANCE AUTHORITY NOT LIM- lem with that. In fact, I can give the ing universal service. ITED.—Nothing in this subsection shall be Senator from Nebraska a summary of In fact, I find it interesting that the construed to limit the authority of the Com- it, too. I thank my colleague. Congressional Budget Office has said mission or a State to waive, modify, or for- The PRESIDING OFFICER. Without that this bill will reduce the cost of bear from applying any of the requirements objection, the amendment is set aside. universal service from the existing sys- to which reference is made in paragraph (1) Mr. PRESSLER. I thought we had under any other provision of this Act or tem by at least $3 billion over the next this agreed to this afternoon, but I 5 years. other law. guess the minority leader has some- On page 118, line 20, strike the closing Now, tumbling technology, as I call quotation marks and the second period. thing he would like to add or change. it, makes terrestrial distances irrele- On page 118, between lines 20 and 21, insert But I would like to inquire of the ma- vant. By using modern technologies, the following: jority leader if we cannot get agree- the people in Egiagik and Unalakleet ‘‘(c) CLASSIFICATION OF CARRIERS.—In ment tonight. and Shishmaref, places many people classifying carriers according to 47 CFR 32.11 Shall we make this one of the votes have never heard of, can be involved in and in establishing reporting requirements at 8:30 or 9 o’clock in the morning? stock markets in New York, explore pursuant to 47 CFR part 43 and 47 CFR 64.903, Mr. DOLE. If it is acceptable, I do the Commission shall adjust the revenue re- the Library of Congress, and be con- not need a vote. I do not want to penal- quirements to account for inflation as of the nected with overseas sources of infor- ize anybody. release date of the Commission’s Report and mation. Allowing cable companies to Mr. KERREY. Is the Senator asking Order in CC Docket No. 91–141, and annually provide phones and phone companies to to set a time for a vote? thereafter. This subsection shall take effect provide cable, this bill will spur com- on the date of enactment of the Tele- Mr. DOLE. Not on this amendment. I petition and reduce costs to the Na- communications Act of 1995.’’. will wait until the Senator from Ne- tion. On page 119, line 4, strike ‘‘may’’ and insert braska indicates he has had a chance to ‘‘shall’’. look at it. There are so many new technologies On page 120, between lines 3 and 4, insert coming along, Mr. President, it is the following: Mr. STEVENS. Mr. President, I do think that everyone should be aware mind-boggling. There are many provi- ‘‘(c) END OF REGULATION PROCESS.—Any sions in this bill that are aimed at de- telecommunications carrier, or class of tele- that the bill we are considering is larg- communications carriers, may submit a peti- er in its impact on the national econ- regulating the industry so those new tion to the Commission requesting that the omy than the health care reform meas- technologies may compete. Commission exercise the authority granted ure we considered last year. It is my hope that the Senate will under this section with respect to that car- This bill, in a conservative way, will recognize this bill for what it is. It is a rier or those carriers, or any service offered impact more than one-third of the credit, as the distinguished leader has by that carrier or carriers. Any such petition economy of the United States. said, to Senator PRESSLER, the chair- shall be deemed granted if the Commission man of our committee, and to Senator does not deny the petition for failure to meet It is a bill that is designed to transi- HOLLINGS, the former chairman of our the requirements for forbearance under sub- tion from the 1934 Communications Act section (a) within 90 days after the Commis- to a period sometime, hopefully, committee. It is a bill of monstrous sion receives it, unless the 90-day period is around the turn of the century when scope that has substantial bipartisan extended by the Commission. The Commis- we will have deregulated telecommuni- support. sion may extend the initial 90-day period by cations because of the competition Had we had a similar approach to the an additional 60 days if the Commission finds that we this bill will instill and guar- problems of health care reform in the that an extension is necessary to meet the antee. last Congress, we would have had that requirements of subsection (a). The Commis- problem at least partially solved. sion may grant or deny a petition in whole Now, the bill will put the commu- or in part and shall explain its decision in nications policy of the United States To the credit of these two Senators, writing. back where it belongs, in the hands of this is not a bill that attempts to solve On page 120, line 4, strike ‘‘(c)’’ and insert the elected representatives and the all of the problems of the tele- ‘‘(d)’’. President, and will take it out of the communications industry for the fu- Mr. DOLE. Mr. President, I ask unan- courts. By setting rules for entry into ture. It is a bill that opens the door to imous consent that the amendment be long distance by the Bell operating the future and, in my judgment, it is laid aside. companies, I think we bring to a close one that it is absolutely essential be Mr. KERREY. Reserving the right to an over-10-year policy-making period passed. object, Mr. President, I am not object- by the U.S. courts. I am told that George Gilder of the ing to having it laid aside. I am here to This bill will open the local tele- Discovery Institute in Seattle, whom I inquire what the procedure is going to phone market to competition. It will consider to be one of the real thinkers be. The Senator is offering an amend- bring competition and new services to of this country, has told us that not ment and is not going do debate it here all parts of the United States. passing this bill will cost the United this evening? It will be laid aside? It is not a permanent piece of legisla- States $2 trillion in lost opportunities I have not seen this copy. The Sen- tion, in my judgment. This is not a bill in the next 5 years alone. ator is not proposing it be accepted at that will replace, totally, the 1934 act. I happen to pay attention to Mr. this moment? It does, however, by deregulating the Gilder because he wrote an article the June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7901 other day which answered some re- requirement of the private sector to The PRESIDING OFFICER (Mr. marks that I made about universal pay $7.1 billion into the pool—less than SANTORUM). Senator DOLE’s amend- service. I do feel in the days ahead the before but they still must pay it in— ment has been set aside. The Senator thinking that this man is doing will that this private payment must be off- does have a right to offer an amend- have a great deal to do with guiding set under our congressional budget ment. the Nation into that ultimate system process. Mr. KERREY. But I object. that I foresee coming on after the turn That sort of boggles my mind too, The PRESIDING OFFICER. Is the of the century. Mr. President, but it is a requirement Senator sending his amendment to the Just in terms of the broad band radio and I respect the Budget Act concept. desk? concept that is coming along and how Therefore I offer this amendment. It Mr. STEVENS. Did the Senator ob- it will replace substantial portions of will extend the auction authority until ject to my request to set aside Senator telecommunications now carried by the year 2000. That is all that is nec- DOLE’s amendment? wire or fiber optic cable or through sat- essary to comply with the Budget Act, The PRESIDING OFFICER. Senator ellites, that concept alone is going to 5 years. It will bring in a minimum es- DOLE’s amendment has been set aside. catch us by surprise if we do not know timate, as I said, of $4.5 billion. There is no need for a unanimous-con- what is happening. But at least we We have already received, under the sent request. know it will happen. We are not trying auction amendment that I offered 2 AMENDMENT NO. 1256 to regulate that by this bill. We are not years ago, almost $10 billion. It was (Purpose: To extend the authority of the trying to prevent it by this bill. We are new money, the kind of money that Federal Communications Commission to opening the door so new competitive was never received by the Government use auctions for the allocation of radio aspects will come into our communica- before. spectrum frequencies for commercial use, tions policy in the United States. Under my amendment tonight, the to provide for private sector reimburse- This morning I introduced a bill that FCC would have the authority to use ment of Federal governmental user costs spectrum auctions for all mutually ex- to vacate commercially valuable spectrum, I said I would offer as an amendment to and for other purposes) this bill if the opportunity presented clusive applications for initial licenses or construction permits except for li- Mr. STEVENS. Mr. President, I send itself. I have discussed it now with the an amendment to the desk and ask for two managers of the bill. I would like censes for public safety radio services or for advanced television services, if its immediate consideration. to offer now an amendment. The PRESIDING OFFICER. The First let me describe what it is. It is the advanced television licenses are given to existing broadcast licensees as clerk will report. an amendment that will expand the The legislative clerk read as follows: FCC’s authority to use auctions to as- a replacement for their existing broad- cast licenses. The Senator from Alaska [Mr. STEVENS] sign licenses for the use of radio spec- proposes an amendment numbered 1256. trum. The members of our committee This means that market mechanisms will help determine who can make the will know that for two Congresses I ar- Mr. STEVENS. Mr. President, I ask most efficient use of spectrum that gued that we should implement auc- unanimous consent that reading of the will become available. I believe, again, tions to replace the old lottery system amendment be dispensed with. that is the best way to deal with the The PRESIDING OFFICER. Without that was giving windfall profits to future. objection, it is so ordered. many and denying others access to op- My amendment does not change the The amendment is as follows: portunities that would start new busi- basic safeguards Congress put in the At the appropriate place in the bill insert nesses. original spectrum auction legislation Under the old system, the lotteries, the following: after I offered it several years ago. The there was no commitment to use this SEC. . SPECTRUM AUCTIONS. expanded authority will apply only to (a) FINDINGS.—The Congress finds that— spectrum but it was held as sort of an new license applications. It will not (1) the National Telecommunications and item that other people might bid on apply to renewals. And the FCC may Information Administration of the Depart- when they were willing to pay enough still not consider potential revenue in ment of Commerce recently submitted to the money to the person who was lucky making the decision as to which type Congress a report entitled ‘‘U.S. National Spectrum Requirements’’ as required by sec- enough to win the lottery. The person of service new spectrum should be used who got the license had no intent to tion 113 of the National Telecommunications for. The revenue only becomes a factor and Information Administration Organiza- use it. Now, with a bidding process, in determining who gets the license to competitive bidding, we have brought tion Act (47 U.S.C. 923); use the spectrum for any particular (2) based on the best available information the use of the spectrum to the point purpose. the report concludes that an additional 179 where people who want it pay what is The bill I introduced this morning, megahertz of spectrum will be needed within necessary to get its use. which is the same as this amendment, the next ten years to meet the expected de- The Congressional Budget Office, as I would also provide authority for Fed- mand for land mobile and mobile satellite said before, has estimated that the eral agencies to accept reimbursement radio services such as cellular telephone amendment I offer will raise $4.5 bil- from private parties for the cost of re- service, paging services, personal commu- nication services, and low earth orbiting sat- lion in the next 5 years. That is nec- locating to a new frequency. This will essary for a strange reason. The Con- ellite communications systems; allow private industry to pay to move (3) a further 85 megahertz of additional gressional Budget Office also estimated Government users off valuable fre- spectrum, for a total of 264 megahertz, is that the universal service provisions in quencies by relocating the Government needed if the United States is to fully imple- this bill will require private industry station to a less valuable frequency at ment the Intelligent Transportation System and private purchasers to pay $7.1 bil- no cost to the taxpayer, but an in- currently under development by the Depart- lion over the next 5 years into this sys- crease to the Treasury. ment of Transportation; tem, which was the interstate rate pool The amendment builds on what has (4) as required by Part B of the National Telecommunications and Information Ad- and now will become the fund for the been a very successful beginning. Since payment of the universal service provi- ministration Organization Act (47 U.S.C. 921 the existing spectrum auction author- et seq.) the Federal Government will transfer sions of this bill. ity was enacted in 1993, as I have said, 235 megahertz of spectrum from exclusive I remind the Senate that the univer- the FCC has raised in excess of $9 bil- government use to non-governmental or sal service system contained in this lion, almost $10 billion now, for the mixed governmental and non-governmental bill would result in a reduction of $3 Federal Treasury in just four auctions. use between 1994 and 2004; billion from what continuation of the I do hope the Senate will support the (5) the Spectrum Reallocation Final Re- existing system will cost in the next 5 amendment. port submitted to Congress under section 113 years. But notwithstanding that this I ask unanimous consent that Sen- of the National Telecommunications and In- bill will reduce the costs of the existing formation Administration Organization Act ator DOLE’s amendment be set aside for by the National Telecommunications and In- system we know, in order to avoid a the time being and I be allowed to sub- formation Administration states that, of the Budget Act point of order on technical mit the amendment. 235 megahertz of spectrum identified for grounds, must offset the finding of the Mr. KERREY. Reserving the right to reallocation from governmental to non-gov- Congressional Budget Office that this object. ernmental or mixed use— S 7902 CONGRESSIONAL RECORD — SENATE June 7, 1995 (A) 50 megahertz has already been reallo- stations from one or more radio spectrum the Secretary to the President and Congress cated for exclusive non-governmental use, frequencies to any other frequency or fre- in compliance with the requirements of sub- (B) 45 megahertz will be reallocated in 1995 quencies. Any such reimbursement shall be section (a).’’. for both exclusive non-governmental and deposited in the account of such Federal en- (d) REALLOCATION OF ADDITIONAL SPEC- mixed governmental and non-governmental tity in the Treasury of the United States. TRUM.—The Secretary of Commerce shall, use, Funds deposited according to this section within 9 months after the date of enactment (C) 25 megahertz will be reallocated in 1997 shall be available, without appropriation or of this Act, prepare and submit to the Presi- for exclusive non-governmental use, fiscal year limitation, only for the oper- dent and the Congress a report and timetable (D) 70 megahertz will be reallocated in 1999 ations of the Federal entity for which such recommending the reallocation of the three for both exclusive non-governmental and funds were deposited under this section. frequency bands (225–400 megahertz, 3625–3650 mixed governmental and non-governmental ‘‘(2) PROCESS FOR RELOCATION.—Any person megahertz, and 5850–5925 megahertz) that use, and seeking to relocate a Federal Government were discussed but not recommended for (E) the final 45 megahertz will be reallo- station that has been assigned a frequency reallocation in the Spectrum Reallocation cated for mixed governmental and non-gov- within a band allocated for mixed Federal Final Report under section 113(a) of the Na- ernmental use by 2004; and non-Federal use may submit a petition tional Telecommunications and Information (6) the 165 megahertz of spectrum that are for such relocation to NTIA. The NTIA shall Administration Organization Act. The Sec- not yet reallocated, combined with 80 mega- limit the Federal Government station’s oper- retary shall consult with the Federal Com- hertz that the Federal Communications ating license to secondary status when the munications Commission and other Federal Commission is currently holding in reserve following requirements are met— agencies in the preparation of the report, for emerging technologies, are less than the ‘‘(A) the person seeking relocation of the and shall provide notice and an opportunity best estimates of projected spectrum needs Federal Government station has guaranteed for public comment before submitting the re- in the United States; reimbursement through money or in-kind port and timetable required by this section. (7) the authority of the Federal Commu- payment of all relocation costs incurred by Mr. STEVENS. Mr. President, I un- nications Commission to assign radio spec- the Federal entity, including all engineering, derstand the Senator from South Da- trum frequencies using an auction process equipment, site acquisition and construc- kota, the distinguished chairman, expires on September 30, 1998; tion, and regulatory fee costs; (8) a significant portion of the reallocated ‘‘(B) the person seeking relocation com- wishes to offer an amendment to this. spectrum will not yet be assigned to non- pletes all activities necessary for implement- I understand that suggestion came in governmental users before that authority ex- ing the relocation, including construction of after we originally drafted the amend- pires; replacement facilities (if necessary and ap- ment I have offered. (9) the transfer of Federal governmental propriate) and identifying and obtaining on I yield to him at this time if he users from certain valuable radio frequencies the Federal entity’s behalf new frequencies wants to offer an amendment to my to other reserved frequencies could be expe- for use by the relocated Federal Government amendment. dited if Federal governmental users are per- station (where such station is not relocating AMENDMENT NO. 1257 TO AMENDMENT NO. 1256 mitted to accept reimbursement for reloca- to spectrum reserved exclusively for Federal tion costs from non-governmental users; and use); and (Purpose: To provide for broadcast auxiliary (10) non-governmental reimbursement of ‘‘(C) any necessary replacement facilities, spectrum relocation) Federal governmental users relocation costs equipment modifications, or other changes Mr. PRESSLER. Mr. President, I would allow the market to determine the have been implemented and tested to ensure send a second-degree amendment to the most efficient use of the available spectrum. that the Federal Government station is able amendment proposed by the Senator (b) EXTENSION AND EXPANSION OF AUCTION to successfully accomplish its purposes. from Alaska to the desk and ask for its AUTHORITY.—Section 309(j) (47 U.S.C. 309(j)) ‘‘(3) RIGHT TO RECLAIM.—If within one year is amended— after the relocation the Federal Government immediate consideration. (1) by striking paragraph (1) and inserting station demonstrates to the Commission The PRESIDING OFFICER. The in lieu thereof the following: that the new facilities or spectrum are not clerk will report. ‘‘(1) GENERAL AUTHORITY.—If mutually ex- comparable to the facilities or spectrum The legislative clerk read as follows: clusive applications or requests are accepted from which the Federal Government station The Senator from South Dakota [Mr. for any initial license or construction permit was relocated, the person seeking such relo- PRESSLER] proposes an amendment num- which will involve a use of the electro- cation must take reasonable steps to remedy bered 1257 to Amendment No. 1256. magnetic spectrum, then the Commission any defects or reimburse the Federal entity shall grant such license or permit to a quali- for the costs of returning the Federal Gov- Mr. PRESSLER. Mr. President, I ask fied applicant through a system of competi- ernment station to the spectrum from which unanimous consent that reading of the tive bidding that meets the requirements of such station was relocated. amendment be dispensed with. this subsection. The competitive bidding au- ‘‘(g) FEDERAL ACTION TO EXPEDITE SPEC- The PRESIDING OFFICER. Without thority granted by this subsection shall not TRUM TRANSFER.—Any Federal Government objection, it is so ordered. apply to licenses or construction permits is- station which operates on electromagnetic The amendment is as follows: sued by the Commission for public safety spectrum that has been identified for At the end of the matter proposed to be in- radio services or for licenses or construction reallocation for mixed Federal and non-Fed- serted, insert the following: permits for new terrestrial digital television eral use in the Spectrum Reallocation Final (e) BOARDCAST AUXILIARY SPECTRUM RELO- services assigned by the Commission to ex- Report shall, to the maximum extent prac- CATION.— isting terrestrial broadcast licensees to re- ticable through the use of the authority (1) ALLOCATION OF SPECTRUM FOR BROAD- place their current television licenses.’’; granted under subsection (f) and any other CAST AUXILIARY USES.—Within one year after (2) by striking paragraph (2) and renumber- applicable provision of law, take action to the date of enactment of this Act, the Com- ing paragraphs (3) through (13) as (2) through relocate its spectrum use to other fre- mission shall allocate the 4635–4685 mega- (12), respectively; and quencies that are reserved for Federal use or hertz band transferred to the Commission (3) by striking ‘‘1998’’ in paragraph (10), as to consolidate its spectrum use with other under section 113(b) of the National Tele- renumbered, and inserting in lieu thereof Federal Government stations in a manner communications and Information Adminis- ‘‘2000’’. that maximizes the spectrum available for tration Organization Act (47 U.S.C. 923(b)) (c) REIMBURSEMENT OF FEDERAL RELOCA- non-Federal use. Notwithstanding the time- for broadcast auxiliary uses. TION COSTS.—Section 113 of the National table contained in the Spectrum (2) MANDATORY RELOCATION OF BROADCAST Telecommunications and Information Ad- Reallocation Final Report, the President AUXILIARY USES.—Within 7 years after the ministration Act (47 U.S.C. 923) is amended shall seek to implement the reallocation of date of enactment of this Act, all licensees of by adding at the end the following new sub- the 1710 to 1755 megahertz frequency band by broadcast auxiliary spectrum in the 2025–2075 sections: January 1, 2000. Subsection (c)(4) of this sec- megahertz band shall relocate into spectrum ‘‘(f) RELOCATION OF FEDERAL GOVERNMENT tion shall not apply to the extent that a non- allocated by the Commission under para- STATIONS.— Federal user seeks to relocate or relocates a graph (1). The Commission shall assign and ‘‘(1) IN GENERAL.—In order to expedite the Federal power agency under subsection (f). grant licenses for use of the spectrum allo- efficient use of the electromagnetic spec- ‘‘(h) DEFINITIONS.—For purposes of this sec- cated under paragraph (1)— trum and notwithstanding section 3302(b) of tion— (A) in a manner sufficient to permit timely title 31, United States Code, any Federal en- ‘‘(1) FEDERAL ENTITY.—The term ‘Federal completion of relocation; and tity which operates a Federal Government entity’ means any Department, agency, or (B) without using a competitive bidding station may accept reimbursement from any other element of the Federal government process. person for the costs incurred by such Federal that utilizes radio frequency spectrum in the (3) ASSIGNING RECOVERED SPECTRUM.—With- entity for any modification, replacement, or conduct of its authorized activities, includ- in 5 years after the date of enactment of this reissuance of equipment, facilities, operating ing a Federal power agency. Act, the Commission shall allocate the spec- manuals, regulations, or other expenses in- ‘‘(2) SPECTRUM REALLOCATION FINAL RE- trum recovered in the 2025–2075 megahertz curred by that entity in relocating the oper- PORT.—The term ‘Spectrum Reallocation band under paragraph (2) for use by new li- ations of its Federal Government station or Final Report’ means the report submitted by censees for commercial mobile services or June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7903 other similar services after the relocation of react to some of the things happening which was sponsored by the National broadcast auxiliary licensees, and shall as- in the industry. We thought probably Federation of Independent Business, sign such licenses by competitive bidding. we were ahead of the curve in setting found that almost two-thirds of the Mr. PRESSLER. Mr. President, this some kind of policy that would reflect small business owners surveyed want second-degree amendment would add a the future. We thought we were ahead to be able to get long-distance tele- new subsection to the underlying of the curve. Now we are behind the phone service from their local tele- amendment. The new subsection would curve because technology as it is being phone company; and, 54 percent want direct the FCC to allocate a 50 mega- developed in this area is far outpacing to be able to choose local service from hertz block of spectrum in the 4 the regulatory environment in which it their long-distance company. gigahertz band for use by broadcast finds itself. A full 86 percent of these small busi- auxiliary services within 1 year of the I can remember that day when we ness owners want one-stop shopping for enactment of the bill. In addition, this started to make amendments and the telecommunications services. Two- amendment would require that all former chairman was very gracious thirds of them want to be able to broadcast auxiliary service licensees that day. There were some people choose one provider that can give them currently using a 50 megahertz block of around, and I was just a freshman Sen- both local and long-distance telephone spectrum in the 2 gigahertz band relo- ator offering some ideas that I thought service presented in either way. cate their activities to the 4 gigahertz were important in the telecommuni- Of course, lower rates are very im- band within 7 years of the date this bill cations industry, understanding that portant to business owners. We all look is enacted. there have been three inventions which for a way to do things more economi- Finally, this amendment requires the have happened in my lifetime that cally, to make our business more prof- FCC to auction the vacated spectrum have changed this world forever. It has itable, to open more economic opportu- in the 2 gigahertz band for use by com- changed it so that we cannot go back nities and job opportunities for those mercial mobile services like cellular and do things the old way anymore. folks who live in our local neighbor- PCS within 5 years of the date of en- Those three inventions were the tran- hoods. But breaking down outdated actment. sistor, the silicon chip and the jet en- barriers to competition that are pre- By moving broadcast auxiliary serv- gine. Think what they have done to our venting some local telephone compa- ice licensees, who do not pay the spec- life and our world. We can be anywhere nies from providing long-distance serv- trum they are using, to another less else in the world, from Washington, ice and long-distance companies from valuable frequency, we will make DC, in 12 hours. We can talk and re- providing local service will also bring available some very valuable spectrum ceive and interact both in video and in something else that small businesses for auction. voice with anybody anywhere else in want—that is called convenience. The Congressional Budget Office esti- the world in 5 seconds. Sadly, we can Small businesses do not have the time mates that the auction of the 50 mega- destroy any other society on this Earth nor the resources to juggle separate hertz block of 2 gigahertz spectrum within 20 minutes. That is what these vendors with separate marketing ar- will bring at least $3.8 billion to the three inventions have done. They have rangements and separate billing for Federal Treasury. tightened down our world where com- long-distance and local services, cable Combined with the underlying paratively speaking it has been the size TV teleconferencing and, yes, even amendment by the Senator from Alas- of this building in which we stand down internet. They want to be able to ka, this would raise more than $7.1 bil- to the size of a basketball. Now we are choose one reliable and affordable com- lion that is needed to offset the univer- in a global society, a global economy, pany that can bring them all of these sal services provisions of this bill. and we just cannot go back. services; and when they have the tele- As the Senator from Alaska last We will amend the Communications communications problem they want to pointed out—I commend him—this is a Act of 1934. That is some 60 years ago be able to get on the phone and call one technical budget problem. The univer- before any of these inventions were company that is qualified to handle sal service provisions in this bill actu- made. So basically what we are doing every aspect of their communications ally saves $3 billion over what would be is we are driving digital, compressed needs and their networks. paid if the existing system is left un- digital, vehicles now within a law that At first, deregulation will create changed. However, with these amend- regulates a horse-and-buggy type of competition by allowing companies to ments we meet the letter of the Budget situation. So we are here and starting cross over and compete in new business Act. out this great debate on changing an areas. If we do this right, however, I urge my colleagues to support the issue that will affect each and every very soon the gray lines that now sepa- adoption of my amendment and the un- one of us. rate telecommunications businesses derlying amendment by the Senator Make no mistake about it. This is a will be gone. There will be seamless from Alaska. very, very important piece of legisla- networks of vertically integrated com- If it is appropriate, I would urge the tion. I want to give kudos to our chair- munications providers competing head adoption—— man and ranking member and their to head, tooth and nail to win the con- Mr. KERREY. Reserving the right to staffs because they have spent many sumers’ communications dollar. Those object, Mr. President. hours in developing this bill with dollars are very big dollars. As a result, Mr. PRESSLER. Mr. President, we strong bipartisan support. small businesses will be able to choose could go into a quorum call or yield to This bill was not drafted to satisfy one company that can provide all their our colleague from Montana who has business plans of major communica- communications services—or they will been waiting to speak. tions providers. It was drafted to bene- be able to continue buying their tele- Mr. BURNS addressed the Chair. fit communications users, and commu- communications services piecemeal The PRESIDING OFFICER. The Sen- nications users are solidly behind this from multiple providers if they so ator from Montana. bill for a number of reasons. Number choose. Either way, their decision will Mr. BURNS. I do not wish to speak one, they think it will bring down be based on who has the most afford- on this amendment. Might I ask a rates. So do I. They know it will bring able and most advanced services. point of order? Could it be set aside, advanced services. So do I. Perhaps A full 92 percent of the small busi- and I proceed with my opening state- more importantly, they know it will nesses owners questioned in this small ment because no time was given for bring them more choices in tele- business survey said that the telephone opening statements? communications. is central to their business. I do not Mr. President, I will continue on as if I recently saw a survey that illus- doubt this. I know plenty of small busi- speaking on this amendment. trates why one important group—small nesses throughout my home state of This is sort of a special day to me be- American business owners—want and Montana that rely heavily on the tele- cause the former chairman of the full need communications reform. In Mon- phone to keep their business—mom and committee, Senator INOUYE, and I, tana, over 98 percent of all businesses pop catalog shops that sell Montana when I first came here 6 years ago, had are classified as small businesses. The buckskin jackets to the rest of the quite a time as we started I think to survey of 4,600 small business owners, country or small cattle ranches that S 7904 CONGRESSIONAL RECORD — SENATE June 7, 1995 use cable TV and telecommunications no one can control more than 40 sta- been contributing; and he has been a to get future prices and negotiate with tions, 20 AM and 20 FM stations. Clear- tremendous help in bringing this bill to the slaughterhouses. And I do not know ly, the radio market is so incredibly the floor. many small businesses today that func- vast and diverse that there will be no Mr. BURNS. If the Senator will yield, tion well without a personal computer possibility that any one entity could I thank the Senator for those kind and a fax machine. control enough stations to be able to words. And if I can possibly get the job How many people looked at a fax ma- exert any market power over either ad- of auctioneering the spectrum, I prob- chine 10 years ago and said, ‘‘Who in vertisers or radio programmers. ably would vacate this chair which I the world would ever want to use one At the local level, while the Federal am standing in front of. of those things?’’ I will bet you cannot Communications Commission several Mr. HOLLINGS. I am going to lead walk into an office and many homes years ago modified its duopoly rules to on that one myself. that do not have a fax machine today. permit limited combinations of sta- I yield the floor. Technology is truly a thrilling thing tions in the same service, in the same Mr. KERREY addressed the Chair. as it propels us towards the next cen- market, there are still stringent limits The PRESIDING OFFICER. The Sen- tury. This bill will give small business on the ability of radio operators to ator from Nebraska. that one-stop shopping that they want. grow in their markets. Further, FCC Mr. KERREY. Mr. President, I have So we have a chance to bury out- rules permit only very restricted or no reviewed the amendment that the dis- dated restrictions that were created for combinations in smaller markets. tinguished Senator from Alaska is of- another era more than 60 years ago, re- These restrictions handcuff broad- fering, and as I understand it, what it strictions that draw arbitrary lines be- casters and prevent them from provid- does is it offsets an adverse score that tween telecommunications providers ing the best possible service to listen- this bill has received from the Congres- that just do not make sense anymore. ers in all of our States. sional Budget Office. CBO has said this A lot of these anticompetitive, bureau- So, Mr. President, this will be land- bill, in particular the universal service cratic rules are only good to preserve mark legislation. It is legislation that fund, is going to cost $7 billion over the market share for established providers. we worked on ever since the first day next 5 years. Even though that is $3 bil- But protecting markets and maintain- we stepped into the Senate, because I lion less than what the current univer- ing the status quo is not going to help happen to believe it is key to distance sal service fund does, there is the need bring lower rates and advanced services learning; it is the key to telemedicine; to come up with $7 billion to avoid a to small businesses and consumers in it is key to the future of those States budget point of order. Montana or anywhere else. that are remote and must be in contact Now, I point out that under the budg- I fought very hard to ensure that with the rest of the world. et resolution that was passed, when small business participated in the in- I appreciate the work of my good was that, 11⁄2 weeks, 2 weeks ago, I be- formation age. Whether it is small friend, the Senator from Alaska, and lieve that the Commerce Committee is newspapers, small cable operators we how he fights very hard because no one going to be looking at having to rec- have in Montana, or the small business has cities and towns and villages that oncile $20 billion, $30 billion anyway, so of radio, these businesses are the back- are more remote from the rest of the you are going to have your hands full. bone of communications in Montana. world than he has. And he understands The committee will be trying to come I have sought to include non- that. Nobody understands that in this up with money to try to get within the discrimination safeguards for small body more than he does. Now, we have recommendations of that budget reso- newspapers so that small information some vastness in Montana but it does lution. providers, especially in rural areas, not compare in any way with the State What this amendment does, it comes will be able to purchase certain ele- of Alaska. up with that $7.1 billion in the follow- ments of a common carrier service of- So as we move this debate forward, I ing fashion. It extends the spectrum fering on the smallest per unit basis hope that we will keep an open mind actions that are scheduled to expire in that is technically feasible. and really keep our eye on the ball be- 1998 for another 2 years, generating $4.5 In addition, small cable operators, cause we have within our grasp the billion according to CBO, and then it when freed from regulatory restraints ability now to turn loose a giant in our does something that is of particular in- in past legislation, will provide perhaps economic world and provide services to terest, I believe, Mr. President—and our best opportunity for telecommuni- people who have never had those serv- many people would ordinarily oppose cations services in many of our Na- ices before. this but they are not—and that is the tion’s rural areas. Mr. President, I thank you and I broadcasters have today assigned a 2- They all the time talk about the in- yield the floor. gigahertz spectrum in order to do aux- formation highway, that glass high- Mr. HOLLINGS addressed the Chair. iliary services. When they are going way. Everybody says: When are you The PRESIDING OFFICER. The Sen- out in the field and they are doing going to build it? I am not real sure ator from South Carolina. some broadcasting out in the field, that it is not already there. Mr. HOLLINGS. Mr. President, I un- they use that 2-gigahertz spectrum. It is already there. All we have to do derstand momentarily my distin- This amendment would transfer that is take off some restrictions so that it guished colleague from Nebraska wants over a 7-year period from 2 gigahertz to can be used. And there is a ramp on it to be heard on the amendment. 4 gigahertz, and then that 2-gigahertz and there is a ramp off of it. That is I would be prepared, at the conclu- spectrum would be auctioned off, gen- what we have to make sure of in this sion of his remarks, to urge adoption of erating an estimated $3.8 billion over legislation. the Pressler amendment to the Stevens the 5-year period. Finally, I had deep concerns that one amendment and thereupon urge adop- Under normal circumstances, the Na- of the Nation’s most important tele- tion of the Stevens amendment itself. tional Association of Broadcasters communications small business indus- The Senator from Montana, who is a would probably oppose this, but there tries, radio—I am familiar with radio— professional auctioneer, should under- are other things in this bill that they was being passed over in the effort to stand that the daddy rabbit of like, so they are not going to oppose it. deregulate information providers. auctioneering is the Senator from I believe that the distinguished Sen- Radio ownership decisions need to be Alaska. He has already made $7 billion ator from Alaska has made a good made by operators and investors, not for us, and this amendment here is amendment that will in fact cover the the Federal Government. That is why going to make up another $7 billion to $7.1 billion. And so, therefore, Mr. we need to eliminate the remaining get us by a budget point of order. President, I will not object to this caps on national and local radio owner- But let me, in saying that, acknowl- being accepted by unanimous consent. ship. edge the hard work and leadership that Mr. STEVENS addressed the Chair. Nationally, there are more than the Senator from Montana has given. The PRESIDING OFFICER. The Sen- 11,000 radio stations providing service Since his very initiation on the Com- ator from Alaska. to every city, town, and rural commu- merce Committee itself, he has been a Mr. STEVENS. The Senator from Ne- nity in the United States. Presently, leader; he has been interested; he has braska has demonstrated how he is a June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7905 quick study. He is right. I would add Mr. PRESSLER. I urge the adoption worked diligently to resolve problems one thing. I think the National Asso- of the amendment. that had been delaying this legislation. ciation of Broadcasters are going to Mr. HOLLINGS. First, adoption of I just want to acknowledge that fact want some additional spectrum beyond the Pressler amendment. If there is no at the very beginning of this debate. what is in this bill. We will work that further debate, I urge the adoption of We have a long way to go, but I know out. But this has been scored, and we the Pressler amendment. now we have started down the path to- will work that out with them as we go VOTE ON AMENDMENT NO. 1257 AS AMENDED ward passing this legislation. I think it forward to make sure that we under- The PRESIDING OFFICER. If there is a tremendous undertaking. stand the problem. is no further debate, the question oc- This is big legislation. It is impor- The simple problem is that this bill curs on agreeing to the second-degree tant legislation. It involves a signifi- could not go forward unless we within amendment No. 1257 offered by the Sen- cant part of the overall economy in its terms meet the scoring problem ator from South Dakota, Senator this country. It is going to create jobs. that the Senator from Nebraska has PRESSLER. It is going to raise revenue because it outlined. The amendment (No. 1257) was agreed is going to be such a dynamic explosive Again, I point out we are not, how- to. field. We are fixing to unleash the ever, by this bill spending money for Mr. HOLLINGS. I urge adoption of bounds that have been holding back universal service. But the budget proc- the Stevens amendment, as amended this competition and advancements ess now makes us account for those by the Pressler amendment. and this development. I think that no moneys we must be paid by the private VOTE ON AMENDMENT NO. 1256 other segment of the economy in the sector pursuant to a mandate, and The PRESIDING OFFICER. If there next 10 years will be more dynamic and since we are continuing a mandate, is no further debate on the Stevens more exciting than that of tele- partially reducing it somewhat for uni- amendment No. 1256, as amended, the communications. versal service, it will cost less than the question is on agreeing to the amend- I also want to commend the distin- old universal service, we now must off- ment. guished Senator from South Carolina set it. The amendment (No. 1256), as amend- who is working at this very moment to I think it is responsible on the part ed, was agreed to. resolve potential problems on this leg- of the Government to do that because Mr. PRESSLER. Mr. President, I islation, but Senator HOLLINGS worked there is always the possibility some fu- move to reconsider the vote by which so hard last year to bring about the ture Congress might decide not to man- the amendment was agreed to. passage of the bill through the Com- date that service but require the Gov- Mr. STEVENS. I move to lay that merce, Science, and Transportation ernment to pay it. motion on the table. Committee. It did not come to consid- So we have, in effect, met the chal- The motion to lay on the table was eration, partially because we just ran lenge of the Budget Act and, in doing agreed to. out of time. so, we will actually, within this period, Mr. STEVENS. Mr. President, I wish But Senator HOLLINGS again this raise the additional moneys which I be- to thank the managers of the bill and year has shown a commitment to get lieve will be utilized in offsetting other those patient with us. I thought it was legislation developed that we can pass. budget problems as we go along. I do essential first to proceed with these He is the major reason we are going to not believe that will be required by any amendments. Otherwise, we would be have bipartisan legislation. We should action of the Congress in the future to wasting our time if a budget point of have more legislation like this in the charge the cost of universal service to order had the effect of pulling the bill Senate. This is really the first bill of the taxpayers. Again, in my judgment, universal down. I thank all concerned. the year of major import that I believe service is required so someone who Mr. LOTT. Mr. President, I inquire will pass by an overwhelming biparti- comes up to my State who wants to what the parliamentary situation is? san vote. So many of our issues have call home literally can do it, or wants Are we back now to making opening been considered in a partisan way, have to bring up a computer and be attached statements at this point? been delayed with amendments. We to data services can make that inter- The PRESIDING OFFICER. Opening have had filibusters; 50 amendments on section with the telecommunications statements are appropriate at this the budget resolution. But in this case, system of our country. time. we will have a chance to develop a bill I believe sincerely in universal serv- Mr. LOTT. Mr. President, I do want that can be bipartisan and also a bill ices because without the universal to rise in support of this legislation that will pass this body first instead of services, the villages and towns of our and make an opening statement. I the other body of Congress. That is no rural areas would be still in probably would like to begin, as others have al- insignificant accomplishment. the early part of the 20th if not the ready done, by congratulating and Senator INOUYE certainly has also 19th century while we all go into the commending the distinguished Senator been very interested in telecommuni- 21st. If they are not to be left in the po- from South Dakota for the hard work cations. He worked on it last year and sition where they are without employ- that he has put into this legislation. Of has been helpful this year. ment because they cannot attach course, many members of the commit- The indomitable Senator STEVENS themselves to this new telecommuni- tee have been working on this legisla- from Alaska is always there. When the cations miracle of the United States, tion for several months. As the distin- debate gets hot and heavy, Senator then I think they will be a burden on guished former chairman said earlier, STEVENS from Alaska will always rise the rest of the country. way back in 1993 there was a lot of to the occasion, as he has on this bill. My friend George Gilder believes that work going on on legislation that led I have one other recognition before I in the future, the computer will re- to this moment. get into my comments. I want to rec- place, in effect, the networks because But I know from personal experience ognize the staff members who have the networks will become, in effect, a and observation that the chairman of done great work, hard work. It has gigantic computer network rather than the Commerce, Science, and Transpor- been laborious, tedious, and they have just a television network. He tells us tation Committee, Senator PRESSLER, solved so many problems through the that what is going to happen is that we said immediately after the election in great efforts of Paddy Link, and my are going to have access through the 1994 that this is an issue that is going own staff assistant Chip Pickering, computer industry to interconnect to be given high priority, a great deal clearly one of the brightest young men America’s schools and colleges in truly of his attention and we were going to I have known in my life. We would not a new worldwide web of glass and air. work together to find solutions to the be here without their help. If people want to think about it, problems that had prevented its consid- Let me begin with a quote from testi- there is no way we can afford to have eration last year and earlier. He made mony before the committee earlier. It this bill stopped by a budget point of a commitment also to make it a bipar- begins with a quote from a Senator order. That is the reason for our tisan effort. So that is why we are here, from Washington State, Senator Mag- amendments. I join in urging adoption because the chairman of the committee nuson, who served with great distinc- of these amendments. gave this such high priority and he has tion on the Commerce, Science, and S 7906 CONGRESSIONAL RECORD — SENATE June 7, 1995 Transportation Committee. He put it In stark contrast, the Telecommuni- technological advance, for broad com- very aptly when he said in this particu- cations Competition and Deregulation mercial purposes. Broadcast license lar area of legislation ‘‘each industry Act of 1995—this bill—will move tele- procedures are reformed and stream- seeks a fair advantage over its rivals.’’ communications into the 21st century lined. And then quoting the witness that and will finally leave the era of the S. 652, again, moving in from the was before the committee: Edsel behind. S. 652 will achieve this communications policy of the past, Each industry wants prompt relief so that through full competition, open net- goes from a protectionist policy to one it can enter the others’ fields, but at the works, and deregulation. That is what appropriate for the global economy and same time wants to avoid the pain of new this bill is all about. That is what we technology of the 21st century. The bill competition in its own field by tactics that say we we want. Senators stand up and promotes investment and growth by will delay that competition as long as pos- say it day in and day out, about all opening U.S. telecommunications mar- sible. It is, therefore, up to the Congress to kinds of situations. Well, in this bill, in kets on a fair and reciprocal basis. make the tough calls and, in effect, cut the In short, S. 652 constructs a frame- Gordian knot. this area, that is what we would do. This bill provides a framework where work where everybody can compete ev- That is what we are trying to do with entrepreneurs and free enterprise will erywhere in everything. It limits the this legislation, cut the Gordian knot make the information superhighway a role of Government and increases the that has held this dynamic field of the reality, not just a conversation piece. role of the market. It moves from the economy back now for several years. As a result, tremendous benefits and monopoly policies of the 1930s to the As unbelievable as it sounds, the applications will flow to our economy, market policy of the future. Communications Act of 1934 passed in to education, and health care. Indus- Toward that end, the removal of all the era of the Edsel, and it is still the tries will benefit from expanding mar- barriers to and restrictions from com- current law of the land. That act now kets and opportunities, and consumers petition is extremely important, and it governs, in fact, constrains the most will benefit from lower prices in their is the primary objective, and I believe, dynamic sector of the U.S. economy— local, long distance, manufacturing, the accomplishment of this legislation, telecommunications. Just as the Edsel and cable services. thanks to the efforts of Chairman became a symbol of all that is out- If one hears the protest of the var- PRESSLER and the former chairman, dated, so is the 1934 Communications ious industries, it is not because the Senator HOLLINGS of South Carolina. Act. That act is based on old tech- bill is too regulatory; no, just the oppo- In addressing the local and long dis- nology and, consequently, on an out- site is true. It is because this bill re- tance issues, creating an open access dated, rigid-monopoly-based-regu- moves all of the protection and market and sound interconnection policy was latory model. Boy, that sounds bad, but allocations that made their respective the key objective, and it was not easy that is what we have today. It is time businesses safe and secure from the rig- to come up with a solution that we we changed that. ors of vigorous competition. could get most people to be com- That system cannot accommodate Under S. 652, all State and local bar- fortable with. It is critical to recognize the rapidly developing capabilities of riers to local competition are removed the reason why all of these barriers, re- new technologies and advanced net- upon enactment. An immediate process strictions, and regulations exist in the works. Instead, it acts to restrict com- for removing line of business restric- first place—the so-called bottleneck. petition, innovation, and investment. tions on the Bells is put in place. More- Opening the local network removes the Under that framework, markets are over, the Bell companies are given the bottleneck and ensures that all com- allocated, not won, by the sweat of freedom to immediately compete out of petitors will have equal and universal competition. Currently monopolies, region and provide a broad range of access to all consumers. Such access oligopolies or, at best, limited competi- services and applications known as guarantees full and, I believe, fair com- tion exist in local long distance and incidentals. These include lucrative petition. cable markets. More than 40 of our 50 markets in audio, video, cable, cel- The open access policy makes it pos- States prohibit any entrepreneur or lular, wireless, information services, sible for us to move to full, free-mar- competitor from offering—even offer- and signaling. ket competition in local and long dis- ing—local telephone service. The 1934 PUHCA is amended to allow tance services, avoid antitrust dangers, The 1984 consent decree which broke registered electric utilities to join with and dismantle old regulatory frame- up AT&T continues to restrict the Bell all other utilities in providing tele- work. operating companies from offering long communication services, providing the In fact, the Heritage Foundation distance or manufacturing. consumer with smart homes, as well as makes the following statement and We should have fixed that long ago. smart highways. points to the open access interconnec- It would have created jobs and would Upon enactment, telephone and cable tion policy: have been positive for the economy. companies are allowed to compete. Policymakers of a more conservative or Current law prohibits cable compa- Current restrictions barring telephone free market orientation should not fear nies and telephone companies from cable entry are eliminated. this open access policy. In fact, they should competing in each other’s markets. As the telephone/cable restriction is favor it for three reasons: They are willing to do that. They want First, there is a rich, common law history removed, S. 652, rightfully, loosens and that supports the open access philosophy. to do that. Why should we not let them removes cable regulation. For cable to They cite railroad and telegraph pol- do that? convert and compete in the telephone icy in America and common law tradi- Another 1934 law, the Public Utility area, it will be freed from the regu- tion dating all the way back to the Holding Company Act, PUHCA, pre- latory burdens that limit investment Roman Empire. vents registered electric utilities from and capital capability, which has been using their infrastructure and net- a problem in recent years for the cable Second, open access works to eliminate works to offer telecommunication serv- any unfair competitive advantages accrued industry. by companies that have benefited from Gov- ices to the 49 million American homes The restrictions placed on broad- ernment-provided monopolies. that they serve. All of these restric- casters, also during a bygone era, be- Third, open access removes the need for tions and regulations and allocations fore cable, wireless cable, and advanced other regulations because the market be- are truly the equivalent of an ‘‘Edsel’’ networks, would be reformed. comes more competitive if everyone is on in the space and information age. In Ownership restrictions on broadcast equal footing. the case of utilities, they are already TV are raised. An amendment remov- It is the only way to address eco- wired, hooked up. They have the capa- ing restrictions on radio ownership will nomic deregulation where a bottleneck bility to offer all kinds of services. Yet, be adopted, and this is one we have distribution system exists. It is the they are told, no, you cannot do that. worked hard on, and we have broad same policy which allows market Why? There is no good explanation or support now for. The FCC is granted forces, instead of regulation, to work justification for it—especially if we do the authority to allow broadcasters to in the case of long distance, railroads, this legislation in a way that is fair, move toward advanced, digital TV and and in the oil and natural gas pipeline open, and allows competition for all. to use excess spectrum, created by distribution system. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7907 It is those examples of deregulation have to dial more digits or access I believe that we will be able to get to which we should look, not to models codes, and if required to do so, they this legislation through. of deregulation where no bottleneck will be less likely and probably not In conclusion, Mr. President, I ask exists, such as airline or trucking. switch to the competitive provider. unanimous consent to have printed in Open networks will provide small and History shows that dialing parity in the RECORD information specifically mid-sized competitors the opportunity long distance services and 1–800 service citing the impact that this legislation to flourish alongside telecommuni- greatly enhanced competition—or the can have in my home State of Mis- cation giants. In the long distance in- lack of dialing parity serves as an ef- sissippi. dustry, similar requirements made it fective barrier to that competition. There being no objection, the mate- possible for over 400 small and medium- Likewise, a small business or residen- rial was ordered to be printed in the sized companies to develop and com- tial consumer will not switch to the RECORD, as follows: pete with AT&T over the past 10 years. competitor if it meant the loss of his or WHAT DOES IT MEAN FOR MISSISSIPPI? One of the better examples of this is her current number. They will not do Mississippi is home to some of the Nation’s a former high school basketball coach it. The disruption to a business or indi- new leaders in every segment of tele- from a small town in Mississippi by the vidual or family is too great. That is communications. name of Bernie Ebbers. Opening re- why we had to deal with this issue in Mississippi is prospering and benefitting from the contributions made by the largest quirements such as interconnection, this legislation, although there was a and fastest growing regional company, Bell equal access, and resale made it pos- lot of opposition to it. South. sible for this entrepreneur to build a Another key element of S. 652 is LDDS, a Jackson, MS company, is the small long distance company into the eliminating monopoly-based regula- fourth largest long distance company in the fourth largest in the country—LDDS. tions and putting in place a mechanism Nation and an expanding international force. It is incredible what has been accom- to remove those regulations. It is a true American success story. plished by this smalltown man by giv- The bill eliminates rate-of-return M–TEL, another Jackson based company, is a dynamic entrepreneurial and leading na- ing him an opportunity to get in there regulation, a regulatory model which tional company in wireless paging service. and compete, and boy did he ever and is cannot logically exist in a competitive A dynamic culture of young entrepreneurs he having an impact. environment created by this legisla- in cellular services is thriving throughout Having used the example of a small tion. States are encouraged to move to the State. long distance entrepreneur, it is also more flexible and competitive models. Parent companies to Mississippi Power and important to point out what happened S. 652 requires the FCC to forbear or Mississippi Power and Light, Entergy and over the past 10 years to the former to eliminate any past or current regu- Southern Company, are pioneer companies promoting utility participation in tele- monopolist, AT&T. Although AT&T lation requirement which would no communications and advanced networks. lost significant market share, it has longer make sense in this market base They will pave the way for smart homes and seen the long distance market that it of competition. There will be a bian- highways in our State. has greatly expand, and its revenues nual regulatory review in this legisla- Cable companies of all sizes have deployed continue with strong, healthy growth. tion that would recommend the elimi- throughout Mississippi into virtually every AT&T’s current revenues, with 60 nation, modification, or other needed small town. percent share in the long distance mar- regulatory reform in the future. Wireless cable services have exploded in both rural and urban areas of my State. ket, as opposed to what was 100 per- Mr. President, in closing, I think it is Mississippi, in cooperation with National cent, are now higher than in 1984. The time to adopt this communications Aeronautical and Space Administration, our same dynamic will occur in the local policy for the future. It provides the leading educational institutions and South and other markets. Opportunities and right framework, it removes all bar- Central Bell, has deployed an advanced net- markets will expand for all partici- riers and restrictions to free market work which connects schools, universities, pants, as long as they are effective and competition, innovation, and increased Federal facilities, super computers and na- efficient in the competitive environ- investment. tional data bases. It is an educational and With the passage of this legislation high tech model for the future and the Na- ment. tion. It is this free market model which our economy will grow a lot faster. We It is in my home State of Mississippi that led me to conclude that all of the com- have had tremendous estimates of the I have seen and experienced the benefits of panies in my State and region and, in kind of economic impact this legisla- the communications revolution. I know what fact, in the country, will benefit from tion will have in the billions of dollars. it means to the economy and quality of life this legislation. I believe that markets More jobs will be created, applications for my State. It means the creation of high and opportunities will expand for Bell in education and health care will ex- tech jobs, attracting new industry, and pro- South and LDDS, both of which are pand more quickly, and the quality of moting and connecting Mississippi to the Na- tion’s best educational opportunities. very important in my State of Mis- life will improve in both rural and As a Senator from a State which has be- sissippi, and other long distance com- urban areas. come a leading telecommunications center, I panies, including electric utilities— It is time to move beyond the culture come to this debate with the conviction that Southern Company and Entergy in my of timidity where the companies and this legislation will serve Mississippi’s, the part of the United States, and cable political leaders, regulators, and the Nation’s, consumers’ and competitors’ best companies and broadcasters will have courts resist needed reform, fear com- interest. new opportunities to grow and expand. petition, and opt for the security and S. 652 promotes and accelerates the com- munication revolution by tearing down all A competitive model will create a inferiority of the status quo. barriers and restrictions preventing the ben- bigger pie for all the providers, but We know that is what the election efits of free market competition. more importantly, it is the consumers was about last year, change in the sta- Mississippi’s economy, with telecommuni- and the overall economy of my region, tus quo. Boy, this bill will do that. It is cations serving as a key catalyst, is growing and I believe the whole country, that time to trade in the Edsel and pass and expanding. This legislation will further will benefit from this legislation. telecommunications legislation that fuel its growth. For consumers and competitors, the will move us truly into the future. Under S. 652, Mississippi companies will open access requirements will do for I do want to note that I think that have new opportunities and expanded mar- kets as well as the challenges of competi- telecommunications what the Inter- the center that holds this legislation tion. South central Bell will be able to ex- state Highway System has done for the together is the part that deals with the pand into long distance, cable, manufactur- shipment of tangible goods and the entry test. When the local Bell compa- ing and other services. movement of people and ensure that all nies get into long distance and they get LDDS, cable companies, Southern Com- competitors will have a way to deliver into the local unbundled market, we pany, Entergy, and numerous other compa- goods and services to anyone anywhere have a delicate balance there. nies will be able, for the first time, to begin on the information superhighway. Are they totally happy? No, they competing for local service and combining local, long distance and cable services. Other requirements, such as number would like a fair advantage in each With S. 652, Mississippi’s TV and radio of portability and dialing parity are case, but we have been able to cobble broadcasters will see old restrictions re- just common sense, procompetitive, together this important balance, and I moved or raised which have stifled growth and fair. A consumer does not want to think it is one that we should support. and new business. S 7908 CONGRESSIONAL RECORD — SENATE June 7, 1995 Small cable operators in Mississippi who companies ownership. There they are, a list of possible amendments in my left have struggled under the regulatory burden company trying to engage in a com- hand are those amendments that are of the 1992 Cable Act, will see regulatory re- petitive practice. not agreed to, that we could not get lief. Once again, Mississippi cable operators I had a discussion with two good consent on from the colleagues and the will be able to expand and deploy new serv- ices, regain financial stability and prepare to friends, Senator HOLLINGS on the staffs on all sides. Objections have been compete in new markets. Democratic side and Senator PRESSLER heard. We had a list of those things The competition among all participants on the Republican side, to see if there that we thought were peripheral mat- will spur innovation, products, advanced net- was any way that we could defer action ters like ‘‘Replace subsidiary with af- works and lower prices for the benefit of Mis- on this tonight so we might discuss the filiate where it appears,’’ number 2, sissippi’s consumers and industries. competitive environment tomorrow ‘‘The FCC may modify the modified I want Mississippi to continue as a na- morning. final judgment with decrees once they tional leader in telecommunications. S. 652 Apparently, it is the belief of the will help achieve that objective. are transferred to the FCC,’’ and on For the Nation’s future, S. 652 is one of the managers that this bill has gone down the list. These are things that most significant pieces of economic legisla- through so much labor and so many both sides have agreed to. tion we will consider. delicate steps that to further delay Unfortunately, other distinguished The President’s Council of Economic Advi- that might be injurious to the success, Members of the Senate, and particu- sors estimates the telecommunications de- ultimately, of passing this bill. larly on our committee of Commerce, regulation will create 1.4 million new jobs by So while I will not object, I would have objected to the provision dealing the year 2003. ask the managers whether or not I can A study by the WEFA group, funded by the with Bellcore. As I understand it, as Bell Companies, projects 3.4 million jobs by have their support for a discussion of a the distinguished Senator from New the year 2005 and 0.5 percent greater annual proposal to enable the competitive Jersey points out—they are very com- economic growth over the next 10 years. character of the field to be expanded petitive. Heavens knows, they produced In addition, the committee heard testi- although it is lacking in the statement the technology. If you had to measure mony that the Pressler bill will lead to an of the managers. in percentage of communications, I additional $2 trillion in economic activity. Mr. PRESSLER. I want to commend would say 90 percent of it has been pro- The communications sector, more than my friend from New Jersey, Senator any other, will shape our future economy as duced in the Senator from New Jer- LAUTENBERG. I know he is an experi- well as our civic and community life. This sey’s home State there at Bellcore. bill is the right policy to maximize the bene- enced businessman, and I know there is So I am disposed to help in any way fits this sector of our economy can deliver. some controversy about Bellcore. It is I can the Senator from New Jersey. It I urge my colleagues to support this legis- my belief that if Bellcore is sold and is not within my power to do so be- lation. It is time for Congress, not the courts out there competing, it should be able cause I have, like I say, in my left hand or bureaucracies, to establish the commu- to compete without restriction. those amendments that are not agreed nications policy for the 21st century. That is based on the information I to. And the Bellcore amendment would Mr. LOTT. Mr. President, I yield the have at this moment. I know there is a have to be on that particular list. floor. great controversy about manufactur- They are not agreed to. There are at Mr. PRESSLER. I thank the Senator ing, because about 99 percent of manu- least three Senators on the committee from Mississippi for his terrific con- facturing many new devises is re- who have so notified us. And if any tribution. Chip Pickering has been in search. Senator notified me right now on any every step of the way. This would not It seems to me that the Senator has of the other items in the managers’ be happening without your great lead- raised a very good point. As I under- amendment I would object for them if ership. I personally thank you very, stand it, in the managers’ amendment, they could not even be here. That very much. we have taken this section out so we would be my duty as a manager of the Mr. President, I am sending to the will be able to entertain a colloquy, or bill, because every Senator has to be desk a managers’ amendment which I indeed an amendment. respected. am cosponsoring with Senator HOL- I have begged several Senators to I have the highest respect for the LINGS. This amendment, which has come tonight to offer amendments. We Senator from New Jersey. I will do ev- been cleared on both sides of the aisle, have all these strong feelings and we erything possible I can to help him makes a number of technical and would like to get a vote on something with his amendment. minor changes in the bill that have tomorrow morning at 9 o’clock. As I Mr. LAUTENBERG. With that state- been worked out since the bill was re- gaze about, I do not see any amend- ment, if the Senator will yield, Mr. ported by the Commerce Committee. ments cropping forth. We welcome President, I have no objection to going I ask unanimous consent that when amendments. forward. adopted, the text be treated as original I want to thank the Senator from The PRESIDING OFFICER. Without text for purposes of further amend- New Jersey for raising this, because objection, the several unanimous con- ment. based on the information I have, I tend sent requests are agreed to. At this point I would like to send the to agree with what I think his position Mr. KERREY. Reserving the right to managers’ amendment to the desk. is. I think he has raised a good point. If object, is this just a unanimous con- Mr. LAUTENBERG. Mr. President, we could still adopt the managers’ sent to read the amendment? reserving the right to object, I com- amendment, that is not, as I under- Mr. HOLLINGS. We have to read the mend the managers of the bill thus far. stand it, in there. We have taken out amendment. I know they are anxious to conclude a anything that there is controversy AMENDMENT NO. 1258 period of a lot of hard work and having about. struggled through many discussions Mr. HOLLINGS. Mr. President, first (Purpose: To make minor, technical, and and agreements to get this behind. let me thank, as our chairman has very other changes in the reported bill) The reason that I raise the possibil- dutifully done, the distinguished pre- The PRESIDING OFFICER. The ity of an objection is because, in the siding officer, the Senator from Mis- clerk will report. process of developing the managers’ sissippi, Senator LOTT, for the 2 years The legislative clerk read as follows: amendment, it was determined that a that we worked on S. 1822. The Senator The Senator from South Dakota [Mr. major research company based in New has been an outstanding leader on S. PRESSLER] for himself and Mr. HOLLINGS pro- Jersey but doing work throughout this 652 and his staff Chip Pickering has poses an amendment numbered 1258. country, a company that has offered done exceptional bipartisan work. We Mr. PRESSLER. Mr. President, I ask many innovative ideas in this period of never would have gotten this far, this unanimous consent that reading of the new technology in communication, balance that has been emphasized, had amendment be dispensed with. would be prohibited as a result of the it not been for Senator LOTT’s leader- The PRESIDING OFFICER. Without present managers’ statement from en- ship. I want to thank my distinguished objection, it is so ordered. gaging in manufacture, even though it colleague from New Jersey for his atti- (The text of the amendment is print- is the public declaration that they in- tude and approach to this. What hap- ed in today’s RECORD under ‘‘Amend- tend to be free of the regional Bell pens, I have two lists in my hands. The ments Submitted.’’) June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7909 Mr. KERREY. Reserving the right to a consent decree divesting AT&T of the If you look at the OECD examina- object, Mr. President, what are we Bell operating companies, filing that tions of our industries, telecommuni- doing here? decree with the Federal court here in cations, including the telephone com- The PRESIDING OFFICER. The Sen- Washington, DC. panies, are among the most competi- ator from South Dakota just asked the I remember I was Governor of Ne- tive in the world and among the most amendments be considered as read. braska at the time and I can tell you, productive in the world. Mr. PRESSLER. I am asking unani- you could have selected a thousand It does not mean, because a company mous consent to adopt the managers’ people at random and asked them this is regulated, that it is not productive amendments, which I have sent to the question: Would you like Congress to or that it is not competitive or that desk, and which have been cleared on put the Bell companies back together? somehow it is going to produce an un- both sides of the aisle. Do you like what Baxter and Judge satisfactory thing for the American Mr. HOLLINGS. Is that cleared with Greene did? people. the distinguished Senator? And of the thousand people I will bet I am telling my colleagues a lot of Mr. KERREY. I have great respect 998 people would have said ‘‘Reverse it. people will come down here and say, for the Senators from South Carolina Put it back together. We do not like ‘‘It must be good. There is a lot of bi- and South Dakota, but I have not read the confusion that we have. We do not partisan support for it.’’ Walk up to the amendment. It was just brought to like trying to figure out all this stuff.’’ the desk, check out a lot of these me. It is 40-some pages long and I un- It was not popular. Do not let anybody amendments, see which way people are derstand there is lots in it. I cannot. I be misled by this. This is going to cre- voting—this one is going to be remem- object. ate considerable confusion in the early bered. This vote is a big vote. In my The PRESIDING OFFICER. Objec- years. You are not likely to be greeted State I have about a million house- tion is heard. by a round of applause by households, holds. If you talk telecommunications Is there debate on the amendment? consumers, who have not been con- to those households they do not talk Mr. PRESSLER. I suggest the ab- sulted about this legislation. faxes. They are not thinking about en- sence of a quorum. This is not a Contract With America. hanced digital processing and all that Mr. KERREY. Mr. President, I ask Most of the things that we have taken stuff. They are saying, ‘‘What is my unanimous consent to withhold the re- up in this Senate have been carefully dial tone going to cost me? What is my quest for the quorum call. polled and researched to determine cable going to cost me?’’ That is what The PRESIDING OFFICER. Is there whether or not they are popular. I have they talk about. objection? heard, whether it is the balanced budg- I think we need to come down to this The Senator from Nebraska seeks et amendment or the budget resolution floor and ask ourselves a question. recognition? The Senator from Ne- or term limits, all sorts of other What is this bill going to do for those braska. things, people come down to the floor households? What is it going to do for Mr. KERREY. Mr. President, I know and say, ‘‘In November the people of the consumer? I hear people say it is there is some confusion. I see my friend the United States of America spoke going to create lots of new jobs. In the from South Carolina and South Dakota and here is what they meant.’’ I have course of this debate we are going to as well. I have a great deal of respect heard speaker after speaker say that. come down and examine the question: for them. I take a great deal of interest And in many cases I agreed with them, Who has been creating the jobs? in this legislation. They have been because I ran in November of 1994. (Mr. LOTT assumed the chair). kind to allow a member of my staff to But I did not have a single citizen, Mr. KERREY. Where are the jobs sit in on lots of the deliberation. when I was out campaigning, come up going? One of the things I hear from But I want my colleagues to under- to me and say: ‘‘Boy, make sure when people, an awful lot of telecommuni- stand there is a lot in this bill that is you go back, if you get reelected, if you cations industry people working for the not very well understood. I declare go back and represent us, make sure telecommunications company, is sub- straight out I will not vote for this bill you go back there and deregulate the stantial downsizing. I say, ‘‘Do you in its current form. I am here because phone companies. Make sure you go want to deregulate? Are you going do I see great promise in telecommuni- back there and deregulate the cable in- get more jobs?’’ They say, ‘‘I do not cations. I see great promise, in fact, in dustry. Make sure. Bob, make sure, if know. You know. It has not been work- deregulating the telecommunications you get back there, get rid of the own- ing too good thus far.’’ industry and using competition to reg- ership restrictions on television sta- I am down here to talk about what ulate as opposed to having Government tions, on radio stations. Because that this is going to do for the many house- mandates and so forth do the job. is what I want. I am really excited holds, and for the American consumers. But in 1986 I signed a deregulation about all this stuff. I really think there I look forward to the debate. There is bill. I may be, for all I know, the only is a lot in this for me. That is what I much in this legislation that I support. Member of Congress who can come to want. That is the sort of thing I would I believe in many cases deregulation the floor and say ‘‘I signed a deregula- like to have you go back there and do.’’ will produce a competitive environ- tion bill for telecommunications.’’ And The American people have not been ment that will benefit the American I know that deregulation does not polled on this one. The distinguished consumer, and that will benefit the mean competition. You can have de- majority leader came down and said American household. But let no one be regulation and have no competition. there is bipartisan support. It is not a mistaken. When we pass this piece of I call upon my colleagues who won- Democratic issue. It is not a Repub- legislation in the Senate and go to con- der about the impact of their votes. lican issue. He is quite right. It is not. ference with the House, and get final There is a great deal of concern about, This is an issue that has been discussed passage in the early days, do not ex- for example, the budget resolution we at length and I discussed it at length pect to have the people who vote for took up. ‘‘Gee, what is this going to do with many corporations that want to you say you were right. ‘‘Boy, this to me? Is it going to be difficult to ex- be deregulated. They want to be de- thing has really worked.’’ It may take plain at home? There are lots of things regulated. In many cases they are 9 or 10 years, which is what happened in there that might become unpopular right. with divestiture. It took us a good 10 and am I going to pay for voting yes on But if you listen to the rhetoric, just years before people began to say, ‘‘Wait the budget resolution?″ this far, you would think that the cur- a minute. This is working. Competition We have lots of issues that are ex- rent regulation is holding back the is bringing the price down. The quality tremely controversial. This is a lot telecommunications industry to such is going up. This appears to be in fact more controversial than meets the eye. an extent that we have lousy telephone generating something beneficial to I ask my colleagues who are consider- service, that we have noncompetitive me.’’ ing voting yes for this and want to industries. You would think America So I would like to get a little fun- move it through quickly to recall what was somehow backwards compared to damental here. I very often, as I am life was like in 1984 when Mr. Baxter, all the rest of the world. That is not sure the distinguished Presiding Offi- from the Department of Justice, signed true. cer does and other Members do, get S 7910 CONGRESSIONAL RECORD — SENATE June 7, 1995 asked, ‘‘What is it that you do? What Mr. President, I believe that the Guess how we are going to resolve it? do you in Washington, DC?’’ Do I just American people deserve as a con- Do you think we resolved it because a come down to the floor and give sequence of the impact of this legisla- U.S. Senator intervened on their be- speeches? Do I just answer my tele- tion a good and healthy and lengthy half? Do you think the Congress came phone and answer letters and do con- debate. to the rescue? Do you think it was the stituent service for the people are hav- I heard the distinguished occupant of administrative branch? No, sir. A cou- ing trouble with the IRS, the EPA, or the Chair earlier say he hopes this ple of citizens filed a suit in court. It various other agencies of the govern- thing does not degenerate into a fili- was the judiciary. It was the right of a ment? Yes. I try to explain to them I buster. I do not intend to filibuster this citizen to go to court and say, ‘‘This am involved with writing laws. That is thing. I point out with great respect to company is not obeying the law of the what we do here. We write laws; and the Senator from Mississippi that 1822 land. I am going to insist that they that the laws matter. I am not a law- would have passed last year if it had obey the law of the land.’’ yer. not been filibustered and slowed up and Mr. President, make no mistake I very often wonder whether or not tied up by people who said we do not about it. This piece of legislation is one of the most important things law- want this thing to go. This would have about who controls the airways, who yers do is write the laws that are so been law last year I believe. I do not controls your telephone, who controls darned confusing we have to hire them know if the Senator from South Caro- the information? It is about power. in order to tell us what is in them. But lina can confirm that. I hear a lot of people say, ‘‘Well, we the longer I am on the job, the longer I do not want to tie this thing up ought to get the government out of I am on the job of being in politics and with filibusters and delays. I intend, that.’’ Let us have a debate about what being a politician, the law is becoming when there is a manager’s amendment the government should or should not more important to me. I see that they or incidental amendment, to examine do on behalf of the citizens. I am pre- are alive. They have an impact on peo- the language because the language is pared to do that. I think it is a healthy ple, and they make a difference. important. It is going to have an effect debate. Let us not presume it is quite This bill has about 144 pages in it. on people. so easy as just saying competition is Every single word is important. Every I say, again for emphasis, that I be- the best regulator, which I heard three single phrase here is going to affect lieve this vote is going to be a lot more or four or five times. Competition does something. We all know it. We have controversial the further away you get not give us clean air. Competition does them coming into the office saying we from it than people suspect today. One not give us clean water. Competition are concerned about this particular of the things about laws that citizens would not likely make every single fac- phrase, we are concerned about this need to understand is that very often it tory in the workplace in America safe. particular paragraph. I have heard it is about power. That is to say, who has Maybe somebody wants to come down already referenced—some of the agree- the power? here and say that is the case. ments have been difficult to get. They I joined with, again the distinguished I get 1,000 Americans who say, ‘‘You have been difficult to get because every Senator from South Carolina, in voting tell me.’’ Do you trust the corporation? time you do something somebody says, against tort reform bill a little earlier You have a corporation out there that ‘‘Gee. That is going to affect me in an because in my judgment that was is desperately worried about their adverse way.’’ about power. That was about saying to quarterly profits. They are worried The distinguished Senator from Alas- the citizens of this country you are about bottom line. They have the ka had an amendment earlier that paid getting swept away saying the trial shareholders out there to perform for, for the cost of the universal service, lawyers are making life miserable for and they have to make a decision. and one of the things that he did—I be- you. Just ask yourself this question: They have 1,000 people working for lieve he is quite right—the National You get hurt out there, you have a them, and have been working for them Association of Broadcasters is going to problem out there. Who is going to help let us say 30 years; 30,000 man and object. There are going to be people you? Is congress going to help you? Are woman hours in that corporation. They who say, ‘‘I do not like where you got you going to call up your Congressmen have to make a decision to lay all the money.’’ Everything we do in this and say, ‘‘I am getting abused by the thousand of them off, and give them no legislation we know affects one inter- phone and cable companies. I do not fringe benefits, no severance pay, no est group or another. But it is also like what is going on out there. Do you retirement. All of those things add cost going to affect more than almost any- think Congress is going to rush to your to the corporation. thing we have discussed thus far this defense? Do you think it will be pos- I ask my Americans. Do you trust year; Indeed, perhaps for a long, long sible for you to get the agencies of the that corporation? Do you think that time, every single American household. Federal Government to rally to your corporation is going do say ‘‘No. I If you have a telephone in your cause? And you probably do not even think it is right and decent; I do not home, it is going to affect you. If you have enough money to buy an airplane care what the stock holders say, what have a cable line running into your ticket to come back here, and if you Wall Street says; I am going to ignore household, this bill is going to affect came back here you will not know all of those people up in New York you. where to go. City; I do not care what they say; I am I just said to citizens out there who This is about power. And regulations going to do the right thing; I am going are wondering about what the mumbo are in place to protect the interests of to give you severance pay; I am going jumbo is about, you are going to hear the people. That is what they are there to provide you with your health care, a lot. You had better pay attention be- for. Let us deregulate. and take care of that retirement bene- cause, if you have a telephone, and you I have a little case going on right fit because I care about you; you are a if you have a cable line coming into now in Omaha, NE, that illustrates human being; I am not going to treat your household, you had better pay at- what I am talking about. We have a you like trash?’’ tention to this legislation because it is plant in Nebraska which employees a I do not believe many Americans are going to have a big impact upon you. couple of hundred people. Unfortu- going to say that is likely to be the You are going to hear a lot of people nately, the company processes lead, case. If a company is a mom and pop coming down saying this is going to be and they put a lot of lead in the air and shop, owned by an individual which good for you. You did not ask for it. water. And it has been determined— owns 100 percent of the stock, that You did not say, ‘‘By gosh. Let us and no one disputes it—that lead dam- might be different. But when that com- change this law.’’ You did not ask for ages newborn babies without dispute. pany CEO worries about the value of this thing. But we have figured out this We do not have leaded gasoline any its share, that companies CEO does is going to be good for you. And make longer because we have decided that is things differently. They have to. I do no mistake about it. We have really the case. We have a Clean Air Act, we not say they are doing the wrong thing. paid careful attention to this legisla- have a Clean Water Act. This company I do not blame them for doing that. tion. We know exactly what it is going has been out of compliance for over 15 But please do not come and say that to do. years. the market is going to get the job June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7911 done. The market rewards people that the cost determine what people are Mr. President, is going to restrict com- produce. The market rewards a much going to pay. We have a very small petition immediately. We are not going different set of values than the values amount of subsidy in the universal to have the local cable company and that I have just described with these service fund. We have an education pro- the phone company competing because thousand families. vision that some people are going to the phone company is going to have an So again, the next thing I say to citi- come down here and try to strike, say- incentive to buy them. If they buy zens who are wondering about these 144 ing the market ought to have taken them, it ends that competition. pages and all of the amendments that care of that. After having given speech- I am prepared to hear arguments will be offered, it is about power and es saying this is good for health care, about that, but I think allowing this power over your lives, power to deliver this is good for education, they do not cable-Bellcore ownership in the local you information, power to give you a even want to have that provision in area does precisely the opposite of phone service, power to give you video this piece of legislation. what this bill intends to do. information, power to give you the I have many problems with this bill, The other objections and problems things that you say that you want. Mr. President. I do believe the Depart- that I have with the bill I will come For your information, a lot of people ment of Justice needs a role in this. I later to the floor and try to address. I who are coming down here saying get do not think consultation is enough. I see the Senator from Pennsylvania is the government out of that are very would cite as case No. 1 why consulta- down here. I suspect that he wants to strongly supportive of unfortunately a tion is not enough, the very thing that make a statement. I just wanted to title offered by the senior Senator from Members will use when they are saying stand up at this point in time and say Nebraska, title 4, which said we need to that competition works, and that is to the Senator from South Dakota and have a lot more government involve- Mr. Baxter and Judge Greene getting the Senator from South Carolina I do ment when it comes to regulating. together, the Department of Justice not intend to stand down here and stop I understand there is going to be getting together with a Federal judge this piece of legislation from being en- some amendment to make even tough- and putting together a consent decree. acted. But I do intend to stand down er penalties. That is popular. That one It was the Department of Justice. It here and examine every amendment we all know. People are fed up with ob- was the Department of Justice that that is proposed and make sure it is an scenity and they are fed up with the gave us the competitive environment. amendment that I agree to for all the stuff they see on television and they It was not the Federal Communcations reasons I cited earlier. want us to do something about it. And Commission. I am not calling for in- The consumers of this country, the title IV attempts to do that. I hope we creased authority, increased power, but households of this country have not are a bit careful, to say the least, with I want them to do more than consult. been consulted. We are presuming that title IV, but title IV is more Govern- They understand competition. The it is going to be good for them because ment, it is not less. Title IV is the Antitrust Division of the Department we have talked to American corpora- statement by Members of Congress of Justice understands where and when tions and they are saying it is going to that says the market does not work competition is, and they are about the be good for them. They are saying this when it comes to obscenity. only ones in this town that, at least by is going to be good for consumers. The Do some people want to come here my measurement, are out there fight- corporations are saying it is going to and tell me it does? Does somebody ing to make sure that that market- be good for those households. They are want to come down here and say the place in fact is working. saying it is good because they are get- market is the best regulator of obscen- I have serious problems saying that ting more jobs, higher service, better ity? I do not think so. I do not think telephone companies can acquire cable quality, and lower prices. there is going to be a single Member companies inside of their area imme- That is what they are saying. It is come down here and say just let the diately. not coming from households. This is market take care of it; we do not care Mr. President, I believe we have to not coming from the people of the what kids are getting over the have two lines coming into the home. I United States of America, whether it is Internet. We do not care what is com- believe you have to have—if it is going the people of South Dakota, the people ing into homes. to be fiber or some kind of combination of Nebraska, South Carolina, Mis- No. In that instance the market goes of coax and fiber, I do not know what it sissippi, or Pennsylvania. We believe out the window. In that instance we is going to be, but I want two lines that we have something here that is say Time/Warner is putting out slime. coming into my home. going to be good for them, but they We have to regulate them in some fash- I have heard people talk an awful lot have not come to us and said: Please do ion. about competition, and I have heard all this because we think this needs to be So, Mr. President, again, I have a the companies coming in saying they done. great deal of respect and appreciation want a competitive environment. This So I again will have many opportuni- for the managers of this bill. They have is one thing I know. Competition to me ties to stand and talk, and I look for- done an awful lot of work on it. I do in- means I have choice. Again, this idea of ward to what I hope will be a straight- tend to carefully examine the amend- choice is a two-edged sword. You are forward and healthy and honest debate, ments that are offered. I do believe going to have a lot of households out something that I hope does produce a that increased competition can be there that are not going to be terribly final change in the 1934 Communica- enormously beneficial. I believe that it pleased with this new choice they have, tions Act which I think does need to be can, properly done, result in lower and they are not going to be terribly changed. But at the end of the day I prices, higher quality service, particu- happy when they see what that choice wish to be able to say to the consumers larly, as I said, if it is done in a fashion might do. of Nebraska that this is going to be that lets everybody compete. We have to be prepared to stay with good for you. I wish to able to say to Again, I do not underestimate the this thing. To my mind, choice means every household in Nebraska you are difficulty of this. I am going to have a if a company does not give me what I going to get benefits from it and these lot of explaining to do to my citizens want, I can take my business some- are the benefits that I believe are going to tell them why this is good for them place else. Competition means to me I to occur. because in the early days when they can go wherever I want and get the At this stage of the game, Mr. Presi- get competition they are going to get service I want. And I believe in many dent, I cannot support this legislation confused. And in the early days they ways this bill does just that. for the reasons cited, and I look for- may even get some price increases. The requirements of unbundling, of ward to engaging in what I said I hope They may find themselves paying high- dialing parity, the requirements that will be a constructive debate. er telephone service. They may find are in this legislation in title I, in my Mr. PRESSLER addressed the Chair. themselves paying higher cable. We do judgment, provide a good basis for us The PRESIDING OFFICER. The Sen- not know. We are saying let the mar- to have a competitive environment. Al- ator from South Dakota. ket set the price, in general, once you lowing the phone companies to go out Mr. PRESSLER. I thank the Senator get to the final end of this thing. Let and buy cable inside their own area, from Nebraska for his statement. In S 7912 CONGRESSIONAL RECORD — SENATE June 7, 1995 fact, the other day I cited him, when I tect electric utility ratepayers and PETITIONS AND MEMORIALS was on a national program of State leg- stockholders from bearing the costs of The following petitions and memori- islators and they asked, in terms of a diversification by registered holding als were laid before the Senate and model of a State to deregulate, what companies into telecommunications were referred or ordered to lie on the might it be. And I suggested the work activities. table as indicated: of BOB KERREY of Nebraska when he It requires the Federal Communica- POM–146. A petition from a citizen of the was Governor. I observed his work in tions Commission, the Federal Energy State of Indiana relative to taxes; to the deregulating telecommunications in Regulatory Commission, and the State Committee on the Judiciary. that State, and I certainly look for- POM–147. A resolution adopted by the regulators to monitor the activities Board of Representatives, Otsego County, ward to his insights. and practices of both the subsidiaries We have worked on a bipartisan basis New York relative to local government re- and the parent holding companies that sources; to the Committee on the Judiciary. on this bill. In fact, all the Democrats engage in telecommunications activi- POM–148. A resolution adopted by the on the Commerce Committee voted for ties in order to ensure that utility con- Council of the City of Alexandria, Virginia the bill. Senator HOLLINGS did a good sumers pay only what they get. relative to the flag; to the Committee on the job. I visited with and delivered a copy Judiciary. of the original draft bill to each of the For example, my provision would en- POM–149. A concurrent resolution adopted Democrats on the Commerce Commit- sure that telecommunications-related by the Legislature of the State of Arizona; to the Committee on the Judiciary. tee. activities are conducted in a separate Two Republicans on the committee subsidiary of the holding company. It ‘‘SENATE CONCURRENT RESOLUTION 1018 voted against the bill. Eight Repub- would also provide the States with the ‘‘Whereas, the people of the State of Ari- appropriate regulatory, investigatory, zona believe that state legislatures should be licans on the committee voted for it. provided with a method of offering amend- This is a bipartisan bill. All the Demo- and enforcement authority to protect utility consumers. To this effect, it ments to the Constitution of the United crats on the committee voted for it. I States: Therefore be it think that is a very important point. would require the States to approve ‘‘Resolved by the Senate of the State of Ari- any rate increases by those utility THE PUBLIC UTILITY HOLDING COMPANY ACT zona, the House of Representatives concurring: PROVISIONS companies that have a telecommuni- ‘‘1. That the Congress of the United States cations subsidiary. As a result, the propose to the people of the United States an Mr. D’AMATO. Mr. President, today I amendment to the Constitution of the Unit- rise to speak about certain provisions States can examine the proposed rate increase to make sure it is justified ed States to amend the Constitution of the in S. 652, the Telecommunications United States as follows: and that utility customers are not sub- Competition and Deregulation Act of ‘‘ARTICLE V—AMENDMENT OF THE 1995. sidizing the holding company’s tele- CONSTITUTION This bill contains provisions that communications-related costs. ‘‘The Congress, whenever two thirds of would significantly alter the Public The Banking Committee has con- both Houses shall deem it necessary, shall Utility Holding Company Act of 1935 sulted the SEC as well as industry and propose Amendments to this Constitution, (PUHCA). The PUHCA was originally consumer representatives in crafting or, on the Application of the Legislatures of enacted 60 years ago to simplify the this provision to make sure appro- two thirds of the several States, shall call a Convention for proposing Amendments, utility holding company structure and priate safeguards will allow the holding which, in either Case, shall be valid to all In- ensure that consumers were protected companies to diversify without nega- tents and Purposes, as Part of this Constitu- from unfair rate increases. At that tive consequences to utility customers. tion, when ratified by the Legislatures of time, there were many industry abuses We have struck a reasonable balance. three fourths of the several States, or by involving the pyramidal corporate As a conferee on the Telecommuni- Conventions in three fourths thereof, as the structures of holding companies which cations Competition and Deregulation one or the other Mode of Ratification may be greatly increased the speculative na- Act of 1995, I will be in a position to proposed by the Congress; Provided that no ture of securities issuances, led to mar- Amendment which may be made prior to the make certain that this balance is pre- Year One thousand eight hundred and eight ket manipulation, and inflated the cap- served. shall in any Manner affect the first and ital structure. The abuses in the indus- At the same time, I would add that fourth Clauses in the Ninth Section of the try made it nearly impossible for the the Banking Committee intends to ex- first Article; and that no States, without its States to adequately protect utility amine the continuing need for the Consent, shall be deprived of its equal Suf- ratepayers. frage in the Senate. PUHCA once the Securities and Ex- ‘‘Whenever three-fourths of the legisla- The PUHCA limited the types of change Commission releases its report businesses that holding companies tures of the States deem it necessary, they and recommendations on repeal or re- shall propose amendments to this Constitu- could acquire to utility related serv- form of the Act. tion. These proposed amendments are valid ices. As reported out of the Commerce for all intents and purposes two years after I would like to thank Senator PRES- Committee, Sections 102 and 206 of the these amendments are submitted to Congress ‘‘Telecommunications Competition and SLER, Senator LOTT, Senator BUMPERS, unless both Houses of Congress by a two- Deregulation Act’’ would permit diver- Senator SARBANES, and their staffs for thirds vote disapprove the proposed amend- sification of registered holding compa- their cooperation on this issue. ments within two years after their submis- sion. nies into the telecommunications busi- f ‘‘2. That the Secretary of State of the ness—without SEC approval or any State of Arizona transmit copies of this Con- other conditions. Allowing holding MESSAGES FROM THE PRESIDENT current Resolution to the President of the companies to diversify away from their United States, the President of the United traditional core utility operations is a Messages from the President of the States Senate, the Speaker of the United departure from the basis principles un- United States were communicated to States House of Representatives, the Presi- derlying the 1935 Act. the Senate by Mr. Thomas, one of his dent of the Senate and the Speaker of the Mr. President, my primary concern secretaries. House of Representatives of each state’s leg- with these sections of the ‘‘Tele- islature of the United States of America, and f the Arizona Congressional Delegation.’’ communications Competition and De- POM–150. A concurrent resolution adopted regulation Act’’ is that losses resulting EXECUTIVE MESSAGES REFERRED by the Legislature of the State of Arizona; to from the subsidiaries telecommuni- the Committee on the Judiciary. As in executive session the Presiding cations activities could be passed on to ‘‘SENATE CONCURRENT RESOLUTION 1006 Officer laid before the Senate messages public utility customers in the form of ‘‘Be it resolved by the Senate of the State higher utility rates. from the President of the United of Arizona, the House of Representatives I would like to commend Senator States submitting sundry nominations concurring: PRESSLER and Senator LOTT for includ- which were referred to the Committee ‘‘1. The following Declaration of Sov- ing my provision—which addresses on Finance. ereignty is adopted: ‘‘Section I: these concerns—in the manager’s (The nominations received today are ‘‘A. We, the legislature of the State of Ari- amendment. My provision puts in place printed at the end of the Senate pro- zona, hereby reaffirm the sovereignty of the the proper consumer safeguards to pro- ceedings.) states and of the people. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7913 ‘‘B. More than two centuries ago, the sov- ‘‘We therefore declare the following prin- may be necessary to restore the sovereignty ereign states, representing the sovereign ciples as necessary to the restoration of the of the states and of the people, by: people did, of their own volition, ratify the sovereignty of the states and of the people, ‘‘(1.) Legal actions to challenge the illegit- Constitution of the United States. In so as required under the 10th Amendment of the imate exercise of federal power; doing, the states, in concerted action, estab- Constitution of the United States: ‘‘(2.) Repeals of laws by which federal lished the federal government to perform ‘‘(1.) The federal government should be re- power has been illegitimately expanded; certain limited and enumerated functions. stored to the role assigned to it under the ‘‘(3.) Such other actions as may be appro- Under the Tenth Amendment of the Con- Constitution of the United States. The pow- priate. stitution of the United States, the powers ers usurped from the states and from the ‘‘2. That the Secretary of State of the not delegated to the federal government people by the federal government should be State of Arizona transmit a certified copy of were ‘‘reserved to the states respectively, or returned in an expeditious and orderly man- this Resolution to: to the people.’’ ner. Mechanisms exist for interstate co- ‘‘(a) The President of the United States. ‘‘Section II: operation where necessary, such as inter- ‘‘(b) The President of the United States ‘‘A. Throughout the history of the United state compacts and voluntary uniform stand- Senate. States, and especially in recent decades, the ards. ‘‘(c) The Speaker of the United States federal government has, without right, bla- ‘‘(2.) Constitutional clauses that have been House of Representatives. ‘‘(d) Each Member of the Congress of the tantly disregarded state sovereignty by arro- the source of illegitimate federal expansion United States. gating unto itself powers that were to have should be restored to their original meaning. Federal expansion has often been based upon ‘‘(e) The presiding officer of each legisla- been reserved to the states and to the people. tive house of each other state in the United ‘‘(1.) It has conscripted states and their unreasonably permissive interpretations of enumerated powers under the Constitution States.’’ subordinate levels of government to imple- POM–151. A concurrent resolution adopted ment its programs through federal man- of the United States, especially the ‘‘com- merce’’ clause. by the House of the Legislature of the State dates, funded and unfunded; of Hawaii; to the Committee on the Judici- ‘‘(2.) It has requisitioned officers of states ‘‘(3.) The federal government should not ary. and their subordinate levels of government impose mandates, unfunded or funded, on the to perform duties on its behalf, bypassing states or on their subordinate governments. ‘‘HOUSE CONCURRENT RESOLUTION state constitutional and legislative proc- The Constitution of the United States delin- ‘‘Whereas, the Omnibus Budget Reconcili- esses; eates federal responsibilities and reserves all ation Act of 1993 signed into law by Presi- ‘‘(3.) It has, as a result of expanding power, other responsibilities to the states or to the dent Clinton on August 10, 1993, included the imprudently increased spending, increased people. Federal mandates on state or local largest tax increase in history: $115 billion in taxation and increased regulation, which governments are unnecessary and inappro- new taxes and a forty-seven percent increase have, in consequence, reduced economic priate. in income tax rates; and ‘‘(4.) The federal government should be the growth by unnecessarily discouraging invest- ‘‘Whereas, the income, estate, and gift tax exclusive financier of its programs. By par- ment and job creation; components of the tax increase were retro- tially funding federal programs, such as ‘‘(4.) It has, through deficit spending and active, taking effect on January 1, 1993; and through matching grants, the federal govern- other actions, created massive federal obli- ‘‘Whereas, Treasury Secretary Bentsen has ment distorts the priorities of state and gations that threaten the living standards of declared that more than one and one-quarter local governments, and establishes a demo- the people, the solvency of the states and the million small businesses will be subject to cratic deficit that virtually disenfranchises future of generations yet unborn; retroactive taxation despite the administra- state and local voters. The federal govern- ‘‘(5.) It has, by centralizing power in Wash- tion’s claim that the tax increase ‘‘only af- ment has a legal obligation to fully fund its ington, D.C., created a ‘‘democratic deficit,’’ fected the rich’’; and programs, and should neither require nor en- a condition under which the federal govern- ‘‘Whereas, the retroactivity of the Omni- tice state or local governments to partici- ment has assumed control over functions of bus Budget Reconciliation Act of 1993 is un- pate in the funding of federal programs. government that should have been reserved precedented in that it became effective dur- ‘‘(5.) All federal government relationships ing a previous administration—before Presi- to state and local governments, making ef- with local governments should be through fective control of government more difficult dent Clinton or the 103rd Congress even took the states. All governments in the United office; and for the people; States are the creation of the states, which ‘‘(6.) It has, through unwarranted judicial ‘‘Whereas, the passage of the bill resulted are the creation of the people. One govern- in loud public outcry against retroactive intervention, interposed itself between the ment, the federal government, was created in states and the people on matters not of fed- taxation; and concert by the states. All other governments ‘‘Whereas, retroactive taxation places an eral jurisdiction; are the creation of, and subordinate to the ‘‘(7.) It has, through imprudent judicial re- unfair and intolerable burden on the Amer- states respectively. Direct federal govern- ican taxpayer; and view, systematically expanded the power of ment-local government relationships are in- Congress and the Executive by usurping pow- ‘‘Whereas, retroactive taxation is wrong, it appropriate, except to the extent specifically is bad policy, and it is a reprehensible action ers that were not intended under the Con- authorized by the constitution or laws of a stitution of the United States; on the part of the government: Now, There- particular state. fore, be it ‘‘(8.) It has evaded the restraints of the na- ‘‘(6.) The federal government should not as- tion’s fundamental law, the Constitution of ‘‘Resolved by the House of Representatives of sign federal responsibilities to officers of the Eighteenth Legislature of the State of Ha- the United States, and has in so doing en- state or local governments. Various federal gaged in the imposition of arbitrary laws, waii, Regular Session of 1995, the Senate con- laws designate state or local government of- curring, That the Legislature of the State of administrative actions and judicial deci- ficers to perform federal functions. The fed- sions. Hawaii memorialize the Congress of the eral government should enlist state offices United States to propose and submit to the ‘‘B. Through these actions, the federal gov- or departments to assist it in the perform- ernment has usurped the sovereignty of the several states an amendment to the Con- ance of its duties only when specifically au- stitution of the United States that would states. And, through these actions, the fed- thorized by the constitution or laws of a par- eral government has usurped the sovereignty provide that no federal tax shall be imposed ticular state. for the period before the date of the enact- of the people. ‘‘(7.) The federal government’s treaty mak- ment of the retroactive tax; and be it further ‘‘Section III: ing power should be limited to powers that ‘‘Resolved, That certified copies of this ‘‘A. We declare that the federal govern- are clearly within the federal scope of re- Concurrent Resolution be transmitted to the ment cannot, on its own, legitimately dimin- sponsibility. The states have delegated trea- President of the United States, the Sec- ish the sovereignty of the states and of the ty making powers only with respect to those retary of the United States Senate, the Clerk people as intended under the Constitution of areas of authority that have been delegated of the United States House of Representa- the United States. to the federal government. tives, Hawaii’s Congressional delegation, the ‘‘B. The fundamental law of the nation ‘‘(8.) Congress should not act to displace Speaker of the House of Representatives, and may only be altered in the manners pre- state and local police power—and the courts the Senate President.’’ scribed by that fundamental law. We are con- should not permit such displacement—except vinced that the policy failures that have ac- where the Constitution authorizes. Congress POM–152. A resolution adopted by the Sen- companied expanded central authority pro- has preempted entire areas of regulation ate of the Legislature of the State of Hawaii; vide, in themselves, powerful testimony to that have traditionally been matters of state to the Committee on the Judiciary. the importance of limiting the federal gov- and local police power. In addition, the fed- ernment to those powers enumerated in the eral courts have improperly condoned these ‘‘SENATE RESOLUTION Constitution of the United States. To correct congressional assaults on local governance, ‘‘Whereas, the flag of the United States is these failures and to secure a more favorable under the doctrine of implied preemption, the ultimate symbol of our country and it is future for the nation, it is necessary that the the so-called ‘‘dormant’’ commerce clause the unique fiber that holds together a di- powers expropriated by the federal govern- and other constitutional provisions. verse and different people into a nation we ment be returned to the states and to the ‘‘Section V: call America and the United States; and people. ‘‘In support of these principles, we commit ‘‘Whereas, as of May 1994, 46 states, rep- ‘‘Section IV: ourselves to the pursuit of such remedies as resenting more than ninety percent of our S 7914 CONGRESSIONAL RECORD — SENATE June 7, 1995 national population, have adopted similar the deficit slowly to erode federal discre- a balanced budget amendment, to accom- acts urging Congress to protect the Amer- tionary programs and undermine the Amer- pany it with financial information on its im- ican flag from physical desecration; and ican economy; and pact on the budget of the State of Iowa for ‘‘Whereas, although the right of free ex- ‘‘Whereas, a balanced budget amendment state budget planning purposes. pression is part of the foundation of the to the United States Constitution will im- ‘‘Be it further resolved, That the Secretary United States Constitution, very carefully pose the discipline and responsibility that of the Senate send copies of this Resolution drawn limits on expression in specific in- Congress must exercise in order to assure the to the Clerk of the United States House of stances have long been recognized as an ap- vitality of our economy and our Nation; and Representatives and the Secretary of the propriate means of maintaining public safety ‘‘Whereas, the amendment will give Con- United States Senate, to all members of and decency, as well as orderliness and a pro- gress and the President time to eliminate Iowa’s congressional delegation, and to the ductive value of public debate; and the deficit, avoiding the sudden shock that presiding officers of both houses of the legis- ‘‘Whereas, certain actions, although argu- opponents fear could throw the economy into lature of each of the other states.’’ ably related to one person’s free expression, recession; and POM–155. A resolution adopted by the nevertheless raise issues concerning public ‘‘Whereas, it is in the best interests of the House of the Legislature of the State of Mas- decency, public peace, and the rights of other People of the State of Illinois that a bal- sachusetts; to the Committee on the Judici- citizens; and anced budget to the Constitution of the ary. ‘‘Whereas, there are symbols of our na- United States be adopted: Therefore, be it ‘‘RESOLUTION tional heritage such as the Washington Resolved by the House of Representatives of Monument, the United States Capitol Build- the eighty-ninth General Assembly of the State ‘‘Whereas, the travel agent industry em- ing, and memorials to our greatest leaders, of Illinois, the Senate concurring herein. That ploys a substantial number of full and part- which are the property of every American we urge the United States Congress to imme- time travel agents in the commonwealth and are therefore worthy of protection from diately adopt a resolution proposing a bal- who derive almost one-third of their earn- desecration and dishonor; and anced budget amendment to the Constitu- ings from the traditional ten percent com- ‘‘Whereas, the American Flag is a most tion of the United States of America; and be mission on airline ticket sales; and honorable and worthy banner of a nation it further ‘‘Whereas, virtually every major airline which is thankful for its strengths and com- ‘‘Resolved, That a copy of this resolution be has proposed the imposition of a cap on these mitted to overcoming its weaknesses; and delivered to the President pro tempore of the sales commissions, such that airlines will ‘‘Whereas, the American flag remains a United States Senate, the Speaker of the pay no more than twenty-five dollars on one- symbol for the destination of millions of im- United States House of Representatives, and way domestic tickets and fifty dollars for migrants attracted to the the American each member of the Illinois congressional round-trip tickets instead of the current ideal; and delegation.’’ commission of ten percent of the cost of the ‘‘Whereas, the law as interpreted by the ticket; and United States Supreme Court no longer ac- POM–154. A resolution adopted by the Sen- ‘‘Whereas, the imposition of such a cap cords the reverence, respect, and dignity be- ate of the Legislature of the State of Iowa; would devastate the travel agent industry, fitting the banner of the United States, that to the Committee on the Judiciary. resulting in the loss of thousands of jobs held primarily by women and single parents, and most noble experiment of a nation-state: ‘‘SENATE RESOLUTION NO. 8 Now, Therefore, be it adding to the unemployment in the common- ‘‘Whereas, the 50 states, including the ‘‘RESOLVED by the Senate of the Eighteenth wealth; and State of Iowa, have long been required by Legislature of the State of Hawaii, Regular Ses- ‘‘Whereas, the job loss would have a nega- their state constitutions to balance their sion of 1995, that this body respectfully urges tive impact on the State budget, resulting in state operating budgets; and the President of the United States and the a decrease in formerly collected income ‘‘Whereas, the states have balanced their United States Congress to join in a concerted taxes and an increase in state unemployment state operating budgets by making difficult effort in amending the United States Con- compensation expenditures; and choices each budget session to ensure that stitution to prohibit the physical desecra- ‘‘Whereas, the proposed cap would also their expenditures do not exceed their reve- tion of the United States Flag; and be it fur- harm the travelling public which would be- nues; ther come a captive customer of the airline indus- ‘‘Whereas, without a balanced federal ‘‘Resolved That certified copies of this Res- try, and would no longer be able to rely on budget, the federal deficit may continue to olution be transmitted to the President of knowledgeable travel agents to guide it grow and continue to have serious negative the United States, the Secretary of the Unit- through the maze of travel-related informa- impact on interest rates, available credit for ed States Senate, the Clerk of the United tion and provide the most cost-effective consumers, and taxpayer obligations; and States House of Representatives, and each travel recommendations; and ‘‘Whereas, the Congress of the United member of the Hawaii congressional delega- ‘‘Whereas, it has not yet been determined States, in the last two years, has begun to tion. whether the airline industry’s lockstep ap- reduce the annual federal deficit by making POM–153. A joint resolution adopted by the proach to cost savings through the imposi- substantial reductions in federal spending; Legislature of the State of Illinois; to the tion of the commission cap constitutes a vio- and Committee on the Judiciary. lation of antitrust law: Therefore be it ‘‘Whereas, achieving a balanced federal ‘‘HOUSE JOINT RESOLUTION NO. 8 ‘‘Resolved, That the Massachusetts House budget by the year 2002 will require contin- of Representatives respectfully urges the At- ‘‘Whereas, the United States Congress will ued reductions in the annual deficit, averag- torney General of the United States to con- be considering a resolution to propose an ing almost 15 percent per year over the next duct an investigation to determine if the air- amendment to the United States Constitu- seven years; and lines’ imposition of a cap on the sales com- tion providing for a balanced budget: and ‘‘Whereas, it now appears that Congress, by missions of travel agents constitutes a viola- ‘‘Whereas, federal budget deficits are fis- passing a balanced budget amendment to the tion of federal antitrust law; and respect- cally irresponsible and will place an onerous United States Constitution, is willing to im- fully requests the Congress of the United burden on future generations of Americans pose on itself the same budgetary discipline States to enact legislation prohibiting the and erode our Nation’s standard of living; exhibited by the states; and imposition of commission caps until the At- and ‘‘Whereas, Congress, in working to balance torney General has completed her investiga- ‘‘Whereas, the federal government, unfet- the federal budget, may impose on the states tion; and be it further tered by a requirement to balance its budget, unfunded mandates that shift to the states ‘‘Resolved, That copies of these resolutions often spends the taxpayers’ dollars indis- responsibility for carrying out programs be forwarded by the clerk of the House of criminately; and that Congress can no longer afford; and Representatives to the Attorney General of ‘‘Whereas, the federal government borrows ‘‘Whereas, the states will better be able to the United States, the Majority Leader of extremely large amounts because of budget revise their state budgets if Congress gives the United States Senate, the Speaker of the deficits: this borrowing diverts money that them fair warning of the revisions Congress House of Representatives, and every member would otherwise be available for private in- will be making in the federal budget; and of Congress elected from the commonwealth. vestment and consumption and will inevi- ‘‘Whereas, if the federal budget is to be POM–156. A concurrent resolution adopted tably result in higher long-term interest brought into balance by the year 2002, major by the legislature of the state of Michigan; rates; and reductions in the annual federal deficit must to the Committee on the Judiciary. ‘‘Whereas, the costs of not acting are high continue unabated; and and will get exponentially higher the longer ‘‘Whereas, these major reductions will be ‘‘HOUSE CONCURRENT RESOLUTION NO. 13 hesitation continues; mandatory spending more acceptable to the states and to the peo- ‘‘Whereas, the effectiveness of the item and interest expense will continue to squeeze ple of the United States if they are shown to veto is readily apparent if one examines the out all discretionary spending; therefore, be part of a realistic long-term plan to bal- success of such a power at the state level. even if the amendment is not adopted, states ance the federal budget: Now Therefore, be it States are often referred to as laboratories will face many pressures to assume the fed- ‘‘Resolved by the Senate, That it urges the where innovative programs may be tested be- eral role in domestic programs; the balanced Congress of the United States to continue its fore use at the federal level, yet we fail to budget amendment will create a foundation progress in reducing the annual federal defi- act on the obvious advantages of the line for long-term stability, rather than allowing cit and, when Congress proposes to the states item veto demonstrated in the states. Forty- June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7915 two states and five major overseas posses- sixth of the total appeals in all the 12 re- the federal circuit court for Montana, Be it sions of the United States grant their execu- gional courts of appeals; and further tive branch some form of line item veto ‘‘Whereas, projections are that at the cur- Resolved, That Congress grant this relief power. Some require simple majorities of the rent rate of growth, the Ninth Circuit’s 1980 and pass this legislation immediately, re- legislature to override, others require a docket of cases will double before the year gardless of considerations of long-term three-fifths majority, while still others, in- 2000; and changes to the appellate system in general, cluding Michigan, require a two-thirds ma- ‘‘Whereas, statistics reveal that, because of Be it further jority; and the number of judges in the Ninth Circuit, ‘‘Resolved, That the Secretary of State ‘‘Whereas, clearly, such a power has not there are numerous opportunities for con- send copies of this resolution to the Sec- prevented state legislatures from exercising flicting holdings—one legal scholar has esti- retary of the United States Senate, the Clerk their authority to enact legislation and to mated that on a 28-judge court there are over of the United States House of Representa- appropriate money. Instead, it has proven to 3,000 combinations of panels that may decide tives, the President of the United States, and be an indispensable tool to bring spending an issue, without counting senior judges, dis- the members of Montana’s Congressional into line with available resources. Congress trict judges, and judges sitting by designa- Delegation.’’ should, in a demonstration of its unswerving tion; and determination to reform our budget process, ‘‘Whereas, legal scholars have suggested POM–158. A joint resolution adopted by the take action to grant the President of the that because the United States Supreme Legislature of the State of Montana; to the Court reviews less than 1% of appellate deci- United States line item veto authority; now, Committee on the Judiciary. sions, the concept of regional stare decisis, therefore, be it or adherence to decided cases, results, in ef- ‘‘JOINT RESOLUTION ‘‘Resolved by the House of Representatives, fect, in each court of appeals becoming a ‘‘Whereas, at yearend 1993, 34 states and the Senate concurring, That we hereby memo- junior supreme court with final decision the federal prison system held 2,716 prisoners rialize the United States Congress to take power over all issues of federal law in each under sentence of death; and action to grant the President line item veto circuit (unless and until reviewed by the Su- ‘‘Whereas, in capital cases it has been esti- authority; and be it further preme Court); and mated that the average length of time from ‘‘Resolved, That a copy of this resolution be ‘‘Whereas, the Ninth Circuit has been de- commission of the crime to execution of the transmitted to the President of the United scribed as an experiment in judicial adminis- sentence was 8 years, 2 months; and States Senate, the Speaker of the United tration and a laboratory in which to test ‘‘Whereas, justice delayed is justice denied; States House of Representatives, and the whether the values of a large circuit can be and members of the Michigan congressional dele- preserved; and ‘‘Whereas, the delay and small number of gation as a symbol of our support for such ‘‘Whereas, some legal scholars have op- executions associated with capital cases in- action.’’ posed its division on the grounds that to di- dicates that the present system of collateral POM–157. A joint resolution adopted by the vide the Ninth Circuit would be to loose the review operates to frustrate the capital pun- Legislature of the State of Montana; to the benefit of an experiment in judicial adminis- ishment laws of the states; and Committee on the Judiciary. tration that has not yet run its course; and ‘‘Whereas, capital litigation is often cha- ‘‘JOINT RESOLUTION ‘‘Whereas, the problems of the Ninth Cir- otic, with periodic inactivity and last- ‘‘Whereas, under Article III, section 1, of cuit are immediate and growing and main- minute frenzied activity and rescheduling of the United States Constitution, the Congress taining the court in its present state is a dis- execution dates; and of the United States has plenary power to or- service to the citizens of Montana and other ‘‘Whereas, this chaotic nature of capital dain and establish the federal courts below Ninth Circuit states and territories; and litigation diminishes public confidence in the Supreme Court level; and ‘‘Whereas, it is generally understood that the criminal justice system; and ‘‘Whereas, in 1988, the 100th Congress cre- an essential element of a federal appellate ‘‘Whereas, reform of the appellate review ated the Federal Courts Study Committee as system must include guaranteeing regional- process in capital cases would reduce the an ad hoc committee within the Judicial ized and decentralized review when regional cost of death penalty cases by reducing the Conference of the United States to examine concerns are strongest; and number and length of appeals proceedings; ‘‘Whereas, because of the problems of the the problems facing the federal courts and to and Ninth Circuit related to its dimensions of ge- develop a long-term plan for the Judiciary; ‘‘Whereas, reforms to the appellate review ography, population, judgeships, docket, and and process, such as allowing federal habeas cor- costs, it is desirable for the Northwest states ‘‘Whereas, the Study Committee found pus petitions to be filed for only a 6-month to be placed in a separate circuit, consisting that the federal appellate courts are faced period following final decision by a state mainly of contiguous states with common with a crisis of volume that will continue court and restricting the filing of second or interests; and successive federal habeas corpus petitions, into the future and that the structure of ‘‘Whereas, the existing circuit boundary these courts will require some fundamental would provide an orderly postconviction lines have been called arbitrary products of process with the opportunity for fair and ef- changes; and history; and ‘‘Whereas, the Study Committee did not fective review: Now, therefore, be it ‘‘Whereas, Congress has at least twice di- ‘‘Resolved by the Senate and the House of endorse any one solution but served only to vided circuits: in 1929, to spearate the new draw attention to the serious problems of Representatives of the State of Montana: Tenth Circuit from the Eighth Circuit, and ‘‘(1) That the Senate and the House of Rep- the courts of appeals; and in 1981, to separate the new Eleventh Circuit ‘‘Whereas, the Study Committee rec- resentatives of the United States be encour- from the Fifth Circuit; and aged to enact meaningful reforms to limit ommended that fundamental structural al- ‘‘Whereas, Congress, in 1989, considered and ternatives deserve the careful attention of successive appeals in death penalty cases. is expected, in 1995, to again consider a bill ‘‘(2) That such reforms include allowing Congress and of the courts, bar associations, to divide the Ninth Judicial Circuit of the and scholars over the next 5 years; and federal habeas corpus petitions to be filed for United States Court of Appeals into two cir- only a 6-month period following the date on ‘‘Whereas, the problems of the circuit cuits—a new Ninth Circuit, composed of Ari- court system and the alternative for revising which the conviction becomes final and im- zona, California, and Nevada, and a new posing restrictions on the filing of second or the system represent a policy choice that re- Twelfth Circuit, composed of Alaska, Ha- quires Congress to weigh costs and benefits successive federal habeas corpus petitions. waii, Idaho, Montana, Oregon, Washington, ‘‘(3) That a copy of this resolution be sent and to seek the solution that best serves the Guam, and the Northern Mariana Islands; judicial needs of the nation; and to the presiding officers of the United States and and House of Representatives and to the ‘‘Whereas, there are 13 judicial circuits of ‘‘Whereas, it is the proper function of Con- the United States courts of appeals; and members of the Montana Congressional Dele- gress to determine circuit boundaries and it gation.’’ ‘‘Whereas, Montana is in the Ninth Circuit, is desirable that Montana be included in a which consists of Alaska, Arizona, Califor- regional circuit that will allow relief for its POM–159. A joint resolution adopted by the nia, Hawaii, Idaho, Montana, Nevada, Or- citizens from the problems occasioned by its egon, Washington, Guam, and the Northern Assembly of the State of Nevada; to the inclusion in the present Ninth Circuit: Now, Committee on the Judiciary. Mariana Islands; and therefore, be it ‘‘Whereas, in 1980, it was estimated that ‘‘Resolved by the Senate and the House of ‘‘ASSEMBLY JOINT RESOLUTION NO. 15 the Ninth Circuit: covers nine states and two Representatives of the State of Montana: That ‘‘Whereas, the use, possession and distribu- territories, totaling approximately 14 mil- the Legislature of the State of Montana urge tion of unlawfully obtained controlled sub- lion square miles; serves a population of al- Congress to turn its thoughtful attention to stances continues to be a problem of para- most 44 million people, 15 million more than the passage of legislation that will split the mount concern in the United States; and the next largest circuit court and about 20 existing Ninth Judicial Circuit of the United ‘‘Whereas, because studies estimate that 10 million more than all other courts of ap- States Court of Appeals into two circuits and times more Americans use alcohol and five peals; has 28 judges, 12 more than the next that will include Montana in a circuit com- times more Americans use tobacco than per- largest circuit court and 16 more than the posed in large part of other Northwest states sons who use illicit drugs, and because the average circuit court; and has a caseload of with similar regional interests, Be it further permissive and subsequently increased use of more than 6,000 appeals, 2,000 larger than the ‘‘Resolved, That the President of the United controlled substances to countries such as next largest court of appeals and nearly one- States be urged to place a Montana judge on Italy and the Neitherlands indicates that the S 7916 CONGRESSIONAL RECORD — SENATE June 7, 1995 use of controlled substances increases when resolution to the Vice President of the Unit- ‘‘Resolved, That the Chief Clerk of the Sen- laws regulating their use are nonexistent or ed States as presiding officer of the Senate, ate is directed to transmit enrolled copies of are only passively enforced, it could be con- the Speaker of the House of Representatives this resolution to the Honorable Bill Clinton, cluded that the legalization of the use, pos- and each member of the Nevada Congres- President of the United States, the Honor- session and distribution of unlawfully ob- sional Delegation; and be it further able Al Gore, Vice President of the United tained controlled substances would lead to a ‘‘Resolved, That this resolution becomes ef- States, and to each member of the Tennessee proportionate increase in their use in the fective upon passage and approval.’’ delegation to the U.S. Congress.’’ United States; and POM–161. A resolution adopted by the Leg- POM–163. A concurrent resolution adopted ‘‘Whereas, many violent crimes, including islature of the State of Tennessee; to the by the Legislature of the State of Texas; to domestic violence, are committed while the Committee on the Judiciary. the Committee on the Judiciary. offenders are under the influence of an ille- ‘‘RESOLUTION ‘‘SENATE CONCURRENT RESOLUTION gally obtained controlled substance; and ‘‘Whereas, one of the most trustworthy in- ‘‘Whereas, the United States flag belongs ‘‘Whereas, the legalization of the use, pos- dicators of the health, strength and progress to all Americans and ought not be desecrated session and distribution of unlawfully ob- of a nation is the esteem in which the family by any one individual, even under principles tained controlled substances may con- is held; and of free expression, any more than we would sequently increase the number of violent ‘‘Whereas, family strength, unity and re- allow desecration of the Declaration of Inde- crimes committed in the United States; and spect cannot be purchased or fabricated, but pendence, Statue of Liberty, Lincoln Memo- ‘‘Whereas, the illegal use of controlled sub- comes to us instead when families are to- rial, Yellowstone National Park, or any stances may create a direct impact upon the gether and realize that through interaction other common inheritance which the people cost of health care associated with drug they know love, trust and hope; and of this land hold dear; and abuse, thereby dramatically increasing the ‘‘Whereas, life is special when we realize ‘‘Whereas, the United States Supreme cost of that care; and the worth of the family and its importance Court, in contravention of this postulate, ‘‘Whereas, the increased usage that would in all relationships; and has by a narrow decision held to be a First result from the legalization of the use, pos- ‘‘Whereas, the family is the center of our Amendment freedom the license to destroy session and distribution of unlawfully ob- affections and the foundation of our Amer- in protest this cherished symbol of our na- tained controlled substances and its possible ican society; and tional heritage; and resulting increase in the cost of health care ‘‘Whereas, no institution can take the fam- ‘‘Whereas, whatever legal arguments may would also directly impact and adversely af- ily’s place in giving meaning to human life be offered to support this contention, the in- fect economic productivity in the United and stability in our society; and cineration or other mutilation of the flag of States; Now therefore, be it ‘‘Whereas, it is fitting that official rec- the United States of America is repugnant to ‘‘Resolved by the assembly and Senate of the ognition be given to the importance of all those who have saluted it, paraded be- State of Nevada, jointly, That the Nevada Leg- strengthening family life: Now, therefore, be neath it on the Fourth of July, been saluted islature hereby urges the Congress and the it by its half-mast configuration, or raised it President of the United States to oppose the ‘‘Resolved by the Senate of the ninety-ninth inspirationally in remote corners of the legalization of the use, possession and dis- General Assembly of the State of Tennessee, the globe where they have defended the ideals of tribution of unlawfully obtained controlled House of Representatives concurring, That this which it is representative; and substances in the United States; and be it General Assembly hereby memorializes the ‘‘Whereas, the members of the Legislature further U.S. Congress to enact legislation establish- of the State of Texas, while respectful of dis- ‘‘Resolved, That the Chief Clerk of the As- ing the last Sunday of August of each year as senting political views, themselves dissent sembly prepare and transmit a copy of this a day of national observance to be known as forcefully from the court decision, echoing resolution to the President of the United ‘‘Family Day’’ in order to focus attention the beliefs of all patriotic Americans that States, the Vice President of the United and to confer honor upon the importance of this flag is OUR flag and not a private prop- States as presiding officer of the Senate, the the American family as the cornerstone of erty subject to a private prerogative to main Speaker of the House of Representatives and our society, be it further or despoil in the passion of individual pro- each member of the Nevada Congressional ‘‘Resolved, That the Chief Clerk of the Sen- test; and Delegation; and be it further ate is directed to transmit enrolled copies of ‘‘Whereas, as stated by Chief Justice Wil- ‘‘Resolved That this resolution becomes ef- this resolution to the Honorable Bill Clinton, liam Rehnquist, writing for three of the four fective upon passage and approval.’’ President of the United States, the Honor- justices who comprised the minority in the able Al Gore, Vice President of the United case, ‘‘Surely one of the high purposes of a POM–160. A joint resolution adopted by the States, and to each member of the Tennessee democratic society is to legislate against Assembly of the State of Nevada; to the delegation to the U.S. Congress.’’ conduct that is regarded as evil and pro- Committee on the Judiciary. POM–162. A joint resolution adopted by the foundly offensive to the majority of people— ‘‘ASSEMBLY JOINT RESOLUTION NO. 1 Legislature of the State of Tennessee; to the whether it be murder, embezzlement, pollu- ‘‘Whereas, the text of the Tahoe Regional Committee on the Judiciary. tion, or flag burning’’; and Planning Compact is set forth in full in NRS ‘‘SENATE JOINT RESOLUTION NO. 97 ‘‘Whereas, this legislature concurs with 277.200; and ‘‘Whereas, one of the most trustworthy in- the court minority that the Stars and ‘‘Whereas, the compact was amended by dicators of the health, strength and progress Stripes is deserving of a unique sanctity, free the State of California and the amendments of a nation is the esteem in which the family to wave in perpetuity over the spacious skies were adopted by the Nevada Legislature in is held; and where our bald eagles fly, the fruited plain 1987; and ‘‘Whereas, family strength, unity and re- above which our mountain majesties soar, ‘‘Whereas, the amendments become effec- spect cannot be purchased or fabricated, but and the venerable heights to which our melt- tive upon their approval by the Congress of comes to us instead when families are to- ing pot of peoples and their posterity aspire. the United States; and gether and realize that through interaction Now, therefore, be it ‘‘Whereas, the amendments would author- they know love, trust and hope; and ‘‘Resolved, That the 74th Legislature of the ize certain members of the California and ‘‘Whereas, life is special when we realize State of Texas hereby petition the Congress Nevada delegations which constitute the the worth of the family and its importance of the United States of America to propose governing body of the Tahoe Regional Plan- in all relationships; and to the states an amendment to the United ning Agency to appoint alternates to attend ‘‘Whereas, the family is the center of our States Constitution, protecting the Amer- meetings and vote in the absence of the ap- affections and the foundation of our Amer- ican flag and 50 state flags from wilful dese- pointed members, alter the selection process ican society; and cration and exempting such desecration from of the Nevada delegation and further expand ‘‘Whereas, no institution can take the fam- constitutional construction as a First the powers of the Tahoe Transportation Dis- ily’s place in giving meaning to human life Amendment right; and, be it further trict; and and stability in our society; and ‘‘Resolved, That official copies of this reso- ‘‘Whereas, the compact was enacted to ‘‘Whereas, it is fitting that official rec- lution be prepared and forwarded by the achieve regional goals in conserving the nat- ognition be given to the importance of Texas secretary of state to the speaker of ural resources of the entire Lake Tahoe strengthening family life: Now, therefore, be the home of representatives and president of Basin and the amendments are consistent it the senate of the United States Congress and with this objective: Now, therefore, be it ‘‘Resolved by the Senate of the ninety-ninth to all members of the Texas delegation to ‘‘Resolved by the Assembly and the Senate of General Assembly of the State of Tennessee, the that congress, with the request that it be of- the State of Nevada, jointly, That the Legisla- House of Representatives concurring, That this ficially entered in the Congressional Record ture of the State of Nevada hereby urges the General Assembly hereby memorializes the as a memorial to the Congress of the United Congress of the United States to expedite U.S. Congress to enact legislation establish- States; and, be it further ratification of the amendments to the Tahoe ing the last Sunday of August of each year as ‘‘Resolved, That a copy of the resolution be Regional Planning Compact made by the a day of national observance to be known as prepared and forwarded also to President Bill State of California and adopted by the Ne- ‘‘Family Day’’ in order to focus attention Clinton, asking that he lend his support to vada Legislature in 1987; and be it further and to confer honor upon the importance of the proposal and adoption of a flag-protec- ‘‘Resolved, That the Chief Clerk of the As- the American family as the cornerstone of tion constitutional amendment; and, be it fi- sembly prepare and transmit a copy of this our society, be it further nally June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7917 ‘‘Resolved, That official copies likewise be ‘‘Maryland on December 19, 1789 (138 Cong. ‘‘New Jersey during the a.m. hours of May sent to the presiding officers of the legisla- Rec. S6831–2); 7, 1992 (138 Cong. Rec. S6846); tures of the several states, inviting them to ‘‘North Carolina, first, on December 22, ‘‘Illinois on May 12, 1992 (138 Cong. Rec. join with Texas to secure this amendment 1789 (138 Cong. Rec. S6832–3); and then a sec- H3729, H3739, S6846, S8387-8); and to restore this nation’s banners to their ond time on June 30, 1989 (139 Cong. Rec. ‘‘California on June 26, 1992 (138 Cong. Rec. rightful status of treasured reverence.’’ S22); H10100, S18271, E2237); ‘‘South Carolina on January 19, 1790 (138 ‘‘Rhode Island on June 10, 1993 (139 Cong. POM–164. A joint resolution adopted by the Cong. Rec. S6833); Rec. H4681, S9981-2); and Legislature of the State of Washington; to ‘‘Delaware on January 28, 1790 (138 Cong. ‘‘Hawaii on April 29, 1994 (140 Cong. Rec. the Committee on the Judiciary. Rec. S6833–4); H3791, S7956); and ‘‘That, the Legislature of the State of ‘‘SENATE JOINT MEMORIAL 8006 ‘‘Vermont on November 3, 1791 (138 Cong. Rec. S6834); Washington further acknowledges: That the ‘‘Whereas, although the right of free ex- ‘‘Virginia on December 15, 1791 (138 Cong. constitutional amendment in question be- pression is part of the foundation of the Rec. S6834–5); came Amendment XXVII to the United United States Constitution, very carefully ‘‘Ohio on May 6, 1873 (138 Cong. Rec. S6835– States Constitution during the a.m. hours of drawn limits on expression in specific in- 6); May 7, 1992, when the Legislature of the stances have long been recognized as legiti- ‘‘Wyoming on March 3, 1978 (124 Cong. Rec. State of Michigan became the thirty-eighth mate means of maintaining public safety and 7910, 8265–6; 133 Cong. Rec. 25418–9; 138 Cong. state legislature to ratify it; that on May 18, decency, as well as orderliness and produc- Rec. S6836); 1992, the Archivist of the United States is- tive value of public debate; and ‘‘Maine on April 27, 1983 (130 Cong. Rec. sued a proclamation published in the Federal ‘‘Whereas, certain actions, although argu- 24320, 25007–; 138 Cong. Rec. S6836–7); Register concluding that the two hundred ably related to one person’s free expression, ‘‘Colorado on April 18, 1984 (131 Cong. Rec. four-year-old proposal had, in fact, been in- nevertheless raise issues concerning public 36505; 132 Cong. Rec. 22146; 138 Cong. Rec. corporated into the United States Constitu- decency, public peace, and the rights of ex- S6837); tion; and that on May 20, 1992, both the Unit- pression and sacred values of others; and ‘‘South Dakota on February 21, 1985 (131 ed States Senate and the United States ‘‘Whereas, there are symbols of our na- Cong. Rec. 4299, 5815; 138 Cong. Rec. S6837); House of Representatives, by roll-call votes, tional soul such as the Washington Monu- ‘‘New Hampshire on March 7, 1985 (131 adopted resolutions agreeing with the Archi- ment, the United States Capitol Building, Cong. Rec. 5987, 6689; 138 Cong. Rec. S6837); vist’s conclusion; and and memorials to our greatest leaders, which ‘‘Arizona on April 3, 1985 (131 Cong. Rec. ‘‘That, while the Legislature of the State are the property of every American and are 8057; 9443; 138 Cong. Rec. S6838); of Washington is quite aware of this con- therefore worthy of protection from desecra- ‘‘Tennessee on May 23, 1985 (131 Cong. Rec. stitutional amendment’s success in already tion and dishonor; and 21277, 22264, 27963; 138 Cong. Rec. S6838); having become part of the United States ‘‘Whereas, the American Flag to this day is ‘‘Oklahoma on July 10, 1985 (131 Cong. Rec. Constitution, it is important that the stamp- a most honorable and worthy banner of a na- 22898, 27963–4; 138 Cong. Rec. S6114–5, S6506, of-approval of the State of Washington join tion that is thankful for its strengths and S6838); the legislatures of the forty-three other committed to curing its faults, and remains ‘‘New Mexico on February 13, 1986 (132 states that have already given their assent the destination of millions of immigrants at- Cong. Rec. 3649, 3956–7; 4077; 138 Cong. Rec. to what is now Amendment XXVII, be it fur- tracted by the universal power of the Amer- S6838); ther ican ideal; and ‘‘Indiana on February 19, 1986 (132 Cong. ‘‘Resolved, That copies of this Memorial be ‘‘Whereas, the law as interpreted by the Rec. 6638, 8284; 138 Cong. Rec. S6839); immediately transmitted to the Honorable United States Supreme Court no longer ac- ‘‘Utah on February 25, 1986 (132 Cong. Rec. Bill Clinton, President of the United States, cords to the Stars and Stripes that rev- 12480, 13834–5; 133 Cong. Rec. 31424; 138 Cong. the Archivist of the United States (pursuant erence, respect, and dignity befitting the Rec. S6839); to P.L. 98–497), the President of the United banner of that most noble experiment of a ‘‘Arkansas on March 5, 1987 (134 Cong. Rec. States Senate, the Speaker of the House of nation-state; and 12562, 14023; 138 Cong. Rec. S6839); Representatives, and each member of Con- ‘‘Whereas, it is only fitting that people ev- ‘‘Montana on March 11, 1987 (133 Cong. Rec. gress from the State of Washington, with the erywhere should lend their voices to a force- 7428, 11618–9; 138 Cong. Rec. S6839–40); request that this joint memorial’s text be re- ful call for a restoration of the Stars and ‘‘Connecticut on May 13, 1987 (133 Cong. printed in its entirety in the Congressional Stripes to a proper station under law and de- Rec. 23571, 23648–9; 138 Cong. Rec. S6840); Record.’’ cency: Now, Therefore, Your Memorialists ‘‘Wisconsin on June 30, 1987 (133 Cong. Rec. respectfully pray that the Congress of the 23649, 24957, 25417, 26159–60; 138 Cong. Rec. POM–166. A joint resolution adopted by the United States propose an amendment of the S6840); Legislature of the State of Wyoming; to the United States Constitution, for ratification ‘‘Georgia on February 2, 1988 (134 Cong. Committee on the Judiciary. by the states, specifying that Congress and Rec. 9155, 9525; 138 Cong. Rec. S6840); ‘‘Whereas, for one hundred twenty-five the states shall have the power to prohibit ‘‘West Virginia on March 10, 1988 (134 Cong. (125) years the women of Wyoming have been the physical desecration of the flag of the Rec. 8569, 8752; 138 Cong. Rec. S6840-1); granted the right to vote, the state of Wyo- United States; be it ‘‘Resolved, That certified ‘‘Louisiana on July 6, 1988 (134 Cong. Rec. ming being the first government in the world copies of this Memorial be immediately 18470, 18760; 138 Cong. Rec. S6841); to grant women suffrage, thus earning the transmitted by the Secretary of State to the ‘‘Iowa on February 7, 1989 (135 Cong. Rec. name Equality State for the people of Wyo- President and the Secretary of the United 5171, 5821; 138 Cong. Rec. S6841); ming; and States Senate, to the Speaker and the Clerk ‘‘Idaho on March 23, 1989 (135 Cong. Rec. ‘‘Whereas, on December 10, 1869, Wyo- of the United States House of Representa- 9140, 14572-3; 138 Cong. Rec. S.6842); ming’s first Territorial Governor, John A. tives, and to each Member of this state’s del- ‘‘Nevada on April 26, 1989 (135 Cong. Rec. Campbell sighed a bill making Wyoming the egation to the Congress.’’ 9996, 19926-7; 138 Cong. Rec. S6842); first government to grant women the right POM–165. A joint resolution adopted by the ‘‘Alaska on May 5, 1989 (135 Cong. Rec. to vote, a proud day in the struggle for equal Legislature of the State of Washington; to 14816, 19782; 138 Cong. Rec. S6842); rights, a milestone in the history of Wyo- the Committee on the Judiciary. ‘‘Oregon on May 19, 1989 (135 Cong. Rec. ming and the history of the United States; ‘‘SENATE JOINT MEMORIAL 8010 20442, 20519-20, 21589, 22413; 138 Cong. Rec. and ‘‘Be it resolved, That the Legislature of S6841); ‘‘Whereas, Wyoming women held the privi- ‘‘Minnesota on May 22, 1989 (135 Cong. Rec. the State of Washington, pursuant to Article lege of voting for fifty (50) years before the 13623, 14147, 14475, 14573; 138 Cong. Rec. S6842- V of the United States Constitution, hereby 19th Amendment to the United States Con- 3); postratifies an amendment to that document stitution was ratified giving all women in ‘‘Texas on May 25, 1989 (135 Cong. Rec. proposed by the very first Congress of the the United States the right to vote; and 11818, 11900-1; 138 Cong. Rec. S6843); United States, sitting in the City of New ‘‘Whereas, 1995 marks the 75th anniversary ‘‘Kansas on April 5, 1990 (136 Cong. Rec. York on September 25, 1789, which amend- of the passage of the 19th Amendment to the H1689, S9170, 12550-1; 138 Cong. Rec. S6843-4); ment reads as follows: United States Constitution which brought ‘‘Florida on May 31, 1990 (136 Cong. Rec. all women of the United States out of second ‘‘AMENDMENT XXVII H5198, S10091; 138 Cong. Rec. S6844); class citizenship into full partnership politi- ‘‘No law, varying the compensation for the ‘‘North Dakota on March 25, 1991 (137 Cong. cally and extended to them the right to vote, services of the [United States] Senators and Rec. H2261, S10949; 138 Cong. Rec. S6844-5); own property and be elected to office; and [United States] Representatives, shall take ‘‘Missouri during the a.m. hours of May 5, ‘‘Whereas, women continue to work on is- effect, until an election of [United States] 1992 (138 Cong. Rec. H3924, S6845, S14974, sues of equality in areas including education, Representatives shall have intervened.’’; and E1532-3, E1634, E1651); economy and health care. ‘‘That, the Legislature of the State of ‘‘Alabama during the p.m. hours of May 5, Now, therefore, be it resolved by the members Washington acknowledges that the constitu- 1992 (138 Cong. Rec. H3729, H3739, S6845, of the Legislature of the State of Wyoming: tional amendment in question has received S8387); ‘‘Section 1. That the State of Wyoming the approval of the legislatures of the follow- ‘‘Michigan during the a.m. hours of May 7, join citizens across the land in commemorat- ing states on the dates indicated: 1992 (138 Cong. Rec. H3093, S6845-6, S7026); ing one hundred twenty-five (125) years of S 7918 CONGRESSIONAL RECORD — SENATE June 7, 1995 voting rights for Wyoming women and in Commission’s authority to use auc- government stations if all costs are celebrating the 75th anniversary of the 19th tions to award radio spectrum licenses. paid and the new frequency and facili- Amendment guaranteeing the right to vote I want to state to the Senate that for ties are comparable. Section 5 requires to all women in the United States. several Congresses, I had suggested the Secretary of Commerce to submit a ‘‘Section 2. That the Secretary of State of Wyoming transmit copies of this resolution spectrum auctions to deal with the plan to reallocate three additional fre- to the President of the United States, to the problem of allocating this very valu- quency bands that NTIA has identified President of the Senate and the Speaker of able space in our airways. Congress did for transfer from government to pri- the House of Representatives of the United not pass those bills, but finally, in the vate use. States Congress and to the Wyoming Con- last Congress, Congress did accept the Mr. President, I ask unanimous con- gressional Delegation.’’ amendment that I had offered. Since sent that the text of the bill be printed f that time, the Federal Government has in the RECORD. received over $9 billion in money that There being no objection, the bill was INTRODUCTION OF BILLS AND has been bid for the use of this spec- ordered to be printed in the RECORD, as JOINT RESOLUTIONS trum which is allocated by the FCC. follows: The following bills and joint resolu- I am introducing this bill now so that S. 888 tions were introduced, read the first the Senate will be aware of it, because Be it enacted by the Senate and House of Rep- and second time by unanimous con- I intend to offer it as an amendment to resentatives of the United States of America in Congress assembled, sent, and referred as indicated: the telecommunications bill when it is presented to the Senate. This bill will SECTION 1. SHORT TITLE. By Mr. STEVENS: This Act may be cited as the ‘‘Spectrum S. 888. A bill to extend the authority of the raise an estimated minimum amount of Auction Act of 1995’’. Federal Communications Commission to use $4.5 billion over a 5-year period. It will SEC. 2. FINDINGS. auctions for the allocation of radio spectrum be used to partially offset the cost of The Congress finds that— frequencies for commercial use, to provide the telecommunications bill as com- (1) the National Telecommunications and for private sector reimbursement of Federal puted by the Congressional Budget Of- Information Administration of the Depart- governmental user costs to vacate commer- fice. ment of Commerce recently submitted to the cially valuable spectrum, and for other pur- I might say on the bright side, the Congress a report entitled ‘‘U.S. National poses; to the Committee on Commerce, Spectrum Requirements’’ as required by sec- Science, and Transportation. Congressional Budget Office has stated tion 113 of the National Telecommunications By Mrs. MURRAY: that enactment of the telecommuni- and Information Administration Organiza- S. 889. A bill to authorize the Secretary of cations bill will result in a $3 billion tion Act (47 U.S.C. 923); Transportation to issue a certificate of docu- reduction in the payments, that are (2) based on the best available information mentation with appropriate endorsement for made by the private sector I might add, the report concludes that an additional 179 employment in the coastwise trade for the for universal service in this country. megahertz of spectrum will be needed within vessel Wolf Gang II, and for other purposes; But there is still a remaining expendi- the next ten years to meet the expected de- to the Committee on Commerce, Science, mand for land mobile and mobile satellite and Transportation. ture that will be made in the 7-year pe- radio services such as cellular telephone By Mr. KOHL (for himself, Mr. SPEC- riod of the budget that is before the service, paging services, personal commu- TER, Mr. SIMON, Mrs. FEINSTEIN, Mr. Congress, and in order that that budget nication services, and low earth orbiting sat- BRADLEY, Mr. LAUTENBERG, Mr. may remain in balance and still have ellite communications systems; CHAFEE, and Mr. KERREY): us be able to enact the telecommuni- (3) a further 85 megahertz of additional S. 890. A bill to amend title 18, United cations bill, we are presenting amend- spectrum, for a total of 264 megahertz, is States Code, with respect to gun free ments that will provide offsetting reve- needed if the United States is to fully imple- schools, and for other purposes; to the Com- ment the Intelligent Transportation System nues on the Federal side. currently under development by the Depart- mittee on the Judiciary. It is a strange thing about this, Mr. By Mrs. BOXER: ment of Transportation; S. 891. A bill to require the Secretary of President, because it is the private sec- (4) as required by Part B of the National the Army to convey certain real property at tor that makes the support payments Telecommunications and Information Ad- Ford Ord, California, to the City of Seaside, under existing law and will continue to ministration Organization Act (47 U.S.C. 921 California, in order to foster the economic make smaller payments under the tele- et seq.) the Federal Government will transfer development of the City, which has been ad- communications bill as the Commerce 235 megahertz of spectrum from exclusive versely impacted by the closure of Fort Ord; government use to non-governmental or Committee will present it. But there is mixed governmental and non-governmental to the Committee on Armed Services. no question that the CBO has decided use between 1994 and 2004; By Mr. GRASSLEY (for himself, Mr. it still has a budgetary impact as far as (5) the Spectrum Reallocation Final Re- DOLE, Mr. COATS, Mr. MCCONNELL, the economy is concerned, and, there- port submitted to Congress by the National Mr. SHELBY, and Mr. NICKLES): Telecommunications and Information Ad- S. 892. A bill to amend section 1464 of title fore, an offset is required. ministration states that, of the 235 mega- 18, United States Code, to punish trans- I urge Senators to review this pro- hertz of spectrum identified for reallocation mission by computer of indecent material to posed bill, which, as I said, will become from governmental to non-governmental or minors; to the Committee on the Judiciary. an amendment to be offered by me to mixed use— By Mr. SANTORUM: the telecommunications bill when it is (A) 50 megahertz has already been reallo- S. 893. A bill to amend the Internal Reve- on the floor. cated for exclusive non-governmental use, nue Code of 1986 to provide a credit for chari- This bill has five sections. Section 1 (B) 45 megahertz will be reallocated in 1995 table contributions, and for other purposes; is the short title, which is the ‘‘Spec- for both exclusive non-governmental and to the Committee on Finance. trum Auction Act of 1995.’’ Section 2 mixed governmental and non-governmental f contains findings drawn from two use, (C) 25 megahertz will be reallocated in 1997 NTIA reports, which state that the STATEMENTS ON INTRODUCED for exclusive non-governmental use, BILLS AND JOINT RESOLUTIONS U.S. will need at least 180 megahertz of (D) 70 megahertz will be reallocated in 1999 additional spectrum for cellular, PCS, for both exclusive non-governmental and By Mr. STEVENS: and satellite services over the next 10 mixed governmental and non-governmental S. 888. A bill to extend the authority years, and that less than that amount use, and of the Federal Communications Com- will be available without the bill. Sec- (E) the final 45 megahertz will be reallo- cated for mixed governmental and non-gov- mission to use auctions for the alloca- tion 3 extends the FCC’s auction au- tion of radio spectrum frequencies for ernmental use by 2004; thority from 1998 until 2002, and would (6) the 165 megahertz of spectrum that are commercial use, to provide for private allow the FCC to use auctions for all li- not yet reallocated, combined with 80 mega- sector reimbursement of Federal gov- censes except public safety radio serv- hertz that the Federal Communications ernmental user costs to vacate com- ices and new digital TV licenses. Sec- Commission is currently holding in reserve mercially valuable spectrum, and for tion 4 of the bill allows federal agen- for emerging technologies, are less than the other purposes; to the Committee on cies to accept reimbursement from pri- best estimates of projected spectrum needs Commerce, Science, and Transpor- vate parties for the costs of relocating in the United States; tation. (7) the authority of the Federal Commu- to new spectrum frequencies, so that nications Commission to assign radio spec- THE SPECTRUM AUCTION ACT OF 1995 the private sector can pay to move gov- trum frequencies using an auction process Mr. STEVENS. Mr. President, I wish ernment stations off valuable fre- expires on September 30, 1998; to send to the desk this morning a bill quencies; it also requires NTIA to move to extend the Federal Communications June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7919 (8) a significant portion of the reallocated reimbursement through money or in-kind By Mrs. MURRAY: spectrum will not yet be assigned to non- payment of all relocation costs incurred by S. 889. A bill to authorize the Sec- governmental users before that authority ex- the Federal entity, including all engineering, retary of Transportation to issue a cer- pires; equipment, site acquisition and construc- tificate of documentation with appro- (9) the transfer of Federal governmental tion, and regulatory fee costs; users from certain valuable radio frequencies ‘‘(B) the person seeking relocation com- priate endorsement for employment in to other reserved frequencies could be expe- pletes all activities necessary for implement- the coastwise trade for the vessel Wolf dited if Federal governmental users are per- ing the relocation, including construction of Gang II, and for other purposes; to the mitted to accept reimbursement for replacement facilities (if necessary and ap- Committee on Commerce, Science, and reallocation costs from non-governmental propriate) and identifying and obtaining on Transportation. users; and the Federal entity’s behalf new frequencies JONES ACT WAIVER FOR ‘‘WOLF GANG II’’ (10) extension of the authority to use auc- for use by the relocated Federal Government tions and non-governmental reimbursement station (where such station is not relocating ∑ Mrs. MURRAY. Mr. President, I in- of Federal governmental users relocation to spectrum reserved exclusively for Federal troduce legislation that grants a Jones costs would allow the market to determine use); and Act waiver to the vessel Wolf Gang II. the most efficient use of the available spec- ‘‘(C) any necessary replacement facilities, This vessel is owned by Robert L. Wolf, trum. equipment modifications, or other changes a Washington State resident who, after SEC. 3. EXTENSION AND EXPANSION OF AUCTION have been implemented and tested to ensure AUTHORITY. that the Federal Government station is able 30 years of service, retired in 1992 as a Section 309(j) of the Communications Act to successfully accomplish its purposes. colonel in the U.S. Army. of 1934 (47 U.S.C. 309(j)) is amended— ‘‘(3) RIGHT TO RECLAIM.—If within one year After his retirement, Wolf decided to (1) by striking paragraph (1) and inserting after the relocation the Federal Government operate a charter boat business on in lieu thereof the following: station demonstrates to the Commission Puget Sound and bought Wolf Gang II, (‘‘1) GENERAL AUTHORITY.—If mutually ex- that the new facilities or spectrum are not clusive applications or requests are accepted a 1985 Bayliner 4518 motoryacht. Al- comparable to the facilities or spectrum though Wolf can document the boat for any initial license or construction permit from which the Federal Government station which will involve a use of the electro- was relocated, the person seeking such relo- was built in the United States, he can- magnetic spectrum, then the Commission cation must take reasonable steps to remedy not verify all of the boat’s previous shall grant such license or permit to a quali- any defects or reimburse the Federal entity owners were U.S. citizens. As a result, fied applicant through a system of competi- for the costs of returning the Federal Gov- Wolf’s boat fails to meet all of the re- tive bidding that meets the requirements of ernment station to the spectrum from which this subsection. The competitive bidding au- quirements in the Merchant Marine such station was relocated. thority granted by this subsection shall not Act, 1920, and he is unable to gain cer- ‘‘(g) FEDERAL ACTION TO EXPEDITE SPEC- apply to licenses or construction permits is- tification for coastwise trade. TRUM TRANSFER.—Any Federal Government sued by the Commission for public safety station which operates on electromagnetic I understand how frustrating this sit- radio services or for licenses or construction spectrum that has been identified for uation is for Mr. Wolf. He simply wants permits for new terrestrial digital television reallocation for mixed Federal and non-Fed- to run a charter boat business in the services assigned by the Commission to ex- eral use in the Spectrum Reallocation Final beautiful waters of Puget Sound, and isting terrestrial broadcast licensees to re- Report shall, to the maximum extent prac- he has waited 3 years for an exemption place their current television licenses.’’; ticable through the use of the authority (2) by striking paragraph (2) and renumber- from the unintended consequences of granted under subsection (f) and any other ing paragraphs (3) through (13) as (2) through the Jones Act. My bill addresses this applicable provision of law, take action to (12), respectively; and complication and waives the Jones Act (3) by striking ‘‘1998’’ in paragraph (10), as relocate its spectrum use to other fre- quencies that are reserved for Federal use or requirements so that Mr. Wolf can renumbered, and inserting in lieu thereof begin operating his charter business ‘‘2002’’. to consolidate its spectrum use with other (3) by striking ‘1998’’ in paragraph (10), as Federal Government stations in a manner this year. I look forward to swift pas- renumbered, and inserting in lieu thereof that maximizes the spectrum available for sage of this legislation, and I expect to ‘‘2002’’. non-Federal use. Notwithstanding the time- see Barnacle Bob’s Cruises operating SEC. 4. REIMBURSEMENT OF FEDERAL RELOCA- table contained in the Spectrum soon.∑ TION COSTS. Reallocation Final Report, the President Section 113 of the National Telecommuni- shall seek to implement the reallocation of By Mr. KOHL (for himself, Mr. the 1710 to 1755 megahertz frequency band by cations and Information Administration Act SPECTER, Mr. SIMON, Mrs. FEIN- January 1, 2000. Subsection (c)(4) of this sec- (47 U.S.C. 923) is amended by adding at the STEIN, Mr. BRADLEY, Mr. LAU- end the following new subsections: tion shall not apply to the extent that a non- TENBERG, Mr. CHAFEE, and Mr. ‘‘(f) RELOCATION OF FEDERAL GOVERNMENT Federal user seeks to relocate or relocates a STATIONS.— Federal power agency under subsection (f). KERREY): ‘‘(1) IN GENERAL.—In order to expedite the ‘‘(h) DEFINITIONS.—For purposes of this sec- S. 890. A bill to amend title 18, Unit- efficient use of the electromagnetic spec- tion— ed States Code, with respect to gun trum and notwithstanding section 3302(b) of ‘‘(1) FEDERAL ENTITY.—The term ‘Federal free schools, and for other purposes; to title 31, United States Code, any Federal en- entity’ means any Department, agency, or the Committee on the Judiciary. tity which operates a Federal Government other element of the Federal government station may accept reimbursement from any that utilizes radio frequency spectrum in the THE GUN-FREE SCHOOL ZONES ACT OF 1995 person for the costs incurred by such Federal conduct of its authorized activities, includ- Mr. KOHL. Mr. President, with my entity for any modification, replacement, or ing a Federal power agency. colleagues Senators SPECTER, SIMON, ‘‘(2) SPECTRUM REALLOCATION FINAL RE- reissuance of equipment, facilities, operating FEINSTEIN, BRADLEY, LAUTENBERG, PORT.—The term ‘Spectrum Reallocation manuals, regulations, or other expenses in- CHAFEE, and KERREY, we rise today to curred by that entity in relocating the oper- Final Report’ means the report submitted by the Secretary to the President and Congress introduce the Gun-Free School Zones ations of its Federal Government station or Act of 1995. This common-sense meas- stations from one or more radio spectrum in compliance with the requirements of sub- frequencies to any other frequency or fre- section (a).’’. ure, which replaces the original Gun quencies. Any such reimbursement shall be SEC. 5. REALLOCATION OF ADDITIONAL SPEC- Free School Zones Act, is needed to deposited in the account of such Federal en- TRUM. send a strong message to teachers, tity in the Treasury of the United States. The Secretary of Commerce shall, within 9 State law enforcement officers and Funds deposited according to this section months after the date of enactment of this State prosecutors: the Federal Govern- Act, prepare and submit to the President and shall be available, without appropriation or ment stands behind you and will sup- fiscal year limitation, only for the oper- the Congress a report and timetable rec- ommending the reallocation of the three fre- port you in getting guns out of our ations of the Federal entity for which such school grounds. funds were deposited under this section. quency bands (225–400 megahertz, 3625–3650 ‘‘(2) PROCESS FOR RELOCATION.—Any person megahertz, and 5850–5925 megahertz) that Let me begin by reminding you that seeking to relocate a Federal Government were discussed but not recommended for the original version of this bill passed station that has been assigned a frequently reallocation in the Spectrum Reallocation by unanimous consent in 1990. The within a band allocated for mixed Federal Final Report. The Secretary shall consult measure was kept in conference where and non-Federal use may submit a petition with the Federal Communications Commis- any one member’s objection could have for such relocation to NTIA. The NTIA shall sion and other Federal agencies in the prepa- ration of the report, and shall provide notice struck the bill. That conference was at- limit the Federal Government station’s oper- tended by the senior members of the ating license to secondary status when the and an opportunity for public comment be- following requirements are met— fore submitting the report and timetable re- Judiciary Committee, among them ‘‘(A) the person seeking relocation of the quired by this section. Senators BIDEN, HATCH, THURMOND, Federal Government station has guaranteed SIMPSON, and KENNEDY. It was signed into law by then-President Bush. It is a S 7920 CONGRESSIONAL RECORD — SENATE June 7, 1995 measure that was supported by all of prove that the gun brought to school Five years ago we all agreed unani- us. And we should continue to support ‘‘moved in or affected interstate com- mously on this bill. It was sensible it. merce,’’ the act is a clear exercise of then, and it is sensible now. But in April, a sharply divided Su- Congress’ unquestioned power to regu- I ask unanimous consent that a copy preme Court struck down the original late interstate activities. In fact, the of the Gun-Free School Zones Act be Gun-Free School Zones Act in the case Lopez decision itself suggested that re- printed in the RECORD. of United States versus Lopez. It did so quiring an explicit connection between There being no objection, the bill was on the grounds that the commerce the gun and interstate commerce in ordered to be printed in the RECORD, as clause of the Constitution did not sup- each prosecution would assure the con- follows: port the act. As long as we can address stitutionality of the act. S. 890 the Supreme Court’s concerns, there is Mr. President, there is no doubt that Be it enacted by the Senate and House of Rep- no reason why the decision should alter the guns brought to schools are part of resentatives of the United States of America in the support this bill had in 1990. a interstate problem. After all, almost Congress assembled, The original act made it a Federal SECTION 1. SHORT TITLE. every gun is made with raw material This Act may be cited as the ‘‘Gun-Free crime to knowingly bring a gun within from one State, assembled in a second 1,000 feet of a school or to fire a gun in School Zones Act of 1995’’. State, and transported to the school SEC. 2. PROHIBITION. these zones, with carefully crafted ex- yards of yet another State. One 14- Section 922(q) of title 18, United States ceptions. The Gun-Free School Zones year-old in a Madison, WI, gang told Code, is amended to read as follows: Act of 1995 does exactly what the old the Wisconsin State Journal that the ‘‘(q)(1) The Congress finds and declares act did. However, it adds a requirement older leaders of his gang brought car- that— that the prosecutor prove as part of loads of guns from Chicago to Madison ‘‘(A) crime, particularly crime involving each prosecution that the gun moved drugs and guns, is a pervasive, nationwide to pass out to the younger gang mem- problem; in or affected interstate or foreign bers to take to school. In short, this ‘‘(B) crime at the local level is exacerbated commerce. act regulates a national, interstate by the interstate movement of drugs, guns, That is the only change to the legis- problem. Numerous Supreme Court and criminal gangs; lative language of the original bill. The cases have upheld similar regulations. ‘‘(C) firearms and ammunition move easily only change. We place only a minor in interstate commerce and have been found When the act was first passed, less burden on prosecutors while simply in increasing numbers in and around schools, than a dozen States had laws dealing and plainly assuring the constitu- as documented in numerous hearings in both with guns on school grounds. Now, tionality of the act. the Judiciary Committee of the House of more than 40 have such legislation. Our Representatives and the Judiciary Commit- The goal of this bill is simple: to heed original Federal law served as an ex- tee of the Senate; the Supreme Court’s decision regarding ample and a spur to these State laws, ‘‘(D) in fact, even before the sale of a fire- Federal power and yet to continue the and all of us in Congress should be arm, the gun, its component parts, ammuni- fight against school violence. The tion, and the raw materials from which they proud of that. Their presence, however, Lopez decision cannot be used as an ex- are made have considerably moved in inter- does not eradicate the need for a Fed- cuse for complacency. state commerce; Mr. President, this bill is a practical eral law. ‘‘(E) while criminals freely move from approach to the national epidemic of In light of these State laws, a few of State to State, ordinary citizens and foreign visitors may fear to travel to or through cer- gun violence plaguing our education my colleagues have asked me why we need a Federal statute. The answer is tain parts of the country due to concern system. In 1990, the Centers For Dis- about violent crime and gun violence, and ease Control found that 1 in 20 students simple. Some States still do not have parents may decline to send their children to carried a gun in a 30-day period. Three State Gun-Free School Zones Acts; school for the same reason; years later, it was 1 in 12. Even worse, others simply have laws that supple- ‘‘(F) the occurrence of violent crime in the National Education Association es- ment the Federal statute; still more school zones has resulted in a decline in the timates that 100,000 kids bring guns to have laws that are weaker than the quality of education in our country; ‘‘(G) this decline in the quality of edu- school every day. How can Congress Federal law. Alabama, for example, only prohibits bringing a gun to a pub- cation has an adverse impact on interstate turn its back on our children when commerce and the foreign commerce of the their safety is being threatened on a lic school with the intent to cause bod- United States; daily basis? ily harm. That means you can bring a ‘‘(H) States, localities, and school systems My home State, Wisconsin, is not im- gun to school, frighten and disrupt ev- find it almost impossible to handle gun-re- mune to this wave of violence. Accord- eryone, but still get off because you did lated crime by themselves; even States, lo- ing to Gerald Mourning, the former di- not intend to cause injury. And in Ala- calities, and school systems that have made strong efforts to prevent, detect, and punish rector of school safety for Milwaukee, bama you can bring a gun to private school without any worries. That is un- gun-related crime find their efforts ‘‘[K]ids who did their fighting with unavailing due in part to the failure or in- their fists, and perhaps knives, are now acceptable. With a Federal law, we can ability of other States or localities to take settling their arguments with guns.’’ fill in these loopholes. And where there strong measures; and In the 1993–94 school year half of the are not State laws, we can fill in the ‘‘(I) Congress has power, under the inter- students expelled from the Milwaukee even larger gaps. In short, the Gun- state commerce clause and other provisions Public Schools were thrown out for Free School Zones Act gives prosecu- of the Constitution, to enact measures to en- bringing a gun to school. In Dane tors the flexibility to bring violators to sure the integrity and safety of the Nation’s justice under either State or Federal schools by enactment of this subsection. County, WI, the number of juvenile ‘‘(2)(A) It shall be unlawful for any individ- weapons offenses tripled—from 75 in statutes, whichever is appropriate—or ual knowingly to possess a firearm that has 1989 to 220 in 1993. tougher. moved in or that otherwise affects interstate The Gun-Free School Zones Act of Mr. President, Congress cannot ig- or foreign commerce at a place that the indi- 1995 is a simple, straightforward, effec- nore the epidemic of school violence. vidual knows, or has reasonable cause to be- tive and construction approach to this The epidemic is undermining our edu- lieve, is a school zone. problem. In the Lopez decision, the Su- cational system and threatens to crip- ‘‘(B) Subparagraph (A) shall not apply to the possession of a firearm— preme Court held that the original act ple our Nation’s competitiveness. It is ‘‘(i) on private property not part of school exceeded Congress’ commerce clause turning our schoolyards into sanc- grounds; power because it did not adequately tie tuaries for armed criminals and drug ‘‘(ii) if the individual possessing the fire- guns found in school zones to inter- gangs. We have repeatedly recognized arm is licensed to do so by the State in state commerce. Much as I disagree that our Nation’s classrooms deserve which the school zone is located or a politi- with the 5 to 4 decision and strongly special protection and attention from cal subdivision of the State, and the law of agree with the dissenters—Justices the Federal Government. Gun-Free the State or political subdivision requires that, before an individual obtains such a li- Souter, Stevens, Breyer, and Gins- school zones are not a panacea, to be cense, the law enforcement authorities of the burg—our new legislation will clearly sure, but they are an important step State or political subdivision verify that the pass muster under the majority’s Lopez toward fighting gun violence and keep- individual is qualified under law to receive test. By requiring that the prosecutor ing our teachers and children safe. the license; June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7921 ‘‘(iii) which is— by requiring the prosecutor to prove as property, including the golf courses, ‘‘(I) not loaded; and part of each prosecution that the gun not required to support the Presidio of ‘‘(II) in a locked container, or a locked firearms rack which is on a motor vehicle; moved in, or affected, interstate com- Monterey and the Naval Postgraduate ‘‘(iv) by an individual for use in a program merce. That provision will place only a School. Accordingly, in 1993, the Act- approved by a school in the school zone; small burden on prosecutors and will ing Secretary of the Army decided to ‘‘(v) by an individual in accordance with a ensure our power to keep America’s sell the two Fort Ord golf courses to contract entered into between a school in schools safe. the city of Seaside, CA. the school zone and the individual or an em- Mr. President, this bill has the sup- Unfortunately, the Defense Base Clo- ployer of the individual; port of the law enforcement and edu- sure and Realignment Act does not per- ‘‘(vi) by a law enforcement officer acting in his or her official capacity; or cation communities. mit the Commission to consider the ‘‘(vii) that is unloaded and is possessed by It has been endorsed by the National nonappropriated fund revenue needs an individual while traversing school prem- Education Association, the American which are supported by the golf course ises for the purpose of gaining access to pub- Association of School Administrators, revenues. This legislation addresses lic or private lands open to hunting, if the the National School Boards Associa- this problem by allowing funds re- entry on school premises is authorized by tion, the National Association of Ele- ceived by the Army from the sale of school authorities. mentary School Principals, and the golf courses to be deposited into the ‘‘(3)(A) Except as provided in subparagraph American Academy of Pediatrics. Army’s morale, welfare, and recreation (B), it shall be unlawful for any person, Certainly this bill is not a panacea, knowingly or with reckless disregard for the account. safety of another, to discharge or attempt to but it is a worthwhile attempt to keep This legislation conveys approxi- discharge a firearm that has moved in or our children away from the dangers of mately 477 acres, which consist of the that otherwise affects interstate or foreign guns and violence. two Fort Ord golf courses, Black Horse commerce at a place that the person knows Mr. President, the National Rifle As- and Bayonet, and neighboring the sur- is a school zone. sociation likes to say that guns don’t plus housing facilities. This property ‘‘(B) Subparagraph (A) shall not apply to kill; people do. But the gun statistics has been screened through the Pryor the discharge of a firearm— I’ve seen belie their contentions. process established in the fiscal year ‘‘(i) on private property not part of school Just consider these numbers. 1994 Defense Authorization Act. grounds; In 1992, handguns killed 33 people in ‘‘(ii) as part of a program approved by a Importantly, this legislation requires school in the school zone, by an individual Great Britain, 36 in Sweden, 97 in Swit- the city of Seaside to pay fair market who is participating in the program; zerland, 60 in Japan, 13 in Australia, 128 value for the property. I want to repeat ‘‘(iii) by an individual in accordance with a in Canada, and 13,220 in the United that point: this is not a giveaway pro- contract entered into between a school in a States. gram; the city of Seaside is required to school zone and the individual or an em- The problem, Mr. President, isn’t pay full market value. The proceeds ployer of the individual; or that we have more people. It’s that we ‘‘(iv) by a law enforcement officer acting in from the sale of the golf course will be have more guns. deposited in the Department of the his or her official capacity. We need to fight back the wave of ‘‘(4) Nothing in this subsection shall be Army’s morale, welfare, and recreation construed as preempting or preventing a gun violence that’s overtaking our fund, and the proceeds from the hous- State or local government from enacting a streets and neighborhoods once and for ing sale will be deposited in the BRAC statute establishing gun free school zones as all. I urge my colleagues on both sides account. provided in this subsection.’’. of the aisle to support this worthy bill This legislation is another important Mr. LAUTENBERG. Mr. President, I and to help protect our children and step in implementing the highly suc- rise today as an original cosponsor of our teachers from the dangers of vio- cessful Fort Ord Reuse Plan. By enact- the Gun-Free Schools Act of 1995. lence. ing this legislation, the Congress will This bill makes it a criminal offense help implement the BRAC Commis- to knowingly bring a gun or fire a gun By Mrs. BOXER: sion’s 1993 recommendations and simul- S. 891. A bill to require the Secretary within 1,000 feet of a school. The pen- taneously foster economic development of the Army to convey certain real alty for violating the law would be up in the city of Seaside. to 5 years in prison or a fine of $5,000. property at Fort Ord, CA, to the city of I ask unanimous consent that the bill Seaside, CA, in order to foster the eco- Mr. President, I believe that this bill be printed in the RECORD. is critical to protect the sanctity of nomic development of the city, which There being no objection, the bill was our schools and the safety of our stu- has been adversely impacted by the ordered to be printed in the RECORD, as dents. closure of Fort Ord; to the Committee follows: In 1993, the Centers for Disease Con- on Armed Services. S. 891 trol found that 1 in 12 students carried THE FORT ORD CLOSURE IMPACT ACT OF 1995 Be it enacted by the Senate and House of Rep- a gun to school within a 30-day period. ∑ Mrs. BOXER. Mr. President, I intro- resentatives of the United States of America in Each day, an estimated 135,000 pack a duce important legislation to convey Congress assembled, gun with their books on their way to surplus real property at the former SECTION 1. LAND CONVEYANCE, FORT ORD, CALI- school. Fort Ord Army reservation to the city FORNIA. At a time when guns are becoming of Seaside, CA. The sale of this prop- (a) CONVEYANCE REQUIRED.—The Secretary erty, which includes two golf courses of the Army shall convey to the City of Sea- more and more prevalent on neighbor- side, California (in this section referred to as hood streets, we cannot simply stand and surrounding property, is in accord- the ‘‘City’’), all right, title, and interest of by and allow our playgrounds to be- ance with the reuse plan prepared by the United States in and to a parcel of real come battlegrounds. We cannot expect the Fort Ord Reuse Authority. This property (including improvements thereon) our students to thrive in an atmos- legislation enjoys strong community consisting of approximately 477 acres located phere where they must fear for their support. An identical bill has been in- in Monterey County, California, and com- lives and for their safety. troduced in the House of Representa- prising a portion of the former Fort Ord In 1990, Congress passed the original tives by Congressman SAM FARR. Military Complex. The real property to be Gun Free Schools Act with overwhelm- This legislation would help imple- conveyed to the City includes the two Fort ment the 1993 recommendation of the Ord Golf Courses, Black Horse and Bayonet, ing bipartisan support. As many of you and the Hayes Housing Facilities. know, a sharply divided Supreme Court Defense Base Closure and Realignment (b) CONSIDERATION.—As consideration for recently invalidated that bill, saying Commission. In the Commission’s 1993 the conveyance of the real property and im- that it exceeded congressional power. report to the President, it made spe- provements under subsection (a), the City I personally disagreed with the Su- cific recommendations for the disposal shall pay to the United States an amount preme Court decision, and signed an of Army property. These recommenda- equal to the fair market value of the prop- amicus brief supporting its validity. tions balanced the need for property erty to be conveyed, as determined by the But that is not the issue before us reuse with the Army’s legitimate need Secretary under such terms and conditions as are determined to be fair and equitable to today. Today, the issue is the safety of to support the military personnel re- both parties. our children. maining on the Monterey Peninsula. (c) USE AND DEPOSIT OF PROCEEDS.—(1) The 1995 act ensures the constitu- Specifically, the Commission di- From the funds paid by the City under sub- tionality of the Gun Free Schools Act rected the Department to dispose of all section (b), the Secretary shall deposit in the S 7922 CONGRESSIONAL RECORD — SENATE June 7, 1995 Morale, Welfare, and Recreation Fund Ac- technical terms. For ‘‘remote computer fa- 352 U.S. 380, 383 (1957). While some court have count of the Department of the Army an cility’’ and ‘‘electronic communications applied the indecency in slightly different amount equal to the portion of such funds service,’’ the definitions used in the ‘‘Protec- ways depending on the medium, (see Pacifica, corresponding to the fair market value of the tion of Children from Computer Pornography supra; Sable Communications, Inc. v. FCC, 492 two Fort Ord Golf Courses conveyed under Act of 1995’’ are taken from existing sections U.S. 115 (1989)), the central purpose of the in- subsection (a), as established under sub- of the criminal code. Because it was unclear decency standard is to prohibit or to regu- section (b). whether the terms ‘‘remote computer serv- late the display of patently offensive rep- (2) The Secretary shall deposit the balance ice’’ and/or ‘‘electronic communications resentations of sexually explicit material of the funds paid by the City under subjec- service’’ would include an electronic bulletin which is openly available to the public. As tion (b), after deducting the amount depos- board, the Grassley initiative creates a spe- the Court stated in Pacifica, see 438 U.S. at ited under paragraph (1), in the Department cific definition for electronic bulletin board 748–49, this means a medium, like computers, of Defense Base Closure Account 1990. systems. This was done to avoid the possibil- which has ‘‘a uniquely pervasive presence in (d) DESCRIPTION OF PROPERTY.—The exact ity that electronic bulletin boards, some of the lives of all Americans’’ and is ‘‘uniquely acreage and legal description of the real which specialize in providing pornographic accessible to children’’ can be regulated to property (including improvements thereon) materials, would be exempt from the bill. protect children. to be conveyed under subsection (a) shall be Substantively, this creates two distinct That is precisely what the ‘‘Protection of determined by a survey satisfactory to the criminal offenses. First, it is a crime to Children from Computer Pornography’’ ini- Secretary and the City. The cost of the sur- knowingly or recklessly transmit indecent tiative would do—prohibit transmission of vey shall be borne by the City. pornography to minors. The Grassley bill computerized indecent pornography to chil- (e) ADDITIONAL TERMS AND CONDITIONS.— deals exclusively with indecent pornography dren while permitting adults to access other- The Secretary may require such additional provided to children because there are al- wise constutitionally protected material. terms and conditions in connection with the ready federal laws against providing obscene In some respects indecency is similar, conveyance under this section as the Sec- material and child pornography to anyone, though not identical, to the concept of retary considers appropriate to protect the including children. See 18 U.S.C. § 2252 (Supp. ‘‘harmful to juveniles’’ laws, which exist in interests of the United States.∑ 1994); 18 U.S.C. § 1465 (Supp. 1995). The defini- nearly every state. These laws prohibit the tion of indecent material has been estab- sale (and sometimes the display) of certain By Mr. GRASSLEY (for himself, lished by the Supreme Court and is discussed sexually explicit material to minors. See Mr. DOLE, Mr. COATS, Mr. below. Ginsberg v. New York, 390 U.S. 629 (1968). In MCCONNELL, Mr. SHELBY, and Second, the bill would make it a crime for order to determine whether material is Mr. NICKLES): an on-line service which permits users to ac- harmful to juveniles, the material must be S. 892. A bill to amend section 1464 of cess the Internet or electronic bulletin board found to satisfy a three-part test. One part of title 18, United States Code, to punish to willfully permit an audit to transmit in- this test involves a showing that the mate- decent pornography to a minor. In the crimi- transmission by computer of indecent rial depicts or describes sexual activity in nal law, ‘‘willful’’ has a specific meaning terms patently offensive according to con- material to minors; to the Committee which is uniquely suited to on-line access temporary community standards for what is on the Judiciary. providers. See ‘‘Manual of Modern Criminal acceptable for children. In a sense, the fed- THE PROTECTION OF CHILDREN FROM COMPUTER Jury Instructions for the Ninth Circuit’’ eral indecency standard is designed to pro- PORNOGRAPHY ACT OF 1995 § 5.05 (West 1989). A willfulness standard is tect children from harmful depictions of sex- Mr. GRASSLEY. Mr. President, I am more appropriate for on-line service provid- ual activity, similar to the goal of the harm- pleased to introduce the Protection of ers because those services can only monitor ful to juveniles test. Children from Computer Pornography customer communications in narrow cir- Traditionally, the federal government has cumstances, or face criminal prosecution for Act of 1995. I believe this bill would not regulated extensively to protect children invasion of privacy. See 18 U.S.C. § 2510 from inappropriate exposure to pornography provide children with the strongest (Supp. 1995). because it is primarily a matter of local con- possible protection from computer por- To prove a violation under the bill for per- cern. With the rise of global, international nography. I would like to thank the mitting adults to transmit indecent material computer networks, however, it has become majority leader for his crucial support to children, the Justice Department would clear that Congress has a more extensive of this important piece of legislation. have to show that the access provider was role to play in protecting children. The Currently, child molesters and sexual actually aware that a particular recipient Grassley initiative responds to this changed predators use computer networks to lo- was a child and that the access provider’s environment by ‘‘filing in the gaps’’ created customers were using the on-line service to cate children and try to entice them by new technology. transmit indecent material to minors. Im- Mr. GRASSLEY. Mr. President, I ask into illicit sexual relationships. Ac- portantly, although this burden of proof ap- cordingly, my bill would make it a pears to be high, it could easily be met by unanimous consent that a statement crime to knowingly or recklessly prosecutors, given the current practice. from the Family Research Council and ECORD transmit indecent pornographic mate- LEGAL BACKGROUND: THE CONCEPT OF the bill be printed in the R . rials to children over computer net- INDECENCY It has the coauthorship of Senators works. Some so-called access providers Basically, there are three categories of sex- DOLE, COATS, MCCONNELL, SHELBY, and facilitate this by refusing to take ac- ually explicit expression which are subject NICKLES. tion against child molesters, even after to congressional regulation notwithstanding There being no objection, the mate- other computer users have complained. the First Amendment. See New York v. Fer- rial was ordered to be printed in the So, my bill would make it a crime for ber, 458 U.S. 747 (1982); Miller v. California, 413 RECORD, as follows: U.S. 15 (1973). The Grassley initiative focuses S. 892 access providers who are aware of this exclusively on indecent material because ex- sort of activity to permit it to con- isting federal laws largely cover the trans- Be it enacted by the Senate and House of tinue. mission of obscene and child pornographic Representatives of the United States of America Mr. President, I have carefully draft- material in interstate commerce. See U.S.C. in Congress assembled, ed this bill so that it will withstand § 2252 (Supp. 1995); U.S.C. § 1465 (Supp. 1995); SECTION 1. SHORT TITLE. the inevitable court challenge. This U.S.C. § 1462 (Supp. 1995). This Act may be cited as the ‘‘Protection bill focuses only on protecting children For present purposes, indecent material of Children From Computer Pornography Act of 1995’’. from material which the Supreme can be defined as depictions of sexual activ- ity or sexual organs which are patently of- Court has repeatedly stated is harmful SEC. 2. TRANSMISSION BY COMPUTER OF INDE- fensive according to contemporary commu- CENT MATERIAL TO MINORS. to children. The Protection of Children nity standards. See FCC v. Pacifica, 438 U.S. (a) OFFENSES.—Section 1464 of title 18, from Computer Pornography Act of 726, 732 (1978); Alliance for Community Media v. United States Code, is amended— 1995 would not tell any adult what type FCC, 10 F.3d 812 (D.C. Cir. 1993), rehearing en (1) in the heading by striking ‘‘Broadcast- of computerized material they may banc granted, 15 F.3d 186 (D.C. Cir. 1994); Ac- ing obscene language’’ and inserting ‘‘Utter- view or obtain. tion for Children’s Television v. FCC, 932 F.2d ance of indecent or profane language by Finally, Mr. President, due to time 1504 (D.C. Cir. 1991). This test is basically the radio communication; transmission to minor constraints, I ask unanimous consent second prong of the ‘‘Miller Test.’’ 413 U.S. of indecent material from remote computer that the remainder of my remarks be 24–25. It is important to note that while inde- facility, electronic communications service, cent material is not constitutionally pro- or electronic bulletin board service’’; printed into the RECORD. tected for children, indecency is protested (2) by striking ‘‘Whoever’’ and inserting ANALYSIS OF THE PROTECTION OF CHILDREN for and among adults. Thus, laws intended to ‘‘(a) UTTERANCE OF INDECENT OR PROFANE FROM INDECENT PORNOGRAPHY ACT OF 1995 protect children must not ‘‘reduce the adult LANGUAGE BY RADIO COMMUNICATION.—A per- At the outset, this initiative, which population . . . [to viewing] . . . only what is son who’’; and amends 18 U.S.C. § 1464 (1984), defines several acceptable to children.’’ Butler v. Michigan, (3) by adding at the end the following: June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7923 ‘‘(b) TRANSMISSION TO MINOR OF INDECENT FAMILY RESEARCH COUNCIL, take the tax deduction for charitable MATERIAL FROM REMOTE COMPUTER FACILITY, Washington, DC, June 7, 1995. contributions. This bill will allow all ELECTRONIC COMMUNICATIONS SERVICE, OR STATEMENT OF LEGAL DIRECTOR FAMILY taxpayers, whether they itemize or ELECTRONIC BULLETIN BOARD SERVICE PRO- RESEARCH COUNCIL not, to receive a credit for contribut- VIDER.— Pursuant to your request, the Family Re- ing. Inspiring more taxpayers to con- ‘‘(1) DEFINITIONS.—As used in this sub- search Council has reviewed the constitu- tribute to local charities will make section— tionality of the ‘‘Protection of Children from people more aware of antipoverty ef- ‘‘(A) the term ‘remote computer facility’ Computer Pornography Act of 1995.’’ It is our opinion that the Act is fully consistent with forts in their community, and may in- means a facility that— spire them to volunteer their time as ‘‘(i) provides to the public computer stor- the Supreme Court’s indecency precedents. Before providing more extensive analysis, well. age or processing services by means of an So I want to encourage my col- electronic communications system; and it is prudent that I state my qualifications to render this opinion. I have practiced in leagues to take a close look at this bill, ‘‘(ii) permits a computer user to transfer the area of pornography law and have par- and lend their support to an idea that electronic or digital material from the facil- ticipated in extensive litigation before the ity to another computer: truly returns power to the individual Supreme Court, federal courts of appeal, and taxpayer and the community in which ‘‘(B) the term ‘electronic communications state courts on pornography-related con- service’ means any wire, radio, electro- troversies. I am thus very familiar with the they live. magnetic, photo optical, or photoelectronic manner in which courts have treated stat- Mr. President, I ask unanimous con- system for the transmission of electronic utes aimed at regulating pornographic mate- sent that the text of the bill be printed communications, and any computer facility rials. in the RECORD. or related electronic equipment for the elec- The seminal cases applicable to the Act are There being no objection, the bill was tronic storage of such communications, that FCC v. Pacifica, 438 U.S. 726 (1978) and Sable ordered to be printed in the RECORD, as permits a computer user to transfer elec- Communications, Inc. v. FCC, 492 U.S. 115 follows: tronic or digital material from the service to (1989). Taken together, these cases clearly S. 893 another computer; and and unambiguously establish the principle Be it enacted by the Senate and House of Rep- ‘‘(C) the term ‘electronic bulletin board that society may prohibit the transmission resentatives of the United States of America in service’ means a computer system, regard- of indecent material to children. As the Act Congress assembled, less of whether operated for commercial pur- only attempts to do that, in my view it pre- poses, that exists primarily to provide re- sents no serious constitutional concerns. SECTION 1. CREDIT FOR CHARITABLE CON- mote or on-site users with digital images, or Please contact me if I can be of further as- TRIBUTIONS TO CERTAIN PRIVATE sistance. CHARITIES PROVIDING ASSISTANCE that exists primarily to permit remote or on- TO THE POOR. site users to participate in or create on-line CATHLEEN A. CLEAVER, ESQ., Director of Legal Policy. (a) IN GENERAL.—Subpart A of part IV of discussion groups or conferences. subchapter A of chapter 1 of the Internal ‘‘(2) TRANSMISSION BY REMOTE COMPUTERS By Mr. SANTORUM: Revenue Code of 1986 (relating to nonrefund- FACILITY OPERATOR, ELECTRONIC COMMUNICA- S. 893. A bill to amend the Internal able personal credits) is amended by insert- TIONS SERVICE PROVIDER, OR ELECTRONIC BUL- ing after section 22 the following new sec- Revenue Code of 1986 to provide a cred- LETIN BOARD SERVICE PROVIDER.—A remote tion: it for charitable contributions, and for computer facility operator, electronic com- ‘‘SEC. 23. CREDIT FOR CERTAIN CHARITABLE munications service provider, electronic bul- other purposes; to the Committee on CONTRIBUTIONS. letin board service provider who, with Finance. ‘‘(a) IN GENERAL.—In the case of an individ- knowledge of the character of the material, THE CHOICE IN WELFARE TAX CREDIT ACT OF 1995 ual, there shall be allowed as a credit against knowingly— ∑ Mr. SANTORUM. Mr. President, the tax imposed by this chapter for the tax- ‘‘(A) transmits or offers or attempts to today I am introducing the choice in able year an amount equal to the qualified transmit from the remote computer facility, welfare tax credit bill. charitable contributions which are paid by electronic communications service, or elec- the taxpayer during the taxable year. tronic bulletin board service provider a com- The goal of our welfare reforms ‘‘(b) LIMITATION.—The credit allowed by munication that contains indecent material should be to continue to focus anti- subsection (a) for the taxable year shall not to a person under 18 years of age; or poverty efforts not just to the States exceed $100 ($200 in the case of a joint re- ‘‘(B) causes or allows to be transmitted but to local, private charities as well. turn). from the remote computer facility, elec- With the choice in welfare tax credit, ‘‘(c) QUALIFIED CHARITABLE CONTRIBU- tronic communications service, or electronic taxpayers would be allowed a 100 per- TION.—For purposes of this section, the term bulletin board a communication that con- cent tax credit up to $100 per wage ‘qualified charitable contribution’ means tains indecent material to a person under 18 earner each year for contributions to any charitable contribution (as defined in years of age or offers or attempts to do so, section 170(c)) made in cash to a qualified charities engaged in antipoverty ef- charity but only if the amount of each such shall be fined in accordance with this title, forts. This would go a long way toward contribution, and the recipient thereof, are imprisoned not more than 5 years, or both. transferring antipoverty efforts from identified on the return for the taxable year ‘‘(3) PERMITTING ACCESS TO TRANSMIT INDE- the inefficient and ineffective Federal during which such contribution is made. CENT MATERIAL TO A MINOR.—Any remote Government to nonprofit charities who ‘‘(d) QUALIFIED CHARITY.— computer facility operator, electronic com- are more efficient and have a much ‘‘(1) IN GENERAL.—For purposes of this sec- munications service provider, or electronic better sense for what their local popu- tion, the term ‘qualified charity’ means, bulletin board service provider who willfully lation needs. with respect to the taxpayer, any organiza- tion described in section 501(c)(3) and exempt permits a person to use a remote computing I have faith in the ability of people service, electronic communications service, from tax under section 501(a)— or electronic bulletin board service that is living in the communities to know ‘‘(A) which is certified by the Secretary as under the control of that remote computer what works best and to provide meeting the requirements of paragraphs (2) facility operator, electronic communications prompt, temporary assistance to those and (3), service provider, or electronic bulletin board who need it most. The emphasis here is ‘‘(B) which is organized under the laws of service provider, to knowingly or recklessly on temporary. Private charities view the United States or of any State in which transmit indecent material from another re- antipoverty assistance not as a right or the organization is qualified to operate, and mote computing service, electronic commu- a way of life but as a tool by which to ‘‘(C) which is required, or elects to be treated as being required, to file returns nications service, or electronic bulletin change behavior and encourage per- board service, to a person under 18 years of under section 6033. age, shall be fined not more than $10,000, im- sonal responsibility for one’s own life. ‘‘(2) CHARITY MUST PRIMARILY ASSIST THE prisoned not more than 2 years, or both.’’. I want to give the people that pay POOR.—An organization meets the require- the bills and provide the services in the ments of this paragraph only if the predomi- (b) TECHNICAL AMENDMENT.—The item for nant activity of such organization is the pro- section 1464 in the chapter analysis for chap- local community a much larger role in vision of services to individuals whose an- ter 71 of title 18, United States Code, is how poverty relief efforts are struc- nual incomes generally do not exceed 150 per- amended to read as follows: tured. This bill would also empower taxpayers to have some direct influ- cent of the official poverty line (as defined ‘‘1464. Utterance of indecent or profane lan- by the Office of Management and Budget). guage by radio communication; ence on how their tax dollars are spent. ‘‘(3) MINIMUM EXPENDITURE REQUIREMENT.— transmission to minor of inde- In fact, it will expand the number of ‘‘(A) IN GENERAL.—An organization meets cent material from remote people donating to charities. Cur- the requirements of this paragraph only if computer facility.’’. rently, about 28 percent of taxpayers the Secretary reasonably expects that the S 7924 CONGRESSIONAL RECORD — SENATE June 7, 1995 annual exempt purpose expenditures of such (b) REPEAL OF INCREASES IN AMOUNT OF eral law that require employees to pay organization will not be less than 70 percent CREDIT.— union dues or fees as a condition of em- of the annual aggregate expenditures of such (1) Subsection (b) of section 32 of such Code ployment, and for other purposes. organization. is amended to read as follows: ‘‘(B) EXEMPT PURPOSE EXPENDITURE.—For ‘‘(b) PERCENTAGES.— S. 603 purposes of subparagraph (A)— ‘‘(1) IN GENERAL.—The credit percentage At the request of Mr. FAIRCLOTH, the ‘‘(i) IN GENERAL.—The term ‘exempt pur- and the phaseout percentage shall be deter- name of the Senator from Indiana [Mr. pose expenditure’ means any expenditure to mined as follows: COATS] was added as a cosponsor of S. carry out the activity referred to in para- 603, a bill to nullify an Executive order graph (2). ‘‘In the case of an The credit The phase- eligible individual percentage out percent- that prohibits Federal contracts with XCEPTIONS.—Such term shall not in- ‘‘(ii) E with: is: age is: clude— companies that hire permanent re- placements for striking employees, and ‘‘(I) any administrative expense, 1 qualifying child ..... 34 ...... 15.98 ‘‘(II) any expense for the purpose of influ- 2 or more qualifying for other purposes. encing legislation (as defined in section children ...... 36 ...... 20.22 S. 735 4911(d)), At the request of Mrs. FEINSTEIN, her ‘‘(III) any expense primarily for the pur- ‘‘(2) AMOUNTS.—The earned income amount name was added as a cosponsor of S. pose of fundraising, and and the phaseout amount shall be deter- ‘‘(IV) any expense for litigation on behalf mined as follows: 735, a bill to prevent and punish acts of of any individual referred to in paragraph (2). terrorism, and for other purposes. ‘‘(e) TIME WHEN CONTRIBUTIONS DEEMED The S. 768 ‘‘In the case of an earned in- The phase- MADE.—For purposes of this section, at the eligible individual out amount At the request of Mr. GORTON, the election of the taxpayer, a contribution come with: amount is: is: which is made not later than the time pre- name of the Senator from South Da- kota [Mr. PRESSLER] was added as a co- scribed by law for filing the return for the 1 qualifying child ..... $6,000 ...... $11,000 taxable year (not including extensions there- 2 or more qualifying sponsor of S. 768, a bill to amend the of) shall be treated as made on the last day children ...... $8,425 ...... $11,000.’’ Endangered Species Act of 1973 to reau- of such taxable year. thorize the act, and for other purposes. ‘‘(f) COORDINATION WITH DEDUCTION FOR (2) Paragraph (1) of section 32(i) of such S. 773 CHARITABLE CONTRIBUTIONS.— Code is amended by striking ‘‘subsection ‘‘(1) CREDIT IN LIEU OF DEDUCTION.—The At the request of Mrs. KASSEBAUM, (b)(2)(A)’’ and inserting ‘‘subsection (b)(2)’’. the names of the Senator from Texas credit provided by subsection (a) for any (c) EFFECTIVE DATE.—The amendments qualified charitable contribution shall be in made by this section shall apply to taxable [Mrs. HUTCHISON], the Senator from lieu of any deduction otherwise allowable years beginning after December 31, 1995, ex- Mississippi [Mr. LOTT], and the Senator under this chapter for such contribution. cept that adjustments shall be made under from Kansas [Mr. DOLE] were added as ‘‘(2) ELECTION TO HAVE SECTION NOT section 32(i) of the Internal Revenue Code of cosponsors of S. 773, a bill to amend the APPLY.—A taxpayer may elect for any tax- 1986 to the section 32(b)(2) of such Code (as Federal Food, Drug, and Cosmetic Act able year to have this section not apply.’’ amended by this section) for such taxable (b) QUALIFIED CHARITIES REQUIRED TO PRO- to provide for improvements in the years.∑ VIDE COPIES OF ANNUAL RETURN.—Subsection process of approving and using animal (e) of section 6104 of such Code (relating to ADDITIONAL COSPONSORS drugs, and for other purposes. public inspection of certain annual returns S. 838 and applications for exemption) is amended S. 91 by adding at the end the following new para- At the request of Mr. COVERDELL, the At the request of Mr. D’AMATO, the graph: name of the Senator from Oklahoma name of the Senator from Kentucky ‘‘(3) CHARITIES RECEIVING CREDITABLE CON- [Mr. NICKLES] was added as a cosponsor [Mr. MCCONNEL] was added as a cospon- TRIBUTIONS REQUIRED TO PROVIDE COPIES OF of S. 91, a bill to delay enforcement of sor of S. 838, a bill to provide for addi- ANNUAL RETURN.— the National Voter Registration Act of tional radio broadcasting to Iran by ‘‘(A) IN GENERAL.—Every qualified charity 1993 until such time as Congress appro- the United States. (as defined in section 23(d)) shall, upon re- S. 874 quest of an individual made at an office priates funds to implement such Act. where such organization’s annual return S. 234 At the request of Mr. GRAMS, the filed under section 6033 is required under At the request of Mr. CAMPBELL, the name of the Senator from Colorado paragraph (1) to be available for inspection, names of the Senator from Kansas [Mr. [Mr. BROWN] was added as a cosponsor provide a copy of such return to such indi- DOLE] and the Senator from Oklahoma of S. 874, a bill to provide for the mint- vidual without charge other than a reason- [Mr. INHOFE] were added as cosponsors ing and circulation of $1 coins, and for able fee for any reproduction and mailing other purposes. costs. If the request is made in person, such of S. 234, a bill to amend title 23, copies shall be provided immediately and, if United States Code, to exempt a State S. SENATE CONCURRENT RESOLUTION 11 made other than in person, shall be provided from certain penalties for failing to At the request of Ms. SNOWE, the within 30 days. meet requirements relating to motor- names of the Senator from Iowa [Mr. ‘‘(B) PERIOD OF AVAILABILITY.—Subpara- cycle helmet laws if the State has in HARKIN], the Senator from Maryland graph (A) shall apply only during the 3-year effect a motorcycle safety program, [Ms. MIKULSKI], the Senator from New period beginning on the filing date (as de- and to delay the effective date of cer- fined in paragraph (1)(D) of the return re- Jersey [Mr. LAUTENBERG], and the Sen- quested).’’ tain penalties for States that fail to ator from Pennsylvania [Mr. SPECTER] (c) CLERICAL AMENDMENT.—The table of meet certain requirements for motor- were added as cosponsors of Senate sections for subpart A of part IV of sub- cycle safety laws, and for other pur- Concurrent Resolution 11, a concurrent chapter A of chapter 1 of such Code is poses. resolution supporting a resolution to amended by inserting after the item relating S. 426 the longstanding dispute regarding Cy- to section 22 the following new item: At the request of Mr. SARBANES, the prus. ‘‘Sec. 23. Credit for certain charitable con- names of the Senator from Connecticut f tributions.’’ [Mr. LIEBERMAN] and the Senator from (d) EFFECTIVE DATE.—The amendments Rhode Island [Mr. PELL] were added as AMENDMENTS SUBMITTED made by this section shall apply to contribu- cosponsors of S. 426, a bill to authorize tions made after the 90th day after the date the Alpha Phi Alpha Fraternity to es- of the enactment of this Act in taxable years THE COMPREHENSIVE TERRORISM ending after such date. tablish a memorial to Martin Luther PREVENTION ACT OF 1995 SEC. 2. REPEAL OF CERTAIN CHANGES MADE IN King, Jr., in the District of Columbia, THE EARNED INCOME CREDIT. and for other purposes. (a) REPEAL OF CREDIT FOR INDIVIDUALS S. 581 WITHOUT CHILDREN.—Subparagraph (A) of At the request of Mr. FAIRCLOTH, the HATCH AMENDMENT NO. 1252 section 32(c)(1) of the Internal Revenue Code name of the Senator from Utah [Mr. Mr. HATCH proposed an amendment of 1986 (defining eligible individual) is amended to read as follows: HATCH] was added as a cosponsor of S. to amendment No. 1199 proposed by Mr. ‘‘(A) IN GENERAL.—The term ‘eligible indi- 581, a bill to amend the National Labor DOLE to the bill (S. 735) to prevent and vidual’ means any individual who has a Relations Act and the Railway Labor punish acts of terrorism, and for other qualifying child for the taxable year.’’ Act to repeal those provisions of Fed- purposes; as follows: June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7925 Delete lines 4 through 7 on page 125. Strike On page 95, line 15, strike ‘‘shall provide’’ On page 140, line 20, insert after ‘‘em- lines 20 through 24 on page 106 and insert the and insert ‘‘shall provide to appropriate ployee,’’ the following: ‘‘or any person assist- following: State law enforcement officials, as des- ing such an officer or employer in the per- ‘‘(h) Except as provided in title 21, United ignated by the chief executive officer of the formance of official duties,’’. States Code, section 848, in all proceedings State,’’. On page 140, line 21, strike ‘‘their official brought under this section, and any subse- On page 95, strike line 23 and all that fol- duties,’’ and insert ‘‘such duties or the provi- quent proceedings on review, the court may lows through page 96, line 2 and insert the sion of such assistance,’’. appoint counsel for an applicant who is or following: On page 141, line 1, insert ‘‘or man- becomes financially unable to afford counsel, (D) ALLOCATION.—(i) Of the total amount slaughter as provided in section 1113’’ after except as appropriated pursuant to this section in a ‘‘murder’’. Strike lines 9 through 11 on page 108 and fiscal year— On page 143, between lines 15 and 16, insert insert the following: (I) $500,000 or 0.25 percent, whichever is the following: ‘‘Except as provided in title 21, United greater, shall be allocated to each of the par- (i) CLARIFICATION OF MARITIME VIOLENCE States Code, section 848, in all proceedings ticipating States; and JURISDICTION.—Section 2280(b)(1)(A) of title brought under this section, and any subse- (II) of the total funds remaining after the 18, United States Code, is amended— quent proceedings on review, the court may allocation under subclause (I), there shall be (1) in clause (ii), by striking ‘‘and the ac- appoint counsel who is or becomes finan- allocated to each State an amount which tivity is not prohibited as a crime by the cially unable’’. bears the same ratio to the amount of re- State in which the activity takes place’’; and maining funds described in this subpara- (2) in clause (iii), by striking ‘‘the activity BIDEN AMENDMENT NO. 1253 graph as the population of such State bears takes place on a ship flying the flag of a for- to the population of all States. eign country or outside the United States,’’. Mr. BIDEN proposed an amendment (ii) DEFINITION.—For purposes of this sub- On page 147, line 19, strike ‘‘effective date to amendment No. 1199 proposed by Mr. paragraph, the term ‘‘State’’ means any of section 801’’ and insert ‘‘date of enactment DOLE to the bill S. 735, supra; as fol- State of the United States, the District of of title VII’’. lows: Columbia, the Commonwealth of Puerto On page 148, line 13, insert ‘‘of title VII’’ Strike lines 10–22 on page 125. Rico, the Virgin Islands, American Samoa, after ‘‘date of enactment’’. Guam, and the Northern Mariana Islands, ex- On page 148, line 18, insert ‘‘of title VII’’ cept that for purposes of the allocation HATCH (AND BIDEN) AMENDMENT after ‘‘date of enactment’’. under this subparagraph, American Samoa On page 149, lines 6 and 7, strike ‘‘effective NO. 1254 and the Commonwealth of the Northern Mar- date of section 801’’ and insert ‘‘date of en- Mr. HATCH (for himself and Mr. iana Islands shall be considered as one State actment of title VII’’. and that for these purposes, 67 percent of the BIDEN) proposed an amendment to On page 152, strike lines 3 through 5 and in- amounts allocated shall be allocated to amendment No. 1199 proposed by Mr. sert the following: ‘‘Except as otherwise pro- American Samoa, and 33 percent to the Com- vided in this title, this title and the amend- DOLE to the bill S. 735, supra; as fol- monwealth of the Northern Mariana Islands. lows: ments made by this title shall take effect 1 On page 99, line 19, insert after ‘‘Attor- year after the date of enactment of this On page 5, lines 8 and 9, strike ‘‘113 (a), (b), neys’’ the following: ‘‘and personnel for the Act.’’. (c), or (f)’’ and insert ‘‘113(a) (1), (2), (3), (6), Criminal Division of the Department of Jus- On page 160, between lines 11 and 12, insert or (7)’’. tice’’. the following: On page 5, line 20, strike ‘‘destructs’’ and On page 99, between lines 21 and 22, insert the following: SEC. 902. AUTHORIZATION OF ADDITIONAL AP- insert ‘‘obstructs’’. PROPRIATIONS FOR THE UNITED ‘‘(c) AVAILABILITY OF FUNDS.—Funds made On page 7, line 11, insert ‘‘intent to commit STATES PARK POLICE. murder or any other felony or with’’ after available pursuant to this section, in any fis- cal year, shall remain available until ex- (a) IN GENERAL.—There are authorized to ‘‘assault with’’. be appropriated from the General Fund of On page 9, line 12, strike ‘‘any manner in’’ pended. the Treasury for the activities of the United and insert ‘‘interstate’’. On page 117, lines 3 and 4, strike ‘‘right States Park Police, to help meet the in- On page 10, between lines 18 and 19, insert made retroactively applicable to cases on creased needs of the United States Park Po- the following new subsection: collateral review by the Supreme Court’’ and lice, $1,000,000 for each of the fiscal years (f) EXPANSION OF PROVISION RELATING TO insert ‘‘right that is made retroactively ap- 1996, 1997, 1998, 1999, and 2000. DESTRUCTION OR INJURY OF PROPERTY WITHIN plicable’’. (b) AVAILABILITY OF FUNDS.—Funds made SPECIAL MARITIME AND TERRITORIAL JURIS- On page 133, line 3, strike ‘‘(a) IN GEN- available pursuant to this section, in any fis- DICTION.—Section 1363 of title 18, United ERAL.—’’. States Code, is amended by striking ‘‘any On page 133, strike lines 8 through 10 and cal year, shall remain available until ex- building, structure or vessel, any machinery insert the following: pended. or building materials and supplies, military (B) in paragraph (2), by striking ‘‘; or’’ and SEC. 903. AUTHORIZATION OF ADDITIONAL AP- or naval stores, munitions of war or any inserting the following: ‘‘and the results of PROPRIATIONS FOR THE ADMINIS- such use affect interstate or foreign com- TRATIVE OFFICE OF THE UNITED structural aids or appliances for navigation STATES COURTS. or shipping’’ and inserting ‘‘any structure, merce or, in the case of a threat, attempt, or (a) IN GENERAL.—There are authorized to conveyance, or other real or personal prop- conspiracy, would have affected interstate or be appropriated from the General Fund of erty’’. foreign commerce if such use had occurred;’’; the Treasury for the activities of the Admin- On page 13, strike lines 5 through 8 and in- (C) by redesignating paragraph (3) as para- istrative Office of the United States Courts, sert the following: graph (4); to help meet the increased needs of the Ad- (b) PENALTY FOR CARRYING WEAPONS OR EX- (D) by inserting after paragraph (2) the fol- ministrative Office of the United States PLOSIVES ON AN AIRCRAFT.—Section 46505 of lowing: title 49, United States Code, is amended— ‘‘(3) against a victim, or intended victim, Courts, $4,000,000 for each of the fiscal years (1) in subsection (b), by striking ‘‘one’’ and that is the United States Government, a 1996, 1997, 1998, 1999, and 2000. inserting ‘‘10’’; and member of the uniformed services, or any of- (b) AVAILABILITY OF FUNDS.—Funds made (2) in subsection (c), by striking ‘‘5’’ and ficial, officer, employee, or agent of the leg- available pursuant to this section, in any fis- inserting ‘‘15’’. islative, executive, or judicial branches, or cal year, shall remain available until ex- On page 23, line 23, strike ‘‘2339A)’’ and in- any department or agency, of the United pended. sert ‘‘2339A of title 18, United States Code)’’. States; and’’; and SEC. 904. AUTHORIZATION OF ADDITIONAL AP- On page 29, line 25, strike ‘‘determined’’ (E) in paragraph (4), as redesignated, by in- PROPRIATIONS FOR THE UNITED and insert ‘‘designated’’. serting before the comma at the end the fol- STATES CUSTOMS SERVICE. On page 36, line 2, strike ‘‘item of’’. lowing: ‘‘, or is within the United States and (a) IN GENERAL.—There are authorized to On page 48, lines 21 and 22, strike ‘‘Not- is used in any activity affecting interstate or be appropriated from the General Fund of withstanding any other provision of law,’’. foreign commerce’’. the Treasury for the activities of the United On page 60, strike lines 1 and 2, and insert On page 133, line 21, before the end States Customs Service, to help meet the in- ‘‘Columbia not later than 30 days after re- quotation marks insert the following: ‘‘The creased needs of the United States Customs ceipt of actual notice under subsection preceding sentence does not apply to a per- Service, $10,000,000 for each of the fiscal (b)(6).’’ son performing an act that, as performed, is years 1996, 1997, 1998, 1999, and 2000. On page 57, strike lines 18 and 20, and in- within the scope of the person’s official du- (b) AVAILABILITY OF FUNDS.—Funds made sert ‘‘The designation shall take effect 30 ties as an officer or employee of the United available pursuant to this section, in any fis- days after the receipt of actual notice under States or as a member of the Armed Forces cal year, shall remain available until ex- subsection (b)(6), unless otherwise provided of the United States, or to a person em- pended. by law.’’ ployed by a contractor of the United States On page 51, line 10, replace ‘‘1252(a)’’ with On page 93, lines 22 through 24, strike ‘‘to— for performing an act that, as performed, is ‘‘1252a’’. ’’ and all that follows through ‘‘(ii) expand’’ authorized under the contract.’’. On page 51, line 14, insert ‘‘of this title’’ and insert ‘‘to expand’’. On page 134, strike lines 1 through 8. after ‘‘section 101(a)(43)’’. S 7926 CONGRESSIONAL RECORD — SENATE June 7, 1995 THE TELECOMMUNICATIONS COM- (B) changing the percentage set forth in such inspections and certifying compliance PETITION AND DEREGULATION subdivision (e)(2)(ii) from 25 percent to 35 with those requirements, and may, as part of ACT OF 1995 COMMUNICATIONS percent. any such contract, allow any such person to (2) RADIO OWNERSHIP.—The Commission DECENCY ACT OF 1995 accept reimbursement from the license hold- shall modify its rules set forth in 47 CFR er for travel and expense costs of any em- 73.3555 by eliminating any provision limiting ployee conducting an inspection or certifi- the number of AM or FM broadcast stations cation.’’. DOLE AMENDMENT NO. 1255 which may be owned or controlled by one en- (5) MODIFICATION OF CONSTRUCTION PERMIT Mr. DOLE proposed an amendment to tity either nationally or in a particular mar- REQUIREMENT.—Section 319(d) (47 U.S.C. the bill (S. 652) to provide for a pro— ket. The Commission may refuse to approve 319(d)) is amended by striking the third sen- competitive, deregulatory national pol- the transfer or issuance of an AM or FM tence and inserting the following: ‘‘The Com- broadcast license to a particular entity if it mission may waive the requirement for a icy framework designed to accelerate finds that the entity would thereby obtain construction permit with respect to a broad- rapidly private sector deployment of an undue concentration of control or would casting station in circumstances in which it advanced telecommunications and in- thereby harm competition. Nothing in this deems prior approval to be unnecessary. In formation technologies and services to section shall require or prevent the Commis- those circumstances, a broadcaster shall file all Americans by opening all tele- sion from modifying its rules contained in 47 any related license application within 10 communications markets to competi- CFR 73.3555(c) governing the ownership of days after completing construction.’’. tion, and for other purposes; as follows: both a radio and television broadcast sta- (6) LIMITATION ON SILENT STATION AUTHOR- tions in the same market. IZATIONS.—Section 312 (47 U.S.C. 312) is On page 9, strike lines 4 through 12 and in- On page 79, line 12, strike ‘‘(2)’’ and insert amended by adding at the end the following: sert the following: ‘‘(3)’’. ‘‘(g) If a broadcasting station fails to (c) TRANSFER OF MFJ.—After the date of On page 79, line 18, strike ‘‘(3)’’ and insert transmit broadcast signals for any consecu- enactment of this Act, the Commission shall ‘‘(4)’’. tive 12-month period, then the station li- administer any provision of the Modification On page 79, line 21, strike ‘‘(4)’’ and insert cense granted for the operation of that of Final Judgment not overridden or super- ‘‘(5)’’. broadcast station expires at the end of that seded by this Act. The District Court for the On page 79, line 22, strike ‘‘modification re- period, notwithstanding any provision, term, District of Columbia shall have no further quired by paragraph (1)’’ and insert ‘‘modi- or condition of the license to the contrary.’’. jurisdiction over any provision of the Modi- fications required by paragraphs (1) and (2)’’. (7) EXPEDITING INSTRUCTIONAL TELEVISION fication of Final Judgment administered by On page 116, between lines 2 and 3, insert FIXED SERVICE PROCESSING.—The Commission the Commission under this Act or the Com- the following: shall delegate, under section 5(c) of the Com- munications Act of 1934. The Commission (b) DOMINANT INTEREXCHANGE CARRIER.— munications Act of 1934, the conduct of rou- may, consistent with this Act (and the The Commission, within 270 days after the tine instructional television fixed service amendments made by this Act), modify any date of enactment of this Act, shall complete cases to its staff for consideration and final provision of the Modification of Final Judg- a proceeding to consider modifying its rules action. ment that it administers. for determining which carriers shall be clas- (8) DELEGATION OF EQUIPMENT TESTING AND (d) GTE CONSENT DECREE.—This Act shall sified as ‘‘dominant carriers’’ and to consider CERTIFICATION TO PRIVATE LABORATORIES.— supersede the provisions of the Final Judg- excluding all interexchange telecommuni- Section 302 (47 U.S.C. 302) is amended by add- ment entered in United States v. GTE Corp., cations carriers from some or all of the re- ing at the end the following: No. 83–1298 (D.C. D.C.), and such Final Judg- quirements associated with such classifica- ‘‘(e) The Commission may— ment shall not be enforced after the effective tion to the extent that such carriers provide ‘‘(1) authorize the use of private organiza- date of this Act. interexchange telecommunications service. tions for testing and certifying the compli- On page 40, line 9, strike ‘‘to enable them’’ On page 116, line 3, strike ‘‘(b)’’ and insert ance of devices or home electronic equip- and insert ‘‘which are determined by the ‘‘(c)’’. ment and systems with regulations promul- Commission to be essential in order for On page 117, line 1, strike ‘‘(c)’’ and insert gated under this section; Americans’’. ‘‘(d)’’. ‘‘(2) accept as prima facie evidence of such On page 40, beginning on line 11, strike On page 117, line 22, strike ‘‘REGULA- compliance the certification by any such or- ‘‘Nation. At a minimum, universal service TIONS..’’ and insert ‘‘REGULATIONS; ELIMI- ganization; and shall include any telecommunications serv- NATION OF UNNECESSARY REGULATIONS ‘‘(3) establish such qualifications and ices that’’ and insert ‘‘Nation, and which’’. AND FUNCTIONS.’’. standards as it deems appropriate for such On page 70, between lines 21 and 22, insert On page 117, line 23, strike ‘‘(a) BIENNIAL private organizations, testing, and certifi- the following: REVIEW.—’’ before ‘‘Part’’. cation.’’. (b) GREATER DEREGULATION FOR SMALLER On page 118, between lines 20 and 21, insert (9) MAKING LICENSE MODIFICATION UNI- CABLE COMPANIES.—Section 623 (47 U.S.C. the following: FORM.—Section 303(f) (47 U.S.C. 303(f)) is 543) is amended by adding at the end thereof (b) ELIMINATION OF UNNECESSARY COMMIS- amended by striking ‘‘unless, after a public the following: SION REGULATIONS AND FUNCTIONS. hearing,’’ and inserting ‘‘unless’’. ‘‘(m) SPECIAL RULES FOR SMALL COMPA- (1) REPEAL SETTING OF DEPRECIATION (10) PERMIT OPERATION OF DOMESTIC SHIP NIES.— RATES.—The first sentence of section 220(b) AND AIRCRAFT RADIOS WITHOUT LICENSE.—Sec- ‘‘(1) IN GENERAL.—Subsection 9a), (b), or (c) (47 U.S.C. 220(b)) is amended by striking tion 307(e) (47 U.S.C. 307(e)) is amended by— does not apply to a small cable operator with ‘‘shall prescribe for such carriers’’ and in- (A) striking ‘‘service and the citizens band respect to— serting ‘‘may prescribe, for such carriers as radio service’’ in paragraph (1) and inserting ‘‘(A) cable programming services, or it determines to be appropriate,’’. ‘‘service, citizens band radio service, domes- ‘‘(B) a basic service tier that was the only (2) USE OF INDEPENDENT AUDITORS.—Section tic ship radio service, domestic aircraft radio service tier subject to regulation as of De- 220(c) (47 U.S.C. 220(c)) is amended by adding service, and personal radio service’’; and cember 31, 1994, at the end thereof the following: ‘‘The Com- (B) striking ‘‘service’ and ‘citizens band in any franchise area in which that operator mission may obtain the services of any per- radio service’ ’’in paragraph (3) and inserting serves 35,000 or fewer subscribers. son licensed to provide public accounting ‘‘service’, ‘citizens band radio service’, ‘do- ‘‘(2) DEFINITION OF SMALL CABLE OPERA- services under the law of any State to assist mestic ship radio service’, ‘domestic aircraft TOR.—For purposes of this subsection, the with, or conduct, audits under this section. radio service’, and ‘personal radio service’ ’’. term ‘small cable operator’ means a cable While so employed or engaged in conducting (11) EXPEDITED LICENSING FOR FIXED MICRO- operator that, directly or through an affili- an audit for the Commission under this sec- WAVE SERVICE.—Section 309(b)(2) (47 U.S.C. ate, serves in the aggregate fewer than 1 per- tion, any such person shall have the powers 309(b)(2)) is amended by striking subpara- cent of all subscribers in the United States granted the Commission under this sub- graph (A) and redesignating subparagraphs and does not, directly or through an affili- section and shall be subject to subsection (f) (B) through (G) as (A) through (F), respec- ate, own or control a daily newspaper or a in the same manner as if that person were an tively. tier 1 local exchange carrier.’’. employee of the Commission.’’. (12) ELIMINATE FCC JURISDICTION OVER GOV- On page 70, line 22, strike ‘‘(b)’’ and inset (3) SIMPLIFICATION OF FEDERAL-STATE CO- ERNMENT-OWNED SHIP RADIO STATIONS.— ‘‘(c)’’. ORDINATION PROCESS.—The Commission shall (A) Section 305 (47 U.S.C. 305) is amended On page 71, line 3, strike ‘‘(c)’’ and insert simplify and expedite the Federal-State co- by striking subsection (b) and redesignating ‘‘(d)’’. ordination process under section 410 of the subsections (c) and (d) as (b) and (c), respec- On page 79, strike lines 7 through 11 and in- Communications Act of 1934. tively. sert the following: (4) PRIVATIZATION OF SHIP RADIO INSPEC- (B) Section 382(2) (47 U.S.C. 382(2)) is (1) IN GENERAL.—The Commission shall TIONS.—Section 385 (47 U.S.C. 385) is amended amended by striking ‘‘except a vessel of the modify its rules for multiple ownership set by adding at the end thereof the following: United States Maritime Administration, the forth in 47 CFR 73.3555 by— ‘‘In accordance with such other provisions of Inland and Coastwise Waterways Service, or (A) eliminating the restrictions on the law as apply to government contracts, the the Panama Canal Company,’’. number of television stations owned under Commission may enter into contracts with (13) MODIFICATION OF AMATEUR RADIO EXAM- subdivisions (e)(1)(ii) and (iii); and any person for the purpose of carrying out INATION PROCEDURES.— June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7927 (A) Section 4(f)(H)(N) (47 U.S.C. 4(f)(4)(B)) On page 119, line 4, strike ‘‘may’’ and insert mixed governmental and non-governmental is amended by striking ‘‘transmissions, or in ‘‘shall’’. use, and the preparation or distribution of any publi- On page 120, between lines 3 and 4, insert (E) the final 45 megahertz will be reallo- cation used in preparation for obtaining the following: cated for mixed governmental and non-gov- amateur station operator licenses,’’ and in- ‘‘(c) END OF REGULATION PROCESS.—Any ernmental use by 2004; serting ‘‘transmission’’. telecommunications carrier, or class of tele- (6) the 165 megahertz of spectrum that are (B) The Commission shall modify its rules communications carriers, may submit a peti- not yet reallocated, combined with 80 mega- governing the amateur radio examination tion to the Commission requesting that the hertz that the Federal Communications process by eliminating burdensome record Commission exercise the authority granted Commission is currently holding in reserve maintenance and annual financial certifi- under this section with respect to that car- for emerging technologies, are less than the cation requirements. rier or those carriers, or any service offered best estimates of projected spectrum needs (14) STREAMLINE NON-BROADCAST RADIO LI- by that carrier or carriers. Any such petition in the United States; CENSE RENEWALS.—The Commission shall shall be deemed granted if the Commission (7) the authority of the Federal Commu- modify its rules under section 309 of the does not deny the petition for failure to meet nications Commission to assign radio spec- Communications Act of 1934 (47 U.S.C. 309) the requirements for forebearance under sub- trum frequencies using an auction process relating to renewal of nonbroadcast radio li- section (a) within 90 days after the Commis- expires on September 30, 1998; censes so as to streamline or eliminate com- sion receives it, unless the 90-day period is (8) a significant portion of the reallocated parative renewal hearings where such hear- extended by the Commission. The Commis- spectrum will not yet be assigned to non- ings are unnecessary or unduly burdensome. sion may extend the initial 90-day period by governmental users before that authority ex- On page 117, between lines 21 and 22, insert an additional 60 days if the Commission finds pires; the following: that an extension is necessary to meet the (9) the transfer of Federal governmental (d) REGULATORY RELIEF.— requirements of subsection (a). The Commis- users from certain valuable radio frequencies (1) STREAMLINED PROCEDURES FOR CHANGES sion may grant or deny a petition in while or to other reserved frequencies could be expe- IN CHARGES, CLASSIFICATIONS, REGULATIONS, in part and shall explain its decision in writ- dited if Federal governmental users are per- OR PRACTICES.— ing. mitted to accept reimbursement for reloca- (A) Section 204(a) (47 U.S.C. 204(a)) is On page 120, line 4, strike ‘‘(c) and insert tion costs from non-governmental users; and amended— ‘‘(d)’’. (10) non-governmental reimbursement of (i) by striking ‘‘12 months’’ the first place Federal governmental users relocation costs it appears in paragraph (2)(A) and inserting would allow the market to determine the ‘‘5 months’’; STEVENS AMENDMENT NO. 1256 most efficient use of the available spectrum. (ii) by striking ‘‘effective,’’ and all that Mr. STEVENS proposed an amend- (b) EXTENSION AND EXPANSION OF AUCTION follows in paragraph (2)(A) and inserting ‘’ef- AUTHORITY.—Section 309(j) (47 U.S.C. 309(j)) fective.’’; and ment to the bill S. 652, supra; as fol- lows: is amended— (iii) by adding at the end thereof the fol- (1) by striking paragraph (1) and inserting lowing: At the appropriate place in the bill insert in lieu thereof the following: ‘‘(3) A local exchange carrier may file with the following: ‘‘(1) GENERAL AUTHORITY.—If mutually ex- the Commission a new or revised charge, SEC. . SPECTRUM AUCTIONS. clusive applications or requests are accepted classification, regulation, or practice on a (a) FINDINGS.—The Congress finds that— for any initial license or construction permit streamlined basis. Any such charge, classi- (1) the National Telecommunications and which will involve a use of the electro- fication, regulation, or practice shall be Information Administration of the Depart- magnetic spectrum, then the Commission deemed lawful and shall be effective 7 days ment of Commerce recently submitted to the shall grant such license or permit to a quali- (in the case of a reduction in rates) or 15 Congress a report entitled ‘‘U.S. National fied applicant through a system of competi- days (in the case of an increase in rates) Spectrum Requirements’’ as required by sec- tive bidding that meets the requirements of after the date on which it is filed with the tion 113 of the National Telecommunications this subsection. The competitive bidding au- Commission unless the Commission takes and Information Administration Organiza- thority granted by this subsection shall not action under paragraph (1) before the end of tion Act (47 U.S.C. 923); apply to licenses or construction permits is- that 7-day or 15-day period, as is appro- (2) based on the best available information sued by the Commission for public safety priate.’’. the report concludes that an additional 179 radio services or for licenses or construction (B) Section 208(b) (47 U.S.C. 208(b)) is megahertz of spectrum will be needed within permits for new terrestrial digital television amended— the next ten years to meet the expected de- services assigned by the Commission to ex- (i) by striking ‘‘12 months’’ the first place mand for land mobile and mobile satellite isting terrestrial broadcast licensees to re- it appears in paragraph (1) and inserting ‘‘5 radio services such as cellular telephone place their current television licenses.’’; months’’; and service, paging services, personal commu- (ii) by striking ‘‘filed,’’ and all that follows (2) by striking paragraph (2) and renumber- nication services, and low earth orbiting sat- in paragraph (1) and inserting ‘‘filed.’’. ing paragraphs (3) through (13) as (2) through (2) EXTENSIONS OF LINES UNDER SECTION 214; ellite communications systems; (12), respectively; and (3) a further 85 megahertz of additional (3) by striking ‘‘1998’’ in paragraph (10), as ARMIS REPORTS.—Notwithstanding section 305, the Commission shall permit any local spectrum, for a total of 264 megahertz, is renumbered, and inserting in lieu thereof exchange carrier— needed if the United States is to fully imple- ‘‘2000’’. (A) to be exempt from the requirements of ment the Intelligent Transportation System (c) REIMBURSEMENT OF FEDERAL RELOCA- section 214 of the Communications Act of currently under development by the Depart- TION COSTS.—Section 113 of the National 1934 for the extension of any line; and ment of Transportation; Telecommunications and Information Ad- (B) to file cost allocation manuals and (4) as required by Part B of the National ministration Act (47 U.S.C. 923) is amended ARMIS reports annually, to the extent such Telecommunications and Information Ad- by adding at the end the following new sub- carrier is required to file such manuals or re- ministration Organization Act (47 U.S.C. 921 sections: ports. et seq.) the Federal Government will transfer ‘‘(f) RELOCATION OF FEDERAL GOVERNMENT (3) FOREBEARANCE AUTHORITY NOT LIM- 235 megahertz of spectrum from exclusive STATIONS.— ITED.—Nothing in this subsection shall be government use to non-governmental or ‘‘(1) IN GENERAL.—In order to expedite the construed to limit the authority of the Com- mixed governmental and non-governmental efficient use of the electromagnetic spec- mission or a State to waive, modify, or fore- use between 1994 and 2004; trum and notwithstanding section 3302(b) of bear from applying any of the requirements (5) the Spectrum Reallocation Final Re- title 31, United States Code, any Federal en- to which reference is made in paragraph (1) port submitted to Congress under section 113 tity which operates a Federal Government under any other provision of this Act other of the National Telecommunications and In- station may accept reimbursement from any law. formation Administration Organization Act person for the costs incurred by such Federal On page 118, line 20, strike the closing by the National Telecommunications and In- entity for any modification, replacement, or quotation marks and the second period. formation Administration states that, of the reissuance of equipment, facilities, operating On page 118, between lines 20 and 21, insert 235 megahertz of spectrum identified for manuals, regulations, or other expenses in- the following: reallocation from governmental to non-gov- curred by that entity in relocating the oper- ‘‘(c) CLASSIFICATION OF CARRIERS.—In ernmental or mixed use— ations of its Federal Government station or classifying carriers according to 47 CFR 32.11 (A) 50 megahertz has already been reallo- stations from one or more radio spectrum and in establishing reporting requirements cated for exclusive non-governmental use, frequencies to any other frequency or fre- pursuant to 47 CFR part 43 and 47 CFR 64.903, (B) 45 megahertz will be reallocated in 1995 quencies. Any such reimbursement shall be the Commission shall adjust the revenue re- for both exclusive non-governmental and deposited in the account of such Federal en- quirements to account for inflation as of the mixed governmental and non-governmental tity in the Treasury of the United States. release date of the Commission’s Report and use, Funds deposited according to this section Order in CC Docket No. 91–141, and annually (C) 25 megahertz will be reallocated in 1997 shall be available, without appropriation or thereafter. This subsection shall take effect for exclusive non-governmental use, fiscal year limitation, only for the oper- on the date of enactment of the Tele- (D) 70 megahertz will be reallocated in 1999 ations of the Federal entity for which such communications Act of 1995.’’. for both exclusive non-governmental and funds were deposited under this section. S 7928 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘(2) PROCESS FOR RELOCATION.—Any person megahertz, and 5850–5925 megahertz) that On page 9, line 19, strike ‘Modification of seeking to relocate a Federal Government were discussed but not recommended for Final Judgment’ and insert ‘‘Modification of station that has been assigned a frequency reallocation in the Spectrum Reallocation Final Judgment’’. within a band allocated for mixed Federal Final Report under section 113(a) of the Na- On page 11 beginning on line 4, strike and non-Federal use may submit a petition tional Telecommunications and Information ‘‘those companies’’ and insert ‘‘any com- for such relocation to NTIA. The NTIA shall Administration Organization Act. The Sec- pany’’. limit the Federal Government station’s oper- retary shall consult with the Federal Com- On page 11, line 6, strike ‘‘Judgment,’’ and ating license to secondary status when the munications Commission and other Federal insert ‘‘Judgment to the extent such com- following requirements are met— agencies in the preparation of the report, pany provides telephone exchange service or ‘‘(A) the person seeking relocation of the and shall provide notice and an opportunity exchange access service,’’. Federal Government station has guaranteed for public comment before submitting the re- On page 12, line 3, insert ‘‘directly’’ after reimbursement through money or in-kind port and timetable required by this section. ‘‘available’’. payment of all relocation costs incurred by On page 12, beginning with ‘‘The term’’ on line 5, strike through line 8. the Federal entity, including all engineering, PRESSLER AMENDMENT NO. 1257 equipment, site acquisition and construc- On page 12, line 13, insert ‘‘only’’ after tion, and regulatory fee costs; Mr. PRESSLER proposed an amend- ‘‘shall’’. ‘‘(B) the person seeking relocation com- ment to amendment No. 1256 proposed On page 12, line 15, after ‘‘services’’ insert pletes all activities necessary for implement- by Mr. STEVENS to the bill S. 652, ‘‘for voice, data, image, graphics, or video ing the relocation, including construction of supra; as follows: that it does not own, control, or select, ex- replacement facilities (if necessary and ap- cept that the Commission shall continue to At the end of the matter proposed to be in- propriate) and identifying and obtaining on determine whether the provision of fixed and serted, insert the following: the Federal entity’s behalf new frequencies mobile satellite service shall be treated as (e) BROADCAST AUXILIARY SPECTRUM RELO- for use by the relocated Federal Government common carriage’’. CATION.— station (where such station is not relocating On page 14, between lines 10 and 11, insert (1) ALLOCATION OF SPECTRUM FOR BROAD- to spectrum reserved exclusively for Federal the following: CAST AUXILIARY USES.—Within one year after ‘‘(tt) ‘LATA’ means a local access and use); and the date of enactment of this Act, the Com- ‘‘(C) any necessary replacement facilities, transport area as defined in United States v. mission shall allocate the 4635–4685 mega- equipment modifications, or other changes Western Electric Co., 569 F. Supp. 990 (U.S. hertz band transferred to the Commission have been implemented and tested to ensure District Court, District of Columbia) and under section 113(b) of the National Tele- that the Federal Government station is able subsequent judicial orders relating thereto, communications and Information Adminis- to successfully accomplish its purposes. except that, with respect to commercial mo- tration Organization Act (47 U.S.C. 923(b)) ‘‘(3) RIGHT TO RECLAIM.—If within one year bile services, the term ‘LATA’ means the ge- for broadcast auxiliary uses. after the relocation the Federal Government ographic areas defined or used by the Com- (2) MANDATORY RELOCATION OF BROADCAST station demonstrates to the Commission mission in issuing licenses for such serv- AUXILIARY USES.—Within 7 years after the that the new facilities or spectrum are not ices.’’. date of enactment of this Act, all licenses of comparable to the facilities or spectrum On page 16, line 17, strike ‘‘software);’’ and broadcast auxiliary spectrum in the 2025–2075 from which the Federal Government station insert ‘‘software, to the extent defined in im- megahertz band shall relocate into spectrum was relocated, the person seeking such relo- plementing regulations by the Commis- allocated by the Commission under para- cation must take reasonable steps to remedy sion);’’. graph (1). The Commission shall assign and any defects or reimburse the Federal entity On page 17, line 12, strike ‘‘carrier;’’ and in- grant licenses for use of the spectrum allo- for the costs of returning the Federal Gov- sert ‘‘carrier at just and reasonable rates;’’ cated under paragraph (1)— On page 19, line 4, strike ‘‘of such serv- ernment station to the spectrum from which (A) in a manner sufficient to permit timely ices,’’ and insert ‘‘of providing those services such station was relocated. completion of relocation; and EDERAL ACTION TO EXPEDITE SPEC- ‘‘(g) F (B) without using a competitive bidding to that carrier,’’. TRUM TRANSFER.—Any Federal Government On page 19, line 5, strike ‘‘services;’’ and process. insert ‘‘services in accordance with section station which operates on electromagnetic (3) ASSIGNING RECOVERED SPECTRUM.—With- spectrum that has been identified for in 5 years after the date of enactment of this 214(d)(5);’’. reallocation for mixed Federal and non-Fed- Act, the Commission shall allocate the spec- On page 21, beginning on line 7, strike eral use in the Spectrum Reallocation Final trum recovered in the 2025–2075 megahertz ‘‘within 15 days after the State receives’’ and Report shall, to the maximum extent prac- band under paragraph (2) for use by new li- insert ‘‘at the same time as it submits’’. ticable through the use of the authority censees for commercial mobile services or On page 21, line 17, strike ‘‘notify’’ and in- granted under subsection (f) and any other other similar services after the relocation of sert ‘‘provide a copy of the petition and any applicable provision of law, take action to broadcast auxiliary licenses, and shall assign documentation to’’. On page 21, beginning in line 17, strike ‘‘of relocate its spectrum use to other fre- such licenses by competitive bidding. quencies that are reserved for Federal use or its petition’’. to consolidate its spectrum use with other On page 23, line 23, insert ‘‘feasible’’ after Federal Government stations in a manner PRESSLER (AND HOLLINGS) ‘‘technically’’. that maximizes the spectrum available for AMENDMENT NO. 1258 On page 28, line 5, strike the closing non-Federal use. Notwithstanding the time- Mr. PRESSLER (for himself and Mr. quotation marks and the second period. table contained in the Spectrum On page 28, between lines 5 and 6, insert HOLLINGS) proposed an amendment to Reallocation Final Report, the President the following: shall seek to implement the reallocation of the bill S. 652, supra; as follows: ‘‘(l) REVIEW OF INTERCONNECTION STAND- the 1710 to 1755 megahertz frequency band by On page 2, in the item relating to section ARDS.—Beginning 3 years after the date of January 1, 2000. Subsection (c)(4) of this sec- 102 in the table of contents, strike ‘‘subsidi- enactment of the Telecommunications Act tion shall not apply to the extent that a non- ary’’ and insert ‘‘affiliate’’. of 1995 and every 3 years thereafter, the Com- Federal user seeks to relocate or relocates a On page 2, after the item relating to sec- mission shall review the standards and re- Federal power agency under subsection (f). tion 106 in the table of contents, insert the quirements for interconnection established ‘‘(h) DEFINITIONS.—For purposes of this sec- following: under subsection (b). The Commission shall tion— SEC. 107. Coordination for tele- complete each such review within 180 days ‘‘(1) FEDERAL ENTITY.—The term ‘Federal communications network-level and may modify or waive any requirements entity’ means any Department, agency, or interoperability ...... or standards established under subsection (b) other element of the Federal government On page 2, after the item relating to sec- if it determines that the modification or that utilizes radio frequency spectrum in the tion 225 in the table of contents, insert the waiver meets the requirements of section conduct of its authorized activities, includ- following: 260.’’. On page 28, line 20, strike ‘‘SUBSIDIARY’’ ing a Federal power agency. SEC. 226. Nonapplicability of Modi- ‘‘(2) SPECTRUM REALLOCATION FINAL RE- fication of Final Judgment ...... and insert ‘‘AFFILIATE’’. PORT.—The term ‘Spectrum Reallocation On page 28, line 21, strike ‘‘SUBSIDIARY’’ On page 3, after the item relating to sec- Final Report’ means the report submitted by and insert ‘‘AFFILIATE’’. the Secretary to the President and Congress tion 311 in the table of contents, insert the On page 28, beginning on line 24, strike ‘‘its in compliance with the requirements of sub- following: subsidiaries and affiliates) which provides section (a).’’. Sec. 312. Direct Broadcast Satellite ... telephone exchange service’’ and insert ‘‘any (d) REALLOCATION OF ADDITIONAL SPEC- On page 9, line 8, after ‘‘Act.’’ insert ‘‘The affiliate) which is a local exchange carrier TRUM.—The Secretary of Commerce shall, Commission may modify any provision of the that is subject to the requirements of section within 9 months after the date of enactment GTE Consent Decree or the Modification of 251(a)’’. of this Act, prepare and submit to the Presi- Final Judgment that it administers.’’. On page 29, line 2, strike ‘‘a subsidiary’’ dent and the Congress a report and timetable On page 9, line 16, strike ‘Commission’ and and insert ‘‘one or more affiliates’’. recommending the reallocation of the three insert ‘‘Commission’’. On page 29, line 3, strike ‘‘is’’ and insert frequency bands (225–400 megahertz, 3625–3650 ‘‘are’’. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7929 On page 29, line 4, strike ‘‘provides tele- On page 36, strike lines 1 through 9. On page 65, strike lines 1 through 6, and in- phone exchange service’’ and insert ‘‘is sub- On page 36, line 14, strike ‘‘subsidiary’’ and sert the following: ject to the requirements of section 251(a)’’. insert ‘‘affiliate’’. ‘‘(B) To the extent that a Bell operating On page 29, line 6, strike ‘‘meets’’ and in- On page 40, line 15, after the period insert company provides cable service as a cable sert ‘‘meet’’. ‘‘The Commission may establish a different operator, it shall provide such service On page 29, beginning in line 8, strike definition of universal service for schools, li- through an affiliate that meets the require- ‘‘SUBSIDIARY’’ and insert ‘‘AFFILIATE’’. braries, and hospitals for purposes of section ments of section 252(a), (b), and (d) and the On page 29, line 10, strike ‘‘subsidiary’’ and 264.’’. Bell operating company’s telephone ex- insert ‘‘affiliate’’. On page 41, strike lines 1 through 5. change services and exchange access services On page 30, line 4, strike ‘‘subsidiary’’ and On page 41, line 6, strike ‘‘(e)’’ and insert shall meet the requirements of subparagraph insert ‘‘affiliate’’. ‘‘(d)’’. (A)(ii) and section 252(c); except that, to the On page 30, beginning on line 10, strike ‘‘a On page 41, line 12, strike ‘‘(f)’’ and insert extent the Bell operating company provides subsidiary and any other subsidiary or affili- ‘‘(e)’’. cable service utilizing its own telephone ex- ate of such company;’’ and insert ‘‘an affili- On page 41, line 21, strike ‘‘(g)’’ and insert change facilities, section 252(c) shall not re- ate;’’. ‘‘(f)’’. quire the Bell operating company to make On page 30, beginning on line 14, strike ‘‘a On page 42, line 5, strike ‘‘maintenance video programming services capacity avail- subsidiary or any other subsidiary or affili- and’’ and insert ‘‘provision, maintenance, able on a non-discriminatory to other video ate of such company;’’ and insert ‘‘an affili- and’’. programming services providers basis. ate;’’. On page 42, line 7, strike ‘‘(h)’’ and insert On page 65, line 8, strike ‘‘subsidiary’’ and On page 30, beginning on line 19, strike ‘‘(g)’’. insert ‘‘affiliate’’. ‘‘entity that provides telephone exchange On page 42, line 9, strike ‘‘consumers’’ and On page 65, line 18, after the period insert insert ‘‘customers’’. service’’. the following: ‘‘Nothing in this Act precludes On page 42, line 11, strike ‘‘consumers’’ and On page 30, beginning on line 22, strike ‘‘a a video programming provider making use of insert ‘‘customers’’. subsidiary and any other subsidiary or affili- a common carrier video platform from being On page 42, line 12, strike ‘‘(i)’’ and insert ate of such company’’ and insert ‘‘an affili- treated as an operator of a cable system for ‘‘(h)’’. ate’’. On page 42, beginning with ‘‘Telecommuni- purposes of section 111 of title 17, United On page 31, line 2, strike ‘‘subsidiary’’ and cations’’ on line 13, strike through the period States Code.’’. insert ‘‘affiliate’’. On page 65, line 25, insert ‘‘common car- on line 15 and insert ‘‘Telecommunications On page 31, beginning on line 3, strike rier’’ before ‘‘video’’. carriers may not use noncompetitive serv- ‘‘company, and any other subsidiary or affili- On page 66, line 1, strike ‘‘the video’’ and ices to subsidize competitive services.’’. ate of such’’. On page 42, beginning on line 20, strike insert ‘‘that’’. On page 31, line 6, strike ‘‘pany, its subsidi- On page 66, line 6, insert ‘‘common carrier’’ ‘‘(and may, in the public interest, bear less aries or affiliates,’’ and insert ‘‘pany or affil- before ‘‘video’’. than a reasonable share or no share)’’. iate’’. On page 66, line 6, after the period insert On page 42, line 23, strike ‘‘(j)’’ and insert On page 31, beginning on line 11, strike the following: ‘‘If the area covered by the ‘‘(i)’’. ‘‘company, its subsidiaries or affiliates,’’ and On page 47, line 3, strike ‘‘fine’’ and insert common carrier video platform includes insert ‘‘company or affiliate’’. ‘‘sum’’. more than one franchising area, then the On page 31, line 15, strike ‘‘tions; and’’ and On page 47, line 5, strike ‘‘establishing’’ Commission shall determine the number of insert ‘‘tions, unbundled to the smallest ele- and insert ‘‘determining’’. channels allocated to public, educational, ment that is technically feasible and eco- On page 48, line 7, strike ‘‘fine of’’ and in- and governmental entities that may be eligi- nomically reasonable to provide, and at just sert ‘‘sum of up to’’. ble for such rates for that platform.’’. and reasonable rates that are not higher on On page 48, between lines 17 and 18, insert On page 67, line 1, insert ‘‘local’’ before a per-unit basis than those charged for such the following: ‘‘broadcast’’. services to any affiliate of such company; (c) TRANSITION RULE.—A rural telephone On page 67, line 2, insert ‘‘identified under and’’. company is eligible to receive universal serv- section 614’’ after ‘‘stations’’. On page 31, beginning on line 16, strike ‘‘a ice support payments under section 253(e) of On page 68, beginning on line 11, strike subsidiary’’ and insert ‘‘an affiliate’’. the Communications Act of 1934 as if such ‘‘consistent with the other provisions of title On page 31, line 20, strike ‘‘subsidiary’’ and company were an essential telecommuni- VI of the Communications Act of 1934 (47 insert ‘‘affiliate’’. cations carrier until such time as the Com- U.S.C. 521 et seq.)’’. On page 32, line 2, strike ‘‘a subsidiary’’ mission, with respect to interstate services, On page 69, between lines 19 and 20, insert and insert ‘‘an affiliate’’. or a State, with respect to intrastate serv- the following: On page 32, line 19, strike ‘‘or its affili- ices, designates an essential telecommuni- (a) CHANGE IN DEFINITION OF CABLE SYS- ates’’. cations carrier or carriers for the area served TEM.—Section 602(7) (47 U.S.C. 522(7)) is On page 33, line 1, strike ‘‘subsidiary’’ and by such company under section 214 of that amended by striking out ‘‘(B) a facility that insert ‘‘affiliate’’. Act. serves only subscribers in 1 or more multiple On page 33, line 5, strike ‘‘and’’. On page 49, line 17, strike ‘‘basis.’’ and in- unit dwellings under common ownership, On page 33, line 6, strike ‘‘subsidiary’’ and sert ‘‘basis within 120 days after the applica- control, or management, unless such facility insert ‘‘affiliate’’. tion is filed.’’. or facilities uses any public right-of-way;’’ On page 33, line 11, strike ‘‘service.’’ and On page 51, line 4, insert ‘‘and provides uni- and inserting ‘‘(B) a facility that serves sub- insert ‘‘service; and’’. versal service by means of its own facilities’’ scribers without using any public right-of- On page 33, between lines 11 and 12, insert after ‘‘214(d)’’. way;’’ the following: On page 54, line 21, before ‘‘Local’’ insert On page 69, line 20, Strike ‘‘(a)’’ and insert ‘‘(6) may provide any interLATA or ‘‘STATE AND’’. ‘‘(b)’’. intraLATA facilities or services to its On page 54, line 22, before ‘‘local’’ insert On page 70, line 22, strike ‘‘(b)’’ and insert interLATA affiliate if such services or facili- ‘‘State or’’. ‘‘(c)’’. ties are made available to all carriers at the On page 55, line 9, strike ‘‘immediately’’ On page 71, between lines 2 and 3, insert same rates and on the same terms and condi- and insert ‘‘promptly’’. the following: tions. On page 56, line 3, strike ‘‘title; and ’’ in- (d) PROGRAM ACCESS.—Section 628 (47 On page 33, line 15, strike ‘‘subsidiary or’’. sert ‘‘title for the provision of telecommuni- U.S.C. 628) is amended— On page 33, beginning on line 20, strike cations services; and’’. (1) by striking subsection (c)(5); and ‘‘subsidiaries and’’. On page 56, line 5, strike ‘‘affiliate.’’ and (2) by adding at the end the following new On page 34, line 1, insert ‘‘with any affili- insert ‘‘affilate for the provision of tele- subsections: ated entity required by this section or with communications services.’’. ‘‘(j) COMMON CARRIERS.—Any provision any unaffiliated entity’’ after ‘‘shared’’. On page 57, beginning with line 8, strike that applies to a cable operator under this On page 34, between lines 19 and 20, insert through line 16 on page 63. section shall apply to a telecommunications the following: On page 64, line 1, insert ‘‘that it owns, carrier that provides video programming di- ‘‘(3) SUBSCRIBER LIST INFORMATION.—For controls, or selects’’ before ‘‘directly’’. rectly to subscribers. Any such provision purposes of this subsection, the term ‘cus- On page 64, line 13, insert ‘‘video program- that applies to a satellite cable program- tomer proprietary information’ does not in- ming provided by others’’ after ‘‘carries’’. ming vendor in which a cable operator has clude subscriber list information. On page 64, line 14, insert ‘‘that it owns, an attributable interest shall apply to any On page 35, line 7, strike ‘‘subsidiary.’’ and controls, or selects’’ before ‘‘over’’. satellite cable programming vendor in which insert ‘‘affiliate.’’. On page 64, line 15, strike ‘‘subsidiary’’ and such common carrier has an attributable in- On page 35, line 10, strike ‘‘subsidiary’’ and insert ‘‘affilate’’. terest. insert ‘‘affiliate’’. On page 64, strike lines 22 through 24 and ‘‘(k) SUNSET.—This section and the regula- On page 35, line 19, strike ‘‘subsidiary’’ and insert the following: tions required under this section shall cease insert ‘‘affiliate’’. ‘‘(ii) the carrier does not use its tele- to be effective on October 5, 2002.’’. On page 35, line 24, after the period insert communications services to subsidize its (e) EXPEDITED DECISION-MAKING FOR MAR- closing quotation marks and another period. provision of video programming. KET DETERMINATIONS UNDER SECTION 614.— S 7930 CONGRESSIONAL RECORD — SENATE June 7, 1995

(1) IN GENERAL.—Section 614(h)(1)(C)(iv) (47 ‘‘(4) The regulations required under para- (d) PLEDGING OR MORTGAGING UTILITY AS- U.S.C. 614(h)(1)(C)(iv)) is amended to read as graph (1) shall become effective 5 years after SETS.—Any public utility company that is an follows: the date of enactment of the Telecommuni- associate company of a registered holding ‘‘(iv) Within 120 days after the date on cations Act of 1995. Any increase in the rates company and that is subject to the jurisdic- which a request is filed under this subpara- for pole attachments that result from the tion of a State commission with respect to graph, the Commission shall grant or deny adoption of the regulations required by this its retail electric or gas rates shall not the request.’’. subsection shall be phased in equal annual pledge, mortgage, or otherwise use as collat- (2) APPLICATION TO PENDING REQUESTS.— increments over a period of 5 years beginning eral any utility assets of the public utility or The amendment made by paragraph (1) shall on the effective date of such regulations. utility assets of any subsidiary company apply to— ‘‘(f)(1) A utility shall provide a cable tele- thereof for the benefit of an associate com- (A) any request pending under section vision system or any telecommunications pany engaged in activities described in sub- 614(h)(1)(C) of the Communications Act of carrier with nondiscriminatory access to any section (a)(1) without the prior approval of 1934 (47 U.S.C. 614(h)(1)(C)) on the date of en- pole, duct, conduit, or right-of-way owned or the State commission. actment of this Act; and controlled by it. (e) BOOKS AND RECORDS.—An associate (B) any request filed under that section ‘‘(2) Notwithstanding paragraph (1), a util- company engaged in activities described in after that date. ity providing electric service may deny a subsection (a)(1) which is an associate com- On page 71, line 3, strike ‘‘(c)’’ and insert cable television system or telecommuni- pany of a registered holding company shall ‘‘(f)’’. cations carrier access to its poles, ducts, maintain books, records, and account sepa- On page 71, beginning with line 7 strike conduits, or rights-of-way, on a non-dis- rate from the registered holding company through line 3 on page 73 and insert the fol- criminatory basis where there is insufficient which identify all transactions with the reg- lowing: capacity and for reasons of safety, reliabil- istered holding company and its other asso- Section 224 (47 U.S.C. 224) is amended— ity, and generally applicable engineering ciate companies, and provide access to (1) by inserting the following after sub- purposes. books, records, and accounts to State com- section (a)(4): ‘‘(g) A utility that engages in the provision missions and the Federal Energy Regulatory ‘‘(5) The term ‘telecommunications carrier’ of telecommunications services shall impute Commission under the same terms of access, shall have the meaning given such term in to its costs of providing such services (and disclosure, and procedures as provided in sec- subsection 3(nn) of this Act, except that, for charge any affiliate, subsidiary, or associate tion 201(g) of the Federal Power Act. purposes of this section, the term shall not company engaged in the provision of such (f) INDEPENDENT AUDIT AUTHORITY FOR include any person classified by the Commis- services) an amount equal to the pole attach- STATE COMMISSIONS.— sion as a dominant provider of telecommuni- ment rate for which such company would be (1) STATE MAY ORDER AUDIT.—Any State cations services as of January 1, 1995.’’; liable under this section.’’. commission with jurisdiction over a public (2) by inserting after ‘‘conditions’’ in sub- On page 73, line 12, strike ‘‘holding’’. utility company that— section (c)(1) a comma and the following: ‘‘or On page 74, beginning on line 6, strike ‘‘en- (A) is an associate company of a registered access to poles, ducts, conduits, and rights- gaged in any activity described in paragraph holding company, and of-way as provided in subsection (f),’’; (1)’’. (B) transacts business, directly or indi- (3) by inserting after subsection (d)(2) the On page 774, line 8, strike ‘‘to that Act,’’ rectly, with a subsidiary company, affiliate, following: and insert ‘‘to,’’. or associate company of that holding com- On page 74, line 9, strike ‘‘review any such ‘‘(3) This subsection shall apply to the rate pany engaged in any activity described in activity,’’ and insert ‘‘review, any activity for any pole attachment used by a cable tele- subsection (a)(1), described in paragraph (1),’’. vision system solely to provide cable service. On page 74, beginning with line 13, strike may order an independent audit to be per- Until the effective date of the regulations re- through line 12 on page 76 and insert the fol- formed, no more frequently than on an an- quired under subsection (e), this subsection lowing: nual basis, of all matters deemed relevant by shall also apply to the pole attachment rates (3) APPLICABILITY OF TELECOMMUNICATIONS the selected auditor that reasonably relate for cable television systems (or for any tele- REGULATION.—Nothing in this section shall to retail rates; provided such matters relate, communications carrier that was not a party affect the authority of the Federal Commu- directly or indirectly, to transactions or to any pole attachment agreement prior to nications Commission under the Commu- transfers between the public utility company the date of enactment of the Telecommuni- nications Act of 1934, or the authority of subject to its jurisdiction and the subsidiary cations Act of 1995) to provide any tele- State commissions under State laws con- company, affiliate, or associate company en- communications service or any other service cerning the provision of telecommunications gaged in that activity. subject to the jurisdiction of the Commis- services, to regulate the activities of an as- (2) SELECTION OF FIRM TO CONDUCT AUDIT.— sion.’’; and sociate company engaged in activities de- (A) If a State commission orders an audit (4) by adding at the end thereof the follow- scribed in paragraph (1). in accordance with paragraph (1), the public ing: (b) PROHIBITION OF CROSS-SUBSIDIZATION.— utility company and the State commission ‘‘(e)(1) The Commission shall, no later than Nothing in the Public Utility Holding Com- shall jointly select within 60 days a firm to 2 years after the date of enactment of the pany Act of 1935 shall preclude the Federal perform the audit. The firm selected to per- Telecommunications Act of 1995, prescribe Energy Regulatory Commission or a State form the audit shall possess demonstrated regulations in accordance with this sub- commission from exercising its jurisdiction qualifications relating to: section to govern the charges for pole at- under otherwise applicable law to determine (i) competency, including adequate tech- tachments by telecommunications carriers. whether a public utility company may re- nical training and professional proficiency in Such regulations shall ensure that utilities cover in rates the costs of any activity de- each discipline necessary to carry out the charge just and reasonable and non-discrimi- scribed in subsection (a)(1) which is per- audit, and natory rates for pole attachments. formed by an associate company regardless (ii) independence and objectivity, including ‘‘(2) A utility shall apportion the cost of of whether such costs are incurred through that the firm be free from personal or exter- providing space on a pole, duct, conduit, or the direct or indirect purchase of goods and nal impairments to independence, and should right-of-way other than the usable space services from such associate company. assume an independent position with the among entities so that such apportionment (c) ASSUMPTION OF LIABILITIES.—Any public State commission and auditee, making cer- equals the sum of— utility company that is an associate com- tain that the audit is based upon an impar- ‘‘(A) two-thirds of the cost of providing pany of a registered holding company and tial consideration of all pertinent facts and space other than the usable space that would that is subject to the jurisdiction of a State responsible opinions. be allocated to such entity under an equal commission with respect to its retail electric (B) The public utility company and the apportionment of such costs among all at- or gas rates shall not issue any security for company engaged in activities under sub- tachments, plus the purpose of financing the acquisition, section (a)(1) shall cooperate fully with all ‘‘(B) the percentage of usable space re- ownership, or operation of an associate com- reasonable requests necessary to perform the quired by each such entity multiplied by the pany engaged in activities described in sub- audit and the public utility company shall costs of space other than the usable space; section (a)(1) without the prior approval of bear all costs of having the audit performed. but in no event shall such proportion exceed the State commission. Any public utility The reasonable costs of such audits shall be the amount that would be allocated to such company that is an associate company of a included in rates. entity under an equal apportionment of such registered holding company and that is sub- (3) AVAILABILITY OF AUDITOR’S REPORT.— costs among all attachments. ject to the jurisdiction of a State commis- The auditor’s report shall be provided to the ‘‘(3) A utility shall apportion the cost of sion with respect to its retail electric or gas State commission within 6 months after the providing usable space among all entities ac- rates shall not assume any obligation or li- selection of the auditor, and provided to the cording to the percentage of usable space re- ability as guarantor, endorser, surety, or public utility company 60 days thereafter. quired for each entity. Costs shall be appor- otherwise by the public utility in respect of (g) REQUIRED NOTICES.— tioned between the usable space and the any security of an associate company en- (1) AFFILIATE CONTRACTS.—A State com- space on a pole, duct, conduit, or right-of- gaged in activities described in subsection mission may order any public utility com- way other than the usable space on a propor- (a)(1) without the prior approval of the Sen- pany that is an associate company of a reg- tionate basis. ate commission. istered holding company and that is subject June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7931 to the jurisdiction of the State commission On page 93, line 14, strike ‘‘subsidiary or’’. On page 99, beginning on line 25, strike to provide quarterly reports listing any con- On page 93, strike lines 18 and 19 and insert ‘‘Upon the enactment of the Telecommuni- tracts, leases, transfers, or other trans- ‘‘service.’’. cations Act of 1995,’’ and insert ‘‘Upon adop- actions with an associate company engaged On page 93, line 21, strike ‘‘A’’ and insert tion of rules by the Commission under sec- in activities described in subsection (a)(1). ‘‘Effective on the date of enactment of the tion 252,’’. (2) ACQUISITION OF AN INTEREST IN ASSOCI- Telecommunications Act of 1995, a’’. On page 110, line 8, strike ‘‘SUBSIDIARY;’’ ATE COMPANIES.—Within 10 days after the ac- On page 93, line 22, insert ‘‘or its affiliate’’ and insert ‘‘AFFILIATE;’’. quisition by a registered holding company of before ‘‘may’’. On page 100, line 15, ‘‘subsidiary’’ and in- an interest in an associate company that On page 93, line 23, strike ‘‘to the purposes sert ‘‘affiliate’’. will engage in activities described in sub- of—’’ and insert ‘‘to—’’. On page 100, beginning on line 22, strike section (a)(1), any public utility company On page 94, line 10, strike ‘‘or’’. ‘‘subsidiary’’ and insert ‘‘affiliate’’. that is an associate company of such com- On page 94, line 15, after the comma insert On page 101, line 2, strike ‘‘subsidiary’’ and pany shall notify each State commission ‘‘or’’. insert ‘‘affiliate’’. having jurisdiction over the retail rates of On page 94, between lines 15 and 16, insert On page 101, line 6, strike ‘‘subsidiary’’ and such public utility company of such acquisi- the following: insert ‘‘affiliate’’. tion. In the notice an officer on behalf of the ‘‘(iv) providing alarm monitoring serv- On page 101, strike lines 15 and 16 and in- public utility company shall attest that, ices,’’. sert the following: ‘‘(2) NONDISCRIMINATION STANDARDS.—’’. based on then current information, such ac- On page 97, line 11, after ‘‘audio,’’ insert On page 101, line 25, after ‘‘controls’’ insert quisition and related financing will not ma- ‘‘alarm monitoring services,’’. a comma and ‘‘or on which is acting on its terially impair the ability of such public On page 97, beginning with line 23, strike behalf or on behalf of its affiliate,’’. utility company to meet its public service through line 2 on page 98. On page 98, line 3, strike ‘ ‘‘(2)’’ and insert On page 102, between lines 5 and 6, insert responsibility, including its ability to raise ‘ ‘‘(1)’’. the following: necessary capital. On page 98, line 8, strike ‘ ‘‘(3)’’ and insert ‘‘(C) A Bell operating company shall, con- (h) DEFINITIONS.—Any term used in this sistent with the antitrust laws, engage in section that is defined in the Public Utility ‘ ‘‘(2)’’. On page 98, line 12, strike the closing joint network planning and design with local Holding Company Act of 1935 (15 U.S.C. 79a et quotation marks and the second period. exchange carriers operating in the same area seq.) has the same meaning as it has in that On page 98, between lines 12 and 13, insert of interest. No participant in such planning Act. The terms ‘‘telecommunications serv- the following: shall be allowed to delay the introduction of ice’’ and ‘‘information service’’ shall have ‘‘(g) CERTAIN SERVICE APPLICATIONS TREAT- new technology or the deployment of facili- the same meanings as those terms have in ED AS IN-REGION SERVICE APPLICATIONS.—For ties to provide telecommunications services, the Communications Act of 1934. purposes of this section, a Bell operating and agreement with such other carriers shall (i) IMPLEMENTATION.—Not later than 1 year company application to provide 800 service, not be required as a prerequisite for such in- after the date of enactment of this Act, the private line service, or their equivalents troduction or deployment. A Bell operating Federal Communications Commission shall that— company shall provide, to other local ex- promulgate such regulations as may be nec- ‘‘(1) terminate in an area where the Bell change carriers operating in the same area of essary to implement this section. operating company is the dominant provider interest, timely information on the planned (j) EFFECTIVE DATE.—This section takes ef- of wireline telephone exchange service or ex- deployment of telecommunications equip- fect on the date of enactment of this Act. change access service, and ment, including software integral to such On page 78, line 14, insert ‘‘all of’’ after ‘‘(2) allow the called party to determine telecommunications equipment and upgrades ‘‘that’’. the interLATA carrier, of that software. On page 78, beginning on line 15, strike On page 102, line 6, strike ‘‘(C)’’ and insert ‘‘service which is intended for and available shall be considered an in-region service sub- ject to the requirements of subsection (c) ‘‘(D)’’. to the general public’’ and insert ‘‘services’’. On page 102, line 6, strike ‘‘subsidiary’’ and On page 78, line 17, strike ‘‘is’’ and insert and not of subsection (d).’’. On page 98, beginning with line 13, strike insert ‘‘affiliate’’. ‘‘are’’. On page 102, line 12, strike ‘‘(D)’’ and insert On page 78, line 19, strike ‘‘may’’ and insert through line 2 on page 99 and insert the fol- lowing: ‘‘(E)’’. ‘‘shall’’. On page 102, line 19, strike ‘‘subsidiaries (b) LONG DISTANCE ACCESS FOR COMMERCIAL On page 80, beginning on line 16, strike or’’. MOBILE SERVICES.— ‘‘comment (and a hearing on the record if it On page 103, line 4, strike ‘‘section.’’ and (1) IN GENERAL.—Notwithstanding any re- finds that there are credible allegations of insert ‘‘section, and otherwise to prevent dis- serious violations by the licensee of this Act striction or obligation imposed pursuant to the Modification of final Judgment or other crimination and cross-subsidization in a Bell or the Commission’s rules or regulations),’’ operating company’s dealings with its affili- and insert ‘‘comment,’’. consent decree or proposed consent decree prior to the date of enactment of this Act, a ate and with third parties.’’, On page 81, line 11, after ‘‘determines’’ in- On page 103, line 15, strike ‘‘CARRIERS’’ and person engaged in the provision of commer- sert a comma and ‘’after notice and oppor- insert ‘‘PARTIES’’. cial mobile services (as defined in section tunity for a hearing,’’. On page 103, line 16, strike ‘‘local exchange 332(d)(1) of the Communications Act of 1934), On page 82, between lines 4 and 5, insert carrier’’ and insert ‘‘party’’. the following: insofar as such person is so engaged, shall On page 103, line 18, strike ‘‘subsidiary or’’. (3 The amendments made by this sub- not be required by court order or otherwise On page 104, beginning on line 1, strike section apply to applications filed after May to provide equal access to interchange tele- ‘‘local exchange carrier’’ and insert ‘‘party’’. 31, 1995. communications carriers, except as provided On page 4, strike lines 4 through 19, and in- On page 84, line 15, insert ‘‘at just and rea- by this section. Such a person shall ensure sert the following: sonable rates’’ before ‘‘where’’. that its subscribers can obtain unblocked ac- ‘‘(g) APPLICATION TO BELL COMMUNICATIONS On page 87, line 22, strike ‘‘of such serv- cess to the provider of interchange services RESEARCH.— ices,’’ and insert ‘‘of providing those services of the subscriber’s choice through the use of ‘‘(1) IN GENERAL.—Nothing in this section— to that carrier,’’. an interexchange carrier identification code ‘‘(A) provides any authority for Bell Com- On page 87, line 24, strike ‘‘services.’’ and assigned to such provider, except that the re- munications Research, or any successor en- insert ‘‘services in accordance with section quirements for unblocking shall not apply to tity, to manufacture or provide tele- 214(d)(5).’’. mobile satellite services unless the Commis- communications equipment or to manufac- On page 88, line 4, strike ‘‘area,’’ and insert sion finds it to be in the public interest. ture customer premises equipment; or ‘‘area where that company is the dominant (2) EQUAL ACCESS REQUIREMENT CONDI- ‘‘(B) prohibits Bell Communications Re- provider of wireline telephone exchange serv- TIONS.—The Commission may only require a search, or any successor entity, from engag- ice or exchange access service,’’. person engaged in the provision of commer- ing in any activity in which it is lawfully en- On page 88, line 5, after ‘‘market’’ insert cial mobile services to provide equal access gaged on the date of enactment of the Tele- ‘‘in such telephone exchange area’’. to interexchange carriers if— communications Act of 1995, including pro- On page 88, line 6, strike ‘‘or exchange ac- (A) such person, insofar as such person is viding a centralized organization for the pro- cess service’’. so engaged, is subject to the interconnection vision of engineering, administrative, and On page 88, line 7, strike ‘‘interexchange’’ obligations of section 251(a) of the Commu- other services (including serving as a single and insert ‘‘interLATA’’. nications Act of 1934, and point of contact for coordination of the Bell On page 88, line 16, strike ‘‘subsidiary or’’. (B) the Commission finds that such re- operating companies to meet national secu- On page 91, line 22, strike ‘‘SUBSIDIARY;’’ quirement is in the public interest. rity and emergency preparedness require- and insert ‘‘AFFILIATE;’’. On page 99, line 23, strike ‘‘thereunder.’’ ments). On page 91 line 24, strike ‘‘SUBSIDIARY;’’ and insert a comma and ‘‘except that neither On page 105, line 12, strike ‘‘subsidiary or’’. and insert ‘‘AFFILIATE;’’. a Bell operating company nor any of its af- On page 105, beginning on line 13, strike On page 92, line 6, strike ‘‘subsidiary or’’. filiates may engage in such manufacturing ‘‘company, subsidiary, or affiliate’’ and in- On page 93, line 13, strike ‘‘A’’ and insert in conjunction with a Bell operating com- sert ‘‘company or affiliate’’. ‘‘Effective on the date of enactment of the pany not so affiliated or any of its affili- On page 106, line 22, strike ‘‘subsidiary’’ Telecommunications Act of 1995, a’’. ates.’’. and insert ‘‘affiliate’’. S 7932 CONGRESSIONAL RECORD — SENATE June 7, 1995 On page 107, beginning with ‘‘service’’ on On page 126, line 9, insert a comma after the use of ground receiving or distribution line 5, strike through line 6 and insert the ‘‘Administration’’. equipment, except at the subscriber’s prem- following: ‘‘service suspended if its right to On page 128, strike lines 3 through 24. ises, or used in the initial uplink process to provide that service is conditioned upon its On page 129, line 1, strike ‘‘(h)’’ and insert the direct-to-home satellite.’’. meeting those obligations.’ ’’ ‘‘(g)’’. f On page 107, line 11, strike ‘‘this section’’ On page 129, line 6, strike ‘‘6’’ and insert and insert ‘‘section 251 or 255’’. ‘‘18’’. AUTHORITY FOR COMMITTEES TO On page 108, line 23, strike ‘‘subsidiary or’’. On page 129, beginning on line 7, strike MEET On page 110, line 2, strike ‘‘subsidiaries ‘‘undertake’’ and insert ‘‘commence’’. and’’. On page 132, beginning on line 5, strike COMMITTEE ON ARMED SERVICES On page 110, beginning on line 15, strike ‘‘designated as an essential telecommuni- Mr. HATCH. Mr. President, I ask ‘‘subsidiaries and’’. cations carrier under section 214(d)’’. unanimous consent that the Commit- On page 110, line 21, strike ‘‘subsidiaries On page 132, line 14, after ‘‘areas.’’ insert tee on Armed Services be authorized to or’’. ‘‘A telecommunications carrier providing meet at 10 a.m. on Wednesday, June 7, On page 111, line 17, strike ‘‘punish’’ and service pursuant to this paragraph shall be 1995, in open session, to receive testi- insert ‘‘to impose sanctions on’’. entitled to have an amount equal to the dif- On page 111, line 20, strike ‘‘subsidi- ference, if any, between the price for services mony on the situation in Bosnia. ary or’’. provided to health care providers for rural The PRESIDING OFFICER. Without On page 111, line 24, insert ‘‘or an affiliate’’ areas and the price for similar services pro- objection, it is so ordered. after ‘‘company’’. vided to other customers in comparable COMMITTEE ON BANKING, HOUSING, AND URBAN On page 112, line 1, strike ‘‘December 31, urban areas treated as a service obligation AFFAIRS 1994,’’ and insert ‘‘June 1, 1995,’’. described in section 253(d) that is considered Mr. HATCH. Mr. President, I ask On page 112, line 4, strike ‘‘subsidiary or’’. as part of its obligation to contribute to uni- unanimous consent that the Commit- versal service under section 253(c).’’, On page 112, beginning with ‘‘services,’’ on tee on Banking, Housing, and Urban line 8 strike through line 10 and insert ‘‘serv- On page 132, strike lines 15 through 23 and ices.’’. insert the following: Affairs be authorized to meet during On page 113, between lines 3 and 4, insert ‘‘(2) Educational Providers and Libraries.— the session of the Senate on Wednes- the following: All telecommunications carriers serving a day, June 7, 1995, to conduct a hearing SEC. 226. NONAPPLICABILITY OF MODIFICATION geographic area shall, upon a bona fide re- on pending nominations. OF FINAL JUDGMENT. quest, provide to elementary schools, second- The PRESIDING OFFICER. Without Notwithstanding any other provision of ary schools and libraries universal services objection, it is so ordered. law or of any judicial order, no person shall (as defined in Section 253) that permit such schools and libraries to provide or receive COMMITTEE ON FINANCE be subject to the provisions of the Modifica- Mr. HATCH. Mr. President, I ask tion of Final Judgment solely by reason of telecommunications services for educational having acquired commercial mobile service purposes at rates less than the amounts unanimous consent that the Finance or private mobile service assets or oper- charged for similar services to other parties. Committee be permitted to meet ations previously owned by a Bell operating The discount shall be an amount that the Wednesday, June 7, 1995, beginning at company or an affiliate of a Bell operating Commission and the States determine is ap- 9:30 a.m. in room SD–215, to conduct a company. propriate and necessary to ensure affordable hearing on small business issues, in- On page 113, line 19, strike ‘‘residential’’. access to and use of such telecommuni- cluding estate tax proposals and On page 113, line 23, strike ‘‘Where only a cations by such entities. A telecommuni- cations carrier providing service pursuant to expensing of business equipment pro- single carrier provides a service’’ and insert posals. ‘‘Until sufficient competition exists.’’ this paragraph shall be entitled to have an On page 117, line 8, strike ‘‘upon request.’’ amount equal to the amount of the discount, The PRESIDING OFFICER. Without and insert ‘‘requesting such information for treated as a service obligation described in objection, it is so ordered. the purpose of publishing directories in any section 253(d) that is considered as part of its COMMITTEE ON FOREIGN RELATIONS format.’’. obligation to contribute to universal service Mr. HATCH. Mr. President, I ask On page 117, between lines 21 and 22, insert under section 253(c).’’ On page 133, beginning with ‘‘shall’’ on line unanimous consent that the Commit- the following: tee on Foreign Relations be authorized (d) CONFIDENTIALITY.—A telecommuni- 1, strike through line 6 and insert the follow- cations carrier has a duty to protect the con- ing: ‘‘shall, for essential telecommunications to meet during the session of the Sen- fidentiality of proprietary information of, carriers providing service pursuant to sub- ate on Wednesday, June 7, 1995, at 10 and relating to, other common carriers and section (a), include the amount of the sup- a.m. customers, including common carriers resell- port payments reasonably necessary to allow The PRESIDING OFFICER. Without ing the telecommunications services pro- such carrier to provide such service to such objection, it is so ordered. users under section 253.’’ vided by a telecommunications carrier. A COMMITTEE ON GOVERNMENTAL AFFAIRS On page 135, line 8, strike the closing telecommunications carrier that receives Mr. HATCH. Mr. President, I ask such information from another carrier for quotation marks and the second period. purposes of provisioning, billing, or facilitat- On page 135, between lines 8 and 9, insert unanimous consent on behalf of the ing the resale of its service shall use such in- the following: Governmental Affairs Committee to formation only for such purpose, and shall ‘‘(e) TERMS AND CONDITIONS.—Tele- meet on Wednesday, June 7, at 10 a.m. not use such information for its own market- communications services and network capac- for a hearing on the subject: Duplica- ing efforts. Nothing in this subsection pro- ity provided under this section may not be tion, Overlap and Fragmentation in hibits a carrier from using customer infor- sold, resold, or otherwise transferred in con- Government Programs. mation obtained from its customers, either sideration for money or any other thing of value.’’. The PRESIDING OFFICER. Without directly or indirectly through its agents— objection, it is so ordered. (1) to provide, market, or bill for its serv- On page 136, after line 21, insert the follow- ices; or ing: SELECT COMMITTEE ON INTELLIGENCE (2) to perform credit evaluations on exist- SEC. 312. DIRECT BROADCAST SATELLITE. Mr. HATCH. Mr. President, I ask ing or potential customers. (a) DBS SIGNAL SECURITY.—Section unanimous consent that the Select On page 119, line 3, strike, ‘‘The’’ and in- 705(e)(4) (47 U.S.C. 605(e)(4)) is amended by in- Committee on Intelligence be author- sert ‘‘Notwithstanding section 332(c)(1)(A) of serting ‘‘satellite delivered video or audio ized to meet during the session of the this Act, the’’. programming intended for direct receipt by Senate on Wednesday, June 7, 1995, at 2 On page 119, line 16, strike ‘‘ers;’’ and in- subscribers in their residences or in their p.m. to hold a closed hearing on intel- sert ‘‘ers or the preservation and advance- commercial or business premises,’’ after ment of universal services;’’. ‘‘programming,’’. ligence matters. On page 121, line 23, strike ‘‘10401’’ and in- (b) FCC JURISDICTION OVER DIRECT-TO- The PRESIDING OFFICER. Without sert ‘‘14101’’. HOME SATELLITE SERVICES.—Section 303 (47 objection, it is so ordered. On page 124, line 10, insert ‘‘or created’’ U.S.C. 303) is amended by adding at the end SUBCOMMITTEE ON OVERSIGHT AND after ‘‘designated’’. thereof the following new subsection: INVESTIGATIONS On page 124, line 16, strike ‘‘shall be as- ‘‘(v) Have exclusive jurisdiction to regulate Mr. HATCH. Mr. President, I ask signed’’ and insert ‘‘shall be permitted to the provision of direct-to-home satellite unanimous consent that the Sub- use’’. services. For purposes of this subsection, the On page 124, line 21, insert ‘‘as determined term ‘direct-to-home satellite services’ committee on Oversight and Investiga- by the Commission’’ after ‘‘basis’’. means the distribution or broadcasting of tions of the Committee on Energy and On page 126, line 8, insert ‘‘the Commis- programming or services by satellite di- Natural Resources be granted permis- sion,’’ before ‘‘the National’’. rectly to the subscriber’s premises without sion to meet during the session of the June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7933 Senate on Wednesday, June 7, 1995, for lina delegates to the Constitutional Conven- their wealth and status, some of their fellow purposes of conducting a subcommittee tion: Pierce Butler, Charles Cotesworth delegates referred to them as ‘‘the Nabobs hearing which is scheduled to begin at Pinckney, and John Rutledge. All four men from South Carolina.’’ It is always dan- 9:30 a.m. The purpose of this hearing is had held a variety of local and state offices gerous to say that we know what individuals in colonial, revolutionary, and post-revolu- of two centuries ago thought and felt; how- to examine the historical evolution of tionary South Carolina. ever, I believe that I am on very safe ground the National Environmental Policy Act What these men did before Philadelphia is in stating that Charles Pinckney would have of 1969 (P.L. 91–190), how it is being ap- indicative of the sort of public life that was reveled in being called a nabob—for that is plied now in several situations, and expected of them. After Philadelphia, how- what he and his fellow Carolinians were. what options are available to improve ever, they continued to give of themselves to Charles Pinckney, at 29, was the second Federal decisionmaking consistent the state and nation. Rutledge was an Asso- youngest man present. He probably was one with the objectives of that statute. ciate Justice of the United States Supreme of the wealthiest—if not the wealthiest men Court and Governor of South Carolina. But- in Philadelphia. The PRESIDING OFFICER. Without ler served as U.S. Senator. C.C. Pinckney On May 25, 1787, a quorum of delegates objection, it is so ordered. was our Minister (ambassador) to France, from the various states assembled in Phila- SUBCOMMITTEE ON YOUTH VIOLENCE and nominee of the Federalist Party for vice delphia. After electing George Washington as Mr. HATCH. Mr. President, I ask president and president (twice). Our man, its presiding officer, Pinckney, Alexander unanimous consent that the Sub- Charles Pinckney, was four times governor Hamilton, and George Wythe were appointed committee on Youth Violence of the of the state, a member of the U.S. House of as a rules committee to establish procedures under which the convention would operate. U.S. Senate Committee on the Judici- Representatives, a U.S. Senator, and Min- ister to Spain. Four days later, after the Virginia delega- ary be authorized to meet during a ses- All of them were distinguished public fig- tion presented its plan for a new constitu- sion of the Senate on Wednesday, June ures; however, I would argue, that Charles tion, Pinckney rose and addressed the con- 7, 1995, at 10 a.m., in Senate Dirksen Pinckney of Snee Farm did more than his vention. In his remarks he outlined his ideas Room 226, on ‘‘The Iron Triangle: Wel- duty. He was truly a public servant. For for the new government. These comments fare, Illegitimacy, and Juvenile Vio- more than four decades he dedicated his life would give rise to the controversial ‘‘Pinck- lence.’’ to serving the people of South Carolina and ney Draught’’ of the Constitution. Whether The PRESIDING OFFICER. Without the United States. or not such a document exists is unimpor- Charles Pinckney, son of Frances Brewton tant. What is important was Pinckney’s par- objection, it is so ordered. and Charles Pinckney (1732–1782), was born in ticipation in the debates—he spoke more f Charleston in 1757, three years after his fa- than 100 times—that helped shape the docu- ther purchased Snee Farm as a country re- ment that now governs us. Historians and ADDITIONAL STATEMENTS treat. During his childhood, the family political scientists have ranked Charles moved their residence among their several Pinckney of Snee Farm as one of the more plantation homes and Charleston. Young influential delegates present. CHARLES PINCKNEY NATIONAL Charles spent many happy days of his youth When the South Carolina delegation re- HISTORIC SITE here. His father began improvements at Snee turned home, they immediately began the Farm which included formal gardens in the task of ensuring that South Carolina would ∑ Mr. HOLLINGS. Mr. President, I re- area between the present house and the road. ratify the new Constitution—which it did. cently attended the dedication of the Like his cousins and many of his peers, Pinckney and his fellow delegates all played Charles Pinckney National Historic Charles was scheduled to be educated in Eng- key roles in the state’s ratification conven- Site near Charleston, SC. It is an out- land—to include taking a law degree at the tion. standing facility honoring Charles Inns of Court. The Revolution disrupted the No sooner had South Carolina ratified the Pinckney as one of our Founding Fa- plans for Charles’ education and he had to federal constitution than it had to write a study with private tutors and read law with new state constitution. Pinckney presided thers. At the ceremony, Prof. Walter his father. From an early age, he dem- over the convention and, at his urging, the Edgar of the University of South Caro- onstrated a facility with languages and, by delegates wrote into the document the guar- lina made some remarks that I com- the time he was an adult, was fluent in five. antee of religious liberty in South Carolina. mend to my colleagues. I ask that they He was 21 when he was elected to the Gen- In 1791, Pinckney was serving his second be printed in the RECORD. eral Assembly of South Carolina, but with term as governor when President George The remarks follow: the British advance on Charleston, he soon Washington made his tour of the Southern abandoned politics for the military. He states. Governor Pinckney wrote the Presi- CHARLES PINCKNEY: PUBLIC SERVANT served in the South Carolina militia, was dent and asked him to visit Snee Farm and We’re here today to dedicate this site that captured at the fall of Charleston, and im- have breakfast ‘‘where your fare will be en- is closely associated with the life of one of prisoned on a ship in Charleston Harbor. tirely that of the farm.’’ Because of the the founding fathers of our republic, the Later, he was exchanged in Philadelphia and weather and the size of the gathering, the Honorable Charles Pinckney. I think it par- returned to South Carolina after the peace meal was held outside under the oaks. On ticularly appropriate at this juncture in our treaty was signed. May 2, 1791, Washington wrote in his diary, nation’s history to pause and reflect upon Upon his return to South Carolina he was ‘‘Breakfasted at the Country seat of Gov- the life of this man—not just because he was elected again to the General Assembly. That ernor Pinckney * * * and then came to the one of the more active participants in the body, in turn, in 1784, elected him a delegate ferry at Haddrel’s Point.’’ Convention in Philadelphia—but because of to the Articles of Confederation Congress. In From there, Washington travelled to the ideals of public service that he, and oth- Congress, he discovered the weakness of the Charleston where he remained for a week. ers like him, displayed. Confederation and was among the members While in the port city, Pinckney was the Today, public service is sometimes decried to urge the strengthening of the central gov- President’s host three more times—for a pri- by those who do not know any better. ‘‘Ca- ernment. He chaired a congressional com- vate dinner in his home, a large public din- reerist politician,’’ and ‘‘faceless bureau- mittee that recommended seven amend- ner, and a ball. crat’’ are among some of the kinder terms ments to the Articles. There were few who No doubt, Washington’s visit was one of heard over the nation’s airways and in print. were as active as he in trying to enhance the the high points of Pinckney’s second term in However, once upon a time, when the State powers of the government of the United office. When it was over, he was returned to of South Carolina was more than a century States. the General Assembly for several terms, was old and the new United States was less than When New Jersey threatened to withdraw elected governor for a third term, and in 1798 a decade independent from Great Britain . .. its financial support from the national gov- was elected United States Senator. there was a spirit of public service abroad in ernment in 1786, Pinckney was one of three During the presidential election campaign the land. Individuals believed in something members of Congress sent to persuade that of 1800, Pinckney supported Thomas Jeffer- greater than themselves; they believed in the state’s legislature not to withhold its funds. son. In so doing, he broke with his family— public good. Many were willing, as stated so In addressing the legislature of New Jersey, his cousin Charles Cotesworth Pinckney was boldly in the Declaration of Independence, to Pinckney suggested that they ‘‘urge the call- the Federalist nominee for vice president. ‘‘pledge their lives, their fortunes, and their ing of a general convention of the states for Thanks to Charles Pinckney, Jefferson re- sacred Honor’’ for the cause of the nation. the purpose of increasing the powers of the ceived South Carolina’s eight electoral votes Charles Pinckney of Snee Farm was one of federal government and rendering it more and they were enough to put him over the those individuals for whom serving the state useful for the ends for which it was insti- top. and the nation he loved was paramount. tuted.’’ Shortly after Jefferson was inaugurated, (Just take a look at the summary of his ca- The very next year there was a call for a he appointed Pinckney as our country’s min- reer in your programs). He came from a soci- constitutional convention to meet in Phila- ister (ambassador) to Spain. While in Ma- ety where public service was considered delphia. In Philadelphia, the South Caro- drid, Pinckney continued his practice of pur- every man’s duty. Let’s just look, for exam- linians attracted a great deal of attention. It chasing books for his library. We have here ple, at Pinckney and his fellow South Caro- was a powerful group of men. Because of on display a magnificent maritime atlas S 7934 CONGRESSIONAL RECORD — SENATE June 7, 1995 which he bought in Madrid—along with other was president of the Kentucky Associa- thoughts on the arts and public policy at books he purchased in Philadelphia, New tion for Supervision and Curriculum this most critical time, as we celebrate a re- York, and Charleston. These books are re- Development, and he also spent time markable person who put real life into the flections of his intellect and wide-ranging in- on the board of directors of the Na- National Endowment for the Arts in the terests. early 70s when President Nixon started in- Because Pinckney spent so much time out tional Association for Supervision and creasing dramatically the federal funds to go of state, he left his business affairs in the Curriculum Development. He also kept to the arts. hands of others. Their mismanagement re- busy as a member of the Kentucky Along with so many of you here this sulted in Pinckney’s eventually losing much committee of the Southern Association evening, I had the good fortune and the great of his inheritance. In 1814, he was forced to of Colleges and Schools, the Southern pleasure to become acquainted with Nancy sell Snee Farm in order to settle his debts. Association of Colleges and Schools El- Hanks during the Nixon years, and my re- spect for her deepened over the years as I be- There can be no question, that because he ementary Commission, and the Ken- devoted himself to the service of his country, came increasingly involved at the nexus be- that he sacrificed much of his family for- tucky Department of Education Advi- tween business and the arts. tune. sory Committee. Among my recollections of Nancy Hanks, Despite his personal setbacks, he didn’t This outstanding Kentuckian is not and her many qualities, was the informed withdraw from public life. He served one only dedicated to his school system, he common sense she brought to her work. And, more term as governor and one term in the also keeps active in his community. it was to that recollection that I found my- U.S. House of Representatives. During his Bolton is a member of the First United self returning again and again as I consid- term in the House, he opposed the Missouri ered what I might be able to contribute on Methodist Church, and he has served this occasion. Compromise because he saw it as a threat to on the administrative board, and is the union he had helped create three decades A HISTORY OF BIPARTISAN SUPPORT FOR THE earlier. currently a church trustee. ARTS When he completed his term in Congress, While the Clark County school sys- What would she have said about the first he did retire from public life—after 42 years. tem will miss William Bolton’s pres- Republican-led House of Representatives in Three years later he was dead. Thus for all ence, his retirement means he will be over 40 years leveling its sights on federal but four years of his adult life, Charles able to do more of the things he loves, funding for the arts—one of the few federal Pinckney of Snee Farm was involved in pub- including spending time with his wife, programs that has both bi-partisan support, lic service. He had a sense of duty and serv- Connie, his daughter, and his two and the overwhelming majority approval of ice that, to some, today, might seem out- grandchildren. the American people? Programs which have moded; but, in essence he was an old fash- had the support of Presidents Nixon, Ford, ioned patriot who was willing to serve the Mr. President, I commend William Reagan and Bush, as well as our Democratic people of the state of South Carolina and the Bolton for his outstanding service to Presidents Carter and Clinton. United States when asked. He did his duty. the Clark County schools. He has I don’t really know what she would have For him public service was a sacred trust. played a major role in making it the said; your imagination in this regards is as And, for him, public service was not without quality school system that it is today. good as mine. I have always been suspicious great personal sacrifice. His influence, expertise, and kindness of those holier-than-thou contrivances about And, so, ladies and gentlemen, as we dedi- what someone else would have said or done will certainly be missed by students, of wanted done in a particular circumstance. cate the Charles Pinckney National Historic faculty, staff, and fellow administra- Site, let us remember that this place, Snee I would only say that I wish she were here Farm, is not only a memorial to a great tors. I ask that you and my fellow col- today to lend her common sense, her keen South Carolinian and a great American— leagues, join me in congratulating Mr. insight, and her uncommon energy to the that it is a living tribute to the ideals of pa- William Bolton and to wish him good current, and rather peculiar, debate on fed- triotic sacrifice and public service that made luck in his future.∑ eral support to the arts. It is a rather variable debate. Just when this nation great . . . the ideals of patriotic f sacrifice and public service of which Charles one thinks one has the sense of it, it pops up Pinckney was the personal embodiment.∑ in some other place, in some quite other WINTON M. ‘‘RED’’ BLOUNT, NANCY guise. Almost as if those who launched the f HANKS LECTURER debate in the first place aren’t really sure TRIBUTE TO WILLIAM BOLTON ∑ Mr. JEFFORDS. Mr. President, what their position is—or whether they want March 13 of this year marked Arts Ad- to be associated with it entirely. ∑ Mr. MCCONNELL. Mr. President, I vocacy Day, an annual event coordi- On any particular day, one may think the rise today to pay tribute to an out- issue is privatization, or obscenity. nated by the American Council for the Just when that notion is coming into focus standing Kentucky educator who has Arts. The day also marked the Ninth dedicated 27 years of his career to the some person never previously known to have Annual Nancy Hanks Lecture on the been a constitutional scholar is arguing Clark County School System. Mr. Wil- Arts and Public Policy. against subsidies on constitutional grounds. liam Bolton, assistant superintendent In terms of Federal support for the Which constitutional grounds? Well, one is for curriculum and instruction, is re- arts and humanities, this year is a crit- never sure, and the objection is never spelled tiring on June 30, 1995. ical one. Therefore, it is of great value out. The Constitution is right there with the He first came to the Clark County Bible as documents which are widely cited to have the opportunity to share and rarely read. School System in 1968 as a supervisor. thoughts relating to our national com- Bolton was appointed to the post of as- A whole different faction insists that fed- mitment to the arts and to determine eral assistance to the arts is really only a sistant superintendent in 1993. Before how best to move forward in ensuring hand-out for elitists whose personal pleas- coming to Clark County, he spent time that the arts continue to thrive in all ures are being subsidized by the taxpayer. as a teacher and supervisor in the corners of our great Nation. The issue, of course, is none of the above. Corbin Independent School System, Winton M. ‘‘Red’’ Blount, former We all know what is the real issue. And we will come to that presently. and as a supervisor in the Bourbon Postmaster General of the United County School System. States, member of President Nixon’s PRIVATE SUPPORT FOR THE ARTS Born and raised in Corbin, KY, Wil- But along the way, I would like to offer my Cabinet, chairman of the board of liam Bolton attended Corbin High own perspective on the matter of public sup- Blount, Inc., and dedicated spokes- School; and after graduation, he trav- port to the arts. Looking back on the names person for the arts in this country was eled to Richmond and enrolled at East- of those who have been honored on this occa- chosen for the high honor of Nancy sion in the past, one sees an extraordinary ern Kentucky University. After receiv- Hanks Lecturer. I ask that the re- assortment of abilities and accomplish- ing his degree, he decided to stay at marks made by Mr. Blount be printed ments—prominent historian; a poet; an at- EKU and pursue his masters, which he in the RECORD. torney; musician; and high White House offi- accomplished in 1959. That same year, The remarks follow: cial; a former CEO of a leading communica- he moved back to his hometown to be- tions company; a leading academic; and come supervisor of the Corbin Inde- REMARKS OF WINTON M. BLOUNT former member of Congress. pendent School System. Let me say that I come before you tonight One imagines that no one would protest Bolton has worked hard over the as an industrialist, not as an arts and cul- strongly the suggestion that the liberal view ture lobbyist. Given the current environ- has been well and amply represented here, or years to improve the quality of edu- ment, I want to be very clear about that. that the greater number of my predecessors cation in Kentucky. He served as treas- It is a great honor to have been asked by at this podium would fare better than I if urer and president of the Kentucky As- the friends of Nancy Hanks and the Amer- they were being rated by, say, Americans for sociation of Education Supervisors, he ican Council for the Arts to share some Democratic Action. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7935 It is with this in mind that I refer to my a public function, in the purest sense of the between intellectual sloth and political cow- own perspective. Privatization is as good a word. ardice on the part of those who want to place as any for a conservative businessman Had we not subsidized those artists, in that eliminate federal funding for the arts. to begin. time, who would have done so? Would we I have read and re-read the arguments, as With the collapse of the Soviet Union, and have had a hiatus in the evolution of Amer- all of you have, against federal funding, and the more general acknowledgment that there ican art in the Depression era? Perhaps. At for privatization. I have yet to find, any- are things business can do better than gov- any rate, it is difficult to imagine much pri- where, this issue defined on the merits. The ernments, the concept of privatization has vate money going to new artists for works issue, purely and simply, is whether the arts acquired the illuminating power of a sudden that would be available to the public. contribute to the commonweal. Is art an in- vision. Privatization is the new philosopher’s These programs—and, as all of you know, evitable component of the good society? If stone that will turn lead to gold. The very the Federal Art project was only one; there there are those who believe it is not, let word itself has acquired symbolic signifi- was a Federal Music Project, a Federal Thea- them say so. And let them offer us examples cance. ter Project—and they did not simply sub- of nations which have achieved greatness As it happens, I can speak with some au- sidize practicing artists, writers, composers while turning their backs on art. thority on the matter of privatization. I and playwrights. They even provided lessons. A GREAT, LOST OPPORTUNITY oversaw the partial privatization of the U.S. They taught some how to make art, and oth- One sees in all this a great, lost oppor- Post Office Department. It was quite a ers how to appreciate it. tunity. Our friends who would disestablish wrench; one day I was a Cabinet officer; the Alternatively, they may have helped a few the National Endowments for the Arts, the next day I was a has-been. Like most has- would-be artists to discover that their tal- Humanities, IMS and public broadcasting, beens, I am an expert on the matter. ents might better be employed in the field of would require zero public funding for the cardiology, or welding, or home construc- PRIVATIZATION—DOES IT WORK FOR THE ARTS? arts, are good people, men and women with tions. Was this not a beneficial thing from distinguished records of public service, some At the heart of privatization is the propo- the standpoint of civic maturation? Indeed it sition that those who receive a benefit of considerable learning. The role of the arts was. It was as essential to the synthesizing in our national life is a matter of no less should be the ones to pay for it. If you use of a distinctive national culture as the civil the mails, or phone services, or utilities, you consequence than the role of science, than war was to the synthesizing of a distinctive matters of health care, education, or the na- should pay for them. To assure that you get national form of government. The federal tional defense. A fairly met debate on the the best service at the best price; these serv- government, by broadly supporting creativ- arts and public policy could be, and ought to ices should be delivered in a free market, ity, helps to increase cultural production be, an enriching, edifying contribution to where competition will provide incentives and the skills associated with that produc- our national life. for good service at fair prices. tion. We have not seen this. Every op-ed piece, But we, as most nations, also recognized PUBLICLY FUNDED PROGRAMS MAKE ART every speech, every public objection to pub- that free market processes will not always lic funding of the arts begins and ends not work to the advantage of the nation as a DEMOCRATIC These publicly funded programs made art with a consideration of the role of the arts, whole. The national interest was served by a but with finger-pointing at what is seen as broadening of our agricultural base, and that democratic. If there is to be a debate over the utility of that objective, then let the de- the inappropriate funding of certain artists would not be achieved rapidly by the invisi- and their projects. Fair enough, as far as it ble hand which allocates capital. So we sub- bate be couched in those terms, rather than in economic terms and demagoguery. To sug- goes. But it goes nowhere. Or rather it goes sidized, for example, rural electrification, nowhere near the issue of the significance or and the taxpayer in our cities got his invest- gest that the arts should rely for their health on private funding is a form of snob- insignificance of the arts in public life. ment back through a better selection, at It does, rather to the settling of old scores. bery; it implies that those without means lower prices, on the dinner table. To getting even. Let there be no mistake are incapable of producing art, or of appre- The same rationale justified subsidizing about it, this is a partisan issue. And, more ciating it, in the first place. If we accept this the postal service for much of our still brief often than not, it is a matter of personal- proposition, we must accept its concomitant; history. The postal service preceded our Con- ities. stitution, and the founding fathers saw noth- which is an America irretrievably divided by Henry Kissinger once said that the reason ing wrong with underwriting an activity economic class. Were we to accept that, we academic politics are so sordid is because the which benefitted the private sector, seeing wouldn’t really need a Constitution, would stakes are so low. So it is in the art world, that it also gave benefit to the whole nation. we? when politics is the arbiter of taste, and the So, it is important that we not let the So there is ample precedent for using pub- allocation of public funds becomes a means terms of this debate be defined by ideology. lic moneys to underwrite activities which for expressing contempt for the values and The arts are not the pre-occupation of a nar- benefit some directly and others residually. convictions of segments of our population. row elite; they are the defining sinews of the This is not a relationship governed by rigid Let there be no mistaking the fact that in- good society, and, as they serve a public laws. There may come a time when subsidies fluential elements in the arts community good, they are properly subsidized by public can be dispensed with, and wisdom resides in bear major responsibility for the embarrass- knowing when those times have come. It re- resources. Neither should be allow ourselves to be put ing occurrence in which we now find our- sides as well in knowing when they have not selves, and for the jeopardy of public funding come, and may never come. on the defensive over this matter of privat- ization. The proper allocation of public re- for the arts. There is an organized constitu- I did my privatizing in a rather interesting ency which has opposed the principle of fed- building on Pennsylvania Avenue. Part of sources is a vitally important issue, but the argument against public funding of the arts eral support for arts and culture. They have the charm of that building was its art. It was systemically looked for projects that may publicly funded art. Not by the NEA, but by is a reduction to the absurdity which ob- scures the importance of that issue. Federal offend common good taste and tarnished the the WPA. By the Federal Art Project of the NEA with them. As long as those groups ex- Work Progress Administration, as an exam- support of the arts yields multiple public benefits, including local economic revitaliza- ists, they will manage to find one of two ple. There were murals in the public spaces projects which they can create controversy and, in retrospect, it is a pity we didn’t do tion. With arts education you get improved work force characteristics. Youth who are with—those groups actually thrive from more to pull the public in off the street to those controversies by using them to raise look at those works, becuase they belonged involved with the arts are less prone to be- come engaged with crime and violence, etc. money from their constituency. to the people, after all, and many of them There is a fine line between challenging Therefore, at a time of scarce federal dollars, were quite good. In fact there are many public taste and offending it. It is the re- policy makers should be looking to allocate buildings in this town filled with art, much sponsibility of those who administer public resources where they can generate multiple of it subsidized by the government, such as funding for the arts to assure that line is not public benefits for the same dollar. the National Archives Building with their crossed. Still, the elimination of funding is wonderful murals and many other buildings. A CALL FOR INTELLECTUAL RIGOR AND not the appropriate response to the crossing Still, I don’t think they were wasted. The CONSISTENCY of that line. money that subsidized them helped the art- What is wanted is a degree of intellectual Rather, let us be bold to say that we do not ists survive in a difficult time, while doing rigor and consistency which is now missing approve, or at least some of us don’t, of some useful work. And the chance to do his or her in this debate. And, along the way, we may of the uses to which public moneys have been work may have helped that work to improve. also get a more accurate definition of elitism put. It is true that if we pitch the argument And we don’t know whether any of that will in America, and who among us are the most on those grounds, we open ourselves to someday be taken down off those walls and privileged when it comes to the allocation of charges of cultural ignorance, of smugness, offered up someplace where it can better be public resources. even of supporting censorship. appreciated. You never know about art. It While we wait for that happy day, we may But is it preferable to hide behind specious has a way of coming back around. It con- be excused for taking a look to see what arguments about fiscal responsibility, budg- nects us; it provides the ligaments and the really is at issue here. It is not whether the etary necessity, and free market principles, ties that bind, holding the species together arts and humanities should be subsidized, than to risk being ridiculed for admitting we along the trajectory of its evolution. In that but rather how they have been subsidized. It do not see the artistic merit in the sense, among many, it can be said to perform is on this point that one discerns something Mapplethorpe photograph? S 7936 CONGRESSIONAL RECORD — SENATE June 7, 1995 It is difficult to believe that anyone hon- but we will not perish without it. Others, mission on Civil Rights, by President estly sees the harsh imperatives of econom- however, will. I take strong exception to the Nixon. ics as compatible with the refining evolution idea that the arts are the province of the Far fewer Americans are aware that of a culture. Yet the argument for privatiza- elite. I take exception to the word itself. I Arthur Flemming served almost a dec- tion depends on such a belief. If you doubt would invite our friends in the Congress on that a variant of Gresham’s law functions in any day to come to see the children, the el- ade on the Civil Service Commission, the shaping of a culture, turn on your tele- derly or the temporarily disadvantaged who under Presidents Roosevelt and Tru- vision. Left to its own devices, bad enter- come to our theatre, just one of hundreds man, and that he served with such dis- tainment drives out good entertainment. across our nation, and point out for me tinction that, today, outstanding fed- Bad art will drive out good art. which among these Americans are the elite— eral civil servants vie to be named win- FISCAL PRUDENCE SUPPORTS FEDERAL FUNDING and, more to the point, which are not. It is ners of the Arthur Flemming Award. OF THE ARTS a pleasure to watch their faces as they enter He was a member of that original en- Yet, even on its face, the claim that fiscal the theatre. But it is an astonishment to see gine for reinventing government, the prudence militates in favor of privatization their faces as they come out. They are, in their shared experience, new people, aware of Hoover Commission. is transparently faulty. In what other area of Arthur has served as president of federal funding does one federal dollar gen- things they only dreamed before, or did not dream at all. Art has done its job. Those who three important institutions of higher erate eleven more dollars from the private education: Ohio Wesleyan University, sector? And some of these dollars flow back bring them to it have done theirs. to the federal treasury. Thus, if deficit re- There has been an explosion of support for the University of Oregon, and duction is the objective, then it is obvious the arts in cities and towns all over this Macalester College. He has chaired that we should be spending more, not less, on country following the appointment of Nancy citizens’ watchdog groups in civil the arts. Hanks as the second director of the NEA. rights and health care, chaired White In government, as in most aspects of our With the federal government giving seed House conferences on aging, as well as lives, we tend to reason from the excep- money the private sector has responded with many times the support given by the endow- a Social Security Administration task tional. And it is the exceptional abuses of force on improving the Supplemental public trust in the funding, however infini- ments. To dramatically change or reduce tesimal a part of the whole, of those who of- this support would be a tragedy in many Security Income Program for low-in- fend public decency, which underpins the ar- places over this country. come older and disabled Americans. gument for eliminating all federal funding of We are, take us altogether, a rough people, Last year he was awarded the Presi- the arts. Part of what makes this both a we Americans. Bred to adversity, we know dential Medal of Freedom, and just last travesty and a tragedy, is the fact that noth- the rigors of war and want and doubt and month he stole the show with the elo- ing would be more gratifying to those few debt. Always we have stepped up to neces- quence and passion of his speech to the who express their contempt for our values sity, to the defense of our values and the bet- 1995 White House Conference on Aging. than for them to be the agents of disestab- terment of our people. Always, ultimately My own contact with Arthur though often painfully, we have rejected lishment. Flemming has been most intense in re- It does not seem to me beyond the com- those things which divided us. Always, petence of men and women of good will to though often reluctantly, we have embraced cent years, on the issue of health care. correct the abuses in the public funding of those things which united us. I am proud to point out that he serves the arts, and to retain the greater good Our edges are softened, and our nature as secretary and treasurer of the Alli- which flows from the government’s proper gentled, by the shared difficulties of perfect- ance for Health Reform, a nonpartisan role in these endeavors. It is precisely the ing our democracy. The art we create, or organization I founded several years opportunity to devise such corrections that borrow, or recreate is one expression of our ago to educate opinion leaders about is being squandered today. progress. It is one measure of our progress. the complexities of our health care sys- We do have the right and the obligation to And it is one engine of our progress, helping demand accountability from those who dis- us, in the words of Tennyson: tem. His work on this issue, through the alliance and other means, has been pense federal resources for the arts. We do ** * by slow prudence to make mild have the right to impose sanctions on those A rugged people, and thro’ soft degrees productive and prodigious. Of course, individuals and organizations which offend Subdue them to the useful and the good. Arthur is no johnny-come-lately to the public sensibilities by abusing public sup- If history is to be the judge of our achieve- health care issue. He presented to Con- port. It is reasonable to consider the merits ment as a nation, what will it say about gress in 1959 President Eisenhower’s of a cultural impact statement as part of the those who would determine that art was plan to provide coverage for older grant process. It is reasonable to demand merely an indulgence of the wealthy, and Americans, which he had drafted. Medi- corrections in the peer review process. It is should be available only to the wealthy; that to these corrections that we should be di- care’s enactment a few short years the whole people did not need it, and ought recting our attention now. Jane Alexander later was anything but coincidental. to be denied it by reason of their means? has affectively addressed many of these is- Health care is an important compo- My family, along with so many others over sues. She is doing an outstanding job as the nent, as well, in the work of the Save the years, worked to build this nation. Not director of the National Endowment for the Our Security Coalition, which Arthur some of it, but all of it. I served, along with Arts, as is Sheldon Hackney as director of so many others over the years, to defend it. chairs. the NEH. Mr. President, Arthur Flemming is a The history of holy wars is strewn with the Not some of it, but all of it. I was raised to believe and, in my final years, continue to person with enormous talent and dedi- bodies of the innocent. We may eliminate cation, and the energy to exhaust all of funding for the arts in order to avenge our- embrace, the proposition that a nation ad- selves on the self-indulgent and the contemp- vances and grows strong by allocating its op- his younger colleagues as they try to tuous few who caper on the edges of the arts portunities not to some of its people, but to keep up with him. He is a man for community, and we may take whatever sat- all of them. I believe I am in good company. whom the word ‘‘peripatetic’’ is an un- isfaction is to be gained from that. Thank you.∑ derstatement. I suspect that his won- ART IS NOT THE EXCLUSIVE PROVINCE OF THE f derful and talented wife, Bernice, has WEALTHY long since given up trying to keep ARTHUR FLEMMING: CRUSADER But along the way, we will deny millions of track of where her husband’s travel our people affordable access to the pleasures AT 90 schedule might take him on a given of the arts. We will affirm that art is, indeed, ∑ Mr. ROCKEFELLER. Mr. President, I day. Of course, that has given her the the exclusive province of the wealthy. We rise to bring to the attention of my time to write the definitive biography will announce that the value of art is a func- colleagues an upcoming occasion for of her husband of 60 years, ‘‘Crusader tion of what those who can pay and will pay for it; and not a function of its ability to in- great celebration: the 90th birthday of at Large.’’ struct, and to exalt, and to leaven, and to Arthur Sherwood Flemming on Mon- Arthur Flemming’s integrity is un- unify a people. day, June 12. surpassed, and his commitment to so- Consider the relish of these new saviours of Arthur Flemming’s service to Amer- cial justice is unparalleled. When too the public welfare if they could crucify Van ica, to all of humanity, stretches back many younger Americans have lost Gogh, or even Shakespeare, or Henry Moore, farther than most of us can imagine. their dream, Arthur Flemming seizes— and try to consider the emptiness in our Most of us are aware that he served as and pursues vigorously—a vision of an souls if artists like this had not been per- mitted to live their lives. Secretary of Health, Education and America with a shared sense of commu- The Alabama Shakespeare Festival is a Welfare under President Eisenhower, nity, a land where we pool resources of beneficiary of the National Endowment for and was appointed to several positions, the private and public sectors to help the Arts. We are grateful for that support, including Chairman of the U.S. Com- one another deal with what Franklin June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7937 Roosevelt called the ‘‘hazards and vi- The current leaders of Congress propose to fore the Senate, I now ask unanimous cissitudes of life.’’ take funds away from social insurance, par- consent that the Senate stand in recess Quite simply, this is someone for ticularly Medicare. In so doing, they are pro- under the previous order following the posing not a new ‘‘contract with America’’ whom I have the deepest admiration remarks of Senator SANTORUM. but to break a contract that has existed for and affection. many years. The PRESIDING OFFICER. Without When Arthur Flemming’s 90th birth- They also propose to establish block grants objection, it is so ordered. day occurs next Monday, Mr. Presi- for existing programs for the middle class, f dent, he will no doubt pause only brief- the poor and those who suffer, which over a ly to allow some of his friends and ad- period of five years will provide fewer quali- APPOINTMENT OF CONFEREES— mirers to mark the occasion—and then fied persons with federal funds. Likewise, HOUSE CONCURRENT RESOLU- press on. There is, in Arthur they would eliminate many standards de- TION 67 Flemming’s view, so much yet to be signed to ensure quality of services. The PRESIDING OFFICER. Pursuant done. Millions of our people are living below the poverty line. Millions more will join them if to the order of May 25, 1995, the Chair I believe that his vision and fortitude the proposals made by the leaders of Con- appoints the following conferees on are captured quite accurately in an gress are adopted. Under our system of part- House Concurrent Resolution 67: Mr. opinion article he authored just last nership between local, state and national DOMENICI, Mr. GRASSLEY, Mr. NICKLES, month for the Los Angeles Times, and communities, we cannot weaken the na- Mr. LOTT, Mr. BROWN, Mr. GORTON, Mr. I ask that it be printed in the RECORD. tional community without weakening state GREGG, Mr. EXON, Mr. HOLLINGS, Mr. The article follows: and local communities. Many states will not JOHNSTON, Mr. LAUTENBERG, and Mr. replace lost federal funds. [From the Los Angeles Times, May 2, 1995] SIMON. We can, and should, travel another road. SAVE OUR NATIONAL COMMUNITY The PRESIDING OFFICER. Does the We are the richest nation in the world. All of (By Arthur S. Fleming) our economic studies reveal that the rich are Senator from Pennsylvania seek rec- The ‘‘contract with America’’ constitutes a getting richer and the poor poorer. We can, ognition? massive effort to break up the national com- and should, reverse that trend. We can adjust Mr. SANTORUM addressed the Chair. munity we have developed over the past 60 our tax code. We can raise the top rates for The PRESIDING OFFICER. The Sen- years. individuals and corporations, eliminate some ator is recognized. The House Speaker dramatically under- of the significant corporate tax loopholes Mr. SANTORUM. I thank the Chair. lined this objective when he said, referring and raise new funds over five years for na- f to the major social programs the national tional community programs. This can be community has undertaken: combined with cost savings growing out of MISSING BUDGET RESOLUTION ‘‘They are a disaster. They ruin the poor. constructive reductions in the programs of They create a culture of poverty and a cul- the national community resulting from over- Mr. SANTORUM. Mr. President, I re- ture of violence which is destructive to this laps, unnecessary rules and eliminating turn to the floor after a brief hiatus as civilization, and they have to be thoroughly fraud and waste. a result of the Memorial Day recess to replaced from the ground up. We need to sim- These combined resources should be used continue the vigil of waiting for the ply reach out, erase the slate and start for a disciplined program that can bring President to come forward with his 1996 over.’’ about a gradual reduction in the deficit each When I was a reporter in 1933 and 1934 for and beyond budget resolution explain- year, plus a stronger national community ing to the Congress and to the Amer- what was the predecessor to U.S. News and that builds on the strength and accomplish- World Report, I had a front-row seat observ- ments of the past 60 years, instead of re- ican public how he believes we should ing Franklin Roosevelt challenge the na- treating to a position comparable with that get to a balanced budget by the year tional community to pool the resources of of the 1930s. 2002 or 2000 or 2010 or whatever date the public and private sectors to help one an- f that he chooses. other deal with the hazards and vicissitudes As of yet, while the President has of life. He believed that the national commu- coyly discussed with the reporters in nity should place the concept of ‘‘social secu- ORDERS FOR THURSDAY, JUNE 8, rity’’ alongside ‘‘national security.’’ 1995 New Hampshire and a little cat and I say the national community, for the six Mr. PRESSLER. Mr. President, I ask mouse with Larry King a couple of years I served under President Roosevelt as unanimous consent that when the Sen- nights ago on ‘‘Larry King Live,’’ he a member of the U.S. Civil Service Commis- ate completes its business today, it has steadfastly refused to come for- sion, respond to his challenge by authorizing ward with any definitive proposal, or the executive branch to launch 10 programs stand in recess until the hour of 9:30 a.m. on Thursday, June 8, 1995; that even a definitive announcement, of under the umbrella of Social Security. These whether he is going to come forward included social insurance for retirees, Aid to following the prayer, the Journal of with a proposal on how to balance the Families With Dependent Children, aid to proceedings be deemed approved to the aged, blind and disabled, unemployment date, the time of the two leaders be re- Federal budget. So I will put up the numbers on the compensation, public health and vocational served for their use later in the day, chart tonight which indicate the num- rehabilitation. and the Senate then immediately re- I have seen administrations and Congresses ber of days with no proposal to balance sume consideration of S. 652, the tele- since then reaffirm the social role of the na- the budget from President Clinton. We communications bill. tional community in partnership with state have now reached day 20 of this visual, The PRESIDING OFFICER. Without and local communities. not an unmomentous day on day 20. As a member of President Eisenhower’s objection, it is so ordered. Several things occurred today that Cabinet for both terms, I participated in de- f velopments that illustrate his commitment provides some light on what the think- to strengthening the national community: PROGRAM ing of the White House is not only on the creation of the Department of Health, this issue but his lack of leadership on Education and Welfare, the strengthening of Mr. PRESSLER. Mr. President, all a variety of issues that have come to Social Security, the addition of the disabled Members should be aware that at 9:30 his attention that are being debated to our social-insurance programs and the a.m. tomorrow morning the new Sec- here in the U.S. Congress. adoption of the National Defense Education retary of the Senate, Kelly Johnston, I want to refer first to what happened Act. will be formally sworn in on the Senate on Larry King the other night. There I’ve had the opportunity of working with floor. all subsequent presidents up to the 1980s; all was a commercial run by the Repub- have contributed to strengthening the na- Also, Senators should be on notice lican National Committee during the tional community. President Clinton has that votes can be expected to occur Larry King anniversary show that re- been, and is, making a vigorous contribution throughout the day and into the minded the President that this was to the same objective. The drive for univer- evening on amendments to the pending also an anniversary of a comment that sal coverage of all types of health care is one telecommunications bill. he made during the 1992 campaign that example. f he promised—that he promised—that Never in all these years had I witnessed a he would propose a 5-year balanced national political party deliberately develop ORDER FOR RECESS an agenda such as the ‘‘contract with Amer- budget. Larry King asked him about ica’’ with an avowed purpose of weakening Mr. PRESSLER. Mr. President, if that, I think, shortly after the com- the role of the national community. there is no further business to come be- mercial aired, and the President gave S 7938 CONGRESSIONAL RECORD — SENATE June 7, 1995 the response that, well, he was think- spending on those projects and appro- Is he leading on this issue to help win ing about it, or he was going to look at priated the money to spend? Last him the election? No. the Republican plans and try to deal year’s Democratic Congress and last I may have to have multiple charts with that but sort of dodged around the year’s President. So this President, about all these issues on which the question. who signed off on these bills, who ap- President simply is just not participat- The Washington Times asked White proved of the pork now is vetoing a bill ing. I do not know how many easels House Press Secretary Mike McCurry because we did not take the pork out. they have here, but hopefully they about this exchange on the Larry King I think it was said best by Senator have enough easels to hold up all the show. I will read the exchange between HATFIELD on the floor just before the different charts. I had to have more the Washington Times reporter and recess when he got up, again in a bipar- numbers made about just where the White House Press Secretary Mike tisan display—the bill passed in a bi- President simply is not going to par- McCurry: partisan fashion with over 60 votes—he ticipate in the process. Question, Washington Times: ‘‘Where said that in his career as a chairman of I am not talking about whether to does President Clinton stand on writ- the Appropriations Committee, span- name the national flower the rose or ing his own budget now?’’ ning six Presidents—six administra- something here. I am talking about Answer: ‘‘Where does he stand on tions—it is the first time that a Presi- welfare reform, balancing the budget, writing it? As he indicated last night dent has not assigned an individual to cutting spending—pretty fundamental in his television interview, he’s pre- sit in the conference committee where issues to the domestic debate in this pared to contribute his ideas to the the final bill is being drafted, to sit in country—and he is AWOL, absent with- budget process at an appropriate the conference committee and work out leadership. time.’’ with the House Republicans and Demo- What are some of his friends in the Washington Times, question: ‘‘What crats and Senate Republicans and media saying? Democrats, conferees on a final bill does that mean?’’ Well, on welfare, Brit Hume said, ‘‘He that everyone could agree with. White House Press Secretary Michael no longer has a welfare reform plan of They sent no representative. They McCurry, answer: ‘‘It means we’re his own, but would like to shape what had no input. They sent one letter, ducking the question for now.’’ Congress produces—and doesn’t like ‘‘It means we’re ducking the question asked for one change. The change was what he sees.’’ for now.’’ made. The bill was reported out bipar- NPR’s Liaison said, ‘‘Since President Twenty days after the Republicans tisan, it comes to the floor and the Clinton’s own welfare reform plan died have put forward and now passed their President decides he is going to veto it in Congress last year, he’s made only budget in the Senate, even more so in without any excuses, and now has made intermittent attempts to influence the the House, while we are debating in up some trumped up excuses because of debate.’’ conference, ‘‘we’re ducking the ques- spending that he signed now should be tion for now.’’ The President of the taken out and he wants to spend more His friends on the editorial staff at United States, the leader of the free money in about $800 million worth of the Baltimore Sun said, ‘‘Clinton has a world, ‘‘we’re ducking the question for programs. ‘long interest’ in welfare issues.’’ now.’’ On the most fundamental issue Where was he in the conference com- They are saying this lamentingly. that we are debating and dealing with mittee? Where was the leadership that They say he ‘‘knows more than any in America today, ‘‘we’re ducking the is delaying disaster relief for Okla- previous President, and yet, in mid- question for now.’’ homa City and for California? Where is term, he has become almost irrelevant This should come as no surprise as a this President when it comes to chart- as Congress speeds toward changes result of some of the actions the Presi- ing the course? * * *’’ dent has taken over the last couple of I will tell you where he is. I will ‘‘Almost irrelevant.’’ Does it ring a days on a couple of other issues. move to yesterday at the National bell? Almost irrelevant to the fun- Today he trotted out the first veto. Governors’ Conference where the Presi- damental issue that helped him get Now, was this veto on a bill that was a dent gets up and talks about welfare elected—welfare. Irrelevant to provid- dramatic change in course of this coun- reform. Now, remember, welfare reform ing any source of suggestions or vision try that was threatening the very during the 1992 campaign was poten- or leadership in moving forward on a underpinnings of our society that the tially the issue that put Bill Clinton balanced budget. The President of the Congress and this Democratic adminis- over the top. He told the American United States of America, the leader of tration has constructed? No. public he wanted to end welfare as we the free world. Was this a bill that was a partisan know it and proved that he was not Mi- We can do better. We can do better. I issue that passed on strictly partisan chael Dukakis or was not Walter Mon- am hopeful that as we continue this lines that was part of the Contract dale, that he was a new Democrat, be- visual—as I will between now and the With America? No, this was a rescis- cause he was going to stand up to the end of September—that we can encour- sions bill, which also provided funding old welfare state mentality of the age the President to engage, to under- for disaster relief for Oklahoma City Democratic Party. stand that the country wants the exec- and California earthquakes, but pro- And what has he done? Well, he went utive branch, the President and the vided reductions in funding in a variety to the National Governors’ Association Congress, to work together to solve the of other programs. And the President, and said: problems that they were elected to $16 billion in spending cuts, vetoed it, The Republican plans are a way to cut change Washington, to move this coun- because it just cut too much and be- spending on the poor and balance the budget try forward, to set priorities, and to cause it spent too much money on in 7 years and give a big tax cut largely ben- create opportunities for our citizens. In efiting upper-income people. People ought to the measures that I talked about, they pork. just say that flat out because that’s what’s Now this is a very interesting point. really underneath this. are all fundamental to the revolution that is occurring in this country and, This was a rescissions bill. A rescis- Has the President offered a welfare hopefully, here in Washington, DC. sions bill is a bill that says money that reform plan this year? No. has been appropriated will not be Did the President offer a welfare re- I can only ask that the President spent. Now, I do not know how in a bill form plan last year? Yes. stop me from coming back, and that he which says that money that was appro- Did the Democratic Congress give it comes forward and quits playing cat priated will not be spent will spend a hearing? No. and mouse with the press and proposes more money, because it does not. None Did anyone take it seriously? No. a budget resolution, comes forward of these porkbarrel projects is actually Was it a political document that vir- with a welfare reform plan, with spend- added in the rescissions bill. It is just tually changed nothing in the system? ing cuts, to get the ball rolling right that they were not included to be Yes. away and begin to lead America into taken out in the rescissions bill. And now he is out taking shots at the next generation and the next mil- And, by the way, who passed these what we are doing. Is he offering an al- lennium. porkbarrel projects and authorized the ternative now? No. Mr. President, I yield the floor. June 7, 1995 CONGRESSIONAL RECORD — SENATE S 7939 RECESS UNTIL 9:30 A.M. NOMINATIONS MARILYN MOON, OF MARYLAND, TO BE MEMBER OF THE BOARD OF TRUSTEES OF THE FEDERAL HOSPITAL TOMORROW INSURANCE TRUST FUND FOR A TERM OF 4 YEARS, VICE Executive nominations received by STANFORD G. ROSS, TERM EXPIRED. The PRESIDING OFFICER. Under the Senate June 7, 1995: FEDERAL SUPPLEMENTARY MEDICAL INSURANCE the previous order, the Senate stands DEPARTMENT OF HEALTH AND HUMAN SERVICES TRUST FUND in recess until 9:30 a.m. tomorrow, JOHN JOSEPH CALLAHAN, OF MASSACHUSETTS, TO BE STEPHEN G. KELLISON, OF TEXAS, TO BE A MEMBER OF June 8, 1995. AN ASSISTANT SECRETARY OF HEALTH AND HUMAN THE BOARD OF TRUSTEES OF THE FEDERAL SUPPLE- SERVICES, VICE KENNETH S. APFEL, RESIGNED. MENTARY MEDICAL INSURANCE TRUST FUND FOR A Thereupon, the Senate, at 9:42 p.m., TERM OF 4 YEARS, VICE DAVID M. WALKER, TERM EX- FEDERAL HOSPITAL INSURANCE TRUST FUND PIRED. recessed until Thursday, June 8, 1995, MARILYN MOON, OF MARYLAND, TO BE A MEMBER OF STEPHEN G. KELLISON, OF TEXAS, TO BE A MEMBER OF THE BOARD OF TRUSTEES OF THE FEDERAL SUPPLE- at 9:30 a.m. THE BOARD OF TRUSTEES OF THE FEDERAL HOSPITAL MENTARY MEDICAL INSURANCE TRUST FUND FOR A INSURANCE TRUST FUND FOR A TERM OF 4 YEARS, VICE TERM OF 4 YEARS, VICE STANFORD G. ROSS, TERM EX- DAVID M. WALKER, TERM EXPIRED. PIRED.