E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 105 CONGRESS, FIRST SESSION

Vol. 143 WASHINGTON, THURSDAY, SEPTEMBER 4, 1997 No. 115 Senate The Senate met at 9:30 a.m. and was Senate session each day just to hear in the morning. We have not set a called to order by the President pro the Chaplain’s prayers. I wish to ex- time. It could be as early as 8:30 to ac- tempore [Mr. THURMOND]. press, again, my sincere appreciation commodate Senators’ schedules, on the for the beauty and for the meaningful- cloture motion on the Food and Drug PRAYER ness of those prayers. It gives us the Administration reform bill. We need to The Chaplain, Dr. Lloyd John right frame of mind to begin a day’s get this bill done. It was reported out Ogilvie, offered the following prayer: work together for the American people. overwhelmingly from the committee, O God, You have prophesied through f and it has broad bipartisan support. Isaiah, ‘‘You will keep him in perfect Unfortunately, this is even a cloture peace whose mind is stayed on You’’— SCHEDULE vote on the motion to proceed. Isaiah 26:3; and promised through Mr. LOTT. Mr. President, the Senate The Senator from Massachusetts, Jesus, ‘‘Peace I give to you, not as the will immediately resume consideration Senator KENNEDY, has objections to world gives do I give to you. Let not of amendment No. 1077, offered by the this FDA reform. I thought we had your heart be troubled, neither let it be Senator from Indiana, Senator COATS, them worked out two or three times at afraid.’’—John 14:27. who is here and prepared to go. This is the end of the session, before the Au- That is the quality of peace we need an amendment, of course, to S. 1061, gust recess, and then it seemed to get to do our work creatively today. Often the Labor, HHS appropriations bill. It away from us. the conflict and tension present in our is hoped that an agreement can be I hope we can get all the Senators to lives threaten to rob us of a calm and reached this morning to conduct a vote work together and work out agree- restful mind and heart. It is so easy to on the Coats amendment by mid-morn- ments so we can move this very impor- catch the emotional virus of frustra- ing, hopefully within the hour. tant legislation. It is very important to tion and exasperation. Help us to re- In addition, Members can anticipate the health and general quality of life of member that Your peace is a healing additional votes on amendments cur- all Americans. This is an agency that antidote to anxiety that can survive in rently pending to the Labor, HHS ap- has been bureaucratic, it has been any circumstance. propriations bill and other amend- slow, it has not done its work where it Provider of peace, give us the peace ments expected to be offered to the bill should be doing its work, and it has of a cleansed heart, a free and forgiving throughout the day’s session. I under- tried to force itself into areas where it heart, a caring and compassionate stand a couple of amendments have really doesn’t belong. This is long over- heart. Right now, may Your deep peace been offered and set aside. I know there due. flow into us, calming our impatience are some other amendments pending. I, again, am interested in getting it and flowing from us to others. As always, Members will be notified of done. But if we have to, we will have Especially, we pray for Your peace exactly what time the votes will be more than one vote or votes on cloture. for the women and men of this Senate. scheduled. We will work with all Mem- We need to go ahead and complete this. May Your profound inner peace free bers to make sure they have an oppor- I think, once we can get it to debate them to think clearly and speak deci- tunity to offer their amendments and and vote, it will not take very long. If sively while maintaining the bond of debate them, and then, of course, we we can work out something, by the peace with one another. Through our will have votes, if necessary. way, on the bill, before the time, then Lord and Saviour. Amen. I ask, again, that all Senators co- we would not have to have a cloture f operate with our managers on both vote tomorrow. I would be glad to work sides of the aisle. They are trying to with the leaders on the legislation, RECOGNITION OF THE MAJORITY move this very important legislation Democratic leaders, to decide on a LEADER that means so much to our country. time when it would be debated and The PRESIDENT pro tempore. The And, as is quite often the case when we when that would be scheduled, either able majority leader, Senator LOTT of return from a period back in our re- later on this week, or Monday or Tues- Mississippi, is recognized. spective States, we have not gotten off day. We will work together on that. Mr. LOTT. Thank you very much, to a fast start. We hope to complete f Mr. President. this very important appropriations bill CONTESTED LOUISIANA ELECTION f today. We do have some problems and some delays. I would like to address Mr. LOTT. Mr. President, the other THE CHAPLAIN’S PRAYER those just for a moment. issue I want to address is some of the Mr. LOTT. Mr. President, it is worth First, with regard to tomorrow, it is problems we have today. When we have coming to the opening moments of the still my intent to have a cloture vote something brought to the Senate that

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

S8765 S8766 CONGRESSIONAL RECORD — SENATE September 4, 1997 we have to look into, and, in this case, I want to do that. But if we are going here in the Senate. It is not December, I am referring to the election in Lou- to start playing this game of threats it is not January, February, March, or isiana for the Senate last year, where and delays and obstruction and block- April; it is September, and we have a allegations of fraud have been made, it ing of committee meetings and that Member of the Senate who is still seat- is incumbent upon us to thoroughly sort of thing, then I have no option but ed in this Senate, seeing activities of a check those allegations out. Unfortu- to put the time on the back end. committee on an investigation in nately, the committee charged with ju- So, I don’t think that is necessary. which allegations of fraud were made. risdiction in this area has not been We have had a good feeling here in the And I might say that the committee able to work together in a bipartisan Senate for the last 2 months. We hired a couple of investigators, law- way to get it done and get the work worked together in a bipartisan way, yers—a Republican and a Democrat— completed. I want us to reach that even when we disagreed. I think we can and the first report they gave to the point sooner, not later, and I have continue to do that, and I certainly committee was to say there is nothing worked across the aisle to try to come will try to continue to keep my word there. But that was not enough. up with a process to make that happen. and work with the Senators on this I am not going to go into what is I thought we had it worked out, again, schedule. That is one of the reasons going on in the committee. I don’t the last week in July, and at the last why we might have to vote early in the think we need to have that discussion. minute that fell apart. morning, because some Senators on But, you know, it is September. It’s So, we have to do our job. I am not both sides of the aisle want to leave. September, and we have a Member of going to come to the floor of the Sen- That is fine. We want to help them. the U.S. Senate who is still held in ate, look Senators in the eye, and the But we also have work to do. limbo, here, on this issue of investiga- American people, and say, ‘‘We So, I just wanted to point out what is tion. I saw yesterday newspaper after checked it out thoroughly, there is going on. I don’t have any problem newspaper after newspaper in Louisi- nothing here,’’ or, ‘‘There is a real with doing it this way. I just want ev- ana, the editorials and stories say, problem here,’’ until all the work that erybody to understand I am not doing ‘‘There is nothing here. Let this go. needs to be done has been done. I can’t it to cause confusion or delay. I have Stop this investigation.’’ do that. no option. So, you know, the concern that some Now we are being told, well, if you The Environment and Public Works exhibit on the floor of the Senate about continue it, we are going to have Committee will meet today. We will this issue is not without foundation. delays and obstruction by the Demo- continue to work on the Labor, HHS The Senator from Mississippi points crats. What are they delaying and ob- appropriations bill. I believe that we out that he is concerned about delay. I structing? The Labor, Health and can and should get it completed today don’t think any of us want a delay. Human Services appropriations bill, or tomorrow. But we will have success Mr. LOTT. Mr. President, if I could the Superfund reform. Here is a pro- on this bill, and we will do it in a bi- reclaim my time to respond on that, I gram, Superfund, that is really the partisan way, and we will do it, hope- think everybody has indicated we want laughingstock of America. You care fully, by the end of this week or the to continue to move the appropriations about the environment? Who among us first of next week. bills. would not care that the program is not So I just wanted to advise Senators Mr. DORGAN. That’s correct. working. Lawyers have a grand time. what the schedule looks like for today Mr. LOTT. But if an objection is They are making money. But we are and in the morning. I will talk to my heard today for the Environment and not cleaning up hazardous sites. We are counterpart on the other side of the Public Works Committee to meet in not cleaning up hazardous waste sites. aisle. I will be glad to work with Sen- session this afternoon and work on So the Committee on Environment ators on FDA reform and Superfund re- marking up a very important environ- and Public Works wants to meet today form and on Labor, HHS, to see if we mental bill to clean up hazardous to mark up the Superfund bill, and I can find reasonable accommodation, waste sites, that interrupts the process am being told, ‘‘Well, we are not going and we will also continue to pursue an of the appropriations bill. That com- to let you meet; we are not going to let opportunity to recommend to the Sen- mittee should meet. In my opinion, it that committee meet, in a bipartisan ate what action, if any, or none, should should have already met on this issue, way, and mark this bill up.’’ And, be taken with regard to the Louisiana and had votes and brought it to a con- therefore, I have no option but to say, election. clusion. So, if an objection is heard to OK, if you are going to do that, then we Mr. DORGAN. Will the Senator yield committees meeting, I have no option will go out this afternoon. for a question? but to go out for a period of time to If objection is made to the Environ- Mr. LOTT. I’d be glad to yield. allow the committees to do their work. ment and Public Works Committee Mr. DORGAN. I listened with interest That’s a very important part of our meeting this afternoon to mark up to the Senator from Mississippi, the process here. Superfund reform, which would clean majority leader. I think it is important So the effect is that you are delaying up hazardous waste sites in my State to point out that there is no intention the appropriations bill. But perhaps ob- and probably every State in America, if that I am aware of on this floor to in- jection would not be heard, we that is going to be blocked, then the terrupt the business of appropriations wouldn’t have to stop for 2 hours this Senate will go out at 2 o’clock, we will bills. The principal business in this afternoon so that a very important be out until 4 o’clock so the committee month of September is to finish, and committee could meet. I have indi- can meet and do its work, and we will work hard on, the appropriations bills; cated to the Senator and to Senator tack that time onto tonight. We are by the end of September, have them DASCHLE that we hope that would not not going to have this arrangement down to the White House, so the Presi- be necessary. But, you know, the effect where the other side tries to dictate dent can sign them and avoid a con- is to delay the Labor, Health and the schedule in committee meetings. tinuing resolution. So we want to do Human Services appropriations bill. We are not going to do that. that, and there is no objection that I With regard to the Louisiana elec- I have worked very hard to keep my am aware of, made by anyone, which tion, yes, it is September. It need not word to the Senate and to the Sen- would interrupt in any way the con- be. This matter could have been con- ators. When I say we are going to meet duct of business on appropriations cluded, completed, weeks or months and have votes, we try to do that. bills. ago, but from the beginning, the Demo- When we agree we are not going to The Senator from Mississippi, the crats on the committee would not co- meet and have votes, we try to honor majority leader, knows there is great operate, would not work with us. They that. We agreed we would be out in the concern about the issue of a contested didn’t actually—— third week in October for the Columbus election in Louisiana, by which a Mem- Mr. DORGAN. Well—— Day period. I am going to keep my ber of the Senate was seated without Mr. LOTT. Wait, I have the floor and word on that. I tried to keep in mind prejudice and an investigation was I will yield when you ask me to. I am the personal lives, and opportunities to begun. The conduct of that investiga- on that committee, and all I ever said have dinner with families and children. tion causes some significant concern was find out what happened, was there September 4, 1997 CONGRESSIONAL RECORD — SENATE S8767 apparent fraud or not. As a matter of ‘‘When will investigation end? Voters have, and we can complete our work on fact, investigators never went into might not be happy with prolonged de- appropriations and on Superfund and Louisiana until July. Shortly there- bate.’’ on fast track and on ISTEA, and then after, in something I have not seen in ‘‘Poll: State’s voters believe return to our constituency. 25 years in Congress, the Democrats Landrieu probe unnecessary.’’ Mr. DORGAN. If the Senator will walked out of the committee’s proceed- ‘‘Enough’s enough,’’ an editorial in yield for one more comment, the issue ings and said, ‘‘We won’t participate.’’ the Times-Picayune. of delay applies especially and indeli- In investigation after investigation ‘‘Senate investigation will hurt Lou- bly to the issue of the investigation in over the years in the House and the isiana.’’ Louisiana, and delay, it seems to me, ‘‘No evidence of widespread fraud.’’ continued delay is unfair to Senator Senate, I never saw the Republicans or It is September, and there is no dem- Democrats, in any other instance, say, LANDRIEU and unfair to the people of onstration of any kind that I am aware Louisiana. It is not our intent to cause ‘‘We’re not going to participate.’’ of that any irregularities existed in What happened after the investiga- problems for the Senator from Mis- that election that would in any way sissippi in the scheduling of the Sen- tors’ being down there for like 2 weeks, overturn the results of the election, the Justice Department withdrew the ate. I understand it is not easy to be in- and yet we still have what I think is a volved in running this place. So it is FBI agents. It couldn’t come to a con- concerted effort by some to drag this not our intention to cause those kinds clusion. The week before we went out, out and drag it out and drag it out. of problems. That is especially why—— I talked with Senators on the Demo- Mr. LOTT. Yes. Mr. LOTT. Let me just say, it is not cratic side of the aisle, and we worked Mr. DORGAN. Frankly, a lot are not easy, but it is a great pleasure. I’m en- out an arrangement that I thought ev- happy about that. joying it a lot. erybody was satisfied with for a special Mr. LOTT. Yes, there has been an ef- Mr. DORGAN. You actually act like allocation of money to complete that fort that has caused it to be delayed you are enjoying it. We have done a work and in time to complete that and dragged out. lot. This has been a pretty productive work. At the last minute, it was jerked Mr. DORGAN. I understand who the year, but at least a good number on our away. Senator from Mississippi says is at side say with respect to delay, one of What has happened is, I think Sen- fault. I only know it is September. The the delays that occurs now in the Sen- ator WARNER is going to make an an- first two lawyers who were hired, a ate is the delay on this investigation nouncement today, I believe, about a Democrat and Republican, testified in and the end of the investigation, and schedule he has in mind. There are sev- front of the committee that hired them the investigation has found nothing on eral boxes of documents that have been and said there is nothing here. The ma- the issue of this contested Senate elec- turned over now to the committee as a jority leader said that is not satisfac- tion. We hope that we will get beyond result of the subpoena duces tecum to tory. that and get on with the business and get evidence with regard to gaming in- Mr. LOTT. In the areas they had not have that hanging over the head of terests and involvement in the elec- looked into. There had been nothing Senator LANDRIEU or the people of Lou- tion. By the way, I think they have done with regard to the gaming activi- isiana. every right to support a referendum. ties and the so-called life organization So our point is this: Let’s continue The only question is was it in any way in New Orleans. with the Senate business. Let’s pass used improperly or illegally. I don’t Mr. DORGAN. My point is, if he will these appropriations bills, get them to know the answer to that. allow me one more minute, my point is the President, get them signed. That is Once those documents are reviewed, I that I think it is unfair to the Senator the regular order. Let’s also resolve understand the committee is going to from Louisiana. I think it is unfair to this issue with the Louisiana election. meet, hear from the investigators, hear the people of Louisiana. This ought to It is now September. It is not March or what the evidence is, if any, that they get wrapped up. April or July. It is September, and it is Our point is this: There is no inten- find in these documents and, at some long past the time when that should tion to interrupt the business of the point, the committee will proceed to have been resolved. Senate, which is now to pass these ap- action. I don’t know exactly what date Mr. LOTT. Mr. President, I ask unan- propriations bills in the month of Sep- that would be. imous consent, at the end of my re- tember. We have to do that. There is no It is not my intention to drag this marks, to have printed in the RECORD one out here objecting to the work on out indefinitely. But I have to be able the history of this type of investiga- those appropriations bill. tion, these type of allegations and the to come here and say to Members on Mr. LOTT. But you are going to ob- both sides of the aisle, ‘‘We’ve done our length of time they have gone on. ject to a committee meeting, which The PRESIDING OFFICER (Mr. work. Even though we haven’t had co- makes it necessary for the work of the BROWNBACK). Without objection, it is so operation, we have reached a conclu- Appropriations Committee to be inter- ordered. sion as best we can, and here it is.’’ I rupted. (See exhibit 1.) have told the Senators on both sides of Mr. DORGAN. As the Senator knows, Mr. LOTT. Mr. President, as a matter the aisle over the past year and 3 the regular order of the Senate is to of fact, most of them, many of them, months how we deal with you. I am not have no committee meetings when the have gone on for weeks and months, in- interested in causing undue delay or Senate is in session. cluding some Senators who serve here difficulty for any Senator here with or Mr. LOTT. But it has been the com- in the Senate right now, and they pro- without prejudice. But I must be able, mon practice for committees to be able ceeded in the normal way. It is not my along with other Senators, to say that to meet. All I am saying to you is, intention to delay this investigation we did our work, we fulfilled our con- work with us and we can bring this to and this conclusion. It is my intention stitutional responsibility, and then conclusion. But I am also saying that if to make sure that we have investigated make a recommendation. I will be glad you start interrupting the business of all of the alleged fraud and abuses of to yield further if you like. the Senate or committees, it will not election laws and illegal acts. When we Mr. DORGAN. If the Senator will be without action in return. We need to have done that, I will press aggres- yield, he clearly should and will not be work together. We need to do these sively for a conclusion. But until that surprised at concern expressed now in things privately and communication in is done, with the cooperation of the September about this issue. Those con- the type of way we have done over the Democrats, it will not end. cerns were registered in July and early last 2 months. But if you start playing I yield the floor, Mr. President. August, and the Senator understands games with committees meeting on im- EXHIBIT 1 that we have a Senator from Louisiana portant issues like Superfund and, let CONTESTED ELECTION CASES whose election is still being contested, me tell you, fast track, it will have an (Prepared by the Office of Senate Legal and it is now September. I just want effect. Every action produces a reac- Counsel, December 1996) to, if I might, just show you some of tion. I. INTRODUCTION what is happening in Louisiana in the So let’s not start down that trail. The Constitution provides that ‘‘Each press: Let’s continue to work together as we House shall be the Judge of the Elections, S8768 CONGRESSIONAL RECORD — SENATE September 4, 1997 Returns, and Qualifications of its own Mem- 2. Durkin v. Wyman (1974–75) tion. The second investigation took almost a bers. . . .’’ 1 The Senate has always been In the 1975 contested election case of year and involved the testimony of 180 wit- ‘‘jealous of [this] constitutional right.’’ 2 Durkin v. Wyman, the Senate, rather than nesses. In May 1912, the special committee fi- Courts have consistently recognized that declare the winner as it had done in Steck v. nally reported to the Senate that it could congressional actions in this area present Brookhart, simply found the seat vacant. find no evidence linking Lorimer to the al- nonjusticiable political questions beyond ju- The initial count of the November 1974 New leged corruption.10 A minority report, how- dicial review.3 In Reed et al. v. The County Hampshire Senate election showed Repub- ever, cited evidence that seven Illinois legis- Comm’rs of Delaware County, Penn., the Su- lican Louis Wyman ahead of Democrat John lators had been bribed to vote for Lorimer.11 preme Court acknowledged that the Senate Durkin by 355 votes out of more than 200,000 Moreover, the minority believed that there is the final judge of the elections of its mem- cast. A subsequent state recount determined was significant evidence linking Lorimer to bers and held: ‘‘[The Senate] is the judge of that Durkin had won the election by ten the bribes.12 The minority argued that the the elections, returns and qualifications of votes, and on November 27, 1974 the governor evidence was sufficient for the Senate to rule its members. . . . It is fully empowered, and issued Durkin a ‘‘conditional’’ certificate of that the election was invalid. In July 1912, may determine such matters without the aid election. Wyman challenged the certification following a public outcry and an extensive of the House of Representatives or the Exec- before the New Hampshire State Ballot Law Senate debate, the full Senate sided with the utive or Judicial Department.’’ 4 Commission, which ruled on December 24, minority and voted 55 to 28 to declare II. SENATE REFUSAL TO SEAT STATE-CERTIFIED 1974 that Wyman had won the election by Lorimer’s election invalid and his seat va- CANDIDATES two votes. On December 27, 1974, the gov- cant. In a special election following Lorimer’s ouster, Lawrence Y. Sherman was The Senate has been called upon to judge ernor rescinded Durkin’s ‘‘conditional’’ cre- elected to fill the seat. approximately 100 contested election cases. dentials and certified Wyman the victor. On only nine occasions, however, has the That same day, Durkin filed a petition with 2. Frank L. Smith (1926–28) Senate denied a seat to the candidate whose the Senate contesting Wyman’s credentials. The other two instances in which the Sen- election had been certified by the state.5 The matter was referred to the Rules Com- ate declared an election invalid because of Several of these cases involve fact patterns mittee’s Subcommittee on Privileges and corruption arose out of the work of a Special that are unlikely to be at issue in modern Elections. The Subcommittee began its in- Committee that was created in May 1926 to disputes. They are not examined in this vestigation, which included a day of hearings investigate allegations of the corrupt use of memorandum.6 Five cases, however, involve during sine die adjournment, before the 94th campaign expenditures in primary elections allegations that are more likely to be at Congress convened. The Subcommittee re- in Pennsylvania and Illinois. Eventually, the issue in modern contested election cases: fused to make a recommendation and passed scope of the Special Committee’s investiga- challenges to the accuracy of the ballot the case onto the full Committee, which di- tion expanded to include allegations of cor- count, and challenged based on claims that vided evenly on the matter. The full Com- rupt practices in the November general elec- the election results were tainted by fraud mittee then referred the case to the full Sen- tion too. In both cases the Senate departed and corruption. ate without a recommendation. from its normal procedure and refused to When it convened in January 1975, the Sen- seat the Senator-elect pending the outcome A. Inaccurate ballot counts ate would neither seat Wyman nor declare of its investigation. This departure from 1. Steck v. Brookhart (1926) the seat vacant. Instead, the Senate referred practice is probably best explained by the The case of Steck v. Brookhart is the only the matter to the Rules Committee again. fact that an ongoing investigation had al- occasion on which the Senate has overturned After much debate, the Committee decided ready uncovered substantial evidence of the result of a state-certified election and upon carefully crafted procedures to recount fraud and corruption by the time each of seated the contestant. Every other time that the approximately 3,500 disputed ballots. But these Senators-elect presented his creden- the Senate has overturned the results of a despite spending more than 200 hours on the tials to the Senate. state-certified election, it has simply de- matter, the Committee could not agree upon Despite the negative publicity from the in- clared the seat vacant and left the state to whom should be seated. Eventually, the vestigation of his primary victory, Frank L. decide how it should be filled.7 In 1926, how- Committee reported the matter to the Sen- Smith won the November 1926 Illinois gen- ever, the Senate voted to unseat Republican ate without a recommendation. Beginning in eral election. The Special Committee contin- Smith Brookhart from Iowa and replace him June 1975, the Senate debated the case for six ued its investigation and on January 17, 1928 with his general election opponent, Demo- weeks. Six cloture votes could not cut off the reported to the Senate its recommendation crat Daniel Steck. Republican-led filibuster. The Senate was at that Smith not be seated. The committee Brookhart was certified the winner of the an impasse. The case was resolved only when concluded that Smith’s election was tainted November 1924 Iowa Senate election after a Durkin and Wyman agreed in late July 1975 with fraud and corruption because he had re- state recount showed that he had gained a to support a new election. The day after the ceived campaign contributions from public plurality of less than 800 votes out of the candidates reached their compromise, the service corporations in Illinois while he was more than 900,000 ballots cast in a four-way Senate voted 71 to 21 to declare the seat va- chairman of the state agency that regulated race. In January 1925, his opponent Steck cant. That action paved the way for a Sep- them. The Senate agreed and on January 19, filed with the Senate a challenge to tember 1995 election, which Durkin won deci- 1928 voted 61 to 23 to deny Smith a seat. Brookhart’s seating based on alleged irreg- sively. Smith resigned from office on February 9, ularities in the vote count. In an unusual B. Corrupt elections 1928. Otis F. Glenn was elected to fill the va- twist, the Iowa Republican State Central 1. William Lorimer (1910–12) cancy, and took his seat December 3, 1928. Committee, angered by Brookhart’s failure On three occasions the Senate has deter- 3. William S. Vare (1926–29) to endorse the Coolidge presidential ticket, mined that an election was so tainted with William S. Vare, the Republican nominee also challenged his election on the ground corruption that its results were invalid. for the Senate from Pennsylvania, also won that Brookhart was not, as he had rep- Each time, the Senate declared the seat va- the November 1926 general election despite resented himself to be, a member of the Re- cant. The first occurred in 1912 when the the negative publicity surrounding the Spe- publican Party. The Senate allowed Senate voted to overturn the certified elec- cial Committee’s investigation of his pri- Brookhart to take his seat at the beginning tion of William Lorimer of Illinois. The Illi- mary win. His opponent in the general elec- of the 69th Congress in March 1925 and re- nois legislature elected Lorimer to the Sen- tion, Democrat William B. Wilson, filed a pe- ferred the challenges to the Committee on ate, where he took his seat in 1909. In May tition challenging Vare’s credentials, alleg- Privileges and Elections. Beginning in the 1910, Lorimer asked the Senate to inves- ing corruption by Vare’s supporters in the summer of 1925, the Committee conducted an tigate allegations by the press that he had general election. Wilson’s allegations in- investigation of Brookhart’s election, which gained his seat through bribery. In December cluded ‘‘padded registration lists, ‘phantom’ included a recount in Washington, D.C. of 1910, the Committee on Privileges and Elec- voters who were actually dead or imaginary, each of the ballots cast. In March 1926, the tions reported to the Senate its determina- criminal misuse of campaign funds, and Committee reported to the Senate that tion that Lorimer’s election was valid. The voter intimidation.’’ 13 The Committee on Steck had received a plurality of 1,420 votes Committee majority argued for the applica- Privileges and Elections conducted an inves- and recommended that Brookhart be un- tion of a standard that had been established tigation of Vare’s general election campaign seated and replaced by Steck. Much of the by precedent: the Senate would invalidate an that supplemented the Special Committee’s seven-day Senate debate concerned the ap- election on the basis of corrupt practices investigation into his primary victory. On plicability of Iowa election law to the vote only if the Senator knew of or sanctioned February 22, 1929, the Special Committee, count. The Committee majority took the po- the corrupt activities or if those activities after an almost three-year probe, reported to sition that the Senate was not constrained had changed the outcome of the election.9 In the Senate its unanimous recommendation 8 by Iowa law. On April 12, 1926, the Senate, in March 1911, the Senate declared the election that Vare should not be seated because of a vote that crossed party lines and did not valid. the evidence of corruption it had uncovered, include Brookhart, voted by a margin of 45 Repeated press reports of bribery in including thousands of instances of fraudu- to 41 to unseat Brookhart and replace him Lorimer’s election forced the Senate to con- lent registration. On December 5, 1929, the with Steck. tinue to probe the allegations, however, and Committee on Privileges and Elections re- in June 1911, the Senate created a special ported to the Senate its contrary determina- * Footnotes at end of report. committee to conduct a second investiga- tion that Vare’s election was lawful. After a September 4, 1997 CONGRESSIONAL RECORD — SENATE S8769 day of debate, the Senate voted on December from the precedents established.’’ 22 A discus- Durkin and Louis Wyman for a New Hamp- 6, 1929, by a margin of 66 to 15, that William sion of those general principles is set forth shire Senate seat, also discussed above in Wilson had not been elected, and, by a mar- below. Section II. A certificate of election had been gin of 58 to 22, that Vare should be denied a A. Beginning the election contest issued to Durkin, but, after a recount, the seat. On December 12, 1929, Joseph R. Grundy certificate was rescinded and reissued to Senate election contests are most fre- took Vare’s seat by appointment. Wyman. At the swearing-in of new members- quently begun with the filing of a petition by elect, both Wyman and Durkin were asked to C. Recent challenges the losing candidate, addressed to the Sen- stand aside,36 and the certificates were re- Since 1992, three Senate elections have ate, protesting the seating of the contestee ferred to the Committee on Rules and Ad- been contested, but in none of these cases and asserting a right to the seat in question. ministration.37 After neither the Rules Com- has the election result been overturned. In However, there is no requirement that the mittee nor the full Senate was able to re- 1992, two petitions were filed asking the Sen- protest be made by a losing candidate. Peti- solve the dispute, the seat was ultimately ate to seat Senator-elect Coverdell condi- tions have also been filed by interested vot- declared vacant.38 tionally pending the resolution of legal com- ers in the state,23 and in Steck v. Brookhart, The more common practice in recent years plaints concerning his election. One petition, discussed above in section II, a protest was has been to seat the certified member-elect filed by four Georgia citizens, asked that filed not only by the unsuccessful Demo- against whom a petition of contest has been Senator-elect Coverdell be seated condi- cratic candidate, but by the state’s Repub- filed, but to administer the oath of office to tionally pending the resolution of a federal lican committee as well, which maintained him ‘‘without prejudice.’’ 39 The effect of ad- lawsuit brought by the four petitioners and that the certified winner of the election was ministering the oath without prejudice is, it Public Citizens, Inc. challenging the con- not a proper party member.24 Although no has been said, ‘‘a two-sided proposition— stitutionality of a Georgia law requiring a rule exists, recent practice has been to file without prejudice to the Senator and with- run-off between the top two candidates the petition with the President of the Sen- out prejudice to the Senate in the exercise of where no single candidate has won a major- ate.25 On other occasions, the petition has its right.’’ 40 The ‘‘right’’ of the Senate is its ity in the general election. The second peti- been sent to various members of the Senate right, by majority vote, to later unseat the tion, filed by three Georgia citizens, asked majority and minority leadership.26 Peti- member or affirm his membership after the the Senate to seat Senator-elect Coverdell tions of contest are not the only means issues respecting his right to the seat are re- conditionally until the Federal Election available for instituting an election contest. solved.41 The most recent explanation of this Commission (‘‘FEC’’) had an opportunity to A member may offer a resolution calling for practice came from then Majority Leader investigate a complaint filed by the Demo- an investigation of an election.27 In addition, Dole at the beginning of the 104th Congress cratic Senate Campaign Committee the Committee on Rules and Administration in connection with administering the oath to (‘‘DSCC’’) charging that the National Repub- has asserted its right to investigate an elec- Senator-elect Feinstein, whose election had lican Senatorial Committee (‘‘NRSC’’) had tion contest upon its own motion.28 Recent been challenged by her opponent. It was Sen- exceeded campaign spending limits during Senate practice has been to refrain from in- ator Dole’s view that the phrase ‘‘without the Georgia run-off election. Senator vestigating a contested election until the prejudice’’ had no effect upon the rights of Coverdell was sworn in with accompanying state has conducted its own review or re- the Senator to act as a Senator, or the rights language noting that he was being seated count, where such state remedies were avail- of the Senate to act as the judge of the Sen- ‘‘without prejudice’’ to the Senate’s right to able.29 consider the petitions before it.14 Public Citi- ator’s election: zen’s lawsuit challenging the constitutional- B. Senate action upon filing of petition ‘‘The oath that will be administered to ity of the 1992 run-off election was dismissed 1. The Decision to Seat Senator Feinstein, just as the oath that will by a federal district court in March 1993. The If a petition of contest is filed in advance be administered to all other Senators-elect, district court’s decision was upheld on ap- of the presentation of credentials and swear- will be without prejudice to the Senate’s peal in June 1993. In April 1995, the FEC con- ing-in of senators-elect on the opening day of constitutional power to be the judge of the cluded that it could not reach a verdict with a new Congress,30 the Senate must decide election of its members. . . . [T]he making respect to the charge that the NRSC had whether to seat the certified senator-elect of this statement [that the oath is adminis- overspent during the run-off election.15 The pending resolution of the election contest. tered ‘‘without prejudice’’] prior to the Rules Committee took no official action on The practice of the Senate has generally swearing in of a challenge[d] Senator-elect the petitions. been to treat a state certification that ap- serves the purpose of acknowledging for- Also in 1992, several petitions contesting pears proper on its face 31 as prima facie evi- mally that the Senate has received an elec- the election of Senator Packwood were filed dence that the member-elect is entitled to a Sen- tion petition and that it will review the peti- by Oregon voters. These petitions, later con- ate seat, and to seat him pending determining of tion in accordance with its customary proce- solidated, argued that Senator Packwood his right to office: dures.’’—141 Cong. Rec. S4 (daily ed. Jan. 4, had lied to the voters regarding his mistreat- ‘‘[T]he orderly and constitutional method 1995).42 ment of women and had thereby ‘‘defrauded’’ of procedure in regard to administering the 2. Reference to committee the electorate. The petitions asked that the oath to newly elected Senators [is] that The petition of contest and other papers election result be set aside. Like Senator when any gentleman brings with him or pre- that have been filed relating to an election Coverdell, Senator Packwood was seated sents a credential consisting of the certifi- contest are referred to the Committee on without prejudice to the Senate’s right to re- cate of his due election from the executive of Rules and Administration for investigation view the petitions.16 By a vote of 16–0, the his State he is entitled to be sworn in, and and recommendations.43 The committee has Rules Committee dismissed the petitions that all questions relating to his qualifica- jurisdiction over ‘‘[c]redentials and quali- against Senator Packwood in May 1993. tion should be postponed and acted upon by fications of Members of the Senate [and] While the Committee did not formally report 32 the Senate afterwards.’’ contested elections’’ 44 Under the rules of the to the Senate, the Chairman advised the Although this has been the usual Senate Senate, standing committees continue in ex- Senate of the Committee’s decision not to practice, the Senate retains its discretion to istence and maintain their power during the proceed further with the inquiry and the look behind such credentials and to refuse to recesses and adjournments of the Senate.45 Senate took no action.17 seat a member-elect until it completes its The committee, on the basis of this rule and Finally, in 1994 California Senatorial can- adjudication of the election contest. For ex- the Senate precedents that underlie it, has didate Michael Huffington filed a petition ample, in the 1927 contest of Wilson v. Vare asserted its power to continue investigations contesting the election of Senator Dianne for a Pennsylvania Senate seat, discussed without interruption during periods of ad- Feinstein. In his petition, Huffington argued above in section II, the Senate asked the cer- journment.46 The committee has also began that some of the votes cast for Senator Fein- tified senator-elect, William Vare, to step investigations of election contests in ad- stein were invalid and that he had won a ma- aside. The Senate refused to seat Vare until vance of the convening of the Congress to jority of the valid ballots cast. Senator Fein- a special committee, previously formed to which the member-elect was elected.47 stein was sworn in ‘‘without prejudice’’ to investigate excessive expenditures and cor- C. Committee practice and procedure the Senate’s right to consider the petitions rupt practices in the 1926 senatorial cam- before it.18 Huffington withdrew his petition paigns in Pennsylvania and Illinois, had 1. Pleadings before the committee before the Rules Committee could report to completed its investigation and made its In most election cases, the protest takes 19 the Senate. final report.33 This exercise of power was the form of a petition and complaint, similar III. SENATE PROCEDURES IN CONTESTED upheld in a case arising out of the Vare in- to that in a lawsuit, describing in varying ELECTION CASES vestigation, Barry v. U.S. ex rel. detail the grounds upon which the challenge Unlike the House of Representatives, Cunningham,34 in which the Supreme Court is based. The contestee files a response, typi- whose election contests are governed in part held that the Senate had the discretion to cally in the form of an answer or an answer by codified procedures,20 ‘‘[t]he Senate has decide whether to accept Vare’s credentials combined with a motion to dismiss. The par- never perfected specific rules for challenging and administer him the oath, pending adju- ties may submit follow-up replies, and in the right of a claimant to serve.’’ 21 Rather, dication of the election contest.35 some cases the contestant, either on his own Senate ‘‘practice has been to consider and The Senate most recently refused to seat a or upon the request of the committee, may act upon each case on its own merits, al- member-elect presenting state credentials in file one or more amended complaints. In ad- though some general principles have evolved the 1975 election contest between John dition to formal pleadings, the parties may S8770 CONGRESSIONAL RECORD — SENATE September 4, 1997 submit various legal memoranda on issues lot, and fraudulently altered ballots. Inves- E. Application of State election laws relevant to the investigation, for example, tigation of such questions may require a sig- The Senate has generally attempted to ob- on questions concerning the scope and appli- nificant commitment of committee man- serve state election laws in resolving elec- cability of the state’s election laws.48 power. For example, in investigating charges tion contests. However, as the final judge of 2. Committee hearings of violations of New Mexico voters’ constitu- its elections, the Senate is not bound by Committee hearings may be held not only tional right to a secret ballot in Hurley v. state election laws, and has exercised its in Washington, but also at the site of the Chavez, committee investigators interviewed power to disregard those laws, especially in election49 The parties and their counsel are and obtained signed and witnessed state- instances where their technical application generally permitted an active role in these ments from thousands of voters throughout would invalidate the will of the voters.79 As hearings. Either the contestants or their the state. A number of Spanish-speaking in- Senator Cannon stated about the Senate’s counsel typically make opening state- vestigators were engaged by the committee investigation of the Durkin v. Wyman con- 66 ments,50 and counsel may be permitted to to aid in this effort. test, ‘‘The U.S. Senate, as the final judge or make subsequent legal arguments and other- 4. Committee report and recommendations arbiter of elections, returns, and qualifica- wise present their client’s positions during Upon the completion of its investigation tions of its Members, is not bound by the the hearings.51 The parties may be permitted and any recount, the committee submits to statutes and case law of a State, although to call witnesses,52 and counsel may be given the Senate a report, together with an accom- the committee has consistently given weight the right to question and cross-examine wit- panying resolution, recommending a final to the New Hampshire law consistent with nesses themselves.53 As might be expected disposition of the election contest. The re- the attempt to determine the intent of the given the politically charged nature of the port may also contain minority views.67 voter.’’ 80 In determining whether to give ef- issues that may arise in these disputes, hear- There are several courses of action that the fect to state election laws, a distinction is ings may be lengthy, particularly if a re- committee may recommend to the Senate. often drawn between ‘‘directory’’ and ‘‘man- count is conducted. For example, the Rules The committee may recommend that the pe- datory’’ provisions of state law. ‘‘Manda- Committee held 46 sessions and 698 rollcall tition of contest by dismissed. Dismissals of tory’’ provisions affecting the right of suf- votes in its attempt to resolve the Durkin v. contests are commonly based on the ground frage itself have been more strictly followed Wyman content.54 that the allegations of the petition are too than ‘‘directory’’ provisions, such as those 3. Committee recount procedures general to justify committee investigation.68 governing ministerial functions of state elec- or that even if the allegations are accepted In many cases, the nature of the protest is tion officials and technical requirements as true, they would be insufficient to affect such that the committee will not engage in concerning the manner of marking ballots. the result of the election.69 Alternatively, a recount. In some cases, no recount will be F. Senate disposition based upon its investigation, the committee requested by the contestant. For example, in Election contests are generally disposed of, may recommend that a certain candidate has the 1975 Edmondson v. Bellmon contest, the following floor consideration and debate, received a majority of the valid votes and challenger’s sole complaint was that the vot- pursuant to Senate resolution. A resolution should be declared the winner.70 Finally, the ing machines in one county had been pro- from the committee disposing of a contested committee may conclude that no winner can grammed in violation of Oklahoma law.55 In election case is highly privileged; it does not be determined, and recommend that the elec- other cases, the committee may decide to have to lie over a day and has precedence tion be set aside and the seat declared va- make its recommendations exclusively on over most unfinished business or motions.81 the basis of the pleadings and other evidence cant so that a special election can be held. However, in the two most recent Senate The parties to the election contest, including introduced by the parties, and reject any contested election cases in which the full bona fide claimants and senators-elect who full-scale investigation or recount.56 The Senate has acted, both occurring during the have not been permitted to take the oath of committee may also refuse to conduct a re- 94th Congress, the committee was unable to office, are usually granted floor privileges count because of the contestant’s failure to 82 agree upon recommendations for final dis- during the debate on the election contest; exhaust available state recount procedures.57 position of the contests. As noted in the occasionally, they have even been granted The decision to conduct a recount is gen- Durkin v. Wyman contest, the inability of the the privilege of addressing the Senate to erally made by the formal adoption of a reso- 83 committee to resolve the numerous issues on present their case. lution by the committee; 58 the resolution The Senate may adopt a resolution dis- which it was evenly divided prevented it may authorize a recount on less than a missing the complaint; such resolutions are from reaching agreement on a final rec- statewide basis, limited to selected counties frequently adopted by unanimous consent ommendation; the committee was able only in the state or to a particular group of pro- with little or no floor debate.84 If a senator- to report a resolution seeking Senate deter- tested ballots.59 elect who has previously been sworn in is de- mination of the issues upon which the com- The first step of a recount is to secure im- termined by the Senate to be entitled to the mittee had deadlocked.72 In the Edmondson v. mediate possession of all election records seat, the resolution will declare that he was Bellmon contest the committee found that the bearing on the contest. Most Senate re- duly elected for a six-year term as of the Oklahoma election laws had been violated counts have been conducted in Washington.60 date he received the oath.85 Where the con- and that those violations could have affected Committee staff members, often together testant is declared the winner and the in- the results of the election, but it was unable with the Sergeant at Arms, may be sent to cumbent is unseated, or if no one had earlier to determine who would have won the elec- the state to seal all voting machines and to been sworn in, upon adoption of the resolu- tion had the violations of law not occurred. bring back paper ballots, tally sheets, ballot tion, the prevailing party has been imme- The committee reported a resolution re- stubs, and other election records.61 In some diately given the oath of office and seated.86 questing that the Senate determine the out- cases, committee subpoenas have been issued In most instances, where the Senate has de- come of the election.73 A minority report, to the responsible state election officials to termined that the state-certified victor which charged that the majority report was obtain these records.62 Stringent security should not be seated, it has declared the seat partisan, recommended that the challenge be precautions have been observed in transport- vacant.87 dismissed. After four days of debate, the Sen- ing these materials to Washington and in G. Reimbursement of election contest expenses storing them during the recount. For exam- ate voted 47 to 46 to table the majority’s res- The Senate has by resolution authorized ple, in the Durkin v. Wyman contest, ballots olution. By voice vote the Senate then de- the payment of expenses incurred by the par- were kept in a locked room in the basement clared that the state-certified victor should ties in contested election cases.88 Reimburse- of the Russell Office Building with Capitol keep his seat. ment is not automatic, however, and the Police officers on guard around the clock; D. Standard of review Senate has refused to authorize payment of two padlocks were placed on the door, with a The contestant in an election has the bur- expenses even in instances where the com- different key given to the ranking majority den of proof to establish, by a preponderance mittee recommended such payment.89 Most and minority members of the committee.63 of evidence,74 the allegations raised in his pe- of these resolutions authorizing reimburse- Often extensive field investigations may be tition. Sufficient evidence must be offered to ment specify the amount of the payments, necessary at various stages of the recount overcome the presumption that the official typically less than the actual expenses in- process. Voting machines may need to be in- returns are prima facie evidence of the regu- curred by the parties during the contest. In spected to verify that the machines accu- larity and correctness of the election75 and the Durkin v. Wyman contest, however, the rately recorded the votes cast and that the that election officials have properly per- resolution authorized payments out of the total votes recorded on the machines cor- formed their legal duties.76 Not only must contingent fund of the Senate to reimburse responds with the number of voters listed on the contestant overcome these presumptions both Durkin and Wyman in an amount to be the pollbooks.64 Registration records may of regularity, but he must affirmatively es- determined by the committee.90 need to be examined and compared with the tablish that the irregularities complained of pollbooks to ensure that only legally author- would affect the result of the election.77 In DURATION OF CONTESTED ELECTION CASES ized voters are included in the count.65 In addition to these general standards, common Investigations many election cases, charges of a wide vari- to all election contests, the committee will Edmondson v. Bellmon, Oklahoma, 1975 ety of election irregularities will be at issue, often adopt detailed evidentiary presump- election: 18 months; investigation delayed 9 such as illegal assistance or corruption of tions to govern its consideration of the fac- months during New Hampshire case. voters, tampering with ballot boxes or voter tual issues that may be raised in a particular Hurley v. Chavez, New Mexico, 1952 elec- machines, violation of the secrecy of the bal- contest.78 tion: 15 months; fraud investigation. September 4, 1997 CONGRESSIONAL RECORD — SENATE S8771 Tydings v. Butler, Maryland, 1950 election: 17 See 139 Cong. Rec. S6294 (daily ed. May 21, 1993) to fill a vacancy which had not been filled by the 8 months; campaign finance and slander in- (statement of Senator Ford). legislature while it was in session. E.g. Matthew 18 vestigation. 141 Cong. Rec. S4 (daily ed. Jan. 4, 1995). Quay (1899), id. at 261–62; Henry W. Corbett (1897), id. 19 Michael Doyle, Huffington Concedes Nov. 8 Senate at 253–55; Lee Mantle (1893), id. at 243–45. A number of Sweeney v. Kilgore, West Virginia, 1948 Race, The Fresno Bee, Feb. 8, 1995, at A3. cases involved instances where more than one can- election: 18 months; fraud investigation. 20 The Federal Contested Election Act of 1969, 2 didate presented credentials for a seat. E.g., Lucas v. Hook v. Ferguson, Michigan, 1948 election: U.S.C. §§ 381–396 (1994). Prior to 1969, House election Faulkner (1887), id. at 230–31; Reynolds v. Hamilton 9 months; fraud investigation. contests were governed by the provisions of the Con- (1870), id. at 164–65; Stanton v. Lane (1861), id. at 92– Long and Overton, Louisiana, 1932 election: tested Elections Act, 2 U.S.C. §§ 201–226 (repealed), 94. Many occurred during the Civil War when there 20 months; fraud investigation by special which derived from the Act of Feb. 19, 1851, ch. 11, 9 was concern about seating senators disloyal to the committee. Stat. 568. Union cause or senators representing states in a Heflin v. Bankhead, Alabama, 1930 elec- 21 Senate Election, Expulsion and Censure Cases from state of rebellion. E.g., Fishback, Baxter and Snow 1793 to 1972, S. Doc. No. 7, 92d Cong., 1st Sess. vii (1864), id. at 117–20; Cutler Smith and Hahn (1864), id. tion: 17 months; fraud investigation. (1972). at 121–23; Segar and Underwood (1865), id. at 124–26. Smith, Illinois, 1926 election: 20 months; 22 Id. 34 279 U.S. 597 (1929). campaign finance and bribery investigation 23 See William Langer, S. Rep. No. 1010, 77th Cong., 35 Id. at 614–15. by special committee. 2d Sess. 1 (1942). Following the 1992 election, five 36 121 Cong. Rec. 4–5 (1975). Wilson v. Vare, Pennsylvania, 1926 elec- groups of Oregon voters filed petitions with the Sen- 37 121 Cong. Rec. 1495 (1975). 38 tion: 31⁄2 years; fraud and campaign finance ate contesting the election of Senator Robert Pack- 121 Cong. Rec. 25960–61 (1975). See generally, D. investigation by special committee. wood, charging that he had engaged in election Tibbetts, The Closest U.S. Senate Race in History Peddy v. Mayfield, Texas, 1992 election: fraud by lying during the campaign about his treat- (1976). ment of women. 39 See, e.g., 141 Cong. Rec. S4 (daily ed. Jan. 4, 1995) Over 2 years; fraud investigation and re- 24 Steck v. Brookhart, S. Rep. No. 498, 69th Cong., 1st (Senator-elect Feinstein); 139 Cong. Rec. S4–S7 count. Sess. 2 (1926). (daily ed. Jan. 5, 1993) (Senators-elect Coverdell and Ford v. Newberry, Michigan, 1918 election: 25 See, e.g., In the Matter of the United States Seat Packwood); 121 Cong. Rec. 8 (1975) (Senator-elect 31⁄2 years; fraud and campaign finance inves- from California in the 104th Congress of the United Bellmon); 117 Cong. Rec. 6 (1971) (Senator-elect tigation. States (1994) (petition filed by Michael Huffington Hartke); 110 Cong. Rec. 18120 (1964) (Senator-elect Recounts contesting the election of Senator Dianne Fein- Salinger) (appointee); 97 Cong. Rec. 3 (1951) (Senator- stein); Petition to Deny Seating to, or Seat Condi- elect Butler). Durkin v. Wyman, New Hampshire, 1975 tionally, Senator Bob Packwood (1992) (filed by Oregon 40 87 Cong. Rec. 3 (1941) (statement of Senator Bar- election: 9 months. voter Keith Skelton); Petition by Certain Voters and kley on the seating of Senator-elect Langer). Markey v. O’Conor, Maryland, 1946 elec- Citizens of the State of Oregon (1992) (also contesting 41 See 87 Cong. Rec. 4 (1941) (ruling of the presiding tion: 16 months. the election of Senator Packwood). officer that ‘‘[i]f this agreement is entered into, only Steck v. Brookhart, Iowa, 1924 election: 15 26 Petition Challenging the Election of Paul Coverdell a majority of the Senate will be required to pass on months. (1993) (filed by three Georgia citizens). the qualifications of the Senator-elect’’). 27 42 Note—dates measured from date of elec- Investigations of improper campaign expendi- Democratic Leader Senator Daschle added his tures and corrupt practices have often been insti- concurrence to Senator Dole’s remarks. Id. In 1993 tion. tuted in this manner. See, e.g., Frank L. Smith, Senate Senators Coverdell and Packwood took the oath of Election Cases, supra note 5, at 330–33; Wilson v. Vare, office while challenges to their election were pend- Any Committee id. 323–29. ing. At that time, Senator Dole, as Republican Lead- Action Taken Dur- State Certified 28 Case ing Sine Die Ad- Candidate Seat- See Hurley v. Chavez, S. Rep. No. 1081, 83d Cong., er, stated his view that ‘‘the phrase ‘without preju- journment of Con- ed? 2d Sess. 2 (1954). dice’ used today is of course meaningless, in its ef- gress? 29 See S. Rep. No. 597, 94th Cong., 2d Sess. 8 (1976) fect upon any subsequent Senate action.’’ 139 Cong. (Edmondson v. Bellmon); S. Rep. No. 156, part 2, 94th Rec. S7 (daily ed. Jan. 4, 1993). Steck v. Brookhart ...... Yes ...... Yes. Cong., 1st Sess. 3–6 (1975) (Durkin v. Wyman); Senate 43 See, e.g., 121 Cong. Rec. 8 (1975) (referral of peti- Durkin v. Wyman ...... Yes ...... No. Election Cases at 419 (Roudebush v. Hartke, 1970–72); id. tion of contest and reply in Edmondson v. Bellmon William Lorimer ...... Yes ...... Yes. at 399 (Hurley v. Chavez, 1952–54). See also S. Rep. No. contest). Election contests were often initially Frank L. Smith ...... Yes ...... No. Wilson v. Vare ...... Yes ...... No. 802, 81st Cong., 1st Sess. 9 (1949) (Sweeney v. Kilgore) heard by the Subcommittee on Privileges and Elec- (where contestant had withdrawn his request for a tions of the Rules Committee; that subcommittee recount by the state, the Subcommittee did not con- was disbanded in 1977. Election contests during the FOOTNOTES duct a recount in keeping ‘‘with the policy of the period 1871–1946 were referred to the Committee on 1 U.S. Const. art. I, § 5, cl. 1. subcommittee to conduct no recount in any State Privileges and Elections; prior to 1871, such disputes 2 Ford v. Newberry, S. Rep. No. 277, pt. 1, 67th Cong. wherein the laws of that State provide for a recount were usually referred to special committees or to 1st Sess. 9 (1921). by candidates for United States Senator.’’). But see the Committee on the Judiciary. In this section of 3 Roudebush v. Hartke, 405 U.S. 15, 19 (1972). Senate Election Cases at 391–93 (Tydings v. Butler, this memorandum, the term ‘‘committee’’ will be 4 277 U.S. 376, 388 (1928). 1950–51) (no effort to pursue state remedies where used generally to refer to the Rules Committee and 5 See generally United States Senate Election, Expul- Senate was conducting a hearing and investigation its predecessor committees. sion and Censure Cases 1793–1990, S. Doc. No. 33, 103d into allegations of campaign irregularities, includ- 44 Rule 25.1(n)(1)(4), Standing Rules of the Senate, Cong., 1st Sess. (1995) (hereafter ‘‘Senate Election ing slander and smear tactics). Following the 1994 S. Doc. No. 104–8, supra note 31, at 30 (1944). Cases’’). This publication, compiled by the Senate general election, Michael Huffington contested the 45 Rule 26.1, Standing Rules of the Senate, S. Doc. Historian’s Office, contains a brief description of all election of Senator-elect Dianne Feinstein in the No. 104–8, supra note 31, at 36. Senate election, expulsion, and censure cases during Senate without first seeking a recount in California. 46 See 121 Cong. Rec. 1472 (1975) (statement of Sen. the period 1793 to 1990. Huffington later withdrew his Senate petition before Allen); Senate Election, Expulsion and Censure Cases 6 Two involve the unseating of Senators who were the Rules Committee could report to the Senate. See From 1909–1960, S. Doc. No. 71, 87th Cong., 2d Sess. found ineligible under the Constitutional require- Susan Yoachum, Huffington Concedes, Drops Voter viii (1962). ment that a Senator be a U.S. citizen for nine years; Challenge, S.F. Chron., Feb. 8, 1995, at A3; Michael 47 See Durkin v. Wyman, S. Rep. No, 94–156, part 2, see Senate Election Cases at 3 (Albert Gallatin, 1793– Doyle, Huffington Concedes Nov. 8 Senate Race, The supra note 29, at 5–6. 94) and 54 (James Shields, 1849); and two others in- Fresno Bee, Feb. 8, 1995, at A3. 48 See, e.g., Senator from Oklahoma: Hearings Before volve challenges to the method to elect U.S. Sen- 30 There is no such requirement; petitions are fre- the Subcomm. on Privileges and Elections of the Senate ators used by state legislatures prior to the 1913 quently filed after the contestee has been seated. Comm. on Rules and Administration, 94th Cong., 1st ratification of the Seventeenth Amendment, id. at 74 See, e.g., Hook v. Ferguson (1949), Senate Election Sess. 221–464 (1975) (hereinafter ‘‘Edmondson v. (James Harlan, 1855–57) and 127 (John Stockton, Cases, supra note 5, at 386. Bellmon Hearings’’) (collecting together pleadings 1865–66). 31 The Senate has adopted forms of suggested cer- and memoranda of contestants). 7 Id. at 424 (John A. Durkin v. Louis C. Wyman, 1974– tificates of election and appointment of senators. 49 For example, in the Edmondson v. Bellmon con- 75); id. at 333 (Frank L. Smith, 1926–28); id. 328 (Wil- See Rule 2.3, Standing Rules of the Senate, S. Doc. test, committee staff members held hearings in liam B. Wilson v. William S. Vare, 1926–29); id. at 283 8, 104th Cong., 1st Sess. 2 (1994). Credentials should Oklahoma, which were followed with hearings before (William Lorimer, 1910–12); id. at 129 (John P. Stock- be signed by the governor and attested by the sec- the committee in Washington. S. Rep. No. 94–597, ton, 1865–66); id. at 76 (James Harlan, 1855–57); id. at retary of state of the state in which the election was supra note 29, at 5–6 (1976). 55 (James Shields, 1849); id. at 4 (Albert Gallatin, held. 50 See, e.g., Edmondson v. Bellmon Hearings, supra 1793–94). 32 37 Cong. Rec. 1 (1903) (statement of Sen. Hoar). note 48, at 11–47; Senator from New Hampshire: Hear- 8 The Senate has maintained consistently the ma- See also Riddick’s Senate Procedure, S. Doc. No. 28, ings Before the Subcomm. on Privileges and Elections of jority’s position. See infra at 26, 27. 101st Cong., 2d Sess. 704 (Alan S. Frumin ed., rev. ed. the Senate Comm. on Rules and Administration, 93d 9 S. Rep. No. 942, pt. 1, 61st Cong., 3d Sess. 2 (1910). 1992) (‘‘Under orderly procedure, a Senator-elect, Cong., 2d Sess. 136–205 (1975) (hereafter ‘‘Durkin v. 10 S. Rep. No. 769, 62d Cong., 2d Sess. 91 (1912). upon presentation of credentials, should be sworn in, Wyman Subcommittee Hearings’’); Steck v. 11 Id. at 100–14. and all matters touching his qualifications should Brookhart, S. Rep. No. 69–498, supra note 24, at 5. 12 See id. at 101 (noting that one of the bribed legis- be determined thereafter.’’); Senate Election Cases, 51 See Durkin v. Wyman, S. Rep. No. 94–156, part 1, lators had successfully blackmailed Lorimer to ob- supra note 5, at xviii. supra note 29, at 2; Senator from New Mexico: Hearings tain employment, and that an ‘‘innocent [man] 33 60 Cong. Rec. 4, 337–38 (1927). As discussed above Before Subcomm. on Privileges and Elections of the Sen- would indignantly have refused to have anything in Section II, the certified senator-elect from Illi- ate Comm. on Rules and Administration, 83d Cong., 1st else to do with such a blackmailer.’’) nois, Frank L. Smith, was also asked to step aside, Sess. 159–82 (1953) (hereafter ‘‘Hurley v. Chavez Hear- 13 Senate Election Cases at 325. based upon similar indications for fraud and corrup- ings’’) (argument of counsel on motion of dismiss). 14 139 Cong. Rec. S4–S7 (daily ed. Jan. 5, 1993). As tion discovered by the special committee. See Senate 52 See Edmondson v. Bellmon Hearings, supra note 48, discussed below, see discussion infra at 17, such Election Cases, supra note 5, at 333. The Senate has at 49–50. qualifying language probably has no legal effect. also refused to seat members-elect presenting cre- 53 See Steck v. Brookhart, S. Rep. No. 69–498, supra 15 However, the FEC found that Senator dentials in a number of cases predating the adoption note 24, at 6–7; Johnson v. Schall, S. Rep. No. 1021, Coverdell’s 1992 campaign committee had accepted of the Seventeenth Amendment in 1913. In many of 69th Cong., 1st Sess. 3–8 (1926). $66,000 in improper contributions from 95 people. The these cases, the credentials were invalid for reasons 54 S. Rep. No. 94–156, part 1, supra note 29, at 2. This FEC fined the committee $32,000 and directed it to either apparent on their face or otherwise within the was in addition to hearings held by the Subcommit- return the improper contributions. knowledge of the Senate, for example, because a tee on Privileges and Elections. See Durkin v. Wyman 16 139 Cong. Rec. S4–S7 (daily ed. Jan. 5, 1993). governor was attempting to make an appointment Subcommittee Hearings, supra note 50. S8772 CONGRESSIONAL RECORD — SENATE September 4, 1997 55 S. Rep. No. 94–597, supra note 29, at 3–5. contrary, someone other than the voter would be opment, planning, implementation, or ad- 56 See Willis v. Van Nuys, S. Rep. No. 281, 76th Cong., deemed responsible and the vote would be counted. ministration of any national testing pro- 1st Sess. 8 (1939) (rejecting recount because of the S. Rep. No. 83–1081, supra note 28, at 268. gram in reading or mathematics unless the absence of a prima facie showing that it might re- 79 Likewise, the Senate is not bound by the deci- sult in unseating of the contestee); Bursum v. sions of state courts or the results of state recount program is specifically authorized by Fed- Bratton, S. Rep. No. 724, 69th Cong., 1st Sess. 7–10 proceedings, though such state determinations are eral statute. (1926) (recount unjustified because no preliminary often accorded ‘‘great weight.’’ Johnson v. Schall, S. Specter amendment No. 1069, to express evidence was offered tending to cast doubt upon the Rep. No. 69–1021, supra note 53, at 9. For additional the sense of the Senate that the Attorney accuracy of the official returns). references, see supra note 29. General has abused her discretion by failing 57 See Sweeney v. Kilgore, S. Rep. No. 81–802, supra 80 121 Cong. Rec. 18620 (1975). to appoint an independent counsel on cam- note 29, at 9. 81 See 84 Cong. Rec. 3611 (1939) (statement of Sen. paign finance matters and that the Attorney 58 See, e.g., Hurley v. Chavez, S. Rep. No. 83–1081, George); 76 Cong. Rec. 3544 (1933) (statement of General should proceed to appoint such an supra note 28, at 265. President pro tempore). See also Riddich’s Senate Pro- 59 For example, in the Durkin v. Wyman contest, cedure, supra note 32, at 706. independent counsel immediately. the committee ordered a recount of the approxi- 82 Id. at 560. In the Durkin v. Wyman contest, both Coats/Nickles amendment No. 1077, to pro- mately 3,500 ballots that had been before the state parties, together with their counsel, were permitted hibit the use of funds for research that uti- ballot law commission. S. Rep. No. 94–156, part 2, to sit in the rear of the Senate chamber during the lizes human fetal tissue, cells, or organs that supra note 29, at 8. The committee may also begin debate. See D. Tibbetts, supra note 38, at 123. Durkin, are obtained from a living or dead embryo or with a limited recount to determine if there are suf- by unanimous consent, was given the privilege of fetus during or after an induced abortion. ficient grounds for a wider investigation and state- the floor. 121 Cong. Rec. 1472 (1975). No such motion wide recount. See O’Conor v. Markey, S. Rep. No. was required for Wyman, as he already had floor AMENDMENT NO. 1077 1284, 80th Cong., 2d Sess. 3, 11–12 (1948) (preliminary privileges as an ex-senator. The PRESIDING OFFICER. Amend- five-county recount subsequently widened to state- 83 See S. Res. 2, 70th Cong., 1st Sess., 69 Cong. Rec. ment No. 1077 is now pending. wide recount in light of trend reducing incumbent’s 338 (1927) (according William Vare ‘‘the privileges of Mr. COATS addressed the Chair. lead). the floor of the Senate for the purpose of being 60 An alternative approach is to count the ballots heard touching his right to receive the the oath of The PRESIDING OFFICER. The Sen- at locations in the state, and only bring to Washing- office and to membership in the Senate’’). There ator from Indiana. ton those ballots remaining in dispute for commit- were even early instances when counsel for the par- Mr. COATS. Mr. President, we will be tee review. See O’Conor v. Markey, S. Rep. No. 80– ties were permitted to address the Senate. See 17 An- resuming discussion of the amendment 1284, supra note 59, at 3. nals of Cong. 187–207 (1808) (statement of Francis 61 See Durkin v. Wyman, S. Rep. No. 94–156, part 1, Scott Key); id. at 207–234 (statement of R.G. Harper). I offered last evening. I don’t intend to supra note 29, at 4; Heflin v. Bankhead, S. Rep. No. 84 See, e.g., S. Res. 123, 76th Cong., 1st Sess., 84 repeat all that I said last evening. I do 568, 72d Cong., 1st Sess. 36 (1932); Peddy v. Mayfield, Cong. Rec. 4183 (1929) (Willis v. Van Nuys); S. Res. 115, know there are a few other Senators S. Rep. No. 973, 68th Cong., 2d Sess. 3 (1925). 76th Cong., 1st Sess., 84 Cong. Rec. 3611–12 (1929) 62 who wish to speak on this amendment, See Hurley v. Chavez, S. Rep. No. 83–1081, supra (Neal v. Steward); S. Res. 343, 72d Cong., 2d Sess., 76 note 28, at 75; Steck v. Brookhart, S. Rep. No. 69–498, Cong. Rec. 3544–45 (1933) (Hoidale v. Schall). and, hopefully, we can accomplish that supra note 24, at 2. 85 See S. Res. 142, 81st Cong., 1st Sess., 95 Cong. Rec. in a reasonable time and then move to 63 D. Tibbetts, supra note 38, at 60. 10321 (1949) (Sweeney v. Kilgore); S. Res. 141, 81st 64 See Durkin v. Wyman, S. Rep. No. 94–156, part 1, a vote. Cong., 1st Sess., 95 Cong. Rec. 10321 (1949) (Hook v. It is not my intention to utilize this supra note 29, at 35; Hurley v. Chavez, S. Rep. No. 83– Ferguson); S. Res. 234, 80th Cong., 2d Sess., 94 Cong. 1081, supra note 28, at 276. Rec. 6160 (1948) (O’Connor v. Kilgore). amendment as a means of delaying a 65 Hurley v. Chavez, id. at 55. 86 See S. Res. 194, 69th Cong., 1st Sess., 67 Cong. vote on the larger appropriations bill 66 Id. at 16. In the Sweeney v. Kilgore contest, 22 in- Rec. 7301 (1926) (Steck v. Brookhart). or specifically on the amendment that vestigators hired by the committee spent a total of 87 See, e.g., Senate Election Cases, supra note 5, at 333 7,006 man-days over a period of 18 months conduct- (Frank L. Smith, 1926–28); id. at 328 (William B. Wil- we adopted last evening, increasing ing field investigations. S. Rep. No. 81–802, supra son v. William S. Vare, 1926–29); id. at 283 (William funding for Parkinson’s research, an note 29, at 6. Lorimer, 1910–12). But see id. at 314 (Daniel F. Steck v. amendment I supported and worked to- 67 See Edmondson v. Bellman, S. Rep. No. 94–597, Smith W. Brookhart, 1925–26). gether with Senator WELLSTONE and supra note 29, at 27–50; Steck v. Brookhart, S. Rep. No. 88 See e.g., S. Res. 346, 72d Cong., 2d Sess., 76 Cong. 69–498, supra note 24, at 23–33. Rec. 5008 (1933); S. Res. 256, 69th Cong., 1st Sess., 67 others on this effort. I was pleased the 68 See Pritchard v. Bailey, S. Rep. No. 1151, 72d Cong. Rec. 12633 (1926); S. Res. 211 & 212, 69th Cong., Senate adopted my amendment related Cong., 2d Sess. 1 (1933); Hoidale v. Schall, S. Rep. No. 1st Sess., 67 Cong. Rec. 10563–64 (1926); S. Res. (un- to the whole area of medical research 1066, 72d Cong., 2d Sess. 6 (1933). numbered), 47th Cong., 1st Sess., 13 Cong. Rec. 2047 69 See Willis v. Van Nuys, S. Rep. No. 76–281, supra (1992); S. Res. (unnumbered), 46th Cong., 3d Sess., 11 so that we can commission a study note 56, at 2; Heflin v. Bankhead, S. Rep. No. 72–568, Cong. Rec. 1911–12 (1991). which would give us, before the next supra note 61, at 20–21. 89 See 79 Cong. Rec. 14449–50 (1935) (declining pay- appropriations and authorization cycle, 70 E.g., Sweeney v. Kilgore, S. Rep. No. 81–802, supra ment of attorney’s fees for contestant and a better idea of how we can direct re- note 29, at 18; Hook v. Ferguson, S. Rep. No. 801, 81st memorialists in Henyr v. Holt election contest). Cong., 1st Sess. 1 (1949); O’Conor v. Markey, S. Rep. 90 S. Res. 247, 94th Cong., 1st Sess., 121 Cong. Rec. search funds to achieve the greatest No. 80–1284, supra note 59, at 17; Steck v. Brookhart, S. 39861 (1975). good for the greatest number. Rep. No. 69–498, supra note 24, at 15; Bursum v. There are allocations currently made Bratton, S. Rep. No. 69–724, supra note 56, at 10. f 71 on the basis of who has the best lobby- See Hurley v. Chavez, S. Rep. No. 83–1081, supra RESERVATION OF LEADER TIME note 28, at 5. The Senate rejected the committee’s ing effort and perhaps who has the best recommendation and permitted Chavez to retain his The PRESIDING OFFICER. Under champion in the Congress. While I seat. the previous order, the leadership time 72 S. Rep. No. 94–156, part 1, supra note 29, at 1. don’t in any way mean to impugn the 73 S. Rep. No. 94–597, supra note 29, at 1–2. is reserved. motives of anyone here who is putting 74 Although the standard has not been expressly f their heart and soul into providing sup- stated by the committee in these terms, this would port for research on a disease that af- appear to be the most accurate characterization of DEPARTMENTS OF LABOR, the burden of proof that the committee has applied HEALTH AND HUMAN SERVICES, fects them or that they believe is im- in election contests. See, e.g., Wilson v. Vare, S. Rep. AND EDUCATION, AND RELATED portant and critical, I do think that in No. 47, 71st Cong., 2d Sess. 2 (1929) (‘‘it must be the interest of the widespread number found, not beyond a reasonable doubt, perhaps, but AGENCIES APPROPRIATIONS it must be the conviction of reasonable men, at ACT, 1998 of diseases that are currently under re- least, that the proof sustained the charges’’). search at NIH and other places and the 75 Pritchard v. Bailey, S. Rep. No. 72–1151, supra note The PRESIDING OFFICER. Under Federal funds that are used for that re- 68, at 1. the previous order, the Senate will now search, having a better understanding 76 O’Conor v. Markey, S. Rep. No. 80–1284, supra note resume consideration of S. 1061, which 59, at 14; Wilson v. Vare, S. Rep. No. 71–47, supra note of where we can best apply those dol- 74, at 5 (1927); Sweeney v. Kilgore, S. Rep. No. 81–802, the clerk will report. lars to achieve the breakthroughs that supra note 29, at 7. The assistant legislative clerk read can prevent the suffering and, hope- 77 at 18; v. S. Rep. No. 94– Id. Edmondson Bellmon, as follows: fully, provide the cures for a number of 597, supra note 29, at 22; Heflin v. Bankhead, S. Rep. A bill (S. 1061) making appropriations for No. 72–568, supra note 61, at 21; Senate Election Cases, these diseases is the direction we ought supra note 5, at 384 (In Sweeney v. Kilgore, the com- the Departments of Labor, Health and to go. We adopted that amendment last Human Services, and Education, and related mittee found that fraudulent ballots did not effect evening, and I am pleased the Senate the outcome of the election; therefore, the commit- agencies for the fiscal year ending Septem- tee recommended that the state-certified victor re- ber 30, 1998, and for other purposes. supported that. tain his seat.). This particular amendment is de- The Senate resumed consideration of 78 For example, in the Hurley v. Chavez contest, the signed to address a specific issue that the bill. committee adopted a number of evidentiary pre- relates to the utilization of human sumptions to govern its recount. Two examples are Pending: fetal tissue in research in a number of illustrative. The recount rules provided that, absent Gregg amendment No. 1070, to prohibit the direct or circumstantial proof to the contrary, any use of funds for national testing in reading neurological disease areas. There is a erasure marks on a ballot would be treated as made broader question of whether we ought by the voter and the ballot would be thrown out. On and mathematics, with certain exceptions. the other hand, where a ballot had been mutilated or Coats/Gregg amendment No. 1071 (to to utilize human fetal tissue and put had its secret number exposed, absent proof to the Amendment No. 1070), to prohibit the devel- restrictions on how that is sustained as