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, MONDAY, MAY 8, 1995 No. 75 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, May 9, 1995, at 12:30 p.m. Senate MONDAY, MAY 8, 1995

(Legislative day of Monday, May 1, 1995)

The Senate met at 11 a.m., on the ex- the back of Nazi tyranny, so too You THE CHAPLAIN’S PRAYER piration of the recess, and was called to call us to live expectantly with our Mr. DOLE. Mr. President, first let me order by the Honorable CRAIG THOMAS, hope in Your power as we confront the thank the Chaplain for his prayer a Senator from the State of Wyoming. forces of hate and terrorism, injustice today. This is a very important day for and inequality in our time. In Your PRAYER millions of Americans. It seems to me name Jehovah-Shalom, Prince of that it is time for reflection, to think The Chaplain, Dr. Lloyd John Peace. Amen. about America, and to think about 55- Ogilvie, offered the following prayer: Let us pray: f plus million people who lost their lives O God, our help in ages past, our hope in World War II. That includes civil- for years to come, our refuge, and our APPOINTMENT OF ACTING ians, innocent women and children, strength, we join our hearts and voices PRESIDENT PRO TEMPORE combatants on all sides, plus about 6 million Jews who suffered death in the with people across our Nation and The PRESIDING OFFICER. The throughout the world in grateful praise Holocaust. clerk will please read a communication to You. Today, as we remember that This is a very important day. And to the Senate from the President pro triumphant Victory in Europe Day a later today I hope to submit a resolu- half a century ago, we thank You for tempore [Mr. THURMOND]. tion about V–E Day, which I am cer- being an ever-present help in trouble. The assistant legislative clerk read tain the Senate will adopt. I will be Thank You for the gift of memory, not the following letter: looking for sponsors on both sides of only to remember the depths of deg- U.S. SENATE, the aisle. radation and depravity to which hu- PRESIDENT PRO TEMPORE, SCHEDULE mankind fell under the dictatorship of Washington, DC, May 8, 1995. Adolf Hitler and the Third Reich, but To the Senate: Mr. DOLE. Mr. President, following most of all, help us never to forget Under the provisions of rule I, section 3, of leader time, there will be morning Your divine intervention that made the Standing Rules of the Senate, I hereby business until the hour of 12 noon with possible the Allied victory. We remem- appoint the Honorable CRAIG THOMAS, a Sen- Senators permitted to speak for up to 5 ber the supreme sacrifice of so many ator from the State of Wyoming, to perform minutes each. the duties of the Chair. men and women in that war to liberate At 12 o’clock we will resume consid- STROM THURMOND, eration of H.R. 956, the product liabil- humankind from the grip of a brutal President pro tempore. enemy. ity bill. Mr. THOMAS thereupon assumed the Lord of history, we go about the At 4 o’clock there will be a cloture work of this Senate today with a re- chair as Acting President pro tempore. vote on the pending substitute unless newed assurance that You do have the f second-degree amendments are offered final word. When the enemies of right- and can be voted upon. That may slip eousness and justice have done their RECOGNITION OF THE MAJORITY just a little bit. I understand there are worst, You help Your people to fight LEADER one or two Senators who cannot be for freedom and You do bring an end to here right at 4 o’clock. The first three suffering. You have intervened to help The ACTING PRESIDENT pro tem- amendments should be filed by 1 us in just wars against the despots and pore. The Chair recognizes the major- o’clock today. Second-degree amend- dictators of history. As we remember ity leader. ments should be filed by 3 o’clock the victory of 50 years ago that broke today.

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

S 6227 S 6228 CONGRESSIONAL RECORD — SENATE May 8, 1995 A second cloture vote will occur to- Veiling an Indian beauty; in a word, serve a worthwhile national purpose, morrow if cloture is not invoked today. The seeming truth which cunning times put should no longer be allowed to escape It is also my hope that we might at on scrutiny along with every other area of To entrap the wisest. least debate this evening the CIA nomi- Federal activity. nation, Mr. Deutch. I think the admin- It was obvious to all who examined We are told by the Congressional Re- istration would like to have that done. this visionary proposal that it amounts search Service that there are over 120 I think it is a 2-hour time agreement. to a return to the failed policies of sup- separate tax expenditures in current ply-side economics undertaken during We can debate that this evening, and law which will cost the U.S. Treasury the Reagan-Bush years. The problem have the rollcall vote tomorrow morn- $453 billion this fiscal year. That figure with the Reagan plan was that we did ing. will rise to $568.5 billion in fiscal year I yield the floor. the easy part—we massively increased military spending and we drastically 1999—unless Congress and the Presi- f cut taxes. But when it came to the dent enact changes to eliminate and otherwise cut back the growth in some MORNING BUSINESS hard part—cutting entitlement spend- ing—everybody balked. We all know of these tax subsidies. If we fail to do The ACTING PRESIDENT pro tem- what resulted from those actions—a so, then how can we possibly expect the pore. Under the previous order, there string of unprecedented budget deficits American people to believe that we will now be a period for the transaction which were the largest the country has have administered budget cuts fairly? of morning business for not to extend ever seen and which ceased to grow Incredibly, Mr. President, we have beyond the hour of 12 noon with Sen- only after the election of President not seen any indication by the Repub- ators permitted to speak therein for Clinton. lican leadership that they are prepared not to exceed 5 minutes each. In other words, we went on a national to even examine these 120 Federal tax f spending spree on credit—not paying subsidies to see if they are necessary or our bills, but charging them to future if they can be afforded any longer. RECOGNITION OF SENATOR BYRD generations. As a result, the national Instead, we have seen the House pass The ACTING PRESIDENT pro tem- debt rose from $932 billion on January a massive tax cut bill, which will cost pore. Under the previous order, the 20, 1981, when President Reagan was $630 billion over the next 10 years. And, Senator from West Virginia is recog- sworn in, to $4.1 trillion on January 20, who will get the benefit of those tax nized to speak for up to 30 minutes. 1993, the day that Bill Clinton was cuts? According to the Treasury De- Mr. BYRD. I thank the Chair. sworn in as President. partment: f Immediately following his election, Nearly half the tax benefits—47 per- President Clinton submitted a budget cent—would go to the wealthiest 10 THE BUDGET that cut the projected Bush deficits percent of households. These house- Mr. BYRD. Mr. President, section 301 drastically and, in fact, in 1993 Con- holds all have incomes at least some- of the Congressional Budget and Im- gress enacted a massive deficit reduc- what above $100,000, according to the poundment Control Act of 1974 requires tion bill, which President Clinton Treasury measure. that on or before April 15 of each year signed into law. That package of budg- The richest 1 percent of households— the Congress shall complete action on et cuts reduced the projected deficits 1.1 million households—would receive a concurrent resolution on the budget over 5 years by roughly $500 billion, 20 percent of the benefits from the tax for the fiscal year beginning on Octo- and it was passed by both Houses of package, while the bottom three-fifths ber 1 of such year. The failure to meet Congress without a single Republican of households—65 million households— this deadline, however, has no effect on vote. would receive only 15.6 percent of the points of order under the Congressional The economy has responded well to total tax benefits, according to the Budget Act. In fact, Congress has met the deficit reduction that has taken Treasury data. the deadline only three times since en- place thus far under the leadership of The average tax reduction for the actment of the 1974 Budget Act; name- President Clinton. I believe that the wealthiest 10 percent of all households ly, for fiscal years 1976, 1977, and 1994. economy will continue to perform well would be nearly nine times greater So, it is not unusual that Congress, at so long as we continue our efforts to than the average tax reduction for the the April 15 deadline, has yet to com- whittle away at the massive deficits middle fifth of households—$4,821 and plete action on the 1996 budget resolu- built up over the dozen Reagan-Bush $555, respectively. tion. years. Mr. President, I am totally opposed It does seem a little unusual that Tough decisions will be required to this year’s budget resolution has not balance the Federal budget. I know to tax cuts at this time. I will not vote been reported by the Budget Commit- that it will require drastic action. I be- for President Clinton’s tax cuts, I will tee of either House. Perhaps our friends lieve that the American people, as a not vote for the House-passed tax cuts, on the Budget Committees are finding whole, are prepared to face the tough or any other tax cuts that may be pro- it somewhat more difficult to come for- choices that will have to be faced in posed at this time. We need to keep an ward with a budget resolution which order to balance the Federal budget, so eye on the target of reducing the Fed- will force Congress to make the dif- long as they are certain that their eral budget deficit until it is elimi- ficult choices that will be necessary to elected representatives are administer- nated. From press accounts, I under- achieve a balanced budget, than it was ing the budget cuts fairly across every stand that Senator DOMENICI, the very to sign the mostly empty pledges that sector of the country. The budget axe able and experienced chairman of the were contained in the vacuous rhetoric should not be wielded indiscriminately. Budget Committee, is planning to rec- of the so-called ‘‘Contract With Amer- This round of budget cutting, to be ef- ommend to the Budget Committee a ica.’’ fective, should involve priority setting; budget resolution which, if carried out, For a while, everything seemed to be it should involve separating out the would result in a balanced budget for going along swimmingly for the new truly effective and necessary Federal fiscal year 2002. It is my further under- Republican majority in Congress. We Government programs from those that standing that Senator DOMENICI’s pro- have been told over and over again by are merely nice to have but not truly posal will not include a tax cut. In- the House Republican leadership that necessary for the Federal Government stead, a tax cut would have to wait they would balance the budget by the to be involved. until Congress has enacted the nec- year 2002, while at the same time they Furthermore, if we are to achieve essary legislation to achieve budget would increase military spending, cut fairness in our deficit-elimination ef- balance, under CBO scoring, by 2002. taxes by some $630 billion over the next forts, we cannot ignore the huge tax If this is the position of the chairman ten years, and take Social Security off subsidies that are written into the Tax of the Budget Committee, I commend the budget-cutting table. Code from time to time and are never him for his courage and foresight, and Thus ornament is but the guiled shore looked at again. These kinds of tax ex- for his integrity in placing the empha- To a most dangerous sea; the beauteous scarf penditures, many of which may well sis in this year’s budget resolution May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6229 where it clearly should be—on elimi- tend to fix the Medicare program. All I I implore the Senate Budget Commit- nating the deficit rather than on cut- see is a cut in Medicare spending total- tee, under the able leadership of its ting taxes. I have long admired and re- ing $259 to $333 billion over the next 7 chairman, Senator DOMENICI, and its spected the intelligence and wisdom of years. Is it fair to ask for this level of equally able ranking member, Senator Senator DOMENICI. He is a Senator who sacrifice from Medicare beneficiaries EXON, to carefully consider these very takes his responsibilities very seri- at the same time military spending important matters as the committee ously and who works tirelessly to carry will be rising from a starting point of marks up the 1996 budget resolution. out these responsibilities. $262.2 billion over the same 7-year pe- As I have already stated, I do not be- In addition to containing no tax cut, riod? lieve that the American people deserve, Mr. President, it is also important that Or, is it fair to cut $500 billion from nor will they support, a deficit-elimi- cuts in spending in this year’s budget domestic spending on education, law nation package unless its effects are resolution be administered fairly and enforcement, highways, research, job distributed fairly across all segments equitably to both entitlement and dis- training, and from student loans, and of the population. I do not believe they cretionary spending. As all Senators veteran’s medical care while, at the will support a continuation of existing are aware, the discretionary portion of same time, ignoring the subsidies in tax breaks along with new massive tax the budget is under the control of the the Tax Code that total $453 billion in cuts for the wealthy, while Medicare Appropriations Committees and 1995 and which, as I say, will grow by a beneficiaries are being asked to pony amounts to just over one-third, or $549 total of $283.9 billion over the next 5 up hundreds of billions of dollars over billion, of the President’s 1996 budget. years, 1995 to 1999. In 1999 alone, these the next 7 years. Of the remainder, net interest on the tax breaks will total $568.5 billion, an I urge Senators not to attempt to debt will be $257 billion, or 15.9 percent increase of $115.5 billion over their 1995 balance the budget on the backs of mil- of the 1996 budget. The other one-half cost. lions of Americans by savaging their of the budget consists of Social Secu- It is incredible—even beyond belief— health care benefits, while at the same rity—which will equal $351.4 billion, or that Congress would enact a 7-year, time enacting hundreds of billions of 21.8 percent of the 1996 budget—Medi- deficit-elimination package that cuts dollars in new tax breaks which pri- care, Medicaid, and other mandatory $500 billion from domestic investments marily benefit the wealthiest in our so- and entitlement programs. and cuts between $259 and $333 billion ciety. No amount of hollow rhetoric in If Social Security is taken off the from Medicare, while it cuts nothing a so-called Contract With America can table, and if we pay the interest on the from military spending and while we hide the perverted policies being pro- debt, which we must, then we have re- allow permanent tax breaks to grow by posed by those who signed this so- moved almost 38 percent of the budget $283.9 billion! How can we expect the called contract which was, after all, from budget cuts. We are told that the American people to accept this ap- fashioned by pollsters for the purpose budget resolution will also not cut proach to budget balancing? It is not of gaining political advantage. military spending, and, in fact, will only unfair, it is irrational. Mr. President, I yield the floor, and I propose an increase in military spend- What this amounts to is protecting suggest the absence of a quorum. ing over the next 7 years. If this is the special interest groups and the The ACTING PRESIDENT pro tem- done, then we will have shielded 54 per- wealthy. They will get to keep their pore. The clerk will call the roll. cent of the budget from cuts, leaving existing tax breaks, and, to make mat- The assistant legislative clerk pro- only 46 percent, including other enti- ters worse, they will also get the over- ceeded to call the roll. tlements, to undergo budget-cutting whelming share of the tax cuts already Mr. SPECTER. Mr. President, I ask surgery over the next 7 years. passed by the House, which amount to unanimous consent that the order for I ask the American people: Is that a a $630 billion drain from the Treasury the quorum call be rescinded. fair way to proceed? Is it fair to cut over the next 10 years. The ACTING PRESIDENT pro tem- $500 billion over the next 7 years from On a related matter, there has been pore. Without objection, it is so or- domestic discretionary programs, speculation that the Republican wel- dered. while increasing military spending? fare reform package will be included as The Senator from Pennsylvania. The military consumes $262.2 billion part of this year’s reconciliation meas- Mr. SPECTER. I thank the Chair. in outlays in the President’s 1996 budg- ure. If these reports are accurate, this f et. That amount is almost equal to the should be a cause of great concern to $265.8 billion that is in the budget for all Senators and to the American peo- NOMINATION OF DR. HENRY all domestic discretionary programs. ple. I say this not from any partisan FOSTER This includes law enforcement, edu- perspective. As I stated to the distin- Mr. SPECTER. Mr. President, I have cation, infrastructure spending on guished majority leader in a letter sought recognition to announce my in- highways and transit, environmental dated March 31, 1995, I agree that wel- tention to vote to confirm Dr. Henry cleanup, clean air and water, research fare reform is certainly necessary. But Foster to be Surgeon General of the and development, medical research, I have strong reservations about tak- United States. I hope that I will have NASA, national parks, the Justice De- ing up such far-reaching and important the opportunity to cast that vote, that partment, the judiciary, the FBI, and legislation as part of a reconciliation the nomination will come to the floor the operations of virtually all agencies measure, upon which very limited de- of the U.S. Senate, and that prelimi- and departments in the Federal Gov- bate is allowed. nary proceedings will be cleared so ernment. In my view, the reconciliation proc- that there will a vote up or down on If we follow the Republican plan, we ess was not intended to allow the adop- whether Dr. Henry Foster should be- will cut all of these domestic discre- tion of major legislative proposals, come the next Surgeon General of the tionary programs by approximately 35 such as welfare reform, under condi- United States. percent by the year 2002, at the same tions where debate is limited. This is When Dr. Foster’s name was for- time we increase military spending. Is not a new position for me. I opposed warded to the Senate by the President that fair? It is not only unfair, it is such a tactic on health care reform last in early February, I was a little dis- pure folly. year, when both the then-majority mayed to hear the cry arise that he Furthermore, under the Republican leader and President Clinton urged my should be disqualified because he had budget plan, the elderly will be asked support for including health care in performed abortions. I was surprised to to pay dearly. Medicare will be cut last year’s reconciliation measure. hear that cry arise because abortions anywhere from $259-$333 billion over Major proposals of this kind should be are a legal medical procedure under the the next 7 years. We hear that these thoroughly and thoughtfully examined Constitution of the United States. This cuts are not being proposed for deficit by the Members of both parties on this is not a matter of Roe v. Wade, the de- reduction but only because Medicare Senate floor in a free and full debate, cision handed down in 1973. This is will be broke if we do not fix it soon. not under the extremely limited debate reaffirmed by the Supreme Court of the Well, Mr. President, I see no proposal that is allowed for reconciliation meas- United States in Casey v. Planned Par- from the Republicans on how they in- ures. enthood in 1992, an opinion written by S 6230 CONGRESSIONAL RECORD — SENATE May 8, 1995 three Justices—Justice Souter, Justice Dr. Foster, he ought to get his day in people lost their lives. I visited Lenin- O’Connor, and Justice Anthony Ken- court, his day in the Senate for a ‘‘yes’’ grad where you see 25,000 people in one nedy, all nominated by Republican or ‘‘no’’ vote; and that he ought not to mass grave, and these are plot after Presidents. have been railroaded out of town, as plot after plot. No country lost as So it seemed to me curious, to say some have suggested, even without a much as did the people of the former the least, that there should be a call hearing before the committee; and that Soviet Union. for his defeat because he had performed he ought not to be railroaded out of The war spread death across six of abortions, a medical procedure author- town without the matter coming to the the seven continents and all over the ized by the Constitution of the United floor of the U.S. Senate; and that he world’s oceans. In the end, much of the States. ought not to be railroaded, or have his heart of Western civilization lay in Then issues were cited about char- fate decided, without having the Sen- ruins. acter, about what representations Dr. ators vote ‘‘yes’’ or ‘‘no’’ on his con- Sixteen million one hundred twelve Foster had made as to how many abor- firmation. thousand Americans served in the U.S. tions he had performed. It then came So I am pleased to be in a position Armed Forces during World War II, and to light that there had been an indica- today, Mr. President, to say what I they knew the ravages of war. Of these, tion from the White House about some sensed when I met with Dr. Foster in more than 1 million were Californians; misinformation. Then other issues early February, that he is truly a man 408,000 Americans never came home. To arose in a variety of contexts. who merits being confirmed as Surgeon these Californians and these Ameri- I believe that the hearings last week General of the United States. cans, I want to say you have my deep- have laid all of those issues to rest. Dr. I think that it is time that we put to est respect, and I know I join with all Foster was a compelling witness, a rest the issue of what is the law of the of my Senate colleagues in saying forceful witness on his own behalf and land of the United States of America thank you. he answered all of the outstanding with respect to a woman’s right to For me, I was one of the lucky ones: questions, so that there is no doubt choose. I personally am very much op- about his good character or about his posed to abortion, but I do not believe I was 11 years old, a girl, living in a excellent service as a physician, or that it is a matter that can be con- flat in the Marina District of San Fran- about his care for the poor and down- trolled by the Government. I believe it cisco. I remember the blackout shades, trodden, and about his excellent work is a matter for the woman’s choice, it the submarine nets under the Golden as a doctor over many years. is a matter for the family, it is a mat- Gate Bridge, troops shipping out from I had occasion to meet personally ter for priests, rabbis, and ministers, Fort Mason 6 blocks from my home and with Dr. Foster and discuss at some and it is not to be determined by the the Nike gun emplacements on the ma- length his own background and the is- Government of the United States. rina headlands and in the Presidio. As sues which had been raised about him. When we have decisions of the Supreme a lucky one in the land of the free and It seemed to me at that time at that Court separated from 1992 back to 1973 the home of the brave, for me there meeting, which was in early February, and the law of the land stated in Casey was no Auschwitz or Bergen-Belsen. that his nomination certainly ought to v. Planned Parenthood, a decision writ- V–E Day represents a victory over go forward. I did not state at that time ten by three Justices for a majority of fascism, paranoia and the most dev- support for his nomination because it the Court, Justices appointed by Presi- astating war in history, all sparked seemed appropriate to me that we dents Reagan and Bush, that that is and guided by one man. Probably the await the hearings by the committee the law of the land, we ought not to re- most infamous demagog the world has to see what would occur at that time. ject a nominee because he is perform- ever seen, Hitler was described by one After reviewing the hearings and what ing medical procedures which are au- of his early associates, Otto Stresser, occurred at the hearings, today I am thorized by the Constitution. as a speaker ‘‘who touches each private confident that Dr. Foster ought to be I think it is time that the Senate of wound on the raw, liberating the un- confirmed as Surgeon General of the the United States faced up to that conscious, exposing its innermost aspi- United States and, therefore, announce proposition squarely. I hope it will be rations, telling it most what it wants my intention to vote for him. done by having the nomination re- to hear.’’ I was encouraged to see the media re- ported to the Senate floor and by hav- Jews and Slavs were referred to as ports that our distinguished majority ing an up-or-down vote. I intend to ‘‘untermenschen,’’ subhumans. Mos- leader will meet with Dr. Foster, and I vote ‘‘aye,’’ and it is my prediction cow, Leningrad, and Warsaw were hard am hopeful that that meeting will that Dr. Foster will be confirmed. hit, their industries left in ruins. produce a result that Dr. Foster’s nom- I thank the Chair and yield the floor. In ‘‘Mein Kampf,’’ Hitler described ination will come to the floor. Mrs. FEINSTEIN addressed the what history has shown to be correct. I note the comments of the distin- Chair. He said: guished chairman of the committee, The ACTING PRESIDENT pro tem- The masses more readily fall victim to the Senator KASSEBAUM, that Dr. Foster’s pore. Under the previous order, the big lie than the small lie, since they them- nomination ought to come to the floor Senator from California is recognized selves often tell small lies * * * it would and ought to be voted upon, although I to speak up to 15 minutes. never come into their heads to fabricate co- do not believe at this stage that Sen- f lossal untruths, and they would not believe ator KASSEBAUM has stated whether that others have the impudence to distort her intention is to vote ‘‘aye’’ or ‘‘nay’’ A LOOK BACK AND A LOOK the truth so infamously. on the nomination itself. FORWARD Millions, indeed, did fall victim to I am hopeful that there will not be a Mrs. FEINSTEIN. Thank you very the big lie. Fanatical in his quest for filibuster, as has been mentioned, on much, Mr. President. personal power, Hitler withdrew Ger- Dr. Foster. Any Senator has the right Mr. President, today, May 8, is V–E many from the League of Nations, to handle that in any way that any Day, which stands for Victory in Eu- aproclaiming that the European powers Senator pleases, and any Senator has a rope, and it marks the end of one front will ‘‘never act * * * they’ll just pro- right, as I now express my right to say of the most disastrous event in modern test * * * and they will always be too that I hope that we will not be con- human history. late.’’ fronted by a filibuster. The war in Europe was one in which In fact, the West’s hesitance in the But if we are, Mr. President, it is my 50 million civilians and military per- face of this evil has sullied the word sense of the Senate—and this is only sonnel alike died. It was not only a ‘‘appeasement’’ for all time. one Senator speaking—that a filibuster war, but a major crime against human- By 1943, Hitler held the power of life will be defeated and that even Senators ity. and death over 80 million Germans and who think that Dr. Foster ought not to Two out of three Jews in Europe were more than twice that number of van- be confirmed as Surgeon General of the scientifically exterminated—a total of quished people. United States will not support a fili- 6 million—along with 5 million other After Hitler took his own life on buster; that as a matter of fairness to victims. In the Soviet Union, 27 million April 30, 1945, and the end of the war May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6231 was in sight, devoted followers pro- as something called ‘‘shock troops’’ PRODUCT LIABILITY fessed their determination to continue. and ‘‘cannon fodder’’ for house-to- Mr. GRAMS. Mr. President, for the A Nazi-controlled newspaper said at house searches conducted by ‘‘New last 2 weeks we have had a serious de- the time: World Order officers.’’ bate over our Nation’s broken liability The heart which beat only for us, the will That is false. system. which blazed only for us, the creative genius So theories about black helicopters, We have heard stores from supporters which thought and acted only for us, the modern day concentration camps, and voice which so often galvanized us—all this of the plaintiff’s bar who claim that no longer exists! However low fate has mass raids abound, we find, throughout manufacturers are putting products on brought events, Hitler’s achievements will this land of the free and home of the the market with little regard for illuminate, far into the distant future, the brave. Even on Internet, this system is consumer safety. epoch which began with him. used to spread conspiracy theories And we have also heard from support- Now, 50 years later, these words offer across our land. Even a terrorist hand- ers of manufacturers who have anec- an ominous warning. Modern-day para- book is run on the Internet on how to dotes of honest individuals who were noia, built upon elaborate conspiracy build a bomb. I read this handbook, and sued for multimillion-dollar awards theories and fears, I am sorry to say, is they tell you how to break into univer- and settled out of court to avoid more still very much alive today. sity chemical labs, how to find the costly legal fees, even when they were For several years, we have seen an chemicals you need, and how to steal innocent. escalation in fundamentalist-inspired those chemicals. Later today or tomorrow, there will killings in Egypt and Algeria, the rise Finally, we see neo-Nazism, even be an effort by supporters of product li- of neo-Nazism in Germany, nationalis- signs popping up here and there saying ability reform to end debate, but before tic fervor in former Communist States, ‘‘whites only,’’ and on and on and on. we do that, I wanted to make sure this severe anti-immigrant backlash in One must ask the question on this body heard comments from a few of my France, and poison gas attacks in very special day: Will the threats, the constituents Japan. fear mongering, and the paranoia even- An all-too-familiar story from Amer- The rise of fanaticism and the terror- tually fuel major bloodshed? Was it re- ica’s small businesses is exemplified in ism it spawns is ever increasing right sponsible for encouraging the terrible a letter from Trade Mart Furniture’s here in the United States as well. Jerry Johnson, a constituent from I think no event embodies this more Oklahoma City bombing? Two years ago, militia members Rochester, MN. than the Oklahoma City bombing. Jerry writes: Whatever the final outcome of the in- warned about U.N. troops poised along the United States-Canadian border, I’ve experienced firsthand the effects of a vestigation into the bombing, a new— frivolous lawsuit. After two years of court and, I believe eye-opening—look at the ready for invasion. Thirty years ago, appearances, legal fees and countless hours, I growing trend of extremism is taking the John Birch Society warned of Chi- won. It cost almost $10,000 to defend myself. place across the world. nese troops in box cars along the Mexi- I thought the legal system was created to In this country, so-called militias are can border. Fifty years ago, the most protect the citizen, not the profiteer. growing in numbers, stockpiling vast deadly of all wars ended. Ann Hartman of Hartman Tree arsenals, preaching hate and violence History can teach us lessons if we Farms in Victoria, MN, states, ‘‘I am against this Government. want to learn. Or we can be doomed to tired of seeing lawyers make so much Here are some examples: repeat history time and time again. money off the tragedies of others.’’ The Federal Emergency Management We all pray that the Oklahoma City And a couple from Menahga, MN, Agency has orders for Hispanics and bombing is a one-time-only event. who own Burkel Turkey Farms writes: African-Americans to be ‘‘rounded up Yet, as a country, this is a time for The system now is a free-for-all for the and detained’’ in the event of a State of us to come together, to heal, to begin money-hungry and the lawyers. There are far domestic national emergency. anew, to straighten with truth vicious too many people out there that feel the sys- That is false. lies, to look for what unites us and tem owes them something. They say tax protesters, demonstra- We are at the mercy of dishonest people strengthens us as a people, an Amer- who are only out for a buck. It’s different if tors against Government military ican people, to strengthen these bonds, intervention outside United States bor- a person has a legitimate claim, but some- rather than to seek what divides us. ders, and people who maintain weapons thing must be done to maintain a fair legal The wounds of the past can guide us system for the honest people of this world. in their homes are the next targets. That is false. in the future. We simply need the de- Mr. President, these are just a few of They say that FEMA advocates ‘‘the termination and the political will to the comments I have received through- rounding up and transfer to ‘assembly fight the fear and the paranoia that is out my tenure as a representative from centers or relocation camps’ of at least still so strong in our society. Minnesota, and as a small businessman 21 million American Negroes.’’ V–E Day is a chance to celebrate the myself, I understand the effects of the That is false. conclusion of one of the darkest eras in threat of a potential lawsuit. They say there are black helicopters our history. It is a chance to say thank The fact is that almost 90 percent of with no markings spying on citizens. you to those who gave their lives so all U.S. companies can expect to be They say police officers were met by that we might remain a free people. named in a product liability lawsuit. ‘‘armed men in black uniforms,’’ re- Let us use this day to also look deep- The present liability system costs portedly from the Federal Government. ly at America as it exists today. There Americans $300 billion a year and like That is false. is a great deal of work to do to sort it most Americans, my Minnesota con- They say U.N. troops are training to out, to pull this country together be- stituents are concerned about the dev- suppress America’s people. fore fear and intolerance rips us apart. astating effects the liability system That is false. It is with the loving memory of the has on them. They say Somalia was simply a prac- millions and millions of victims of Recent polls continue to show strong tice run for occupying the United World War II—and the hundreds of vic- support for liability reform: 83 percent States. tims of the Oklahoma bombing—that I believe the present liability system has problems and should be improved, That is false. make these remarks today. And I give while 89 percent believe that ‘‘too They point out that Russian trucks thanks to those who fought and died in and personnel carriers are being im- many lawsuits are being filed in Amer- Europe so that we may know freedom. ported as well as ‘‘100-car trains filled ica today.’’ I thank the Chair and yield the floor. with United Nations equipment.’’ Our current system benefits the law- Mr. GRAMS addressed the Chair. That is false. yers and the dishonest. It treats both They even say that Crips and The ACTING PRESIDENT pro tem- plaintiffs and defendants unfairly. In- Bloods—gangs that dominate some pore. The Senator from Minnesota [Mr. consistent laws force both sides to sac- urban areas—are being trained to serve GRAMS], is recognized. rifice time and money on unpredictable S 6232 CONGRESSIONAL RECORD — SENATE May 8, 1995 litigation. Both consumers and manu- payers’ money.’’ I understand that clear power industry to address the in- facturers end up losers. Consumers lose suits like these may be rare. However, dustry’s nuclear waste problem. because they receive inadequate com- they typify the problems with our cur- As many of my colleagues are aware, pensation. Some estimates have shown rent system. the industry’s solution to its waste that our tort system consumes 57 cents The Gorton-Rockefeller Product Li- problem has, for a number of years, of every $1 awarded in lawsuits. ability Fairness Act will address many been very simple: ship the waste to Ne- In addition, consumers wait unrea- of the problems faced by well-inten- vada. sonable amounts of time before they tioned, honest manufacturers. Since 1982, Nevada has been the tar- receive compensation, and often pay This legislation will establish alter- get of the nuclear powder industry’s ef- outrageous fees to their attorneys. native dispute resolution, extend pro- forts to move its toxic high-level waste Manufacturers lose because liability tection to product sellers, provide an away from reactor sites. concerns stifle research and develop- absolute defense for injuries received Under current law, Yucca Mountain, ment. when the plaintiff was under the influ- 90 miles north of Las Vegas, is being A recent survey showed that because ence of drugs or alcohol, and prevent studied, supposedly to determine its of fear of litigation, 47 percent of com- automobile rental companies from suitability as a site for a permanent panies had withdrawn products from being held liable for damages caused by geologic repository. the market; 25 percent had discon- the renters of its cars when the com- The repository program has had im- tinued some kind of research; and 8 pany is not at fault. mense problems. percent actually had laid off workers. In addition, the Gorton-Rockefeller With $4.5 billion spent to date on the In fact in 1 year alone, Texas lost bill will provide much-needed relief to program, Yucca Mountain is no closer 79,000 jobs due to the cost of the liabil- suppliers of biomaterials. Currently, to accepting the nuclear power indus- ity system. raw material suppliers who have no di- try’s waste than it was 13 years ago, Each year there are more than 70,000 rect role in the raw material’s ultimate when Congress passed the first Nuclear product liability lawsuits filed in the use as a biomaterial share extraor- Waste Policy Act. United States—yet Great Britain only dinary and irrational liability risk I am not alone in my opinion that a has an average of 200. with device manufacturers. Now, this is only one of the reasons repository will never be built at Yucca Companies such as DuPont, Dow Mountain. liability insurance costs are 20 times Chemical, and Dow Corning have de- higher in the United States than in Eu- The nuclear power industry is also cided to stop supplying manufacturers frustrated. rope. of medical devices with raw materials As a result of this well-known liabil- In a curious juxtaposition from the for fear of lawsuits. This legislation is Nevada perspective, the industry ity gold-rush, the United States as a progress, and is the first step in the nation loses as well. thinks the DOE is being too careful, right direction. paying too much attention to environ- According to the Product Liability While I am encouraged by the hard Coordinating Committee, the cost of mental concerns, and simply not mov- work of the Senators from Washington ing fast enough. product liability ranges from $80 to State and West Virginia, I am con- $120 billion per year. While the nuclear power industry cerned that we may be opening up a still maintains that Nevada is perfectly These costs are passed directly on to new can of worms, when this legisla- you and me as consumers. Appro- suitable to host their repository, it has tion is signed into law. come to the conclusion that Yucca priately, this is known as the tort tax. While it will offer protection for For example, manufacturers of foot- Mountain will never solve its high- product manufacturers, my fear is that ball helmets add $100 to the cost of a level waste problem. it will leave the service industry as the $200 helmet. Auto manufacturers add The nuclear power industry has a only remaining deep pocket. $500 to the price of a new car, and the new solution, and of course, Nevada is I believe the Senate should continue markers of a $100 stepladder will add once again the victim. moving forward to reform our liability another $20 to its cost, just to cover po- The nuclear power industry’s new system, making sure that individuals tential liability. strategy is to designate Nevada as the who deserve compensation are made I know many of my colleagues have site for its interim storage, beginning whole and that individuals who are not mentioned this, but I want to reiterate in 1998. at fault are not held liable for someone the fact that right here in Washington, While the ‘‘interim’’ designation is else’s actions. DC, the Girl Scout Council must sell supposed to imply a temporary facility, Mr. President, we should take this 87,000 boxes of Girl Scout cookies each the nuclear power industry defines ‘‘in- historic opportunity today to approve year just to cover the cost of their li- terim’’ as 100 years, subject to renewal. the Product Liability Fairness Act, ability insurance. The motive is patently transparent: and in doing so ensure that our liabil- In my own State of Minnesota, At- ship high level nuclear waste to Nevada ity system is fair to all parties in- torney General Hubert Humphrey III, as soon as possible, without any regard volved, not just those who are looking the son of Minnesota’s great U.S. Sen- for the health and safety of Nevadans, for their golden nugget in the liability ator, recently testified before the State and then forget about it. gold-rush. legislature that his office spent $340,000 The type of public relations cam- in 1994 defending Minnesota against f paign being mounted here is nothing frivolous lawsuits. Attorney General EXTENSION OF MORNING new. Humphrey offered a top-10 list of law- BUSINESS While we in Nevada have long experi- suits from Minnesota inmates. These ence with such campaigns by the nu- are just a few of the ridiculous claims Mr. BRYAN. Mr. President, I ask clear power industry and its hired that prisoners have filed: unanimous consent that morning busi- flacks, I have to admit that this latest One prisoner claimed he had a con- ness be extended until the hour of 12:10. advertisement is a masterpiece of de- stitutional right to a computer in his The ACTING PRESIDENT pro tem- ception and misinformation. jail cell. One claimed that the Presi- pore. Hearing no objection, so ordered. The headline alone reveals the decep- dent gave him a fungus. f tiveness of the advertisement. Another prisoner claimed underwear ‘‘There are 109 good reasons to store was not provided, and when it was pro- NEI ADVERTISING CAMPAIGN nuclear waste in 1 place’’ proclaims the vided, it was so tight that it con- Mr. BRYAN. Mr. President, I would nuclear industry’s advertisement. stituted cruel and unusual punishment. like to bring to the attention of my The headline appeals to the logic of If you think these lawsuits are laugh- colleagues an advertisement currently the reader—of course, the reader able, try Mr. Humphrey’s No. 1 frivo- getting wide circulation by the nuclear thinks, 1 site is better than 109. lous lawsuit: One prisoner claimed that power industry. The problem is, of course, that the his primary reason for filing a lawsuit This advertisement touts the virtues advertisement does not tell the true was ‘‘pure delight in spending tax- of legislation introduced for the nu- story. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6233 Unless the nuclear power industry close to the premier tourist destination There simply was no crisis in 1980— has some well kept secret plan to shut in the United States. and there is no crisis now. down and decommission every reactor Unfortunately, however, these ex- It is all an expensive, dangerous ruse. at each of these 109 reactor sites, by pressions of sympathy have not often I urge my colleagues to think care- my count creation of a new, central translated into action. fully before falling for this, and other, site for waste storage makes 110 sites, For too long, the commercial nuclear deceptive misinformation campaigns not 1. waste problem has been identified as a by the nuclear power industry and its How the nuclear power industry gets solely Nevada issue. advocates. down to one site, when its reactors are The general attitude has been we feel Mr. BINGAMAN addressed the Chair. still running, and waste is still stored badly for Nevada—but if it is not Ne- The PRESIDING OFFICER (Mr. Shel- in pools on site, is beyond me. vada, who would be the nuclear power by). The Senator from New Mexico. The advertisement also ignores one industry’s next target? The Chair informs the Senator from of the key problems with a central This map should make clear that the New Mexico that at 12:10 morning busi- high-level waste facility—the transpor- nuclear power industry’s refusal to ac- ness is set to expire unless it is ex- tation of the toxic waste from the 109 cept responsibility for the storage of tended. reactor sites to the central facility. its own waste will affect every citizen Mr. BINGAMAN. Mr. President, I ask The nuclear power industry, in its of every State along the routes the in- unanimous consent that morning busi- obsession to dispose of its waste as dustry will use to move the waste. ness be extended for up to 15 minutes, quickly as possible, is proposing to cre- Even those from the few States that until I conclude my statement. ate thousands of rolling interim stor- are not targets of the nuclear power in- The PRESIDING OFFICER. Without age facilities, on trucks, and rail cars, dustry should be concerned. I do not objection, it is so ordered. in 43 States across the Nation. know how many of anyone’s constitu- f The nuclear power industry’s map ents are anxious to share the road with CUBA shows the location of the 109 reactor a truck moving high-level nuclear Mr. BINGAMAN. Mr. President, I sites, but not the proposed location for waste. first want to say a few words about our the central storage facility. Once the word is out to these affected policy toward a neighboring country, There is a good reason for this over- communities, no one will be able to Cuba. sight—the industry’s target for a continue to dismiss the issue as simply The United States objectives in Cuba central storage facility is not central a Nevada problem. are not in dispute. Our primary objec- at all. In the absence of a permanent solu- tive is to move Cuba to a more demo- Not even close. tion to the nuclear waste problem, cratic form of government and to a Looking at the map, it could not be there is simply no reason to move nu- government with a greater respect for clearer—only 15 of the 109 sites identi- clear waste away from the reactor human rights. Also, of course, we want fied are west of the Missouri River. sites. to see the lives of the Cuban people im- This second chart shows the map The only crisis facing the nuclear prove economically, and we want to see that the nuclear power industry, if it power industry is a public relations cri- our historically close ties with this is- was being honest, should have run in sis, not a scientific one. land neighbor restored. their advertisement. The NRC has licensed technology to First, let us review some of the facts This map shows the location of the store waste in dry casks, on site, for that led us to the present cir- current reactor sites, the proposed lo- the next several decades. cumstances we find ourselves in. Fidel cation for their central storage facil- Some utilities, of necessity, have Castro came to power in Cuba some 34 ity, and the likely routes through 43 taken advantage of this technology. years ago, when I was still in high States for the thousands of shipments Most refuse to do so. school and before several Members of necessary to move the high-level waste Why are utilities so adverse to ac- this Congress were even born. He from around the Nation to Nevada. cepting the responsibility for their own quickly established an authoritarian It is obvious to even the casual ob- waste? The answer could not be sim- and anti-United States regime. He de- server that the nuclear power indus- pler. clared himself a Marxist-Leninist in try’s interim storage proposal could re- Recognizing the political and public December 1961. Early in 1961, the Unit- sult in an unprecedented level of ship- relations nightmare of seeking permis- ed States broke diplomatic relations ments of extremely toxic, highly dan- sion to increase storage for high-level with Cuba. gerous radioactive materials. waste on site, utilities are seeking an A year later, in February 1962, we im- Every Member of the Senate should outside solution. posed a comprehensive trade embargo. take a careful look at this map. Nevada, a State with no reactors and The reasons cited for that were three. Nothing could make clearer the true about as far as you can get from a geo- First, Castro’s expropriation without scope of what the nuclear power indus- graphically central location, has been compensation, much property owned try is proposing. chosen as the target. by U.S. citizens, in excess of $1 billion. Over the years, as I have fought the Let me return for a moment to the Second, the Castro regime’s obvious industry and the DOE in their efforts advertisement. efforts to export revolution to other to open a repository in Nevada, I have I have not even touched on the misin- parts of the world. often found my colleagues, both here in formation provided by the text. And, third, the increasingly close ties the Senate and among the Nation’s The ad generally relies on the tried that existed then between Castro’s Governors in my previous position, and true tactic of the nuclear power in- Government and the Soviet Union. sympathetic to Nevada’s cause. dustry to create the impression of im- That was 33 years ago. During the Many in the Senate sympathize with pending doom if its demands for relief past 33 years, we have maintained the the outrageous abrogation of State’s are not met immediately. trade embargo in place. In April 1961, rights. Congress, then, is pressured to act we tried unsuccessfully in the Bay of Others understand the potential envi- quickly, irrespective of the wishes, or Pigs to have Castro overthrown mili- ronmental risks associated with open- the health and safety, of Nevadans, or tarily. We began in 1985 to use Radio ing a high-level nuclear waste dump 90 anyone else. Martı´ to undermine Cuban support for miles from the fastest growing metro- This was true in 1980, when the indus- Fidel Castro, and in the Bush adminis- politan area in the United States—a try claimed that reactors across the tration just a few years ago we added metropolitan area with nearly 1 mil- Nation would soon shut down if they TV Martı´ to the mix, as well. lion residents. could not get what was then called In 1992, we passed the Cuban Democ- Still others have understood the po- away-from-reactor storage by 1983. racy Act in an effort to tighten our tentially grave economic damages that No away-from-reactor storage was trade sanctions. This year, we are could result from the transport and ever built, and no reactor has ever shut being urged by some in this body to storage of high-level nuclear waste so down from lack of storage. pass a new and tough measure entitled S 6234 CONGRESSIONAL RECORD — SENATE May 8, 1995 ‘‘The Cuban Liberty and Democratic For example, as I stated here in the pinned to his knowledge of his country- Solidarity Act’’ in order to give Castro Senate several weeks ago, I believe the men. He wrote for that speech: what the supporters of that legislation President should act to end the travel The only limit to our realization of tomor- refer to as the ‘‘final push.’’ ban on Americans who wish to travel row will be our doubts of today. Let us move With all due respect to President to Cuba. The President should also re- forward with strong and active faith. Clinton and to many here in Congress, store the right of Cuban-Americans to We did that in the Second World War. our policy toward Cuba today is still make small remittances to their fami- So we must, every day, move forward captive of the cold war mentality that lies and to their relatives in Cuba. In now from the conflict that threatened created it in the first place. Simply my view, the time has also come when to consume the world half a century put, the world has changed, and we we should begin to normalize trade re- ago. Without the service and the sac- continue to pretend otherwise. lations with that country. rifice that we honor today, we would Mr. President, this is 1995. Our 34- Mr. President, I realize that it is po- have had no future as a nation. It is year-old policy of trying to remove or litically difficult to change a long-es- our obligation to those who secured alter the behavior of Fidel Castro by tablished policy. It is especially dif- that future for us to build on it as we isolating him diplomatically, politi- ficult given the political posturing that approach the new century. cally, and economically has failed. His- is preceding our upcoming Presidential Thank you, Mr. President. I yield the election. But the time has come to ac- tory has passed that policy by. And the floor. knowledge that our current policy to- cold war, which provided much of the Mr. President, I suggest the absence ward Cuba has failed miserably. NEWT rationale for our policy, is now over. of a quorum. GINGRICH referred yesterday to Cuba as We have normalized relations with The PRESIDING OFFICER. The ‘‘a relic of an age that is gone.’’ I agree China—Communist China, I point out. that Castro’s Government is an anach- clerk will call the roll. We have normalized relations with the ronism. But it is no more so than our The legislative clerk proceeded to countries of Eastern Europe and Rus- own misguided policy for dealing with call the roll. sia, and with all the former States of that country. Mr. DASCHLE. Mr. President, I ask the Soviet Union. Most agree that President Nixon’s unanimous consent that the order for This morning, President Clinton goes greatest achievement was his decision the quorum call be rescinded. to Moscow to meet with Boris Yeltsin, to change United States foreign policy The PRESIDING OFFICER. Without not to find ways to isolate Moscow or and move toward normal relations with objection, it is so ordered. to impose sanctions on Moscow for Communist China. That was many Mr. DASCHLE. Mr. President, are we their human rights abuses in Chechnya years ago, when the cold war was still still in morning business? or elsewhere; our President travels to very much with us. Now the cold war is The PRESIDING OFFICER. We are Moscow to strengthen our relations over, and a new and a reasonable policy still in morning business. with that important country. for our relations with Cuba is long f Mr. President, U.S. policy toward overdue. Cuba needs to adjust to this new re- I for one believe that the responsible THE 50TH ANNIVERSARY OF V–E ality, just as our policy toward those course for us to proceed with is to es- DAY other nations has adjusted. For over tablish a new policy now. three decades, we have tried to exclude f Mr. DASCHLE. Mr. President, today Cuba from acceptance by other na- marks the 50th anniversary of V–E tions. But our policy of trying to iso- V–E DAY Day, the day that saw the end of the late Cuba diplomatically has made the Mr. BINGAMAN. Mr. President, I Second World War in Europe. United States the odd man out in the would like to make a few statements From its European beginning on Sep- world community rather than Cuba. Of about the occasion of May 8, 1995, V–E tember 1, 1939, with Hitler’s invasion of the 35-member nations of the Organiza- Day. Poland, to the surrender of the German tion of American States, all but 5 rec- It is rather difficult to think of any armies in Italy, on April 29, 1945, the ognize the Cuban Government and have event in the life of a nation more wor- war that was supposed to usher in the normal diplomatic relations with it. thy of commemoration than the end of 1,000-Year Reich ended after 6 years of The Senator from North Carolina, a world war. Remembrance and reflec- death, genocide, and destruction on a who chairs the Senate Foreign Rela- tion are crucial if we are to maintain scale never seen before or since. tions Committee, argues that the way our sense of purpose as a nation, and The outcome of the war changed our out of this absurd situation is to turn our appreciation of what we value world profoundly, with effects that up the pressure on Castro. As he says, most. still resonate today. It left the United ‘‘It is time to give Castro the final The service and sacrifice of those States the sole undamaged world push.’’ who bore the battle at home and over- power. With that status came respon- Mr. President, the sanctions and the seas in the Second World War can sibilities that most Americans had not embargoes and the pressure that we never be overstated. It was that will- imagined at the outset. In the 50 post- put on Castro in the past 34 years have ingness to give unstintingly not only of war years, those responsibilities have not undermined the support of the effort but also, in many cases, their demanded more in American treasure Cuban people for his Government as we lives, that makes the war years such and lives than from any other partici- have wished. In fact, a strong case can an extraordinary period in our Nation’s pant. be made that the constant menacing by history. European and Japanese cities suf- Uncle Sam has been used very effec- Americans who fought the war came fered the destruction of repeated artil- tively by Castro to divert the attention from every State in the country, and lery fire and massive carpet bombing. of the Cuban people from the short- my home State of New Mexico cer- European civilians found themselves comings of his own Government and tainly did its part. Our own friends and uprooted, fleeing desperately from his own policies. neighbors were heroic in their actions, their historic hometowns as massive Mr. President, this administration in their service, and in their struggle. armies moved back and forth across has been slow to face the need to If not for their efforts, what would the frontiers. But Americans paid a price, change in our policy toward Cuba. But world be like today? too. last week, we hopefully saw the begin- Franklin Roosevelt, whose death 50 By 1990, it is estimated that the total ning of a more rational policy toward years ago we commemorated on the cost of the Second World War to the that nation. Last week, the adminis- 12th of last month, left a monumental United States had reached $4.6 tril- tration announced that in the future, legacy for this country. Words from a lion—including the postwar cost of vet- illegal immigrants from Cuba will be speech that he wrote for delivery on erans care and benefits. The cost of treated as other illegal immigrants April 13, 1945, had he lived to give that caring for our veterans is a cost of war, into this country, and I for one hope speech, still sound out a challenge, one and should be recognized as such, lest that more steps will follow. rooted in the experience of the war and we forget, decades later, the price of May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6235 war in the form of our greatest treas- gion of Merit, maintained morale and enemy troop movements, numbers of ure—our young men and women who discipline and preserved the lives of his enemy guns, information crucial to served. fellow internees for 2 years in Stalag saving the lives of other Americans. In total, more than 16 million Amer- Luft III in Germany. These men worked 24 hours around ican men and women served their Na- The hometowns of the men and the clock in headphones when the ac- tion in World War II. More than 291,000 women from South Dakota who fought tion was heaviest, without rest or paid the ultimate price on the field of in the war span the length and breadth sleep. Most famously, they served in combat; 113,000 others died of wounds, of the State. They came from Sioux the Pacific theater, but there were accidents, illness—all the risks and Falls and Rapid City, Aberdeen and code talkers in the Italian and German dangers that attend service in wartime. Buffalo, Belle Fourche and Doland, theaters in Europe as well. Their work All told, more than 405,000 American Milbank and Spearfish. saved the lives of countless other lives were cut short by the war. They bore names that reflect the his- Americans. Along with the Navajo and Another 670,000 Americans were cas- tory of our State—Jorgenson, Novotny, Choctaw code talkers, the Lakota code ualties in that war—men and women Lauer, Kilbride, Rossow, Thompson, talkers deserve their own page in our who returned with their health dam- Fischer, Haag, Labesky, McGregor, national memory of the world war. aged, their bodies scarred, their lives Adams, Bianchi, Soissons, Zweifel—the Philip LaBlanc himself served for 3 changed. people who settled South Dakota and years without a single furlough. He left Tens of thousands from every State became proud Americans from every theater operations only after being hit in the Nation served in the Second corner of the Earth. Many of them and wounded by enemy gunfire. World War. South Dakota, one of the fought on ground their fathers had As well as the men who manned the Nation’s least populous States, sent an called home. combat fronts in the war, the Second estimated 60,000 men and women to South Dakotans take special pride in World War was the first one in which fight. A postwar review in 1950 esti- the heroism and courage of those like American women played a significant mated that more than 10 percent of the David Colombe of Winner, Vincent role. They did so both at home and South Dakotans who served earned ci- Hunts Horse of Wounded Knee—who abroad. tations for personal bravery, military won the Silver Star for the part he Although the myth is that the enemy valor, and, in three case, the highest played in helping the United States declared total war, it was America military honor our Nation grants, the Army capture Gondorf in Germany— who, in fact, declared total war. While award for service ‘‘above and beyond and Sampson One Skunk, who took Hitler imported slave laborers from the call of duty,’’ the Congressional part in the raid on Dieppe in 1942 and Eastern Europe to work for the Ger- Medal of Honor. the first attack on Anzio, and won the man housewife, American women ran The Medal of Honor is the decoration Silver Star for his exploits. the factories that were the arsenal of of which Harry Truman said he would They are part of a proud and honor- democracy. American women enlisted rather have earned than be President. able tradition of native Americans who in support battalions of all kinds on ac- Two of the three South Dakotans have served courageously and honor- tive duty as well. who won the Medal of Honor served in ably in every U.S. conflict, from the South Dakotan women were no ex- the Pacific War and returned home Revolutionary War onward. ception. Edith Bolan of Rapid City after the war. One, Joe Foss, became Last year Congress finally approved raised three children, and worked as a Governor of South Dakota. The third legislation to establish a national me- welder during the war. It was her task South Dakotan awarded the Medal of morial acknowledging and honoring to crawl into the small spaces that Honor served in the European theater. the heroism and service of native men could not reach to put the finish- He died there, having established a Americans in combat. The Native ing touches on Navy ships. She made record that is outstanding, even com- American Veterans’ Memorial will pay casings for bombs. She led the life that pared with his peers. an overdue tribute to those who served so many other American women, from Capt. Arlo L. Olson, of Toronto, their Nation, even when their Nation coast to coast, experienced in the war. South Dakota, served in the Italian did not serve them—to those who Those who served on the homefront campaign in 1943. For 26 grueling days fought under the U.S. flag before they did not get the medals and citations of in the mountainous terrain northeast were even granted citizenship them- those serving in combat. But their of Naples, he led his company by foot selves in 1924. work and dedication were every bit as across the Volturno River into enemy- Our Lakota-speaking people played important to the final victory. So was held territory, directly into enemy ma- an additional role in the Second World the work of the women closer to the chine gun emplacement in some of the War, one that is now as well known as frontlines. roughest fighting experienced by any it deserves to be. They, like Navajo and Loretta Hartrich, a native of Sioux American units in the war. He was shot Choctaw speaking native Americans, Falls, served with the Red Cross in the on October 27, 1943, but refused medical were the famous code talkers of the so-called clubmobiles that traveled treatment until his men had been war—the people who manned the radio with the frontline troops, serving cof- taken care of. He died as he was being communications in native languages fee, doughnuts, and morale to the men carried down Monte San Nicola. that no code-breaker or cipher special- at the front. The clubmobiles were The citations honoring South Dako- ist could decode, because language has often in harm’s way, and the women tans are stirring. Harold G. Howey, in no breakable code. who ran them risked death and entrap- July 1943 in Sicily, faced a cliff for- There is a monument in Phoenix, AZ, ment when a fast-moving front shifted. tified by the enemy and fought his way to the code talkers of the Navajo Na- Loretta remembers being asked to sing to the top under intense enemy fire de- tion. But there were others besides the ‘‘Indian Love Call’’ and having spite his wounds. He won the Distin- them. The Lakota speakers of the every repetition of ‘‘when I’m calling guished Service Cross and the Bronze Sioux Nations of South Dakota and you’’ punctuated by German artillery. Star Medal for his actions. neighboring States were responsible for American women served as nurses in David Colombe of Winner leapt into a the safety and lives of thousands of rear units and on the front, landing on German foxhole, armed only with a their fellow Americans in combat. Normandy 4 days after the first Allied knife, seized an enemy rifle and worked Philip LaBlanc, of Rapid City, served troops. They served in communica- his way behind enemy lines, demoraliz- with the 1st Cavalry Division from 1942 tions, administrative, and intelligence ing the withdrawing soldiers with to 1945. Others—Baptiste Pumpkinseed, work throughout the duration of the heavy fire and leading to the collapse Oglala or Redbud Sioux, Eddie Eagle war, and they, too, have earned the of their defense. His Distinguished Boy of the Cheyenne River Sioux, Guy proud title of veteran. Service Cross was well earned. Rondell of the Sisseton-Wahpeton Da- Today, those once-young men and Like other Americans, South Dako- kota Nation, John Bear King of Stand- women are the proud veterans of serv- tans were captured. Melvin McNickle, ing Rock—all of them and their com- ice in what many have called the last one of the famous McNickle brothers of rades manned radio communications good war. I understand what those Doland, both of whom earned the Le- networks, using Lakota, to advise of words are meant to convey, but for S 6236 CONGRESSIONAL RECORD — SENATE May 8, 1995 those who saw active duty, who saw THE 50TH ANNIVERSARY OF V–E And when I talk about leadership, I friends die, who felt the sheer brutality DAY do not mean just the famous names of of heavy artillery attack or the ran- Mr. DOLE. Mr. President, 50 years Roosevelt, Truman, Eisenhower, Mar- dom terror of combat on unknown, ago today, the guns were silenced in shall, Churchill, and de Gaulle. And I rough terrain against a well-trained Europe, and that continent was at last do not just mean the soldiers who and ruthless opponent, there was no freed from the tyrants who had plunged fought their way across Europe and the good war. it into war. Pacific. For we must also thank those Our cause was good, and it tri- And across the world on May 8, 1954, who served at home—the Gold Star umphed. But we triumphed at terrible there were moments that are remem- moms, the factory workers, and the personal cost to those Americans who bered today, and will be remembered farmers. Without their contribution served. for generations yet to come. and their sacrifice, the war effort could Some of our Senate colleagues Here in Washington, at the White not have been successful. served, and some bear the outward House, President Truman spoke to the So, today is a day for all of us to cel- scars. Senator INOUYE, of Hawaii, American people by radio, with these ebrate the triumph of democracy, and served with the most decorated unit in dramatic words: to honor those who served and those the military in Italy campaign, and who paid the ultimate price on behalf This is a solemn and glorious hour. I only paid a high price for his valor. Senator wish that Franklin Roosevelt had lived to of their country. DOLE served in Italy with great honor witness this day. General Eisenhower in- And the best way we can do that is to at enormous personal price. The veter- forms me that the forces of Germany have rededicate ourselves to the promise ans of the war who still serve in Con- surrendered to the United Nations. The flags that President Reagan made on behalf gress were honored last week at a cere- of freedom fly all over Europe. of America on the beaches of Nor- mony at the National Archives. In New York City, a half a million mandy 11 years ago: I am proud to serve in the Senate people crowded into Times Square, and We will always remember. We will always with all of them, and I express my in main streets and town squares be proud. We will always be prepared, so we sense of respect for their service, my across America, smaller crowds gath- may always be free. gratitude as a citizen for their sac- ered to celebrate. f rifices, and my great pride, as an In Paris, the boulevards that Hitler ORDER OF PROCEDURE American, for the spirit they and their and his armies had once controlled colleagues in arms showed the world were free again, and the French people Mr. DOLE. Mr. President, I indicated more than 50 years ago. rallied under the Arc de Triomphe. earlier, I will have a resolution con- Great celebrations have occurred in And in London, Winston Churchill cerning V–E Day, which I hope we will the old Allied capitals in Europe to cel- spoke before a large crowd, telling the be able to submit to the Democratic ebrate V–E Day. Another great celebra- people of Britain, ‘‘This is your vic- leader in the next few moments and tion will be held in Moscow, to cele- tory.’’ And many in the crowd shouted have a discussion on that and, hope- brate the end of what the Russians call back that the victory was his. Later fully, have a vote on that about 4 the Great Patriotic War. that night, the floodlights illuminated o’clock. We still, as I understand it, In America, there are no huge cele- Buckingham Palace, Big Ben, and St. have a cloture vote at 4 o’clock, plus brations. We were the arsenal of de- Paul’s Cathedral for the first time in 6 votes on any amendments that may mocracy in that war, the productive years. occur prior to 4 o’clock. Following force without which it might not have Anniversary celebrations are a time that, it is our intention to take up the been won by the Allies. Our people suf- for remembering the past, but they are Deutch nomination to be CIA Director, fered death and injury far from home, also a time for looking to the future. and have that debate this evening and for causes and quarrels in which they And as we celebrate this 50th anniver- then have the vote tomorrow morning had no direct stake. sary of the Allied victory, let us re- on the nomination. The distance of 50 years does not member the lessons that World War II Mr. President, I suggest the absence erase the genuine hardship, difficulties, taught us—lessons that hold for us of a quorum. and pain they suffered or the price still. The PRESIDING OFFICER. The many of them paid. It was not a good We learned that we cannot turn our clerk will call the roll. war because there are no good wars for backs on what happens in the rest of The bill clerk proceeded to call the those in the line of fire. Like every the world. roll. war, it was vicious, uncaring of life, We learned that we can never again Mr. SPECTER. Mr. President, I ask random in its accidents and mistakes, allow our military to reach low levels unanimous consent that the order for brutal for its participants. of readiness and supplies. the quorum call be rescinded. And yet Americans served, and did so We learned that we cannot appease The PRESIDING OFFICER. Without with distinction. We ought to take tyrants and despots, and perhaps above objection, it is so ordered. pause to take great pride in the kind of all, we learned the critical importance f people we are, and to honor the memo- of American leadership. ries of those who paid the ultimate Yes, before our involvement, Britain PRODUCT LIABILITY BILL price. Those who served have done courageously fought on against the Mr. SPECTER. I thank the Chair. more for their fellow citizens and for odds. And, yes, Russia, after initially Mr. President, I have sought recogni- the future than any words can describe. siding with the Axis Powers, helped to tion to comment about the pending They are American heroes, one and all, turn the tide when the Nazis turned legislation on products liability on and we salute them. against them. which there is a cloture vote scheduled Mr. President, I yield the floor, and I But, the war could not have been won for 4 o’clock this afternoon, that is, a suggest the absence of a quorum. and would not have been won without vote to cut off debate. The PRESIDING OFFICER. The the commitment, the manpower, and As I have expressed in the prior de- clerk will call the roll. the leadership of the United States. It bate, it is my view that it would be ap- The legislative clerk proceeded to is that simple. propriate to have reform on product li- call the roll. It was American leadership that built ability, providing the reform is very, Mr. DOLE. Mr. President, I ask unan- the arsenal of democracy which made very carefully crafted. imous consent that the order for the victory possible. As I have noted in previous speeches, quorum call be rescinded. It was American leadership that held I have represented both plaintiffs and The PRESIDING OFFICER. Without the Allies together through the darkest defendants in personal injury cases. I objection, it is so ordered. days of the war. had one large product liability case, Mr. DOLE. Mr. President, are we still And it was American leadership which I litigated many years ago. Ac- in morning business? which conquered the forces of tyranny tually, it was ultimately settled. But The PRESIDING OFFICER. Morning and restored liberty and democracy to the issue in the case concerning privity business has not been closed. Europe. and coverage for a passenger in an May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6237 automobile was widely noted in the law fewer than 25 employees or a net worth killed and some were injured. Those reviews. I have therefore had occasion of under $500,000. It may be that this victims could not have been com- to do very extensive research in the provision would go far beyond product pensated fully if joint liability had area, although that was some substan- liability cases and would affect all been eliminated. tial time ago. ranges of tort litigation, including While it is always a difficult choice I believe that a very key provision medical malpractice cases. I do not as to who will bear the loss, and dif- for limiting frivolous lawsuits would be know if that is the intent. ficult for some defendants who are in- to tighten up the current mechanism It also may be that this amendment volved to a lesser extent where other to give greater authority under rule 11 to protect small businesses does not defendants are insolvent, but as be- to the judges who sit on those cases to bear a sufficient nexus to interstate tween injured plaintiffs who are not re- try to influence or discourage frivolous commerce in affecting all tort cases, so sponsible at all for what has happened lawsuits. that we may be legislating beyond our and those who have been held liable My reading of the substitute amend- authority, as interpreted by the Su- and are subject to payment for joint li- ment shows that the amendment of- preme Court of the United States re- ability, my own sense is that there fered by the distinguished Senator cently in the Lopez case. I think that ought not to be the total elimination from Colorado, Senator BROWN, an is another matter which requires some of joint liability for noneconomic dam- amendment which I supported and amplification. ages, which is the thrust of the present which I think would be of substantial I do believe that there is some limi- legislation. help in discouraging frivolous litiga- tation appropriate on punitive damages I am hopeful, Mr. President, that we tion, and therefore a provision which I where small businesses are involved. I can craft legislation which will make think ought to be in the bill, has been have heard the complaint that a de- an improvement in product liability deleted. fendant small business is often com- litigation. But on the current state of With respect to the issue of punitive pelled to make a settlement that it the record, I think the substitute still damages, I am very reluctant to see would not make if it was not betting does not address the real needs of con- the provisions of the current bill en- the business on it. I have filed a pro- sumers and does not strike an appro- acted into law, because there are so posed amendment, and will refile it so priate balance between those who are many cases which have been disclosed it would survive postcloture, if cloture sued and those who are bringing in product liability litigation where is invoked, so that the amendment will claims. companies, major companies, have be on record to be considered, which I thank the Chair and I yield the made a calculated determination that would limit punitive damages to 10 per- floor. it is in their financial interest not to cent of the net worth of a business, so f make repairs or changes, because the that there would not be a problem of damages awarded in litigation will be betting the business in litigation. COMMEMORATING THE 50TH ANNI- lesser than the costs of making the The substitute also deletes alter- VERSARY OF THE FORCED modifications. native dispute resolution, which I re- MARCH OF AMERICAN PRIS- Perhaps the most celebrated case— gret to see, because I think that is a ONERS OF WAR FROM STALAG but there are many others like it—is way of eliminating many cases from LUFT IV the Pinto case, where the gas tank was the litigation process, by having alter- Mr. WARNER. Mr. President, today left in a very dangerous position in the native dispute resolution, which is a we commemorate the 50th anniversary rear of the car and resulted in explo- fancy name for arbitration or medi- of the end of World War II in Europe. sions when there was impact, a very ation. That is not present in the cur- Victory in Europe Day is one of the common kind of accident in auto- rent bill. milestone dates of this century. I rise mobile driving, rear-end collisions. I express again the concern about to- today to honor a group of Americans As a result of product liability litiga- tally eliminating joint liability for who made a large contribution to the tion, it was disclosed that there was a noneconomic damages as a Federal Allied victory in Europe while also en- memorandum in the files of the defend- standard, where some States have during more than their fair share of ant company, Ford Motor Co., actually elected to do that as a matter of States personal suffering and sacrifice: The a letter to the National Highway rights and others have not. I note brave men who were prisoners of war. Transportation Safety Administration, again my support for the amendment I believe it is appropriate to com- in which there was a computation as to offered by the distinguished Senator memorate our World War II POW’s by what it would cost to pay damages for from Tennessee, Senator THOMPSON, describing one incident from the war people injured or killed as a result of which would have limited this bill to that is emblematic of the unique serv- the placement of the gas tank, as to litigation in Federal courts, which ice rendered by those special people. what it would cost to make the repairs. would have been more in accordance This is the story of an 86-day, 488-mile The calculated decision was not to with the mood of the Congress and the forced march that commenced at a make the repairs. country now to let the States decide POW camp known as Stalag Luft IV, And then you have the famous cases these matters for themselves. near Gross Tychon, Poland, on Feb- of IUD’s made by A.H. Robins, in which On the issue of joint liability, I am ruary 6, 1945, and ended in Halle, Ger- it was known for a long period of time very sympathetic to the claim that many on April 26, 1945. The ordeal of they would cause problems for women, some people or some defendants are in the 9,500 men, most of whom were U.S. such as infections and sterilization. it, people or individuals or companies, Army Air Force Bomber Command There were blood cases with AIDS to a very slight extent—maybe 1 per- noncommissioned officers, who suffered being transmitted, and a failure to cent—and they have the full respon- through incredible hardships on the take appropriate action. And there sibility for the verdict. I have filed an- march yet survived, stands as an ever- were the flammable pajamas. There other possible amendment which would lasting testimonial to the triumph of have been many cases, some even re- limit joint liability for noneconomic the American spirit over immeasurable sulting in criminal prosecutions. I dis- damages if the defendant was not re- adversity and of the indomitable abil- cussed many of these cases last week. sponsible for in excess of 15 percent of ity of camaraderie, teamwork, and for- So on the current state of the record, the injury, which I think would provide titude to overcome brutality, horrible my own sense is that there needs to be a better balance there. conditions, and human suffering. further refinement of the provision on Again, I will comment about the case Bomber crews shot down over Axis punitive damages. involving the death of our late col- countries often went through terrify- The revised bill does contain an league, Senator John Heinz, where ing experiences even before being con- amendment offered by the distin- there was a collision between a heli- fined in concentration camps. Flying guished Senator from Ohio, Senator copter and the plane in which Senator through withering flak, while also hav- DEWINE, which would limit punitive Heinz was a passenger. The planes fell ing to fight off enemy fighters, the damages to small businesses, and small into a schoolyard where there were bomber crews routinely saw other air- businesses are defined as those having children on the ground, and some were craft in their formations blown to bits S 6238 CONGRESSIONAL RECORD — SENATE May 8, 1995 or turned into fiery coffins. Those who Unfortunately, the story of the men Founded at a gathering spot of the were taken POW had to endure their of Stalag Luft IV, replete with tales of Penacook Tribe, where the own planes being shot down or other- the selfless and often heroic deeds of Pemigewasset and Winnipesaukee Riv- wise damaged sufficiently to cause the prisoners looking after other prisoners ers meet to form the Merrimack River, crews to bail out. Often crewmates— and helping each other to survive Franklin proudly traces its roots deep close friends—did not make it out of under deplorable conditions, is not well into the history of our State and our the burning aircraft. Those lucky known. I therefore rise today to bring Nation. It is here, at the original set- enough to see their parachutes open, their saga of victory over incredible tlement of Lower Falls, where Frank- had to then go through a perilous de- adversity to the attention of my col- lin’s most famous native son, Daniel scent amid flak and gunfire from the leagues. I trust that these comments Webster, would commence a career as ground. will serve as a springboard for a wider lawyer and statesman and, eventually, Many crews were then captured by awareness among the American people go on to establish both an honored incensed civilians who had seen their of what the prisoners from Stalag Luft place in this Senate and a prominent property destroyed or had loved ones IV—and all prisoner of war camps—en- role in the shaping of America. killed or maimed by Allied bombs. dured in the pursuit of freedom. From this settlement, Capt. Ebenezer Those civilians at times would beat, I especially want to honor three Sta- Webster, Daniel’s father, would lead a spit upon, or even try to lynch the cap- lag Luft IV veterans who endured and company of local men to earn distinc- tured crews. And in the case of Stalag survived the march. Cpl. Bob tion in the Revolutionary War and help Luft IV, once the POW’s had arrived at McVicker, a fellow Virginian from Al- win the independence of a new nation. the railroad station near the camp, exandria, S. Sgt. Ralph Pippens of Al- Their heroics during the campaign at though exhausted, unfed, and often exandria, LA, and Sgt. Arthur Saratoga begins an unbroken line of wounded, many were forced to run the Duchesneau of Daytona Beach, FL, Franklin’s sons and daughters serving 2 miles to the camp at the points of brought this important piece of history our Nation and the cause of liberty bayonets. Those who dropped behind to my attention and provided me with with honor, loyalty, and valor. were either bayonetted or bitten on the in-depth information, to include testi- Successful in commerce, Franklin legs by police dogs. And all that was mony by Dr. Caplan, articles, personal was incorporated as a town in 1828 and just the prelude to their incarceration diaries and photographs. as the city of Franklin in 1895. The his- where they were underfed, over- Mr. McVicker, Mr. Pippens, and Mr. toric mill town would give rise to the crowded, and often maltreated. Duchesneau, at different points along engineering ingenuity of Boston John In February 1945, the Soviet offensive the march, were each too impaired to Clark and the technological innova- walk under their own power. Mr. tions of Walter Aiken and make sig- was rapidly pushing toward Stalag McVicker suffered frostbite to the ex- nificant economic contributions to our Luft IV. The German High Command tent that Dr. Caplan told him, along society. Spurring inventions from the determined that it was necessary that the way, that he would likely lose his deceptively simple hacksaw and the the POW’s be evacuated and moved hands and feet—miraculously, he did latch needle to the complexity of the into Germany. But by that stage of the not; Mr. Pippens was too weak from circular knitting machine, Franklin war, German materiel was at a pre- malnutrition to walk on his own dur- would again play a pivotal role in the mium, and neither sufficient railcars ing the initial stages of the march; and second industrial revolution, which nor trucks were available to move pris- Mr. Duchesneau almost became com- propelled us forward as a modern na- oners. Therefore the decision was made pletely incapacitated from dysentery. tion. to move the Allied prisoners by foot in By the end of the march, all three men Today, the city of Franklin contin- a forced road march. had lost so much weight that their bod- ues to exhibit the character and enter- The 86-day march was, by all ac- ies were mere shells of what they had prise of its distinguished past. Hard- counts, savage. Men who for months, been prior to their capture—Mr. working, first in citizenship, and stead- and in some cases years, had been de- McVicker, for example, at 5 foot, 8 fast in its sense of community, Frank- nied proper nutrition, personal hy- inches, weighed but 80 pounds. Yet they lin continues to show the can-do spirit giene, and medical care, were forced to each survived, mostly because of the that marked its beginnings and first do something that would be difficult efforts of the other two—American 100 years as a city. Recently, named for well-nourished, healthy, and appro- crewmates compassionately and self- one of the 100 best small communities priately trained infantry soldiers to ac- lessly helping buddies in need. in America, a base for advanced indus- complish. The late Doctor [Major] Les- Mr. President, I am sure that my col- try, rich in heritage, and energetic in lie Caplan, an American flight surgeon leagues join me in saluting Mr. shaping its future, Franklin is truly a who was the chief medical officer for McVicker, Mr. Pippens, Mr. ‘‘Small City on the Move.’’ the 2,500-man section C from Stalag Duchesneau, the late Dr. Caplan, the Join me to proudly salute Franklin, Luft IV, summed up the march up this other survivors of the Stalag Luft IV NH, the birthplace of Daniel Webster, year: march, and all the brave Americans and the enterprising spirit that has en- It was a march of great hardship * * * (W)e who were prisoners of war in World riched a community, the State of New marched long distances in bitter weather and War II. Their service was twofold: first Hampshire, and our Nation. on starvation rations. We lived in filth and slept in open fields or barns. Cothing, medi- as fighting men putting their lives on f the line, each day, in the cause of free- cal facilities and sanitary facilities were ut- V–E DAY 1995 terly inadequate. Hundreds of men suffered dom and then as prisoners of war, sto- from malnutrition, exposure, trench foot, ex- ically enduring incredible hardships Mr. CRAIG. Mr. President, 50 years haustion, dysentery, tuberculosis, and other and showing their captors that the ago, U.S. forces, along with those of diseases. American spirit cannot be broken, no our valiant and embattled allies, for- A number of American POW’s on the matter how terrible the conditions. We mally ended the victorious struggle to march did not survive. Others suffered owe them a great debt of gratitude and contain a horrific evil that had spread amputations of limbs or appendages the memory of their service our undy- across the European continent. For while many more endured maladies ing respect. those Americans who attended the that remained or will remain with f ceremonies that marked the Nazi sur- them for the remainder of their lives. render, it was a solemn moment, for For nearly 500 miles and over 86 days, FRANKLIN, NH, MARKS ITS the struggle had been long and bloody, enduring unbelievably inhumane condi- CENTENNIAL and the price to defend freedom had tions, the men from Stalag Luft IV Mr. GREGG. Mr. President, I ask my come at a very high cost. For the world walked, limped and, in some cases, Senate colleagues to join me in rec- there was joy, renewed hope of lasting crawled onward until they reached the ognizing the city of Franklin, NH, on peace, and resolve to protect the free- end of their march, with their libera- the occasion of its centennial and in dom for which so many had offered up tion by the American 104th Infantry appreciation of the contributions its their lives. Today many of those hopes Division on April 26, 1945. citizens have made to our Nation. which are held deeply in the hearts of May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6239 the veterans who served, their families, the forest, of Idaho, and lay buried in There being no objection, the edi- and a generation of Americans who foreign graves. The veterans who still torial was ordered to be printed in the lived through the war, have become a walk among us, might have suffered RECORD, as follows: reality. the same fate, if God had not chosen [From the Times Argus, May 6, 1995] For Americans too young to remem- for them a different path. They risked NEIGHBORS, FRIENDS ber the war and those born into this their young lives for us, and suffered One of the results of the bombing attack world in its aftermath, we have a spe- unimaginable horrors, so that we on the federal building in Oklahoma City has cial obligation this day to our parents, might not have to. The people of Idaho, been to put a human face on the entity our grandparents, and to our children the Nation, and the world, owe them known as the ‘‘federal government.’’ and future generations of Americans; everything. The people whose job it was to hand out 50 years from today most of those who Social Security checks, to enforce the laws Once in a while, as we live our busy about drugs and firearms, or to recruit peo- remember the war will no longer be lives with all of the challenges and ple for the military were the neighbors, with us. It is, therefore, our respon- trials that accompany them, we get the friends, brothers, sisters of the people of sibility to learn about what happened, chance to stop and think about why we Oklahoma City. and why it happened. We must ask are able to live in this, the greatest Na- In Vermont the federal government con- those who fought in World War II what tion on Earth, in such freedom. Today sists of Forest Service rangers and office it was all about. We must remember workers, agriculture specialists, the Marine is such a day. When envisioning the recruiter, the Social Security workers, the the sufferings and the sacrifice, lest we drama and pain of that conflict become become complacent with our freedom court personnel and others who live every difficult to imagine, draw upon those day among us. These are our neighbors, and suffer the consequences. We must who lived through it, and learn from friends, brothers, sisters. all, every one of us, learn from our own them. And yet to hear the more virulent strains history. Now, 50 years later, we must And as we pay solemn tribute to the of attack emanating from anti-government redouble our efforts to understand by memories of the victims, and the survi- extremists, these people are an exotic com- talking to those who were there, those bination of Nazi, Communist and Genghis vors, the brave, and the victorious, let who remember it. Khan. us be mindful of what led to this ter- Americans who lived through this A Colorado talk show host, responding to a time and made the sacrifices, have one rible war and thankful to those who caller who thought it was a good idea to fought it. Let us not forget the cost of shoot members of Congress, advocated last talk. It is now your duty to pass ‘‘armed revolution.’’ on to those of us who weren’t on the freedom. And let us pray that God give us peace. A talk show host in Arizona suggested that battlefields of Europe, or fighting on Sarah Brady, the gun control advocate and the ‘‘homefront’’ what happened during f wife of President Reagan’s former press sec- the war, so that we can learn from your retary, ought to be ‘‘put down’’ the way a experiences and pass along to future IN SUPPORT OF OUR NEIGHBORS, veterinarian puts down a lame horse. And, of course, the advice of Watergate generations from the lesson’s of the FRIENDS, THE FEDERAL EM- power of hatred and the price of pro- burglar G. Gordon Liddy to shoot for the PLOYEES head when confronted by federal agents has tecting freedom for all. become a famous example of the This day I encourage parents and Mr. LEAHY. Mr. President, for the last two decades, our Federal employ- antigovernment rhetoric that has become so grandparents to take some time to talk common. to your children and grandchildren ees seem to be handy scapegoats for Imagine for a moment that it was the Rev. about World War II. You heroic veter- anything that goes wrong with Govern- Jesse Jackson or Ralph Nader or Patricia ans, tell them about the terrifying face ment. Whenever anyone on this floor Ireland who was advising people to shoot of battle. Do not try to protect them mentions ‘‘those Federal bureaucrats,’’ government workers. Would conservatives from the brutal images that you have the syntax is generally pejorative and hesitate for a moment in pointing out that the reference, unflattering. The collec- such violent language may be less than con- carried with you for all these years. ducive to the good of the public weal? Yet Those of you who fought on the home- tive term ‘‘bureaucracy’’ is uttered in when President Clinton made the rather ten- front, tell them about the hardships of the same tone of revulsion reserved for tative suggestion that this language was home, the fears, the rationing; the former leaders of the ‘‘evil empire.’’ really not so helpful, media incidiarists friends, loved ones, and neighbors who So it was refreshing to read an edi- whined that they were being unfairly at- never came home. Tell them why it all torial in last Saturday’s Times-Argus, tacked. happened. Tell them about the price of which serves our State capital of Mont- Back in the 1960s anti-war dissenters, pelier, VT. black power advocates, and other dissatisfied acquiescence, isolation, and compla- souls said a lot of stupid things that embar- cency. The editorial simply reminds us that rassed even those who opposed the war or You children and grandchildren, the many victims of the Oklahoma City supported the civil rights struggle. Talk future of the world, go to your grand- bomb explosion were ‘‘our friends, then of armed revolution was a naive delu- parents and parents, call them on the neighbors, brothers, and sisters who sion that was taken all too seriously by a phone, and ask them what it was like. work for the Federal Government.’’ few people, who sometimes ended up getting And, take the time to read about it, It seems to needful reminder in these innocent people killed. and understand that they bought you times to be a little more respectful of A lot of stupid things are being said again about our friends, neighbors, brothers, sis- the freedom that we now enjoy. Ask the effort we get every day from mil- ters who work for the federal government. In them how they felt when its future was lions of these men and women who the West, there are soreheads with a griev- uncertain. They remember, they will work for us in every capacity, from ance about the way the federal government be glad to tell you. Listen hard, as if guarding our national security to pro- manages public lands who are preventing your life depends on it, because it does. tecting our rights as citizens, from federal workers from doing their jobs. And thank them for what they have fighting crime to enforcing public Everybody ought to remember that federal done for you. Your job is never to for- health and safety standards, from ex- lands in the West do not belong only to the get the stories they have to tell you. ploring space to cleaning up our air people who live there. They belong to all of us. We have people working for us to manage Your job is to learn those lessons now and water here on Earth. our lands. And people who don’t like the way so that your children will never again I ask that this editorial be reprinted they are being managed have a democratic be called upon to smite such evil from in the CONGRESSIONAL RECORD. I am process to avail themselves of to change the Earth. not suggesting that criticism of Gov- things. This is also a day when all of us ernment operations is off limits. I am It wasn’t true in the 1960s, and it isn’t true should turn, particularly to those vet- only asking that it be fair. The hun- now: Our government is not a dictatorship, erans who live among us, and offer to dreds of Federal workers in my State and armed revolution is not justifiable. The them our humble and loving thanks. of Vermont, are among the most dedi- government in Oklahoma, in Boise or in Montpelier consists of our friends, neighbors, The great State of Idaho sent thou- cated and hard working men and brothers and sisters, who, like the rest of us, sands of men off to war in Europe. women, in public or private life, in our are not always right about everything they Many, many of them never again laid country. Let us stop careless impugn- do. But that’s the great thing about democ- their eyes on the mountains, deserts, ing of their professional integrity. racy: We have peaceful methods for making S 6240 CONGRESSIONAL RECORD — SENATE May 8, 1995 changes. We also have the duty to hold ac- ending the most devastating war in A PERSONAL REMEMBRANCE OF countable those who break the law in an ef- world history. It was a great victory V–E DAY fort to attack our system. for freedom and for civilization. f Mr. LEVIN. Mr. President, this The Allied victory was one of cour- morning Samuel Pisar, a distinguished VICTORY IN EUROPE DAY age, valor and enormous sacrifice. Of survivor of the Nazi death camps at the hundreds of major battles fought Ms. MIKULSKI. Mr. President, today Auschwitz, Sachsenhausen, Leonberg, we are commemorating one of the during the war, 15 resulted in casual- and Dachau delivered the keynote ad- proudest days in our history—Victory ties numbering no less than 5,000. From dress at the U.S. Holocaust Memorial in Europe Day. World War II was no the beaches at Omaha to the great Museum’s commemoration of the 50th less than a triumph of good over evil. campaigns in Europe, American lives anniversary of V–E Day. As President Harry Truman said, it were sacrificed in the name of freedom. I was very moved by Mr. Pisar’s ex- was ‘‘a solemn and glorious hour.’’ The victory in Europe marked the pression of gratitude to his liberators, Today we celebrate our victory over end of unparalleled human horror and the U.S. Army. He recounted his first the Nazis—and we honor those who of catastrophic human loss on that words to the GI in the American tank gave their lives in the most deadly con- continent. It signified the end of one of which rescued him, ‘‘I . . . summoned flict we have ever seen. civilization’s darkest moments. In es- the few English words my mother used But most of all, we honor the Ameri- sence, V–E Day marked the very re- to sigh while dreaming of our deliver- cans whose personal sacrifices gave us birth of life in Europe’s scarred, and ance, and yelled: ‘God Bless America!’ ’’ our greatest victory. In Maryland, war-torn landscape. But that rebirth That gratitude, in Mr. Pisar’s words, thousands left factories, shops, and did not come without a price. ‘‘as intense as it was 50 years ago,’’ farms to fight on the front lines. Peo- We must never forget the sacrifices serves to remind us all of the role ple like my uncles Pete, Fred, Richard, made to ensure our final victory. Of which America has and continues and Florene. We also honor those on the 400,000 American soldiers who died today to play in the world as a beacon the homefront who kept the steel mills in this horrible war, most lost their of hope for oppressed people. and shipyards going 24 hours a day to I ask unanimous consent that the ex- serve the war effort. That includes the lives on the ground, in the trenches— literally clawing for victory inch by cerpt of Samuel Pisar’s address printed women—the Rosie the Riveters who Sunday in the Washington Post be kept America going while our boys inch. The magnitude of the human price of this effort should command our printed in the CONGRESSIONAL RECORD. fought on the battlefields. There being no objection, the address Eleanor Roosevelt said that those deepest personal respect. We can never was ordered to be printed in the days were no ordinary time and that no adequately thank our veterans for RECORD, as follows: ordinary solutions would be sufficient their supreme sacrifice. to defeat the enemies of America and Yet, through the images of fire and [From the Washington Post, May 7, 1995] Western civilization. No only was this the remnants of ashes rises the hope ESCAPE FROM DACHAU: MY OWN, PRIVATE V– that never again will we face such no ordinary time, this was no ordinary E DAY—FOR PRISONER B–1317, SALVATION generation. darkness. Never again will we face the WAS A U.S. ARMY TANK I was a child during the War. I grew prospect of such global sacrifice. Never up seeing the heroism and patriotism again will the forces of freedom be (By Samuel Pisar) of our soldiers—and seeing America asked to lay down their lives en masse World War II was coming to an end, yet we united behind a common goal. I saw in the name of peace and order. in the death camps knew nothing. What is happening in the world outside? Does anyone the sacrifices that individuals were Today marks the seminal moment in willing to make for our country. That out there know what is happening here to the American chapter of the War in Eu- us? Do they care? I was 15 years old, and I was the only America I knew. rope. It reminds us of our absolute re- wanted to live. Our veterans of World War II are solve to maintain and preserve what is The day the Allies landed on the beaches of each a symbol of the principles that right and just. I join my colleagues in Normandy had been for us a day like any have kept this country strong and free. what is perhaps one of our most solemn other. The toll in the gas chambers that day When we think of our veterans, we moments in recognition of those who was higher than the losses suffered by the think of everything that is good about combined armies under Gen. Eisenhower’s sacrificed so much for our freedom. this country—patriotism, courage, loy- command on this, their longest day. alty, duty and honor. Our responsibil- Mr. President, in honor of our fallen Judging by the brutality of our guards, we ity is to live up to the standards they veterans, I rise in humble tribute. had every reason to believe that all of Eu- have set—to foster a new sense of citi- rope was irrevocably lost, the Red Army f smashed, England fighting alone, its back to zenship and a new sense of duty. the wall, against the seemingly invincible That is why it troubles me that too WAS CONGRESS IRRESPONSIBLE? forces of darkness. And America? America often, young Americans do not learn THE VOTERS HAVE SAID YES. was so unprepared, so divided, so far away. enough about this special generation. How could she be expected to reverse the col- Mr. HELMS. Mr. President, more It is our responsibility to honor our lapse of civilization at this penultimate Nation’s veterans—not just on V–E than 3 years ago I began these daily re- stage? Day—but every day. Let us honor them ports to the Senate making a matter of It took weeks for news of the U.S.-led inva- in our homes, our schools, our church- record the exact Federal debt as of sion, beamed by the BBC from London, es, and our synagogues. And here in the close of business the previous day. across occupied Europe, to slip into Ausch- U.S. Senate—when we set funding for As of the close of business Friday, witz. There was also an amazing rumor that veterans health care and pensions. April 28, the exact Federal debt stood the Russians had mounted a powerful offen- sive on the Eastern front. Every day that we live in freedom, at $4,857,682,676,296.70, meaning that on Incredible! So God had not turned His face we should remember that their tri- a per capita basis, every man, woman, from the world after all. Could a miracle umph was democracy’s greatest vic- and child in America owes $18,439.85 as still prevent the millenium of the Third tory. his or her share of the Federal debt. Reich? Oh to hang on, to hang on a little f It’s important to note, Mr. President, longer! that the United States had an oppor- We could guess from the Nazis’ mounting THE 50TH ANNIVERSARY OF tunity to begin controlling the Federal nervousness that the weight of battle was VICTORY IN EUROPE changing decisively. With the ground shrink- debt by implementing a balanced budg- Mr. DODD. Mr. President, today ing under their feet, they began herding us et amendment to the Constitution. Un- deeper and deeper into Germany. I was marks the anniversary of one of the fortunately, the Senate did not seize shunted to Sachsenhausen near Berlin, then most important moments in modern its first opportunity to control this Leonberg near Stuttgart, then Dachau near Western history. Fifty years ago today, debt—but there will be another chance Munich—camps normally reserved for politi- the Allied Powers accepted the uncon- during the 104th Congress. cal prisoners, common criminals and homo- ditional surrender of Nazi Germany, sexuals. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6241 It was a slave-labor enclave 50 miles away On V–E Day 1995, my gratitude to this kota Queen—on an island in the Adri- that I heard the silence of night torn by pow- blessed land, never trampled by tyrants or atic Sea. erful explosions. Fellow inmates with mili- invaders, is a intense as it was 50 years ago, South Dakotans know well the hero- tary experience thought it sounded like ar- on that German battlefield. So is my convic- ism of Msgr. Francis Sampson, known tillery. Within hours, we were lined up to be tion that the five-pointed star, which evacuated, ahead of the ‘‘enemy advance.’’ brought me life and freedom, must remain a as the Jumping Padre. Monsignor These forbidden words, never before heard, symbol of hope to all victims of ethnic ha- Sampson was a paratrooper—one of the and even names of ‘‘enemy’’ commanders— tred, religious intolerance and terrorist vio- first American liberators in the 82d and Zhukov, Montgomery, Patton—were now lence. 101st Airbornes to set foot on European openly murmured. f soil on D–Day. He was captured by the I was beside myself with excitement. Who Nazi Army, escaped and was captured are these merciful saviors—Russians? Brit- V-E DAY—A VICTORY FOR again, spending the rest of the war in a ish? American? Salvation seemed so near, German prison camp. and yet so far away. AMERICAN VALUES Just as the hope of pulling through became Mr. PRESSLER. Mr. President, Mr. President, the greatest share of more real, the danger increased. We were today I join my fellow Americans and gratitude and tribute we owe to our headed back to Dachau, which meant that at millions of freedom-loving people American and Allied veterans—living the last moment our torturers would destroy around the world in celebrating the and dead. For it is they who put their us. The final solution must be completed, the 50th anniversary of Victory in Europe lives on the line so that their children witnesses of the crime wiped out. and grandchildren could live in a world The death march, through winding back Day. I am enormously proud of the South free of Nazi terror. From the shores of roads, continued day and night, halting only Normandy to the forests of the for meager rations of bread and water. At Dakotans who answered their Nation’s dawn, on the third day, of squardron of Al- call to free Europe from Nazi terror. Ardennes, American veterans pryed lied fighter planes, mistaking our column for The 34th Infantry Division—the first open Hitler’s tyrannical stranglehold Wehrmacht troops, swooped down low to American division to serve in the Euro- over Europe. But we must not forget strafe us. pean theater—included three South Da- Americans at home. It was just as As the SS-men hit the dirt, their machine kota National Guard units: the 109th much a Victory in America as it was a gun blazing in all directions, someone near Engineer Battalion, the 109th Quarter- Victory in Europe. me shouted ‘‘run for it!’’ A group of us South Dakotans will never forget the kicked off our wooden clogs and made a master Regiment, and the 132d Engi- clumsy, uncoordinated sprint for the trees. neer Regiment. South Dakotans were tremendous service of Governors Har- The fire caught most of us. Only I and five with Eisenhower, Patton, and Bradley lan J. Bushfield and M.Q. Sharpe, who others made it into the forest alive. when they invaded North Africa in 1942 met the enormous challenges of raising We ran and ran, gasping for breath, until and Italy in 1943. the State’s National Guard and orga- we were sure there was no pursuit. After More than 2,200 South Dakota Na- nizing civil defense drills and bond nightfall we began to move toward the West- tional Guardsmen served on active drives throughout the war years. ern front. When we came close we decided to South Dakotans volunteered and lie low, until the German retreat had passed duty. More than 41,000 South Dakotans us by. between the ages of 21 and 36 were raised funds for eight United Service One bucolic afternoon, holed up in the hay- called into military service through Organization [USO] clubs in South Da- loft of an abandoned Bavarian barn, I became the draft and 23,192 South Dakotans en- kota. These USO clubs were much aware of a hum, like a swarm of bees, only listed. Hundreds more served as State needed to boost morale among the louder, metallic, unearthly. I peeped through guardsmen to respond to civil and mili- troops stationed in our State. a crack in the wooded slats. Straight ahead, tary emergencies at home. South Dakotans young and old dug across the field, a huge tank leading a long, South Dakota was a temporary home deep into their pockets and piggy armored convoy lumbered my way. banks to keep American troops armed, From somewhere to one side I could hear to many of our brave soldiers in train- the sound of exploding mortars. The tank’s ing. The Sioux Falls Training Base pro- fed, and clothed. During eight national long cannon lifted its round head, turned vided technical instruction to 45,000 fund-raising campaigns, South Dakota slowly and let loose a deafening blast. The servicemen. Pierre and Rapid City were exceeded its quotas. South Dakota con- firing stopped. The tank resumed its cau- sites for airbases. The latter would ul- sistently ranked first or second in the tious advance. timately become Ellsworth Air Force per capita sale of the Series ‘‘E’’ war Automatically, I looked for the hateful Base. Watertown and Mitchell served bonds, known as people’s bonds. In swastika, but there was none. Instead I saw as subbases for the Army. Provo was total, South Dakotans raised $111.5 an unfamiliar emblem—a five-pointed white star. the site of the Black Hills or Igloo Ord- million from the sale of people’s In an instant the unimaginable flooded my nance Depot. And an area in the Bad- bonds—that’s $173 for every South Da- mind and my soul. After four years in the pit lands, known as the Gunnery Range, kotan adult and child. Some South Da- of the inferno, I, convict No. B–1713, also was used for bombing practice by the kotans even sacrificed their homes and known as Samuel Pisar, son of a loving fam- military. property for the war effort. ily that has been wiped off the earth, have I join with all Americans in saluting South Dakotans worked overtime in actually survived to behold the glorious in- the enormous contributions of our na- the fields and factories of our State signia of the United States Army. tive Americans from South Dakota in growing the food and building the sup- My skull seemed to burst. With a wild roar I stormed outside and darted toward the the war effort. Congressman Ben plies for our troops. Workers in the wondrous vision. I was still running, waving Reifel—born on the Rosebud Reserva- K.O. Lee Co. of Aberdeen made grinders my arms, when suddenly the hatch of an ar- tion—was in the Army Reserve when and keyless drill chucks. The Dakota mored vehicle opened, and black face, shield- called to active duty in 1942. He served Sash and Door Company, also of Aber- ed by helmet and goggles, emerged, swearing in Europe. Reifel reached the rank of deen, constructed wooden shell boxes. at me unintelligibly. lieutenant colonel by the time of his The Nichols Co., located in Spencer, Having dodged death daily for so long, at discharge after the war. manufactured leather carbine scab- the awesome moment I felt immortal, The Lakota and Dakota code talkers’ bards for jeeps. though to the G.I. my condition, at the heart of a battlefield, must have seemed desperate. contributions deserve special recogni- Mr. President, I could go on and on Pistol in hand, he jumped to the ground to tion. Their service back then was in- to note the tremendous accomplish- examine me more closely, as if to make sure valuable. Their story is still legendary ments of my State to the war effort. It the kid was not booby-trapped. and a source of pride to all Americans. is a story that each one of my col- To signal that I was a friend, and in need My former colleague and dear friend leagues could echo. Each State, each of help, I fell at his feet, summoned the few Senator George McGovern was a World American had a hand in the victory. English words my mother used to sigh while War II veteran and hero. As an Army Our hearts and minds were with our dreaming of our deliverance, and yelled: Air Corps pilot, Senator McGovern flew courageous American forces overseas. ‘‘God Bless America!’’ With an unmistakable gesture, the tall 35 bombing missions over Europe in a They answered the call. They stood American motioned me to get up, and lifted 6-month period. He also received the face to face with Hitler’s machine of me through the hatch—into the womb of Distinguished Flying Cross for safely hate and oppression. They turned the freedom. crash-landing his B–24 bomber—the Da- tide of Nazi aggression. S 6242 CONGRESSIONAL RECORD — SENATE May 8, 1995 But we could not have won on the the States, we are saying in this area crimes, and even by those who sell European front without a victory on that we do not want the States to pre- drugs to children. the home front. Our American forces in vail, we want to have a national stand- I have, for more than a week, lis- Europe were the best trained, best fed, ard, which is really unusual to me to tened to this debate. Prior to coming and best supplied liberating force ever find out how people could reason that here, I was a trial lawyer. I have tried constructed on the planet. They were way. scores of cases before juries—almost the best ever abroad because we were For example, Mr. President, the 100 jury trials. I believe that the jury the best ever at home. State of Washington does not allow pu- system, Mr. President, is one of the Let there be no mistake. The twisted nitive damages. I think the State of things that we should be very proud of power and oppression of Nazi terror, Washington is wrong. But that is a de- as a country. hatred, and Holocaust were no match cision they made with their State leg- We ought to reflect on the value of for the collective powers of freedom, of islature and the Governor. the Magna Carta. It was signed in a democracy, of individual initiative— Would it not be wrong, Mr. President, meadow of England, in a place called the very essence of America. Today, we if all States had to follow the same law Runnymede. King John could not write honor the 50th anniversary of that vic- as it relates to innkeepers, that we his name. He had to put a mark for his tory. We honor that victory every day have in the State of Nevada. In the name. The Magna Carta was the begin- so long as we continue to stand for State of Nevada we have over—in Las ning of the English common law that these values at home and abroad. Vegas alone—over 100,000 rooms, more we adopted when we became a country. Mr. REID addressed the Chair. rooms in Las Vegas than any other city One of the things that we brought over The PRESIDING OFFICER (Mr. in the world. the water and now have and have had GRAMS). The Senator from Nevada. The State of Nevada basically is a re- for over 200 years is a jury system, Mr. REID. Mr. President, what is the sort State. Would it not be wrong for where wrongs that are perpetrated can issue now before the body? the laws of the State of Alabama as it be brought before a group of people and f relates to innkeepers to be the same as they can adjudge the wrong, if in fact, the State of Nevada? Of course, it there were any. CONCLUSION OF MORNING would. We have special problems with My experience in the jury system, BUSINESS tort law as it relates to innkeepers. Mr. President, is that most of the time The PRESIDING OFFICER. Morning Therefore, the State of Nevada should the juries arrive at the right decision. business is now closed. be left alone. We should be able to de- I would say that about 90 percent of the f cide on our own what the law, as it re- time, they arrive at the right decision. lates to innkeepers, should be for the Not always for the right reason, but COMMONSENSE PRODUCT LIABIL- residents of the State of Nevada. the right decision. I think it is some- ITY AND LEGAL REFORM ACT The legislation that is before this thing that other countries have looked The PRESIDING OFFICER. Under body is a bill that usurps and desta- on with awe and respect—our jury sys- the previous order, the Senate will now bilizes well-established State law and tem. resume consideration of H.R. 956, which principles as it relates to seller liabil- Again, this bill would take away and the clerk will report. ity. undermine the jury system and places The bill clerk read as follows: The legislature of the State of Ne- arbitrary caps on damages. The sub- A bill (H.R. 956) to establish legal stand- vada is meeting as we speak. They are stitute arbitrarily caps punitive dam- ards and procedures for product liability liti- talking about tort reform in Nevada as ages at two times other damages for all gation, and for other purposes. this debate is taking place. punitive damages cases. In order to The Senate resumed consideration of I would much rather rely on what the have any deterrent impact, punitive the bill. State legislature does regarding tort damages should be based on conduct Pending: reform for Nevada than what we decide that is willful and wanton. Gorton Amendment No. 596, in the nature back here should be the standard in Ne- We have heard so much about the of a substitute. vada. McDonald’s case. But what was the Coverdell/Dole amendment No. 690 (to The State of Nevada has carefully es- McDonald’s case? Let me explain, Mr. Amendment No. 596), in the nature of a sub- tablished rules as it relates to product President, what the McDonald’s case stitute. liability. We have a strict liability was. A grandmother took her grand- Mr. REID. Mr. President, in the standard for most products that are child to baseball practice. She wanted State of Nevada, and particularly in sold defectively. We are not unusual in a cup of coffee. She drove to McDon- Las Vegas, we have some great illu- that regard. There are 45 other States ald’s. She got a cup of coffee. She put sionists. The most famous are two men that have, through their courts or leg- the cup of coffee between her legs, and by the name of Siegfried and Roy. islatures, adopted some form of strict as she removed the lid from the cup of Every night, twice a night, they are liability as it relates to products. coffee, it spilled. She had third-degree sold out. Presently, they are at the Mi- Only a handful of States have chosen burns over her body. Her genitals were rage Hotel and have been there for the to remove product liability from this burned. She had to undergo numerous last 4 or 5 years. general rule. Should not that handful painful skin grafts. These illusionists, as great as they of States be left alone? A person might say, why should she are, should be taking lessons from This bill would undo the law in at be awarded for putting a cup of coffee what is going on in the Congress today least two-thirds of the States. Con- between her legs? The fact of the mat- and during the past several weeks. We trary to nearly 200 years of State tort ter is the reason the jury reacted in the are talking about things that are real- law, this bill would virtually immunize way they did in this case is the fact ly illusionary. For example, there has people who sold defective products. that McDonald’s had had 700 other burn been a hue and cry that everything Another troubling matter, Mr. Presi- cases where people had been burned should be turned back to the States, dent, is that this bill overreaches in its with coffee. They had been warned and that the States should make the deci- efforts to protect small businesses by warned and warned that they served sions on their own destiny. All we hear placing a restrictive cap on punitive their coffee too hot —190 degrees is the is that we should leave them alone and damages, or any ‘‘entity or organiza- temperature they served their coffee. let the States decide what is best for tion with fewer than 25 full-time em- Mr. President, if a person buys a them. ployees.’’ This overlybroad language coffeemaker and plugs it in at home, In the so-called Contract With Amer- extends the protections of this bill well and makes his or her own coffee, it ica, that is what they talk about—re- beyond the so-called small businesses. comes out at about 135 degrees—some- turning as much back to the States as This cap, for example, would com- thing like that. McDonald’s served they could. But here we are, Mr. Presi- pletely take away the right that we their coffee at 180 to 190 degrees that if dent, now talking about tort reform have in most States to allow punitive accidentally spilled could result in and standing that issue on its head. In- damages against drunk drivers, against third-degree burns in a matter of 2 or 3 stead of returning everything back to child molesters, perpetrators of hate seconds. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6243 The jury felt that McDonald’s had silicon breast implants, are just a few punitive damages, some of those who been warned enough that they should of the alarming examples of dangerous are looking at this legislation say, not serve their coffee as hot as they products placed into the market that ‘‘That is absolutely wrong. In fact, if did. Why did they serve it so hot? affect women. Why should there be your standards are less than what is in There were a lot of reasons, perhaps, some arbitrary standard now estab- the bill you can keep those.’’ How un- but one reason they served coffee so lished that affects those cases? There fair. It also establishes an arbitrary hot is McDonald’s felt they got more should not be. It is wrong. To come up statute of repose for 20 years but al- product by serving their coffee hot. with a standard called ‘‘conscious, fla- lows States to impose shorter limita- That is, they got more juice of the grant indifference to safety’’ is almost tions if they so desire. beans, so to speak. unconscionable. So a vote for the sub- So we are rushing hastily to pass a The jury award, the punitive dam- stitute is to vote to eliminate the ex- piece of legislation that dramatically ages award in this case, Mr. President, isting legal incentives for companies to favors big business. It dramatically was the amount of coffee sold by produce the safest possible products. will change centuries of State-devel- McDonald’s for two days. That is why The substitute eliminates joint and oped law. It is ironic that those who they came up with the $2.3 million ver- several liability for the people who argue most vigorously for a stronger dict. The jury felt that McDonald’s truly rely on noneconomic damages the 10th amendment are the proponents of should get the message that 700 burn- most: women, children and the elderly. this amendment. This is the Siegfried ings or warnings were enough. These victims will now be required to and Roy illusion I talked about in the The fact of the matter is that the bear the risk caused by potentially beginning of my statement. The State court reduced this amount to $480,000 bankrupt defendants. The joint and of Nevada knows best as to how their and the parties reached an out-of-court several liability standard came about litigation should be handled. Unfortu- settlement for probably even less. as a result of there being a number of nately, the proponents of this legisla- She had skin grafts, and as I indi- defendants, some of whom who could tion think they know what is best for cated, the jury came to realize this was not respond. I ask the question rhetori- Nevada. not an isolated incident. This was a cally, is it fair to limit companies’ li- We are saying to the American peo- wrong that had to be corrected, a will- ability to the most vulnerable when ful wrong in the mind of the jury. only joint and several liability will en- ple that we no longer trust the judg- If a State, however, feels the McDon- sure full compensation? ments of State legislatures. We are ald’s case sets such a bad precedent This legislation creates a huge ex- saying we no longer trust people sit- that they do not want to allow punitive emption for big business. The sub- ting as juries. And as I said earlier, the damages, States have that right today. stitute excludes commercial loss from American system of justice and the The State of Nevada, the State of Min- its scope. Is that not interesting? One jury system—while there are some de- nesota, the State of Mississippi, the of the reasons the products liability cisions that I disagree with and we can State of Arizona—they can eliminate legislation was defeated last year is be- all point to some of the criminal ver- punitive damages if they want. But cause it directed its attention to indi- dicts that have come about—the jury why should it not be done by the viduals suing each other, it directed its system is a uniquely American concept States? Why do we have to go and set attention to the individual suing a with its roots in the Magna Carta, a standard nationwide for how they company, but it did not focus on com- grounded in democracy, and rooted in handle their punitive damages? panies suing each other, and that is the ideal that ordinary Americans ap- The substitute amendment does not where most of the litigation takes plying their inherent common sense allow punitive damages, even if a de- place in products liability litigation. can often best fashion a judgment or a fendant’s conduct was reckless or wan- Again, this year the same problem ex- decision that results in justice to the ton. Punitive damages can be assessed ists because this provision, the com- injured party. only if an injured citizen can prove the mercial loss exclusion, essentially ex- Who knows the number of lives saved super-heightened standard of, ‘‘con- empts big businesses from the restric- and the catastrophes prevented because scious, flagrant indifference to safety,’’ tions in the bill that those same busi- of our laws relating to punitive dam- a standard I never came across in all nesses seek to impose on consumers ages? In the area of products liability, the time I practiced law. I never heard and workers injured by the products. I pause to think what would happen if of that. That is a new standard. It is Take an example. If a product used manufacturers, especially big business, one that is set up to eliminate punitive on the factory floor blows up because did not have to worry about their prod- damages. Even though punitive dam- of a defect, the injured worker’s right ucts being safe. ages is the amount that could be to seek compensation from the third- So, let us not throw this standard out awarded, even if you could prove con- party manufacturer of the product is of the window and invite corporate scious, flagrant indifference to safety, limited. But the owner of the factory wrongdoers to engage in a cost-benefit it is cut down significantly; almost can sue to his heart’s content, for as analysis of whether it makes sense to eliminated. This would take any much lost profits as he deems appro- place defective products into the mar- thought about having punitive dam- priate; or if he had some property that ket. I think we would not be well ages completely out of the law. Nation- was damaged there as a result of the served by adopting this legislation. ally, there would be no punitive dam- explosion he can sue all he wants. So as The PRESIDING OFFICER. The Sen- ages. a result of an injury to a human being, ator from Mississippi. Take companies like McDonald’s or no recovery; but injury to property, Mr. LOTT. Mr. President, let me first General Motors, and let us say we have you can sue just as you always did. So inquire if we are in a period of general a $250,000 punitive damage limit. Does big business is protected. debate on the product liability legisla- that bother General Motors? Of course There is a lack of uniformity. Pro- tion? it does not. ponents of this measure claim it will The PRESIDING OFFICER. The Sen- What about the Exxon Valdez oil establish uniformity in product liabil- ator is correct. spill? Keep in mind the facts of that ity law. In reality, it creates Mr. LOTT. Mr. President, I would case. A man who had previously been prodefendant disuniformity. It is a one- like to extend my congratulations to told not to drink on the job is drunk, way preemption at its worst. The the distinguished Senator from Wash- controlling the ship and causes all this amendment only preempts those State ington, Senator GORTON, for his out- damage to the environment. Should laws which favor consumers. How? It standing leadership both in the Com- Exxon Valdez not be required to respond imposes an arbitrary cap on punitive merce, Science, and Transportation in punitive damages? I think it should. damages in those States which allow it Committee and here on the floor, in an Over the past few years we have seen but it does not create punitive damages effort to get a very responsible piece of an unfortunate entrance into the mar- in those States which do not allow it. legislation through, the Product Li- ket of too many dangerous products So in my earlier statement when I ability Fairness Act. He has worked that are marketed toward women: The talked about the State of Washington very closely with the Senator from Dalkon shield, the Copper-7 IUD, DES, having to now have an award given for West Virginia, Senator ROCKEFELLER, S 6244 CONGRESSIONAL RECORD — SENATE May 8, 1995 and they really have done yeomen’s the area when you are wanting to sue Why could the House get such a work in producing this legislation. and recover damages. But even though broad bill providing for legal reform The bill that was reported from the you were only remotely involved, like passed by an overwhelming margin but Commerce, Science, and Transpor- say maybe 5 or 10 percent of the dam- the Senate cannot do it? Answer: Be- tation Committee has been expanded. ages attributable to you, if the other cause it takes 60 votes to stop the de- A number of amendments have been defendants are broke, you can be forced bate in the Senate. Just keep talking, adopted. And in my opinion, all of to pay the entire judgment. It is called keep talking, keep talking and never those amendments are improving deep pockets. If you happen to be in take action. This time we should take amendments. We are talking about the area and you happen to be a suc- action. I believe we will. legal reform, not just product liability cessful company or an individual, you People will wonder in the future reform. are the one who will get hit even what could have been so controversial Having said that, it is obvious from though you were just involved to a about the provisions in this bill. Na- votes late last week we are not going very small degree. We are saying there tional uniformity in product liability to be able to get through the broader ought to be some sensible limit there. law and putting American manufactur- bill, as much as I would like for that to You ought to pay for the damage you ers on equal footing with foreign com- happen. So there will be votes shortly, caused but not pay for everybody. It petitors should not be controversial. either later on this afternoon or, I as- makes such good common sense. Encouraging alternative dispute reso- sume, tomorrow morning—maybe this Let me remind my colleagues here lution in place of lengthy and expen- afternoon and tomorrow morning—on today that the American people over- sive court proceedings should not be exactly what will be the final bill. I whelmingly support the idea of legal controversial. That just simply says presume we will have a narrower bill reform—overwhelmingly. We have a use a process to try to resolve a dispute than now exists before the Senate, one few interest groups that do not want instead of going through lengthy trials. that is directed primarily at product li- that to happen. But the people under- It makes good common sense to me. ability but with some additional provi- stand who pays. I mean it is easy to It should not be controversial to re- sions, but not many, that have been ap- stand here on the floor of the Senate quire that the person who creates harm proved overwhelmingly by the Senate. and say let us make you, EXXON, pay. must take responsibility for it. If I urge my colleagues in the Senate to Let us make General Motors pay. You someone who is drunk or under the in- vote to invoke cloture to stop the fili- know who pays? The consumer pays. It fluence of illegal drugs is more than 50 buster and allow the Senate to vote on does not just come out of the sky. percent responsible for his own injury, this very, very important issue. It has Somebody pays the bill. he should not be able to extort money been suggested that this would be a When you have frivolous lawsuits from others by blaming them for what rush to judgment. Rush to judgment? against people acting in good faith, happened. People who rent or lease We have been debating this issue— when you have doctors, ob-gyn’s that cars and equipment should not be le- product liability—for 10 years in the are afraid to stay in their profession gally liable for the acts of those who Senate. This will be the third time we because they are liable to be sued pay- rent those items from them. If you rent have voted to try to end the filibuster ing thousands upon thousands of dol- a car and go out and get drunk, cause so we can even get to a vote since I lars for medical malpractice insurance, an accident, injure people, why should have been in the Senate. This is my who loses? The patients lose. They pay the rental company be responsible for seventh year. We know the issue. We more. Or you have doctors getting out your misconduct? know the details. This is not a rush to of the business because they cannot af- It should not be controversial to stop judgment. ford to stay in it anymore. the practice of holding defendants Plus, let it be noted once again that However, we will have to reserve jointly liable for noneconomic damages the Senate talks and the Senate stalls. most of this legal reform for another usually referred to as ‘‘pain and suffer- The Senate is now in its third week on day. Here we are only talking about ing.’’ That has become a way for plain- product liability and the effort to try product liability. We are trying to get tiffs to get into the deep pockets of one to broaden it to have genuine legal re- some uniformity in an area that clear- defendant that I talked about earlier, form. There have been legitimate nego- ly involves interstate commerce. We even though some other defendant, tiations going on led by Senator GOR- are trying to get some commonsense with less resources, was at fault. TON and Senator ROCKEFELLER to bring answer in this area to stop forum shop- Jury awards of punitive damages in this to a conclusion. We should be ping where a small company in my the millions of dollars have become ready to do that. The leaders have lis- State that produces heavy equipment commonplace. One example just cited tened to the Senate. We have looked at can be sued in all kinds of forums all was the McDonald’s case. That is just the amendments and how close they over the country, and you shop around one example. I would recommend to were. What can we do to get an end to until you find the best forum. Then people that when they buy a hot cup of the filibuster so we can get to a vote? you sue them there. Some uniformity coffee, they not set it between their This legislation will be narrow. It is all we are seeking here. legs and try to drive an automobile. It will be targeted primarily at product When scholars write the legislative seems to me that is contributory neg- liability. It will not include medical history of Congress in the last quarter ligence. malpractice reform even though we of the century, I think they will be It certainly should not be controver- clearly need that and the Senate voted puzzled by the debate the Senate has sial to set a 20-year limit—a statute of for it. But, if it is included, we prob- been engaged in now for 2 whole weeks repose—for a manufacturer’s liability ably cannot get the 60 votes that are and entering the third week. They will for a product used in the workplace. If necessary, once again, to end the fili- wonder why so much time, so much a product is more than two decades old buster. passion, so much pressure was ex- it should not be subject to a product li- This bill does not include criminal pended on a bill that should have ability suit unless it came with the matters. The President suggested that brought us together in unanimous written safety warranty longer than 20 it does. I have heard suggestions here agreement. It passed overwhelmingly years. on the floor of the Senate that it does. out of the Commerce Committee. Yet None of these provisions should be It does not apply to criminal matters when it gets to the floor the talk be- terribly divisive. Indeed to most of us like hate crimes. It is just not applica- gins. here, as to most of the public, they are ble here. That is a scare tactic. The scholars will note that the sub- just common sense. I have referred to Let me clarify this joint and several stance of this legislation enjoyed over- that several times. We are trying to issues. It is amazing how things can be whelming approval of the public, that curb excesses in the civil—civil—jus- turned around in the debate here in the it was a moderate proposal with bipar- tice system, not the criminal justice Senate. Joint and several—what does tisan sponsorship, and that a much system, although clearly after watch- that mean? That means when you file a more expansive measure had already ing television the last few weeks we lawsuit, you file a lawsuit against ev- passed the House of Representatives by have a little work we need to do in the erybody remotely connected or even in a whopping margin of 265 to 161. criminal justice area, too. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6245 Yet somehow, H.R. 956, the vehicle spite our disagreement in that regard, fair because of the fact that it exempt- for product liability reform, has be- we agree on the need for reform and are ed all commercial loss and made com- come a battleground. We have allowed forthrightly working together toward mercial loss come under the category ourselves to get into heated debate. I common ground. of commercial or contract law, pri- have been guilty of that. I have said I am disappointed, however, that marily the Uniform Commercial Code. some things about the Trial Lawyers more Members of the Senate have not Commercial loss is a business loss, Association, the plaintiffs bar, that I endorsed at least the principle of prod- not a personal injury loss. Some of the should not have. I have had things at- uct liability reform, even if they might most egregious punitive damage suits— tributed to me that I do not recall say- disagree with some provisions of H.R. practically all of the large ones—have ing. It has been quoted that I said 956. I wish they were trying to modify been against business. Penzoil versus ‘‘they cheat people all over America.’’ the bill to meet their objections, much Texaco, $11 billion, is the one that That would be inappropriate. I reject as I might oppose their modifications, stands out primarily in the minds of that kind of language. Even having it rather than trying to kill it. As it is, most people. But commercial loss attributed to me, I apologize for that. they have allowed themselves to be- would be in most all instances re- We do not need that kind of rhetoric. I come champions of the status quo, and stricted to corporate America suing should not contribute to it. None of us that, I submit, is not an enviable posi- corporate America. should contribute to it. What we tion in the eyes of the American peo- Manufacturers do not want to come should do instead is reason together. ple. under the provisions of this bill be- That is what is happening now. We are And that is why the Senate has been cause they do not want to be put under trying to find a solution so we can stop spending all this time on what should the same laws as the people who re- the debate, pass the legislation, get have been a rather brief and unifying ceive personal injuries. into conference with the House of Rep- exercise in legal reform. It is why we For example, under the statute of resentatives, and do what is the right still have the threat of filibuster hang- limitations on implied warranties in thing. ing over our heads. It is why we spent contract law, it is substantially longer. In some measures, you understand, so many hours over the last 2 weeks on My State of Alabama has a contract with the intensity of the debate, that amendments—one that was later tabled ideologically divisive—left, right—divi- by a vote of 94 to 3. statute of limitations of 6 years. Under sions come into play. If something is We have dealt with several critical the Uniform Commercial Code, under good in the South but not good in amendments, which have been accept- warranties, it is 4 years. Yet, under North, we get pretty hot about it be- ed. One dealing with punitive damage this bill, it would come to apply to per- cause you are talking about our con- awards against small businesses and sonal injury which is 2 years. stituency and our regions of the coun- charitable and volunteer organizations, There are several types of implied try. But that is not what is happening many of which are being crippled by a warranties under the Uniform Commer- here. This is something that involves justified fear of liability suits. Another cial Code. For example, there is an im- economic interests of all the people. It would limit the use of joint and sever- plied warranty that the product is suit- involves trying to get some legitimate able damage awards. A third will offer ed for the purpose for which it is sold. litigation reform. I think we will be badly needed reforms in medical mal- However, under this bill implied war- able to do that today. practice law. But what we have before ranties are not recognized. But what we have now has eroded— us is a good start. It will bring about Therefore, if a person remains silent, the public’s respect for, and confidence significant improvements in the way there is no implied warranty. The rules in, the administration of civil justice. our courts operate, in the way our with respect to implied warranties The worst of it—and the most impor- economy operates. It will make our have been developed over the years and tant reason why this bill be so needed— civil justice system fairer, less costly, have been recognized as being an essen- is that litigation involving product li- and more efficient. So I urge my col- tial element in sales that a product ability is harming consumers, tax- leagues here this afternoon to vote clo- ought to be fit for the purposes for payers, businesses, and investors. It ture. We still have some more amend- which it is sold. limits job creation, stifles creativity, ments that can be offered. We could There are other aspects of this that thwarts medical and scientific ad- still discuss the final result. But it is have emerged relating to its unfair pro- vances, and lessens our country’s inter- time we vote and get this legislation visions, and I will touch on some of national competitiveness. moving forward. these provisions at this time. And it benefits almost no one. Cer- Mr. President, I yield the floor at First, I want to address my remarks tainly not the hapless defendants, who this time and, observing no other Sen- initially to the Snowe amendment. The often spend enormous amounts of ator who wishes to speak, I suggest the Snowe amendment has been touted as money either defending themselves absence of a quorum. eliminating the unfairness of the origi- against frivolous lawsuits or settling The PRESIDING OFFICER. The nal cap on punitive damages in this out of court just to cut their losses. clerk will call the roll. product liability case. Under the origi- Nor does it help the plaintiffs all that The assistant legislative clerk pro- nal bill, it was set at being three times much when a large share of their court ceeded to call the roll. the economic loss, or $250,000. winnings goes for attorney’s fees, pay- Mr. HEFLIN. Mr. President, I ask There were those that said that non- ments for expert witnesses, and court unanimous consent that the order for economic loss, such as scarring or dis- costs. One recent settlement against the quorum call be rescinded. figurement, the infertility or loss of the Nation’s major airlines gave con- The PRESIDING OFFICER (Mr. childbearing ability of a woman, or sumers coupons for future flights, SANTORUM). Without objection, it is so other noneconomic factors such as loss which they could redeem only a few ordered. of consortium, was discriminatory be- dollars at a time. But the plaintiff’s Mr. HEFLIN. Mr. President, a sub- cause of the fact that they would be lawyers walked off with $16,012,500 in stitute has been offered and I want to limited to $250,000, whereas a person’s cold cash. go into some of the aspects of the sub- economic loss could be up into the mil- I do not mean to suggest that anyone stitute, and I will later. lions. who finds fault with some provision of First, I think I stated in the begin- In a speech I made last week, I cited H.R. 956 does so from an unworthy mo- ning of the debate that I considered a 55-year-old CEO of a corporation who tive. Reform of product liability laws is this to be an extremely unfair bill. is making $5 million annually who has a complicated matter, and there are le- While it was titled the ‘‘Product Li- an anticipated work expectancy of 10 gitimate questions as to how far one or ability Fairness’’ bill, there were nu- years. We would have a situation where another reform should be taken. I will merous provisions that were one-sided his loss of earnings, his economic loss, candidly admit that this bill does not and which attempted to take away would be $5 million a year times 10 go as far as I would like it to. But I un- rather basic rights of a claimant in a years, or $50 million, and then multiply derstand that some of its supporters do lawsuit, and I thought it was ex- it by three. He would have a cap of $150 not wish to broaden its provisions. De- tremely unfair. Also this bill was un- million, as opposed to the housewife S 6246 CONGRESSIONAL RECORD — SENATE May 8, 1995 who has no economic loss, or the elder- zero, and maybe $10,000 for funeral ex- cases—against an individual whose net ly who have no economic loss. Their penses. worth does not exceed $500,000 or a cap would be $250,000—$150 million ver- That shows, to me, the disparity of partnership, corporation, so on—but it sus $250,000. That is quite a disparity in the Snowe amendment, and a situation has as its cap, two times the sum of the regard to caps, and I believe my point in which it would not operate fairly. At economic damages and the non- caused some Senators to reflect on the least, under the original bill, we would economic damages—still Snowe—or unfairness of the original punitive have had a cap of $250,000. Now the cap, $250,000, but then it has the language damage provision in the Gorton-Rocke- under the death case that I recited, which says, ‘‘which amount is lesser.’’ feller substitute. would either be zero for the elderly and So a suit against a small corporation, As a result, there have been some zero for the housewife, or perhaps partnership or an individual where the changes made. The Snowe amendment maybe $10,000, or possibly $15,000, at net worth does not exceed $500,000—and now has a formula with regard to puni- the most, in regard to burial expenses. of course a small business has fewer tive damages which provides for twice So this Snowe fix supposedly did than 25 employees—that has as its caps the amount of total economic loss and come up under a situation in which Snowe, which is double the compen- the noneconomic loss—or twice times death occurs, and as a result, if there satory damages or $250,000, but which compensatory damages. were personal injuries, the personal in- amount is lesser. Yet, there are still examples in which juries would have a different cap. But, This exemption applies to all civil this would cause an even worse situa- therefore, it would be for the benefit of cases. I believe the President called a tion. In the case where death occurs in- the wrongdoer who is going to be sued. similar provision the drunk drivers’ stantaneously, there is no non- A tortfeasor would much rather see the protection act. economic—that is ‘‘pain and suffer- person dead than that he would be It is still a drunk drivers’ protection ing’’—loss under the laws of most alive and incurring some pain and suf- act against a limited number of people. States. We would have a situation de- fering and giving the jury some leeway It just says that if you are drinking fined as meaning noneconomic loss in the determination of noneconomic while driving you better not be worth means subjective nonmonetary loss re- loss, particularly if it is a person like a more than $500,000 or you must not be sulting from harm, including pain, suf- housewife, and elderly person, or a an owner of an unincorporated business fering, inconvenience, mental suffer- child or student, who has yet to begin or be involved in a partnership or cor- ing, emotional distress, loss of society making a living for herself. poration. But it still is a drunk drivers’ and companionship, loss of consortium, Under the Snowe amendment, a high- protection act, as it would apply to the injury to reputation, and humiliation— income victim will continue to be able limits that are placed in the bill, be- all of this is in the definition of non- to receive a high punitive award, cause it applies to any civil action, not economic loss that is in the substitute whereas a homemaker, retiree, low-in- just product liability. that we have now before the Senate. come victim will be limited to a very But let us also look at these caps and Now, on that scenario where a person low punitive damage award in regards see how they apply. That 55-year-old died as a result of injury, what would to these instances. Punitive damages CEO who is, we will say, killed, he has be the situation? That same 55-year-old are designed to punish and deter egre- a situation in which he had a work ex- CEO who was making $5 million a year, gious conduct. They are not nec- pectancy of 10 years; with a $5 million his economic loss would be $50 million essarily designed to have caps. You annual salary he would have had a $50 on a work expectancy of 10 years times have to deal with it on an individual million loss as his economic loss; mul- two under the Snowe amendment—or basis. tiply that times two and that would be $100 million. $100 million. But under this, he would As to the McDonald’s hot coffee case, Well, that is less of a cap than the be limited to $250,000. Because that is the situation was that the jury deter- $150 million we have. But what do we the lesser of his $250,000 or two times mined that punitive damages were in have on the housewife? She also dies his compensatory damages. So if he order to send a message to McDonald’s, immediately. She did not suffer any gets killed by a drunk driver, then the after 700 instances of burn cases. The pain and suffering, emotional distress, drunk driver is limited under the now jury in that situation decided on a pu- loss of society and companionship, and substituted proposal to $250,000. nitive damage award of 2 days of the so forth, so she would really be in a sit- Let us take the housewife, the elder- gross sales of coffee by the McDonald’s uation where her noneconomic loss ly person, or the child in some in- Corp. which amounted to approxi- would be zero. stances. You would think they would mately $2.5 million, and then the judge Then we revert back to what the sit- still be under the $250,000, but that reduced that down to $460,000. Later it uation was under the original bill. She amount is greater. It is not lesser. And was settled for an undisclosed sum that had no economic loss because she did the language here says ‘‘is the lesser.’’ was protected by a secrecy order. There not work outside the home, and there- So the housewife who has no economic were third-degree burns in this case fore her total economic loss and her loss, and no noneconomic loss, it is and McDonald’s had repeated warnings total noneconomic loss would be zero. still zero. For the elderly person who that its coffee was being served way We double zero, and we still have zero. has no economic loss, the cap is zero too hot. This bill takes away from the Now, some might say, well, she would because it is the lesser. Because the ability of juries to determine just what at least have an economic loss in fu- compensatory damages that they type of egregious conduct warrants an neral expenses. Well, there are some would suffer, in a death case, would be appropriate amount of punishment as States—and I do not know whether this less than the $250,000, therefore the to damages. is the majority or not—that say that lesser amount, zero, would apply. Other language that appears in the death is inevitable, like taxes. There- This amendment also, as it is written Dole-Coverdell substitute has been fore, we have a situation in which we now affects automobile accidents al- changed. There was put into the sub- are going to have to be buried, and that most every type of conceivable acci- stitute an amendment by Senator cannot be counted as an economic loss. dent, not just products liability inci- DEWINE which appeared as a special Let’s say, for purposes of discussion dents. It fails to take into account how rule. It says, and debate, that all of the States were much insurance an individual carries to allow it. Instead of the death case The amount of punitive damages that may on his automobile or how much liabil- be awarded in any products liability action with the elderly or the housewife, it against an individual whose net worth does ity insurance he carries in his business. would be an economic loss of maybe not exceed $500,000 or against an owner of an An individual may have $1 million or $5 $5,000 for funeral expenses, and we dou- incorporated business or any partnership, million in liability insurance. But he ble that under the Snowe amendment corporation, association, unit of local gov- still could have a net worth of less and we have $10,000. ernment or organization that has fewer than than $500,000. So he is protected under So we still have the difference be- 25 employees, shall not exceed $250,000. this special rule. He is protected by tween the 55-year-old CEO who is Now it appears in the substitute that this small business exemption and the killed, at $100 million; and we have, for the Dewine exemption applies in all individual net worth figure, and his in- the elderly or the housewife, maybe civil cases—not just product liability surance goes home free. Certainly, if he May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6247 had $1 million worth of insurance, as a also include the Federal Government. Mr. GORTON. Mr. President, I ask lot of people carry on their various Therefore, they come within the pur- unanimous consent that the order for businesses or automobiles—many indi- view of this relative to all of the provi- the quorum call be rescinded. viduals carry umbrella policies to try sions that are in this substitute, in- The PRESIDING OFFICER. Without to protect them against that sort of cluding the misuse and alteration of a objection, it is so ordered. thing—then that cap applies to him. product by any person, not the claim- AMENDMENT NO. 709 TO AMENDMENT NO. 690 But as to the housewife, the cap is zero ant himself. He might not have any- (Purpose: To provide for a uniform product or to the elderly the cap is zero. thing to do with it. But they are enti- liability law and to provide assurance of So I just point these out to show how tled to a reduction in regard to the per- access to certain biomaterials) these caps would apply and what in- centage of fault in regard to misuse or Mr. GORTON. Mr. President, on my equities would come about and would alteration. behalf and on behalf of the Senator occur. These also would apply to any With regard to the statute of repose, from West Virginia [Mr. ROCKEFELLER], I have just filed with the clerk a sec- civil action. I wonder in regard to the many, many products are bought by ond-degree amendment, and I ask that Oklahoma City explosion if there were these governmental entities. Then the attempts to bring suits against those that second-degree amendment be re- bill, or substitute, includes the Federal that are eventually determined to be ported. Government, the Army, the services. responsible for that bombing. The PRESIDING OFFICER. The Most of our armed services utilize, hel- So I just want to point out that there clerk will report. are many problems with the way this icopter, trucks, automobiles, Jeeps, The legislative clerk read as follows: and other vehicles all of which are amendment is written. Certainly, if The Senator from Washington [Mr. GOR- somebody carries insurance, the built for the test of time. Many of TON], for himself and Mr. ROCKEFELLER, pro- amount of the insurance ought to be them today are far in excess in age of poses an amendment numbered 709. counted in calculating whether or not over 20 years. For example, many of Mr. GORTON. Mr. President, I ask a cap goes into effect. The idea is to the types of helicopters that were used unanimous consent that reading of the protect the small business or the indi- in the Vietnam war are still in use amendment be dispensed with. vidual not worth more than $500,000. He today. But the statute of repose in ef- The PRESIDING OFFICER. Without might have a total net worth of $50,000 fect applies to them. objection, it is so ordered. or $100,000 or $150,000 and carry $100,000 The purpose of this bill is obviously (The text of the amendment is print- worth of insurance or carry $1 million to save money for business, corporate ed in today’s RECORD under ‘‘Amend- worth of insurance. But these do not America, and insurance companies. In ments Submitted.’’) take into account his insurance that he this instance, who are they going to Mr. GORTON. Mr. President, I ad- carries on his car in the way it is writ- save money from in regard to their de- dress these remarks to the President, ten. fective product—governmental enti- and through him to my distinguished I mentioned one time in a previous ties? colleague from Alabama, who is op- speech about the situation of the There are provisions relating to sev- posed to this bill, and I hope to all Sen- homeowner policy. Homeowner policies eral liability which concern me. You do ators or to their staffs, because I hope have for years and years now carried not even have to be a party. You can and trust that this will be the final comprehensive liability coverage. Com- prove it against a nondefendant in a amendment with which we will deal on prehensive liability coverage is very suit. You prove several liability on this bill, as we are to vote cloture on comprehensive, and basically it is writ- that, and that includes coemployees, the Coverdell substitute at 4 o’clock. ten in a manner in which it has to ex- which in most States you cannot sue But as the proponents of product liabil- clude those things that are not cov- the employer. It has a provision that, if ity hope that Coverdell will be amend- ered. But practically all homeowners there is any fault to be allocated ed as per this proposal by Senator carry some type of comprehensive li- against the coemployee and the em- ROCKEFELLER and myself, I believe I ability insurance. Again, that insur- ployer, then that is the last item that should outline the key changes be- ance does not come into effect as the you are to bring up in the priority of tween the Coverdell proposal of last way this substitute—the change of the Friday and this one, because either be- how you present your case before a language—took place from the DeWine fore or after cloture it will be this jury. amendment. To me, that is another ex- amendment which becomes the final There are many other aspects of this ample of how this is being written for product liability vehicle for the Senate that continue to be of concern, and I the advantage of insurance companies. to vote on. may mention some of these later as I Therefore, I think that ought to be We can discuss a bit later all of the given very careful consideration. go along. But there are numerous pro- details of the proposal. But as the Sen- There are numerous aspects of this visions in this bill that are written in ate will remember, last week what had bill that are unfair as they apply to such a manner which are directed to- started out to be a product liability real life situations. I think it is very ward taking away rights of the injured bill was very considerably expanded, unfair to local government. There are party and benefiting the wrongdoer. first by an amendment by Senator some units of local government that The provision that says you cannot ABRAHAM from Michigan on relation- are included under the DeWine amend- introduce gross negligence or any puni- ships between lawyers and clients with ment, if they have fewer than 25 full- tive damage elements in your main respect to their fees and, second, by a time employees. But the way the bill is trial relative to compensation if you proposal with respect to civil procedure written, a claimant is defined to in- have demanded punitive damages and 11 on frivolous lawsuits. clude a governmental entity. This af- there is a call for a bifurcated or sepa- But more significantly, there was fects most local governments, any- rated trial is further evidence of the added an entirely new set of provisions where from a city that has about 25 bill’s basic unfairness. To me that is a on medical malpractice—a new medical employees. They usually define that as real serious situation. A claimant, for malpractice code—to override, in many a city of anywhere from 10,000 and up example, could not show if a person respects, the codes of the States. And, with various types of departments: was guilty of drunkenness. That would secondly, a broadening amendment by street department, fire department, po- be a punitive damage element, and you the majority leader, Senator DOLE, lice department and so on. I do not could not show that in the trial in which extended the punitive damage know the exact number. But it includes chief. rules contained in the product liability in the claimant. Mr. President, for the time being, I bill at that point to all civil litigation; So, therefore, a city or county, State am going to yield the floor. and, of course, some change in the government or Federal Government I suggest the absence of a quorum. rules relating to punitive damages by which has a claim arising out of this, The PRESIDING OFFICER. The the adoption of the Snowe amendment or property damage, may have some clerk will call the roll. which limited punitive damages in claim in regard to subrogation rights The legislative clerk proceeded to product liability cases and then, by ex- under certain circumstances and would call the roll. tension of the Dole amendment, to all S 6248 CONGRESSIONAL RECORD — SENATE May 8, 1995 cases to an amount not to exceed twice native dispute resolution proceedings. which was left in the Coverdell sub- the total of both noneconomic and eco- We do not override State rules on ADR, stitute is now gone. This bill now ap- nomic damages. alternative dispute resolutions, except plies to punitive damage cases only, as When on two occasions last Thursday with respect to the time with which it did when it was reported by the Com- cloture was rejected on that broadened they must be commenced. So the only merce Committee. legal reform proposal, Senator places in which these rules would be The profound difference between the COVERDELL, with the help of the major- more or less mandatory are in that form in which it finds itself here and ity leader, Senator DOLE, put the tiny handful of States that have no the way in which it was reported from Coverdell substitute on the desk on ADR provisions whatsoever. the Commerce Committee with debate Friday and filed a cloture motion on it. The second and most important beginning 2 weeks ago today, if my It returned the bill pretty much to the change in this bill relates to the for- memory serves me correctly, the pro- status of a product liability bill, with mula for the maximum level of puni- found difference is in respect to puni- one exception that I will speak to in a tive damages. tive damages. You will remember that moment. It restored for all practical The long and short of it is, Mr. Presi- the original bill from the Commerce purposes the original Rockefeller-Gor- dent, that there is no longer any theo- Committee had a cap of $250,000 or ton bill with the Snowe and DeWine retical maximum limit on punitive three times economic damages only, changes to punitive damages. damages, which I think will secure the whichever was higher. The Snowe The Snowe amendment, as I have al- support of many Senators of both par- ready said, said that punitive damages ties who have wanted some kind of re- amendment effectively lifted that cap, would be limited to an amount twice form in the product liability field but to a certain degree. This removes the the amount of the total of all compen- have not wanted even the limitations cap entirely, but only when a judge de- satory damages, economic, and non- that were contained in the Snowe termines that that limitation would be economic. The DeWine amendment amendment. So let me describe what unreasonable and finds the actions of limited the amount of punitive dam- they are now. the defendant sufficiently egregious to ages to $250,000 in the case of small In cases that go before juries, the warrant it. businesses, those with fewer than 25 Snowe amendment will continue to be Excuse me, there is one other matter, employees, and individual defendants the case with the modifications pro- the DeWine amendment, which does set of modest means with a net worth of posed by Senator DEWINE; that is to a separate rule for small business de- less than $500,000. say, the jury will have an upward limit fendants and for individual defendants There was no Abraham amendment in its award of punitive damages of whose assets do not exceed half a mil- in the Coverdell substitute. There was twice the total of both economic and lion dollars, designed to see a single no change in rule 11 in the Coverdell noneconomic damages. case does not bankrupt. substitute. There were also no alter- Economic damages, Mr. President, So, Mr. President, I recognize that native dispute resolution provisions at are those for lost wages, for medical this is, oh, if not a complicated set of all, as they had been stricken before expenses and the like, the full out of changes, still a complicated bill be- the cloture vote by a Kyl amendment. pocket losses of the claimant. Non- cause the Senator from West Virginia However, the Coverdell substitute did economic damages are those for pain and this Senator have collaborated on extend the punitive damage rules relat- and suffering which, almost by defini- drafting this amendment because it re- ed to small businesses only—that is to tion, are more subjective in nature. flects, I believe—and he can speak to it say, the DeWine amendment limiting You will total up the sum of non- himself when he gets to the floor—be- punitive damages against small busi- economic and economic damages and cause it reflects the views of the more nesses or modest individuals to punitive damages can be awarded or, of than a dozen additional members of the $250,000—to all litigation. It retained course, not awarded, but cannot be Democratic Party who have been work- that part of the original Dole amend- awarded by the jury in an amount ing with Senator ROCKEFELLER, and be- ment. greater than twice the total of those cause it represents the considered After extensive negotiations Friday economic and noneconomic damages, views of the majority leader at this except that if that total is less than and over the weekend with my partner point. I hope that we will be permitted in this, Senator ROCKEFELLER, and his $250,000, the jury can award up to to adopt this second-degree amend- negotiations with as many as 15 mem- $250,000. So the maximum jury award ment before 4 o’clock, so that it is ab- bers of the Democratic Party who want will be $250,000 or twice the total of all solutely clear exactly what the cloture some product liability reform but who compensatory damages, whichever is vote is on. have been, to a greater or lesser extent, higher. opposed to any theoretical limitations The big change, Mr. President, how- I can say, Mr. President, that if that on the potential for punitive damages, ever, is the fact that the judge in the does not happen, if we have not adopt- we have arrived at this Rockefeller- case may add to that award of punitive ed the second-degree amendment by 4 Gorton second-degree amendment. damages if the judge feels that it is in- o’clock, I can assure Members that this How does this change the Coverdell adequate because of the egregious na- amendment will be adopted postcloture proposal? Mr. President, it changes it ture of the tort which led to the puni- before we reach a vote on final passage in about four ways. tive damages in the first place. The on the bill. I speak in this case for my- First, we do return to a set of alter- judge may add to that number and may self, for Senator ROCKEFELLER and for native dispute reasons or sections in do so in an unlimited fashion, there is the majority leader; in other words, I the bill, but they are not the alter- no cap in this Rockefeller-Gorton believe that among us, we can guaran- native dispute resolution provisions amendment, except that if a judge does tee enough votes so that Members can that were stricken by the Kyl amend- do so—in other words, what we con- be assured that what they are bringing ment. sider a requirement by the seventh to a close is a debate on this modified Senator KYL opposed those for two amendment—the defendant would have proposal, a proposal which does not reasons: First, because they overrode the right to a new trial to go back and have the caps on punitive damages the alternative dispute rules of the var- start all over again. which caused, I think, the great bulk of ious States; and, second, because they There is one other major difference the debate on this issue during the provided sanctions against defendants and that other major difference is a course of the last 2 weeks. but no comparable sanctions against criticism which the Senator from Ala- I can say rather bluntly, Mr. Presi- plaintiffs when the proposed ADR solu- bama made just a few moments ago dent, that I do not regard this as a to- tion was more favorable to the winning against the Coverdell amendment; that tally satisfactory response. I believe party. is, there is no attempt in this bill to that the desire for predictability and The new Rockefeller-Gorton proposal extend these punitive damage rules or for economic progress and opportunity on alternative dispute resolutions sim- limitations to cases other than product in this country calls for limitations on ply set up a set of rules under which liability. In other words, that portion punitive damages which this proposal States will conduct their own alter- of the Dole amendment of last week lacks. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6249 So I have given up ideas which I Mrs. BOXER. Parliamentary inquiry. all the defendants who caused them think are quite important in connec- What is the status of the floor debate harm into court. tion with this aspect of legal reform, at this time? Joint and several liability allows in- but I have done so for the greater good The PRESIDING OFFICER. The sen- jured victims to receive full compensa- for accomplishing something, for doing ior Senator from Washington has the tion, and leaves it to the guilty defend- something to bring a greater degree of floor. The Gorton substitute, amend- ants to divide the damages appro- balance and fairness into this whole ment No. 709, a second-degree amend- priately among themselves. It seems to field than exists at the present time. ment is the pending business. He yield- me much fairer to place this burden I expect during the course of the next ed the floor to the Senator from Ala- with the guilty parties, than with hour that my friend, the Senator from bama for a question and he is respond- those who are injured. West Virginia, will be here. I believe ing to that. The singling out of noneconomic that the majority leader will ratify Mr. GORTON. There are two separate losses for adverse treatment will pre- what I have said. I see the Senator uses of the figure $250,000 in this Gor- vent women from being fully and fairly from Alabama on his feet, and I will let ton-Rockefeller second-degree amend- compensated. This is especially objec- him either speak to it—— ment. The first is that in most cases, tionable because women have been the Mr. HEFLIN. I just wanted to ask if in normal cases, the $250,000—rather victims of many of our Nation’s most the Senator will yield and respond to a the Snowe amendment says that the severe drug and medical device disas- couple questions. maximum punitive damage award is ters—DES, Dalkon shield and Copper-7 Mr. GORTON. I will be delighted to twice the total of economic and non- IUD’s, and silicon breast implants are do so. economic damages. This adds to that, just three examples. Mr. HEFLIN. Let me ask the Senator or $250,000, whichever is greater. I have met with many women from this. Is the Shelby amendment in- Let us say in a case the total eco- my home State of Washington whose cluded? nomic and noneconomic damages were lives have been devastated by these Mr. GORTON. The single printed $15,000. Twice that is $30,000. Under this products. Their stories are tragic. copy of the amendment that I had was amendment, nonetheless, the jury Their lives have been changed dramati- submitted to the desk about 15 minutes could award $250,000 as being greater cally. They deserve a system of laws ago, and it is in the process of being than $30,000. that treats them fairly. copied. I hope within the next 5 min- In the case of the small business, Mr. President, mandating a nation- utes we will have copies for every however, the business with fewer than wide cap on punitive damages also Member. 25 employees or the individual defend- seems ill-conceived in light of the num- Mr. HEFLIN. To answer my question, ant with less than $500,000 in assets, ber of dangerous products that have is the Shelby amendment included or $250,000 or twice economic and non- been marketed primarily to women in not? economic damages, whichever is the this country. Mr. GORTON. The Shelby amend- lesser is the ceiling. S. 565 establishes a cap on punitive ment is not included in it, I say to the Mrs. MURRAY addressed the Chair. damages of three times a person’s eco- Senator from Alabama. On consider- The PRESIDING OFFICER. The Sen- nomic injury or $250,000, whichever is ation and on speaking to a wide num- ator from Washington greater. ber of other Members, we believe that Mr. GORTON. I yield the floor. We should not forget in our rush to the peculiar rules in Alabama with re- Mrs. MURRAY. Mr. President, I rise make changes in this Congress that the spect to wrongful death decisions, that today in opposition to S. 565. The bill purpose of punitive damages is to deter we were going to do one of two things: before the Senate claims to promote bad behavior by making it impossible Either create a hole in this bill big fairness, but I believe it is actually far to calculate the risk of engaging in enough to drive a truck through or, al- from fair to consumers in my home such behavior. Under S. 565’s cap, I ternatively, encourage the Alabama State of Washington and throughout fear wrongdoers will find it more cost Legislature to change its law to con- this Nation. effective to continue marketing their form with those of other States. I will leave it to the lawyers here to dangerous products rather than remov- Mr. HEFLIN. Let me ask the Senator discuss the legal intricacies of the bill. ing them from the marketplace. this. In regard to the DeWine amend- However, I want to raise some very se- Even Senator SNOWE’s amendment to ment, is it still the lesser of $250,000 or rious, commonsense problems I have change the cap on punitive damages to two times compensatory plus with this legislation. two times compensatory damages does noncompensatory? Is it still the lesser? First, I am deeply concerned about not remedy the unfairness of this cap. Mr. GORTON. No, it is the greater of. the bill’s potential to disproportion- Although, Senator SNOWE’s amendment Mr. HEFLIN. What I have written ately harm women. includes noneconomic damages within out to me is the lesser of it. This was I am amazed that the bill before us the formula for punitive damages, it handed out as some sort of brief state- treats a corporate executive’s loss of does not acknowledge the important ment. salary as more important and deserv- role of punitive damages in deterring Mr. GORTON. That is a very good ing of compensation than the loss of and punishing outrageous misconduct. question, I say to the Senator from such priceless assets as the ability to Last year, Senator KOHL introduced Alabama. It is my intention to have it bear children, the senses of sight and an amendment to the product liability the greater. I know this says the lesser. touch, the love of a parent or husband, bill that, unfortunately, was not adopt- I will check and see and we will change and the ability to move freely— ed. He sought to incorporate more fair- it. unhindered by disability, disfigure- ness in this legislation by restricting Mr. HEFLIN. I think the distin- ment, or lifelong pain. the ability of Federal courts to sanc- guished Senator from Washington Certainly, this body must believe tion secrecy in cases affecting public wishes to speak. I yield the floor. that raising a family, and having chil- health and safety. I was proud to join Mrs. MURRAY addressed the Chair. dren should not be seen as unimportant him as a cosponsor of his antisecrecy The PRESIDING OFFICER (Mr. in our legal system. amendment last year, and look forward KYL). The Senator from Washington. S. 565 would eliminate joint and sev- to joining him again when he raises the Mr. GORTON. Excuse me, Mr. Presi- eral liability for noneconomic losses. issue in this Congress. dent, the Senator from Washington has And, by making noneconomic damages The settlement of the Stern case in the floor. more difficult to recover, it would im- 1985 by Dow Corning is a great example Mr. President, can I have the atten- pair a woman’s ability to recover her of why such a change is necessary. As tion of the Senator from Alabama? full damage award. a result of a secret settlement agree- Mr. HEFLIN. Yes. It is unfair to require only the vic- ment, Dow Corning was able to hide its Mr. GORTON. I need to say to the tims of noneconomic losses—such as a decade-old knowledge of the serious Senator from Alabama, I believe I woman who has lost the ability to bear health problems its silicon breast im- misspoke myself because there are two children, or a child disabled in his plants could cause for 6 additional separate uses of the $250,000 figure. youth—to bear the burden of pulling years. S 6250 CONGRESSIONAL RECORD — SENATE May 8, 1995 The damaging information did not The rush to impose federal rules on tort cause I think that she, as she usually become public until the FDA launched claims runs counter to the Republican phi- does, puts her finger on real people. a breast cancer implant investigation losophy of giving more power to the states. Who are the real people that are in 1992. In the meantime, nearly 10,000 Surely, this is one area where state judges going to be impacted by this change in women received breast implants every and legislators are better suited to deter- this law that is before us? I hope that mine what’s needed in their communities. month, and countless women were The Washington Legislature, for example, we do not vote for cloture. The bill harmed. passed a comprehensive tort-reform law in that would be before us, if cloture is Mr. President, this bill would not 1986. Many other states have done so in the voted, is a bill that I think is very, only disproportionately harm women, past decade. Yet, voters in some places, such very harmful to the American people. it would also deprive injured consum- as Arizona and Michigan, have turned down It is bad for consumers; it is bad for a ers in my home State of Washington of tort reform initiatives. Why should Congress system that has produced the safest rights they currently have. now force those voters to live with legal products in the world. This is significant because Washing- changes they rejected at the polls? With all our problems, we still have ton has one of the most conservative The Senate product-liability bill, spon- the safest products because we have a tort law schemes in the Nation. This sored by Sen. Slade Gorton, though more legal system out there that acts as a limited than the House legislation, is still an bill would reduce the statute of limita- unnecessary federal intrusion into state law. deterrent to those sitting around in the tions in my home State of Washington The Senate bill does not include the boardrooms deciding if they can write from 3 years to 2 years. Injured con- House’s onerous ‘‘loser pays’’ rule that would off a certain number of injuries and sumers would have less time in which prevent individuals and small businesses still make a profit. to file lawsuits when they are harmed from filing legitimate lawsuits for fear of I said the last time I debated this by dangerous products. The bill also having to pay legal fees for the opposing that this so-called reform is not so would reduce the number of situations side. But like the House bill, it would cap pu- much about what will go on in the in which product sellers can be held nitive damages in dangerous-product cases courtroom as what goes on in the liable in Washington State. And the to $250,000 or three times the economic loss, boardroom, because it is in the board- bill would abolish joint and several li- whichever is greater. room—and we see it through discovery The change might make sense if it created ability for noneconomic damages cur- a uniform rule across all 50 states. But it in other products cases—where the dol- rently available in Washington when won’t. Washington law does not allow puni- lars and cents take hold. We have the injured person has not contributed tive damage awards at all, so the proposed heard about automobile manufacturers to her injury. federal standard won’t apply here. who knowingly did not spend enough As the Seattle Times editorialized Other provisions of the Senate bill, how- time on safety and said, ‘‘we can afford just last week: ever, will affect Washington residents. One to have so many explosions and we will Recent polls show that the great majority provision would make it harder for people in- still make money.’’ We want to make of Americans oppose restricting the right of jured by defective products to collect for sure that that kind of callous attitude individuals to hold manufacturers and medi- ‘‘pain and suffering.’’ The bill places limits does not increase in America today. We cal workers accountable for their injurious on lawsuits by individuals, yet places no want the safest products. such limits on businesses. act. My friend from Washington, Senator The National Conference of State Legisla- Tort reform will not unclog the court sys- tems. Though businesses routinely complain MURRAY—I have to be clear because we tures opposes having Congress federalize an have the two Senators from Washing- area of law that has been the exclusive do- about the litigation explosion, tort claims main of state lawmakers for 200 years. And account for only 9 percent of all civil suits, ton on different sides of this—was very state judges are coming out against federal and product-liability cases make up only 4 clear on who could be hurt from this statutes that would tamper with century-old percent of tort claims. The real problem is so-called reform. Again, I want to jurisprudence developed in state courts. with companies suing each other—a phe- make the point here that it is the Re- The rush to impose federal rules on tort nomenon completely unaddressed by the pro- publican Congress that keeps on say- claims runs counter to the Republican phi- posed legislation. ing, ‘‘We want the people of the States losophy of giving more power to the states. But this isn’t about clearing up court to handle everything. They are better dockets or improving the way judges and ju- Surely, this is one area where state judges at it.’’ Yet, when it comes to product and legislators are better suited to deter- ries handle tort claims. It is about reducing mine what’s needed in their communities. the financial exposure of manufacturers even liability, for whatever reason, they The Washington Legislature, for example, when there are serious proven injuries. If want big brother and big sister and the passed a comprehensive tort-reform law in states believe protection is needed for busi- U.S. Senate to dictate to every judge 1986. Many other states have done so in the nesses, they are free to enact tort reform and jury in this country as to what past decade, Yet, voters in some places, such without congressional interference. damages ought to be. I find it almost as Arizona and Michigan, have turned down Mrs. MURRAY. Mr. President, I have amusing, if it were not such a serious tort reform initiatives. Why should Congress serious concerns about S. 565 and can- matter. now force those voters to live with legal not support passage of this legislation. When it is convenient, you are for changes they rejected at the polls. * ** I urge my colleagues to think long and the local people, and when it is not, do I ask unanimous consent to have the hard about consumer health and safe- not let philosophy get in the way. I editorial printed in the RECORD. ty, their individual State’s autonomy think Senator THOMPSON from Ten- There being no objection, the mate- in determining its own tort laws, as nessee made that point very clearly, as rial was ordered to be printed in the well as the potential impact of this bill a Republican Senator who does not like RECORD, as follows: on women. this bill, asking if this goes against the [From the Seattle Times, Apr. 30, 1995] I believe this bill tilts the scales of grain of what he said Republicans are FEDERAL TORT REFORM USURPS STATES justice far too dramatically in favor of trying to do. I applaud him for that di- RIGHTS corporate profits. It is our job to do all rectness. The only parties pushing for tort reform we can to assure the families we rep- Now, we know that there are going to seems to be big businesses, doctors intent on resent that the products they use are be some changes to the bill as it is be- curbing medical malpractice lawsuits, and safe, and that they will have recourse fore us in order to get enough votes to lawmakers who receive financial contribu- tions from those lobbies. if they are harmed. move forward. I was very pleased to see Recent polls show that the great majority Mr. President, this bill hurts the lit- that not even a majority of this Senate of Americans oppose restricting the right of tle guy. Is it not time we all stepped would stand up for that Dole amend- individuals to hold manufacturers and medi- back, and remembered the adage— ment which would put a punitive dam- cal workers accountable for their injurious there but for the grace of God go I. ages cap on all civil cases. It was so acts. Mrs. BOXER addressed the Chair. far-reaching and so hurtful that Sen- The National Conference of State Legisla- The PRESIDING OFFICER. The Sen- ator DOLE could not even get 50, 51 tures oppose having Congress federalize an ator from California [Mrs. BOXER] is votes. I think he got 47. That is very area of law that has been the exclusive do- main of state lawmakers for 200 years. And recognized. far from shutting off debate. state judges are coming out against federal Mrs. BOXER. Mr. President, I want I have to say that I believe the sub- statutes that would tamper with century-old to associate myself with my colleague stitute bill will have some terrible con- jurisprudence developed in state courts. from Washington, Senator MURRAY, be- sequences. Yes, it stripped out the May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6251 other areas of law, and they are just the punitive damages, which is two As biomaterial suppliers, component sticking to products. times compensatory damages, he gets parts manufacturers would be shielded I think there will be three con- $1.35 million. from liability under this bill. sequences. By the way, I am not sug- Identical injury, different results. I am concerned that these provisions gesting that the people who support Now we will look at the homemaker, 45 go too far. We know about silicone gel this bill want these consequences. But years old—same age as the CEO. She implants. Would the people who make I believe these are the consequences of earns no wages. Her auto engine ex- that silicone be immunized under the the bill. plodes and she cannot work for a year. bill? Will they be protected from law- First, it will make our products less She is not working anyway. She has no suits? safe—less safe—for consumers. wages. The automaker is found 100 per- We know Dow Chemical set up a cor- Second, the formula for punitive cent liable. She gets economic damages poration just to make breast implants, damages is blatantly unfair. It favors of $25,000. She has no lost wages. She and they called it Dow Corning. They the wealthiest. Let me repeat that: The has $25,000 in medical bills, pain and tried to protect Dow Chemical from li- formula for punitive damages is bla- suffering of $25,000. Her total compen- ability that way even though Dow tantly unfair and favors the wealthy. I satory damage award is $50,000. Chemical made the chlorinated organic will show a particular case where we Here is what happens to her: She gets compounds, the solvents and the cata- have a wealthy corporate executive compensatory damages of $50,000; puni- lyst that went into these implants. suffer the same injury from the same tive damages of $100,000, for a total The product of silicone breast im- product as a homemaker and wait until award of $150,000. Same injury, dif- plants, we know, is the subject of ongo- we see the difference in the award that ferent result. ing litigation, but will this title in the they get. It will make your hair stand This is the bill that is before the Sen- bill that is still in the bill mean that on end, it is so unfair. ate. Senator GORTON wants to make it Dow Chemical could be dismissed from Third, there is another issue that has better. I am glad he does. He is putting the case? What would we be telling the not yet been raised that deals with the back the $250,000, so she could get women, infants, and children whose biomaterials section, which I believe $250,000 in punitive damages if his lives have been devastated by these will unduly restrict liability for suppli- ers of component parts. In other words, amendment holds. leaking silicone implants? What would if a person gets hurt by a product that Now, giving them the benefit of the we be telling them now that they are has a number of parts, what this would doubt, that they change it to $250,000, finally ending their battle with the do is put some of the manufacturers of it is $1.35 million versus $300,000—same chemical giants? Are they going to be those parts off limits. They would have injury, different result. This is what we told, ‘‘Sorry, Congress just gave ex- no liability. It sets up a real problem, are voting on. traordinary protection to Dow, and you which I will go into. I hate to say it, but it hurts women are left with no way to be made Moving to consumer safety, one the most. Women still earn only 71 whole?’’ I hope we will not vote cloture study done on tort law and its effect on cents for every $1 earned by a man. on this bill. improved safety, reported that the And women and minorities make up We are not sure if Dow would be State system of product liability saves only 5 percent of top management jobs. shielded, but it is clear that manufac- lives. The study estimates that 6,000 to The consequences of that disparity turers will try for this absolute de- 7,000 accidental deaths are prevented here will play out. fense. and as many as 3 million fewer injuries Who will get hurt? Middle-income Mind you, in that section they will occur every year because of State prod- people, women, the elderly, children. be shielded from liability for compo- uct liability laws. We are talking here Who gets the highest award? A high- nent parts. And will these provisions about changing laws that studies have paid executive. Oh good. Just what we encourage device manufacturers to set shown saves lives. needed. Robin Hood in reverse. A court up their own separate entities to man- Why do we want to do that? Some system that pays this man $1.35 million ufacture all the component parts and 6,000 to 7,000 deaths are prevented and pays this woman $300,000 or supply all the raw materials? Would every year. Three million fewer inju- $150,000, depending on what we wind up these provisions protect these shell ries. Why do we want to change a sys- with. corporations from reckless conduct or tem that helps this country? I do not I have to say that anyone who votes even deliberate harm? believe the proponents of this legisla- for this is voting for something that is I know small businesses are con- tion want to see more deaths and inju- blatantly unfair, blatantly unfair. We cerned about this, if they supply a ries, but I believe that is an unintended in the almighty Senate are putting our small part. I am not talking about that consequence of this bill. The best prod- imprimatur on this kind of a plan. situation. I am talking about a situa- ucts in the world, and we are messing Not this Senator. I hope we have tion that could occur in this bill with with it over here, and I think it is enough Senators who stand up and be this title where a corporation that wrong. counted for the little guy, as my col- makes, say, the silicone breast im- Now, I want to talk about fairness. league Senator MURRAY says, the little plant, sets up another corporation at The Dole bill, as it is before the Sen- guy, the little gal. They do not have an arm’s distance, legally, and that ate, and I know that Senator GORTON pinstripe suiters around here. They do second corporation supplies all of the plans to amend it so I will address not get on the plane and come and component parts. If the product is un- both, would do the following, and I will knock on our door. But the big guys safe and the company that makes the prove it by giving a case and walking can. And that is what this bill is for. product goes out of business, no one through a case. Unfair, blatantly unfair. can go after the company that makes There is a CEO who earns $400,000 a The bottom line is that juries, who component parts because—guess why— year. His auto engine explodes and he see these cases firsthand, can make they are shielded under this bill. is unable to work for a year. Then, these decisions. That is the bottom Let us not mess with the product li- there is a 45-year-old female home- line. ability laws in this land. maker. She earns no wages. Same Now, I want to talk about medical In the beginning we heard a lot of thing happens to her. Her auto engine devices. This is something that hits talk: Oh, there is a crisis, so many explodes and she is unable to work for home again to a large number, particu- cases. There have been about 350 cases a year. The automaker is found 100 per- larly of women, although I might say in 25 years where there have been puni- cent liable by the jury. men who have pacemakers or other tive damage awards. I think we have For the CEO, the jury awards eco- kinds of devices implanted should be proven that on this floor over and over nomic damages of $425,000—the $400,000 very concerned about the biomaterials again. The leadership on this, from my he makes plus $25,000 in medical bills; section in this bill. Senator HEFLIN and side of the aisle, has been magnificent. pain and suffering damages of $25,000; I have discussed this, and we both Senator HOLLINGS and Senator HEFLIN he gets a compensatory damage award agree that this title of the bill has not have been on their feet, hour after hour of $450,000. When we add that in with gotten enough attention. after hour, peeling away the talk and S 6252 CONGRESSIONAL RECORD — SENATE May 8, 1995 looking at the facts of what this bill rules in the event a person desires to under our Government for a jury of will do. take advantage of the rules. You have your peers. I think the American people are the cloture situation. So what is really I could quote Patrick Henry, James starting to get scared, because just be- at stake here is an issue in regards to Madison, Thomas Jefferson. We could cause somebody says ‘‘legal reform’’ the role of the Senate and the rules of go right on down the line, up to Chief does not mean necessarily that is what the Senate. Justice Rehnquist —and we will have it is. This is not reform, this is basi- Do not be under any illusion to the time to do that—very, very interesting cally the Federal Government taking effect that what you might adopt as a observations, right up to date. But you over and tying the hands of judges and substitute to a substitute is going to be can see it in that contract, the English juries, tying their hands, so if someone the final bill that goes to the Presi- rule. is disfigured or has brain damage or dent. It goes to conference. I think we Now, you have to watch them closely cannot have a child and suffers might- ought to realize very clearly what the to get the eye on the doughnut. It is ily and his or her family suffers might- situation will be. not in there—tort reform—but it is ily, that judge and that jury cannot de- There are just so many bugs in this. over in H.R. 988, a separate bill. In that cide the dollar number to put on that One of the lawyers on Senator HOL- separate bill, yes, they have the Eng- case. LINGS staff mentioned to me you can lish rule on the one hand, and interest- We know there are enough checks organize subsidiary corporations or ingly, Mr. President, they sneaked in and balances in the system today. We you can keep down the major corpora- what the Senator from West Virginia do not need to take over this area of tions to fewer than 25 employees. There said. Now we do not have that in our the law. I hope we will stand strong are so many maneuvers and various ac- bill this year; that is, the settlement today, again, against cloture. Just tivities that can occur relative to that, process whereby if you are offered a keep in mind in this accident: Identical that opens the market wide open per- settlement and decline, and you get a injuries, different results—a home- taining to this. verdict of less than that settlement, maker getting a maximum of $150,000; So I have already spoken. Senator you have to pay the attorney’s fees on with the Gorton amendment getting a HOLLINGS is here, and others that will the other side. That is the English rule maximum of $300,000; and the same probably want to speak. I am not going of intimidation, and they have it in identical injury, a CEO making $400,000 to speak long on this, but this is basi- this separate bill. You can bet your comes away with $1.35 million. cally saying that life in the United boots they will get it in the conference. To me that is a denial of equal pro- States, if a wrongdoer kills you, it is Yes, they constantly are reminding tection under the law. But, yet, that is worth no more than $250,000, particu- us that we lost. You are right. Tom the kind of law we are looking at. larly in the event that you fall under Foley is not over there; NEWT GINGRICH Let us beat back this other attempt the small business protection. I say is over there. I have seen him whip at cloture. Let us protect the American this is flawed with great unfairness these young Congressmen from my own people from this bill. It is not nec- throughout. I have outlined it before. State into line. It was said conscien- essary and it will be very hurtful. But the main issue to be considered tiously we did not have the money for I yield the floor. in this cloture vote that is upcoming is a tax cut. We did not have it; no. They The PRESIDING OFFICER. The Sen- the role of the Senate. Do not forget are opposed to a tax cut because we ator from Alabama. there is going to be a conference. Do just did not have it. What we needed to Mr. HEFLIN. Mr. President, this bill not forget who is going to control the do was pay the bill—on and on. But we ought to be determined kill them, not conference. I hope my colleagues bear are now in the bottom nine game. You injure them. Certainly in regard to the that in mind as they consider their clo- either come out for practice or you do DeWine small business amendment, ture vote. not play on the team. where it is the lesser of $250,000 or two The PRESIDING OFFICER. The Sen- Speaker GINGRICH is a hard task- times noneconomic and economic dam- ator from South Carolina. master. You can bet your boots when ages, you can have instances in death Mr. HOLLINGS. Mr. President, the this bill or any bill gets there, it needs cases where the limit would be zero be- Senator from Alabama is right on tar- little fixes at the end before cloture cause there are no economic damages get. I remember my children years ago votes. Essentially, they are that; just and because death occurs immediately, used to listen to a little Saturday momentary fixes to get just a title or without pain and suffering, or with a morning radio show, ‘‘Big John and anything that would relate to it over minimum amount of time in which one Sparky,’’ and they had little squeaky to the House side, for they know what goes through that. Sparky with the voice: they can get by an overwhelming Ging- But the whole issue comes down to All the way through your life, rich vote over there, and bring it back the role of the Senate. To me, the role Make this your goal, where the poor majority leader has to of the Senate in regards to this is ex- Keep your eye on the doughnut, mimic because he is all wound up in a tremely important. Some of my col- And not on the hole. Presidential race. leagues, I am afraid, do not realize Keeping our eyes on the doughnut I know the distinguished Senator there will be a conference and the and trying to avoid falling into holes from Kansas does not want to do away House of Representatives bill, which that these folks have on course, all we with punitive damages in all civil was passed, which has a 15-year statute need do is go to the contract, the con- cases. But anything you can do, I can of repose, which does not even have the tract and what is really intended. do better. So you do one. So I up the Snowe amendment, which I consider The theme of the contract is that ante and go to all civil cases. We will not to be—an improvement—does not Government is not the solution; Gov- find out who is for who, and who ought have it in it. And when you go to con- ernment is the problem. The Govern- to be the Republican nominee, and we ference what is going to happen? I do ment is the enemy. Abolish the Depart- will just out-Republican each other. not see the Speaker of the House of ment of Education; abolish the Depart- And you have all kinds of mischief Representatives is going to be outdone ment of Commerce; abolish the Depart- afoot if you do not keep your eye on by my good friend, Senator ROCKE- ment of Housing and Urban Develop- the doughnut and watch it very, very FELLER. I think he will come out with ment; abolish the Department of En- closely. a House version of the bill. ergy; get rid of public TV; get rid of They never would apply this to the So, regardless of what substitute to a private TV; abolish the Federal Com- manufacturers. I just allude here to substitute might be offered here, if clo- munications Commission; abolish the one case because they keep talking ture were to be agreed to then what do Endowment for the Arts on the one about punitive damages. It is the case you do? You go to conference and what hand, the Environmental Protection of TXO Production Corp. verses Reli- do you come out with? You come out Agency on the other hand. And then, as ance Resources, decided just 2 years with the Gingrich bill. concerns fundamental rights, we come ago by whom? The U.S. Supreme Court, The role of the Senate is to be a de- to trial by jury. This is none other on punitive damages. What were the liberative body. We are not a body that than an assault on the seventh amend- actual damages? They were $19,000. votes aye and nay, and the majority ment, the fundamental right given What were the punitive damages? They May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6253 were $10 million. You get all of this an- by jury on the other. You do not just partner and I were the only two who ecdotal nonsense. They come out in in- outright abolish the seventh amend- tried the case. There was a firm of 12 dividual injury cases like it is so out- ment. You nibble at it. You nibble at lawyers in Charleston. There was a rageous, that the poor lady who was it. You just erode it like a rat just firm of 17 lawyers in Columbia. There burned with the McDonald’s coffee was gnawing at it gradually. Yes, get rid of were some from New York that came just outrageous, not this kind of per- punitive damages. Get rid of joint and in. They had 20-some lawyers. They centage. They go to 1,000 percent. This several liability. Limit the evidence had to get three tables. And just he and is way more than that $19,000 actual, that goes in. Get a bifurcated—a di- I had an injured party and we were try- $10 million punitive, the most recent vided—proof of actual and proof of pu- ing the case. case on punitive damages before the nitive. Go right on down the list. Give I think back to the fact that particu- U.S. Supreme Court in a civil action. them the English rule. lar case never even received an offer of So there it is. They do not believe in Well, that is not 170 years ago. I had any kind of settlement until it went it because they will not apply that to this quote from none other than the out to the jury, never a red cent of themselves. They have the unmitigated British National Council for Civil Lib- offer. It was one of the most injurious gall to come around saying they rep- erties, what they had to say about the cases—injuries, clear-cut proof—that I resent the consumers, but they will not systematic erosion of the English jury had ever been engaged in. I never could let it apply to the manufacturers. system between 1967 and 1978: understand why they would not make Come on. Come on. Do not give me that The jury system has been badly under- us an offer. this bill is for consumers, and the mined in recent years. The prosecution in But you have these insurance com- consumer and the injured party are not criminal cases, otherwise than civil cases, pany lawyers who will say, ‘‘We don’t getting enough money. Do not come need no longer convince 12 jurors. They can settle cases.’’ They think that is with respect to the trial lawyers that convict on the views of only 10. macho and everything else. Translated, bought the crowd. Come on. Everybody They state that to come in now, to we factor it in the cost of litigation. So is in the contribution business. I would allow a check on the jurors’ back- we have no idea of settling. So what like to get some more from the trial grounds, while the defense is not even happens? You intimidate the injured lawyers. I would like to get more from allowed to know his occupation, the party. the chamber of commerce. You do not prosecution can secretly bet your all Look at a case we had last year in think that the chamber of commerce, for their political loyalty, yet the de- the district court under Judge Ross An- the National Association of Manufac- fense is not even allowed to ask jurors derson with General Motors. General turers, the Conference Board, the Busi- questions in open court. The principle Motors was represented by four of the ness Round Table, and the National of randomness has been used to cut biggest law firms. They had a grand Federation of Independent Businesses, down defense challenges but leave pros- total from those firms of 1,000 lawyers. yes, they have PAC’s. And they give ecution challenges unlimited. A large Present in the courtroom representing away more money. But you cannot find percentage of the criminal work has General Motors was the former Attor- it quoted in the newspaper. been removed from the jury to the ney General Griffin Bell, the former They not only give more in contribu- magistrates court. And on the civil Attorney General William Barr, the tions but they have a better currency. side, we find that less than 2 percent of former Solicitor General, Kenneth They have organized PAC’s and orga- the civil cases are tried before a jury. Starr—you can go down the list—some nized focus. I see them in my elections. I had a lawyer friend that went to the of the most well known attorneys that They come to you, and they say, ‘‘How American Bar Association seminars you will ever find. They have to be paid about it, now? We want you to help us and interviewed the prospective jurors $400 to $500 an hour. on this bill.’’ I am getting the letters. at random. He kept going through, try- You would think that the plaintiff in I am getting the calls now. The people ing to find any that would serve. He that case would not bring the case in a position of objecting to this hei- could not find anybody in London. He when they have General Motors and all nous measure here, the Consumer Fed- went on up to Scotland. They just did of those lawyers and everything else eration of America, the leading one, not serve on juries. You have to be a and have to run the risk of not prevail- they do not have a PAC. They do not member of the elite. So do not come ing and getting all 12 jurors. They talk give you a nickel. and give me the English rule. about consumers and everything else. Do you think you get calls at elec- I know about the unstudied mind of They are trying inch by inch, yard by tion time? The NFIB and the small the ideas of the Magna Carta, King yard to get rid of the trial by jury. It business people out there are calling, John at Runnymede. I remember, I say has happened in England and they the chamber of commerce is calling, to the Senator, when we went over on would like to have it happen right now big boys from the Business Round one of these tourist trips to London. in the United States of America. Table and the National Association of They got on the bus one afternoon and That cannot be emphasized too much Manufacturers in my State are calling. stopped at Runnymede, and my friend as it now concerns what we have before The Consumer Federation of America is as talkative as I am. He said, ‘‘Now, us because we have to look at the does not have a PAC. Public Citizen what happened here?’’ The bus driver doughnut and not the hole. We look at does not have a PAC. The Association called back and said, ‘‘King John, the all these little ramifications. They will of State Legislatures does not have a signing of the Magna Carta.’’ And he put in any and every kind of amend- PAC. The Association of State Su- said, ‘‘Well, when was that?’’ The driv- ment that you can possibly think of preme Court Justices does not have a er shouted back, ‘‘1215.’’ He looked at just to fix this vote or fix that vote or PAC. The Attorneys General of the his watch. He said, ‘‘Florence, damn it, change the vote we had last week, United States does not have a PAC. you are 2 hours late again. We are be- knowing all along that they have kept The American Bar Association does not hind time.’’ their word and the amendment is clear. have a PAC. Let us clear the air here That is about how much this crowd Then when they get on the other and find out who is who, and who is knows about Runnymede and the side, they will be telling the truth supporting who. Magna Carta. They do not know about again when they say, ‘‘Well, you know, This insulting reference that this bill the English system. They do not know Speaker GINGRICH took over and this is ought to just whip right on through, it is totally eroded. The fundamental his bill, and that is all we could get the they do not believe in it themselves, or right of trial by jury here is being as- House Members to vote for and that is their own manufacturers that they rep- saulted. what we got in the conference report.’’ resent. They do not believe it by way of Let us look at that so-called English And then you really have all of this contractors, because the contractors rule that they have on another bill thing piled on you. That is why some of are sending everything back to the peo- that they hope to put in in conference. us in this Chamber struggle so because ple. This bill is to take it away, take it I will never forget one case I had before we can see exactly what is occurring. away from the people; bring it to the I got elected to the Senate. In fact, it Everything that was reprehensible in Washington bureaucrats on the one was settled after I got out of the law these previous bills by the distin- hand, and take away the rights of trial practice and in the Senate. My law guished Senator from West Virginia, in S 6254 CONGRESSIONAL RECORD — SENATE May 8, 1995 the House bills, and considered in sepa- statutes, the regular burdens of proof, to reflect to ‘‘Strike all after the first rate bills over there and everything the greater weight of the preponder- word, and insert,’’ and on page 20, line else of that kind, is being and is going ance of evidence, all 12 jurors have to 6, strike ‘‘or (2)’’ and on line 14, strike to be reinserted. And so when they get find it and on appeal and everything, ‘‘or (2)’’. to conference, just like this bill started injured party on a contingent basis. It Mr. HOLLINGS. Mr. President, I as a product liability measure; it soon has worked. The States themselves have discussed this with the leadership. became a malpractice, a medical mal- over the past 15 years have reformed I would have to object. practice measure. And just as soon as their laws, and there is no question in The PRESIDING OFFICER. Objec- it became a medical malpractice meas- my mind that they are handling it and tion is heard. ure, the next thing you look around it handling it well. My judges tell me so, Mr. DOLE. Mr. President, let me in- was all civil cases that it would apply particularly my Republican judges that dicate we were trying to clear up a pro- to. And that is exactly how the con- we have confirmed that I am proud of cedural problem. The Senator certainly ference would go if we did exactly as because I voted for their confirmation. has every right to object. It may mean they wish, and that is let us get this But I wanted to make absolutely sure that this will be corrected tomorrow, if little change here and that little that we did not have that problem. I cloture is not invoked today. I hope change there, and we will all be happy. am assured of it. But they are trying cloture will be invoked today. We all have been working hard. We now to get their foot in the door, and f have been on this for several years. the ultimate goal is to restrict, if not EXPRESSING THE SENSE OF THE And the plea is to what you commit- totally eliminate, as they have in Eng- SENATE ON 50TH ANNIVERSARY ted. Laws are really passed at cam- land, trial by jury. OF V–E DAY paign time. Too often it is that these I yield the floor. eminent organizations come—the Na- Mr. GORTON. Mr. President, I sug- Mr. DOLE. Mr. President, today is a tional Federation of Independent Busi- gest the absence of a quorum. very important day for a number of nesses—for one thing only, your vote The PRESIDING OFFICER (Mr. people on this Senate floor. It is V–E on their bill. Necessarily you want CRAIG). The absence of a quorum has Day. May 8, 1945, was a very important their support. In fact, they give you a been noted. The clerk will call the roll. day. We have a V–E Day resolution little award, a little statue, and that is The assistant legislative clerk pro- that I think deserves a rollcall. I hope the NFIB award. And it is the treasure ceeded to call the roll. my colleagues would agree that, imme- board award that you get from that Mr. HELMS. Mr. President, I ask diately after the cloture vote, we would small business group. unanimous consent that the order for have a vote on the V–E Day resolution. They have thousands of mailouts. I the quorum call be rescinded. I send that resolution to the desk and can tell you, trial lawyers do not have The PRESIDING OFFICER. Without ask that it be read. any thousands of mailouts. The others, objection, it is so ordered. The PRESIDING OFFICER. The as well, including consumer organiza- f clerk will report. tions, do not mail out anything. They The legislative clerk read as follows: just do not have any PAC’s at the su- VISIT TO THE SENATE BY PRIME A resolution (S. Res. 115) expressing the preme courts of the 50 States. The MINISTER OF ISRAEL YITZHAK sense of the Senate that America’s World American Bar Association, which op- RABIN War II veterans and their families are de- poses this measure, does not have any serving of this nation’s respect and apprecia- Mr. HELMS. Mr. President, I have PAC. They do not have political tion on the 50th anniversary of V–E Day. the honor of presenting to the Senate— mailouts. But the NFIB mails out; the The resolution is as follows: and I shall do that in a minute—the chamber of commerce has its meetings Whereas on May 7, 1945 in Reims, France, distinguished Prime Minister of Israel, as well as the mailouts. The National the German High Command signed the docu- Mr. Rabin. Association of Manufacturers is strong ment of surrender, surrendering all air, land in my State. They come around, and RECESS and sea forces unconditionally to the Allies; they have not only mailouts but spe- Mr. HELMS. Mr. President, I ask Whereas President Harry S Truman pro- unanimous consent that the Senate claimed May 8, 1945 to be V–E Day: cial manufacturers come around and Whereas May 8, 1995 is the 50th Anniver- meet with you and everything else of stand in recess for 5 minutes so that Senators may greet our distinguished sary of that proclamation: that kind. Whereas, the courage and sacrifice of the So if you are not studied as to the in- guest. American fighting men and women who dividual rights of injured parties, you There being no objection, the Senate, served with distinction to save the world may not realize how horrendous this at 4:02 p.m., recessed until 4:07 p.m.; from tyranny and aggression should always legislation is, and the detrimental im- whereupon, the Senate reassembled be remembered; Now, therefore, be it pact it will have on our Nation’s civil when called to order by the Presiding Resolved, That the United States Senate Officer (Mr. CRAIG). joins with a grateful nation in expressing our justice system. What’s worse is that it respect and appreciation to the men and f is based on a total distorted record. women who served in World War II, and their They lament and lament about puni- COMMONSENSE PRODUCT LIABIL- families. Further, we remember and pay trib- tive damages. However, according to ITY AND LEGAL REFORM ACT ute to those Americans who made the ulti- the hearing record, the amount of all of mate sacrifice and gave their life for their product liability punitive damage The Senate resumed consideration of country. awards in the last 30 years adds up to the bill. The Senate proceeded to consider the only a fraction of the $3 billion Penn- Mr. DOLE addressed the Chair. resolution. zoil versus Texaco verdict, or the $3 The PRESIDING OFFICER. The ma- Mr. DOLE. Mr. President, it is a very billion verdict in the Exxon Valdez jority leader. brief resolution. I have taken the lib- case. ORDER FOR CLOTURE VOTE TO BEGIN AT 4:20 P.M. erty of adding World War II veterans as Are they really concerned about con- Mr. DOLE. Mr. President, it is my cosponsors. If some do not want to—I sumers? Are they really concerned understanding that a couple of our col- have Senator EXON, Senator HOLLINGS, about the injured parties? leagues, one on each side of the aisle, Senator GLENN, Senator INOUYE, Sen- Mr. President, of all civil filings, may not be available until 4:15 or 4:20. ator STEVENS, Senator HELMS—I think torts represent 9 percent, and of those I ask unanimous consent that the clo- there are a couple of others—Senator tort filings only 4 percent of the 9 per- ture vote scheduled for 4 p.m. today be HEFLIN. cent, are product liability cases—.38— postponed to occur at 4:20 p.m. Mr. HOLLINGS. Senator THURMOND. thirty-eight one-hundredths—percent. The PRESIDING OFFICER. Without Mr. DOLE. Senator THURMOND. I will And this thing has taken 2 weeks now. objection, it is so ordered. furnish those names at the desk. To do what? To take it away from the UNANIMOUS-CONSENT REQUEST So I hope, unless there is some objec- States that have had jurisdiction for Mr. DOLE. Mr. President, I would tion on the other side, that that vote 230 years, the English law and every- also ask unanimous consent that the could follow immediately the vote on thing else of that kind, or the regular pending Gorton substitute be modified cloture. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6255 Mr. HOLLINGS. We have no objec- there is no question what will happen The legislative clerk proceeded to tion. is it will go back to the House and I do call the roll. Mr. DOLE. So, Mr. President, the not think there is much question as to Mr. GORTON. Mr. President, I ask yeas and nays are automatic on the what will happen. unanimous consent that the order for cloture vote. Let me ask for the yeas The Speaker of the House will con- the quorum call be rescinded. and nays on the V–E Day resolution. trol the conference, and this is going to The PRESIDING OFFICER. Without The PRESIDING OFFICER. Is there a be a bill regardless of what fixes may objection, it is so ordered. sufficient second? have been attempted in the Senate, the f There is a sufficient second. version that is going to come out of the The yeas and nays were ordered. conference is going to be the version of CLOTURE MOTION the Speaker of the House of Represent- f The PRESIDING OFFICER. The hour atives. It comes back here and people of 4:20 p.m. having arrived, under the UNANIMOUS CONSENT AGREE- say, ‘‘Well, you can exercise your rules previous order, the clerk will report MENT—NOMINATION OF JOHN M. and you can have extended debate at the motion to invoke cloture. DEUTCH, TO BE DIRECTOR OF that time.’’ But we all know what hap- The legislative clerk read as follows: CENTRAL INTELLIGENCE pens on conferences. Their reports Mr. DOLE. Finally, Mr. President, as come back, people are anxious to get CLOTURE MOTION in executive session, I ask unanimous away, and they are arranged at a time We the undersigned Senators, in accord- consent that immediately following to come up where you are in a situa- ance with the provision of rule XXII of the the cloture vote and the vote on the V– tion, and we end up, with very rare ex- Standing Rules of the Senate, do hereby move to bring to a close debate on a sub- E Day resolution, notwithstanding rule ceptions, approving conference reports. stitute amendment to H.R. 956, the product XXII, the Senate go into executive ses- So I say to my colleagues, this is a liability bill: sion to consider the nomination of vote not only on product liability but Slade Gorton, Dan Coats, Richard G. John Deutch, to be Director of the CIA, is a vote on the role of the Senate on Lugar, John Ashcroft, Rod Grams, Kay and that it be considered under the fol- this bill and other bills that may be Bailey Hutchison, Judd Gregg, Strom lowing time agreement: 2 hours equally coming down in the future. Thurmond, Jay Rockefeller, Trent divided between the chairman and vice So I urge my colleagues to vote Lott, Rick Santorum, Larry E. Craig, chairman of the Intelligence Commit- against cloture. It is very important Bob Smith, Don Nickles, R.F. Bennett, John McCain, Connie Mack. tee, or their designees; that following that they bear in mind the fact that the conclusion, or yielding back of whatever is being proposed here does VOTE ON MOTION TO INVOKE CLOTURE time, the nomination be set aside; and not mean that that is going to be the The PRESIDING OFFICER. By unan- that the Senate then return to legisla- final version. The final version, I imous consent the quorum call has tive session, with the vote to occur on think, in the judgment of anybody who been waived. the nomination at 10:30 a.m. on Tues- can see beyond the immediate scene The question is: Is it the sense of the day, May 9, 1995. and can see around the corner will be Senate that debate on amendment No. I believe this has been cleared on that it will be in conference and it will 690 to H.R. 956, the product liability both sides. We will have debate this come out as a Gingrich version of this bill, shall be brought to a close? afternoon and vote tomorrow morning. bill. The yeas and nays have been re- I know the President very much wants I yield the floor. quired. to have this nomination addressed. We Mr. GORTON addressed the Chair. The clerk will call the roll. are prepared to do that. The PRESIDING OFFICER. The Sen- The legislative clerk called the roll. The PRESIDING OFFICER. Without ator from Washington. Mr. FORD. I announce that the Sen- objection, it is so ordered. Mr. GORTON. Mr. President, I simply ator from Hawaii [Mr. AKAKA], the Sen- Mr. DOLE. Mr. President, let me sug- want to announce to the friends and ator from Iowa [Mr. HARKIN], the Sen- gest the absence of a quorum unless supporters of this bill that this will not ator from Massachusetts [Mr. KEN- someone would like to speak. There are be a meaningful cloture vote. In the NEDY], and the Senator from Nebraska 8 minutes before the cloture vote oc- haste to draft the Gorton-Rockefeller [Mr. KERREY] are necessarly absent. curs. I suggest the absence of a amendment, a couple of drafting errors I further announce that the Senator quorum. were made that can only be removed at from Rhode Island [Mr. PELL] is absent The PRESIDING OFFICER. The this point by unanimous consent. on official business. clerk will call the roll. Unanimous consent, as the body I further announce that, if present The legislative clerk proceeded to knows, was not granted. and voting, the Senator from Rhode Is- call the roll. Second, because the Gorton-Rocke- land [Mr. PELL] would vote ‘‘yea.’’ Mr. HEFLIN. Mr. President, I ask feller amendment is in the nature of a I further announce that, if present unanimous consent that the order for substitute, had cloture been granted and voting, the Senator from Hawaii the quorum call be rescinded. and had the Gorton-Rockefeller amend- [Mr. AKAKA] would vote ‘‘nay.’’ The PRESIDING OFFICER. Without ment been adopted, which it would Mr. LOTT. I announce that the Sen- objection, it is so ordered. have been, it would have cut off all ator from Utah [Mr. BENNETT], the f other postcloture amendments from Senator from Colorado [Mr. CAMP- the opponents to the bill and that, too, BELL], and the Senator from Virginia COMMONSENSE PRODUCT LIABIL- could only have been waived by unani- [Mr. WARNER] are necessarily absent. ITY AND LEGAL REFORM ACT mous consent. The PRESIDING OFFICER. Are there The Senate continued with the con- So I say to Members who have any other Senators in the Chamber de- sideration of the bill. worked on this compromise, they can siring to vote? Mr. HEFLIN. Mr. President, again, I vote for or against cloture at will. I do The yeas and nays resulted—yeas 43, want to emphasize what this vote is not expect cloture to be invoked. I can- nays 49, as follows: about. It is, of course, about product li- not under these circumstances vote for [Rollcall Vote No. 153 Leg.] ability, but it is also the role of the cloture myself. The bill by tomorrow YEAS—43 Senate in the legislative process. morning will be in proper form, both Abraham Exon Jeffords The House has passed a bill that con- for its own passage and to allow Ashcroft Faircloth Kassebaum tains vast differences from what is pro- postcloture amendments. Tomorrow Bond Frist Kempthorne posed in the substitute and what is pro- morning’s cloture vote will be the sig- Brown Gramm Kyl Burns Grams Lieberman posed in the substitute to the sub- nificant one on this bill and not the Chafee Grassley Lott stitute. vote that is being taken this evening. Coats Gregg Lugar If we do not take advantage of our Mr. President, I suggest the absence Coverdell Hatch Mack rules and do not exercise the role that of a quorum. Craig Hatfield McCain DeWine Helms McConnell is intended for the Senate to be a delib- The PRESIDING OFFICER. The Dole Hutchison Murkowski erative body, and if we vote cloture, clerk will call the roll. Domenici Inhofe Nickles S 6256 CONGRESSIONAL RECORD — SENATE May 8, 1995 Pressler Snowe Thurmond A resolution (S. Res. 115) expressing the Whereas, the courage and sacrifice of the Santorum Stevens sense of the Senate that America’s World American fighting men and women who Smith Thomas War II veterans and their families are de- served with distinction to save the world NAYS—49 serving of this Nation’s respect and apprecia- from tyranny and aggression should always tion on the 50th anniversary of V–E Day. be remembered: Now, therefore, be it Baucus Feinstein Murray The Senate resumed consideration of Resolved, That the United States Senate Biden Ford Nunn joins with a grateful Nation in expressing Bingaman Glenn Packwood the resolution. our respect and appreciation to the the men Boxer Gorton Pryor The PRESIDING OFFICER. The Bradley Graham and women who served in World War II, and Reid question is on agreeing to the resolu- Breaux Heflin Robb their families. Further, we remember and Bryan Hollings Rockefeller tion. The yeas and nays have been or- pay tribute to those Americans who made Bumpers Inouye Roth dered. the ultimate sacrifice and gave their life for Byrd Johnston Sarbanes their country. Cochran Kerry The clerk will call the roll. Shelby Cohen Kohl The bill clerk called the roll. Mr. GORTON. Mr. President, I move Simon Conrad Lautenberg to reconsider the vote. Simpson Mr. LOTT. I announce that the Sen- D’Amato Leahy ator from Utah [Mr. BENNETT], the Mr. ROCKEFELLER. I move to lay Daschle Levin Specter Dodd Mikulski Thompson Senator from Colorado [Mr. CAMP- that motion on the table. Dorgan Moseley-Braun Wellstone BELL], and the Senator from Virginia The motion to lay on the table was Feingold Moynihan [Mr. WARNER] are necessarily absent. agreed to. NOT VOTING—8 Mr. FORD. I announce that the Sen- f ator from Hawaii [Mr. AKAKA] and the Akaka Harkin Pell COMMONSENSE PRODUCT LIABIL- Senator from Massachusetts [Mr. KEN- Bennett Kennedy Warner ITY AND LEGAL REFORM ACT Campbell Kerrey NEDY] are necessarily absent. So the motion was rejected. I further announce that the Senator The Senate continued with the con- The PRESIDING OFFICER. On this from Rhode Island [Mr. PELL] is absent sideration of the bill. vote, the yeas are 43, and the nays are on official business. Mr. GORTON addressed the Chair. 49. Three-fifths of the Senators duly I further announce that, if present The PRESIDING OFFICER. The Sen- chosen and sworn not having voted in and voting, the Senator from Rhode Is- ator from Washington. the affirmative, the motion is rejected. land [Mr. PELL], the Senator from Ha- AMENDMENT NO. 709, AS MODIFIED Mr. HOLLINGS. Mr. President, I waii [Mr. AKAKA], and the Senator Mr. GORTON. Mr. President, I send a move to reconsider the vote. from Massachusetts [Mr. KENNEDY] modification of my earlier amendment Mr. FORD. I move to lay that motion would each vote ‘‘aye.’’ to the desk on behalf of myself, Sen- on the table. The PRESIDING OFFICER. Are there ator ROCKEFELLER, and Senator DOLE. The motion to lay on the table was any other Senators in the Chamber The PRESIDING OFFICER. The Sen- agreed to. who desire to vote? ator has a right to modify the amend- Mr. GORTON addressed the Chair. The result was announced—yeas 94, ment, and the amendment is so modi- The PRESIDING OFFICER. The Sen- nays 0, as follows: fied. ator from Washington. [Rollcall Vote No. 154 Leg.] The amendment, as modified, is as Mr. GORTON. Mr. President, I said YEAS—94 follows: Strike out all after the first word and in- just before this vote, for technical rea- Abraham Ford Mack sons, given the nature of the amend- Ashcroft Frist McCain sert the following: ment, with our 3 o’clock deadline and Baucus Glenn McConnell SECTION 1. SHORT TITLE. the haste to file the Rockefeller-Gor- Biden Gorton Mikulski This Act may be cited as the ‘‘Product Li- Bingaman Graham Moseley-Braun ability Fairness Act of 1995’’. ton substitute, certain drafting errors Bond Gramm Moynihan TITLE I—PRODUCT LIABILITY were made which could not be cured Boxer Grams Murkowski SEC. 101. DEFINITIONS. without unanimous consent. Unani- Bradley Grassley Murray Breaux Gregg Nickles For purposes of this Act, the following mous consent was not granted. There- Brown Harkin Nunn definitions shall apply: fore, Senator ROCKEFELLER and I both Bryan Hatch (1) ACTUAL MALICE.—The term ‘‘actual mal- Bumpers Hatfield Packwood voted no on cloture this time around Pressler ice’’ means specific intent to cause serious and regard this last vote as essentially Burns Heflin Byrd Helms Pryor physical injury, illness, disease, or damage meaningless. Chafee Hollings Reid to property, or death. Between now and the adjournment of Coats Hutchison Robb (2) CLAIMANT.—The term ‘‘claimant’’ the Senate today, we will introduce a Cochran Inhofe Rockefeller means any person who brings a product li- Roth revised second-degree amendment with Cohen Inouye ability action and any person on whose be- Conrad Jeffords Santorum half such an action is brought. If an action is the majority leader that will reflect Coverdell Johnston Sarbanes brought through or on behalf of— Craig Kassebaum Shelby our precise views and the agreement (A) an estate, the term includes the dece- that has been made with the consent D’Amato Kempthorne Simon Daschle Kerrey Simpson dent; or of, I think, a very substantial majority DeWine Kerry Smith (B) a minor or incompetent, the term in- of the Members, as to the final form of Dodd Kohl Snowe cludes the legal guardian of the minor or in- this bill. Dole Kyl Specter competent. Domenici Lautenberg Stevens (3) CLAIMANT’S BENEFITS.—The term Tomorrow we will vote on cloture Dorgan Leahy Thomas once again. If we have not been allowed Exon Levin ‘‘claimant’s benefits’’ means the amount Thompson by unanimous consent to adopt that Faircloth Lieberman paid to an employee as workers’ compensa- Thurmond tion benefits. second-degree amendment, the spon- Feingold Lott Feinstein Lugar Wellstone (4) CLEAR AND CONVINCING EVIDENCE.— sors are confident in making a guaran- (A) IN GENERAL.—Subject to subparagraph tee it will pass immediately after clo- NOT VOTING—6 (A), the term ‘‘clear and convincing evi- ture is invoked. Akaka Campbell Pell dence’’ is that measure of degree of proof Mr. President, inquiry: Do we have Bennett Kennedy Warner that will produce in the mind of the trier of an order to go on to another subject at So, the resolution (S. Res. 115), with fact a firm belief or conviction as to the this point? its preamble, was agreed to; as follows: truth of the allegations sought to be estab- lished. f S. RES. 115 (B) DEGREE OF PROOF.—The degree of proof Whereas on May 7, 1945, in Reims, France, required to satisfy the standard of clear and EXPRESSING THE SENSE OF THE the German High command signed the docu- convincing evidence shall be— SENATE ON THE 50TH ANNIVER- ment of surrender, surrendering all air, land (i) greater than the degree of proof re- SARY OF V–E DAY and sea forces unconditionally to the Allies; quired to meet the standard of preponder- Whereas President Harry S Truman pro- ance of the evidence; and The PRESIDING OFFICER. The claimed May 8, 1945, to be V–E Day; (ii) less than the degree of proof required clerk will report Senate Resolution 115. Whereas May 8, 1995, is the fiftieth Anni- to meet the standard of proof beyond a rea- The legislative clerk read as follows: versary of that proclamation; sonable doubt. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6257

(5) COMMERCIAL LOSS.—The term ‘‘commer- (B) EXCLUSION.—The term ‘‘product’’ does title, including any standard of liability ap- cial loss’’ means any loss or damage to a not include— plicable to a manufacturer, shall not be sub- product itself, loss relating to a dispute over (i) tissue, organs, blood, and blood products ject to this title, but shall be subject to ap- its value, or consequential economic loss the used for therapeutic or medical purposes, ex- plicable Federal or State law. recovery of which is governed by the Uni- cept to the extent that such tissue, organs, (c) STATUTORY CONSTRUCTION.—Nothing in form Commercial Code or analogous State blood, and blood products (or the provision this title may be construed to— commercial law, not including harm. thereof) are subject, under applicable State (1) waive or affect any defense of sovereign (6) DURABLE GOOD.—The term ‘‘durable law, to a standard of liability other than immunity asserted by any State under any good’’ means any product, or any component negligence; and law; of any such product, which has a normal life (ii) electricity, water delivered by a util- (2) supersede or alter any Federal law; expectancy of 3 or more years or is of a char- ity, natural gas, or steam. (3) waive or affect any defense of sovereign acter subject to allowance for depreciation (14) PRODUCT LIABILITY ACTION.—The term immunity asserted by the United States; under the Internal Revenue Code of 1986, and ‘‘product liability action’’ means a civil ac- (4) affect the applicability of any provision which is— tion brought on any theory for harm caused of chapter 97 of title 28, United States Code; (A) used in a trade or business; by a product. (5) preempt State choice-of-law rules with (B) held for the production of income; or (15) PRODUCT SELLER.— respect to claims brought by a foreign nation (C) sold or donated to a governmental or (A) IN GENERAL.—The term ‘‘product sell- or a citizen of a foreign nation; private entity for the production of goods, er’’ means a person who— (6) affect the right of any court to transfer training, demonstration, or any other simi- (i) in the course of a business conducted for venue or to apply the law of a foreign nation lar purpose. that purpose, sells, distributes, rents, leases, or to dismiss a claim of a foreign nation or (7) ECONOMIC LOSS.—The term ‘‘economic prepares, blends, packages, labels, or other- of a citizen of a foreign nation on the ground loss’’ means any pecuniary loss resulting wise is involved in placing a product in the of inconvenient forum; or from harm (including any medical expense stream of commerce; or (7) supersede or modify any statutory or loss, work loss, replacement services loss, (ii) installs, repairs, refurbishes, recondi- common law, including any law providing for loss due to death, burial costs, and loss of tions, or maintains the harm-causing aspect an action to abate a nuisance, that author- business or employment opportunities), to of the product. izes a person to institute an action for civil the extent that recovery for the loss is per- (B) EXCLUSION.—The term ‘‘product seller’’ damages or civil penalties, cleanup costs, in- mitted under applicable State law. does not include— junctions, restitution, cost recovery, puni- (8) HARM.—The term ‘‘harm’’ means any (i) a seller or lessor of real property; tive damages, or any other form of relief for physical injury, illness, disease, or death, or (ii) a provider of professional services in remediation of the environment (as defined damage to property, caused by a product. any case in which the sale or use of a prod- in section 101(8) of the Comprehensive Envi- The term does not include commercial loss uct is incidental to the transaction and the ronmental Response, Compensation, and Li- or loss or damage to a product itself. essence of the transaction is the furnishing ability Act of 1980, 42 U.S.C. 9601(8)) or the (9) INSURER.—The term ‘‘insurer’’ means of judgment, skill, or services; or threat of such remediation. the employer of a claimant, if the employer (iii) any person who— (d) CONSTRUCTION.—To promote uniformity is self-insured, or the workers’ compensation (I) acts in only a financial capacity with of law in the various jurisdictions, this title insurer of an employer. respect to the sale of a product; or shall be construed and applied after consid- (10) MANUFACTURER.—The term ‘‘manufac- (II) leases a product under a lease arrange- eration of its legislative history. turer’’ means— ment in which the lessor does not initially (e) EFFECT OF COURT OF APPEALS DECI- (A) any person who is engaged in a busi- select the leased product and does not during SIONS.—Notwithstanding any other provision ness to produce, create, make, or construct the lease term ordinarily control the daily of law, any decision of a circuit court of ap- any product (or component part of a prod- operations and maintenance of the product. peals interpreting a provision of this title uct), and who designs or formulates the prod- (16) STATE.—The term ‘‘State’’ means each (except to the extent that the decision is uct (or component part of the product), or of the several States of the United States, overruled or otherwise modified by the Su- has engaged another person to design or for- the District of Columbia, the Commonwealth preme Court) shall be considered a control- mulate the product (or component part of of Puerto Rico, the Virgin Islands, Guam, ling precedent with respect to any subse- the product); American Samoa, and the Commonwealth of quent decision made concerning the inter- (B) a product seller, but only with respect the Northern Mariana Islands, and any other pretation of such provision by any Federal or to those aspects of a product (or component territory or possession of the United States, State court within the geographical bound- part of a product) which are created or af- or any political subdivision thereof. aries of the area under the jurisdiction of the fected when, before placing the product in (17) TIME OF DELIVERY.—The term ‘‘time of circuit court of appeals. the stream of commerce, the product seller delivery’’ means the time when a product is SEC. 103. ALTERNATIVE DISPUTE RESOLUTION produces, creates, makes, constructs, de- delivered to the first purchaser or lessee of PROCEDURES. signs, or formulates, or has engaged another the product that was not involved in manu- (a) SERVICE OF OFFER.—A claimant or a de- person to design or formulate, an aspect of a facturing or selling the product, or using the fendant in a product liability action that is product (or component part of a product) product as a component part of another subject to this title may, not later than 60 made by another person; or product to be sold. days after the service of the initial com- (C) any product seller that is not described SEC. 102. APPLICABILITY; PREEMPTION. plaint of the claimant or the applicable in subparagraph (B) that holds itself out as a (a) APPLICABILITY.— deadline for a responsive pleading (whichever manufacturer to the user of the product. (1) ACTIONS COVERED.—Subject to para- is later), serve upon an adverse party an (11) NONECONOMIC LOSS.—The term ‘‘non- graph (2), this title applies to any product li- offer to proceed pursuant to any voluntary, economic loss’’— ability action commenced on or after the nonbinding alternative dispute resolution (A) means subjective, nonmonetary loss re- date of enactment of this Act, without re- procedure established or recognized under sulting from harm, including pain, suffering, gard to whether the harm that is the subject the law of the State in which the product li- inconvenience, mental suffering, emotional of the action or the conduct that caused the ability action is brought or under the rules distress, loss of society and companionship, harm occurred before such date of enact- of the court in which such action is main- loss of consortium, injury to reputation, and ment. tained. humiliation; and (2) ACTIONS EXCLUDED.— (b) WRITTEN NOTICE OF ACCEPTANCE OR RE- (B) does not include economic loss. (A) ACTIONS FOR DAMAGE TO PRODUCT OR JECTION.—Except as provided in subsection (12) PERSON.—The term ‘‘person’’ means COMMERCIAL LOSS.—A civil action brought for (c), not later than 10 days after the service of any individual, corporation, company, asso- loss or damage to a product itself or for com- an offer to proceed under subsection (a), an ciation, firm, partnership, society, joint mercial loss, shall not be subject to the pro- offeree shall file a written notice of accept- stock company, or any other entity (includ- visions of this title governing product liabil- ance or rejection of the offer. ing any governmental entity). ity actions, but shall be subject to any appli- (c) EXTENSION.—The court may, upon mo- (13) PRODUCT.— cable commercial or contract law. tion by an offeree made prior to the expira- (A) IN GENERAL.—The term ‘‘product’’ (B) ACTIONS FOR NEGLIGENT ENTRUST- tion of the 10-day period specified in sub- means any object, substance, mixture, or MENT.—A civil action for negligent entrust- section (b), extend the period for filing a raw material in a gaseous, liquid, or solid ment shall not be subject to the provisions of written notice under such subsection for a state that— this title governing product liability actions, period of not more than 60 days after the (i) is capable of delivery itself or as an as- but shall be subject to any applicable State date of expiration of the period specified in sembled whole, in a mixed or combined law. subsection (b). Discovery may be permitted state, or as a component part or ingredient; (b) SCOPE OF PREEMPTION.— during such period. (ii) is produced for introduction into trade (1) IN GENERAL.—This Act supersedes a SEC. 104. LIABILITY RULES APPLICABLE TO or commerce; State law only to the extent that State law PRODUCT SELLERS. (iii) has intrinsic economic value; and applies to an issue covered under this title. (a) GENERAL RULE.— (iv) is intended for sale or lease to persons (2) ISSUES NOT COVERED UNDER THIS ACT.— (1) IN GENERAL.—In any product liability for commercial or personal use. Any issue that is not covered under this action that is subject to this title filed by a S 6258 CONGRESSIONAL RECORD — SENATE May 8, 1995 claimant for harm caused by a product, a not lawfully be sold over-the-counter with- liability action that is subject to this title product seller other than a manufacturer out a prescription, and was not prescribed by against an individual whose net worth does shall be liable to a claimant, only if the a physician for use by the claimant; and not exceed $500,000 or against an owner of an claimant establishes— (2) the claimant, as a result of the influ- unincorporated business, or any partnership, (A) that— ence of the alcohol or drug, was more than 50 corporation, association, unit of local gov- (i) the product that allegedly caused the percent responsible for the accident or event ernment, or organization which has fewer harm that is the subject of the complaint which resulted in the harm to the claimant. than 25 full-time employees, shall not exceed was sold, rented, or leased by the product (b) CONSTRUCTION.—For purposes of this the lesser of— seller; section, the determination of whether a per- (A) 2 times the sum of— (ii) the product seller failed to exercise son was intoxicated or was under the influ- (i) the amount awarded to the claimant for reasonable care with respect to the product; ence of intoxicating alcohol or any drug economic loss; and and shall be made pursuant to applicable State (ii) the amount awarded to the claimant (iii) the failure to exercise reasonable care law. was a proximate cause of harm to the claim- for noneconomic loss; or SEC. 106. REDUCTION FOR MISUSE OR ALTER- (B) $250,000. ant; or ATION OF PRODUCT. (3) EXCEPTION.— (B) that— (a) GENERAL RULE.— (i) the product seller made an express war- (A) DETERMINATION BY COURT.—Notwith- (1) IN GENERAL.—Except as provided in sub- standing subsection (C), in a product liabil- ranty applicable to the product that alleg- section (c), in a product liability action that ity action that is subject to this title, if the edly caused the harm that is the subject of is subject to this title, the damages for court makes a determination, after consider- the complaint, independent of any express which a defendant is otherwise liable under ing each of the factors in subparagraph (B), warranty made by a manufacturer as to the applicable State law shall be reduced by the that the application of paragraph (1) would same product; percentage of responsibility for the harm to result in an award of punitive damages that (ii) the product failed to conform to the the claimant attributable to misuse or alter- warranty; and ation of a product by any person if the de- is insufficient to punish the egregious con- (iii) the failure of the product to conform fendant establishes that such percentage of duct of the defendant against whom the pu- to the warranty caused harm to the claim- the harm was proximately caused by a use or nitive damages are to be awarded or to deter ant; or alteration of a product— such conduct in the future, the court shall (C) that— (A) in violation of, or contrary to, the ex- determine the additional amount of punitive (i) the product seller engaged in inten- press warnings or instructions of the defend- damages in excess of the amount determined tional wrongdoing, as determined under ap- ant if the warnings or instructions are deter- in accordance with paragraph (1) to be plicable State law; and mined to be adequate pursuant to applicable awarded to the claimant (referred to in this (ii) such intentional wrongdoing w±as a State law; or paragraph as the ‘‘additur’’) in a separate proximate cause of the harm that is the sub- (B) involving a risk of harm which was proceeding in accordance with this para- ject of the complaint. known or should have been known by the or- graph. (2) REASONABLE OPPORTUNITY FOR INSPEC- dinary person who uses or consumes the (B) FACTORS FOR CONSIDERATION.—In any TION.—For purposes of paragraph (1)(A)(ii), a proceeding under subparagraph (A), the product seller shall not be considered to have product with the knowledge common to the court shall consider— failed to exercise reasonable care with re- class of persons who used or would be reason- (i) the extent to which the defendant acted spect to a product based upon an alleged fail- ably anticipated to use the product. with actual malice; ure to inspect a product if the product seller (2) USE INTENDED BY A MANUFACTURER IS had no reasonable opportunity to inspect the NOT MISUSE OR ALTERATION.—For the pur- (ii) the likelihood that serious harm would product that allegedly caused harm to the poses of this title, a use of a product that is arise from the misconduct of the defendant; claimant. intended by the manufacturer of the product (iii) the degree of the awareness of the de- (b) SPECIAL RULE.— does not constitute a misuse or alteration of fendant of that likelihood; (1) IN GENERAL.—A product seller shall be the product. (iv) the profitability of the misconduct to deemed to be liable as a manufacturer of a (b) STATE LAW.—Notwithstanding section the defendant; product for harm caused by the product if— 3(b), subsection (a) of this section shall su- (v) the duration of the misconduct and any (A) the manufacturer is not subject to persede State law concerning misuse or al- concurrent or subsequent concealment of the service of process under the laws of any teration of a product only to the extent that conduct by the defendant; State in which the action may be brought; or State law is inconsistent with such sub- (vi) the attitude and conduct of the defend- (B) the court determines that the claimant section. ant upon the discovery of the misconduct would be unable to enforce a judgment (c) WORKPLACE INJURY.—Notwithstanding and whether the misconduct has terminated; against the manufacturer. subsection (a), the amount of damages for (vii) the financial condition of the defend- (2) STATUTE OF LIMITATIONS.—For purposes which a defendant is otherwise liable under ant; and of this subsection only, the statute of limita- State law shall not be reduced by the appli- (viii) the cumulative deterrent effect of tions applicable to claims asserting liability cation of this section with respect to the other losses, damages, and punishment suf- of a product seller as a manufacturer shall be conduct of any employer or coemployee of fered by the defendant as a result of the mis- tolled from the date of the filing of a com- the plaintiff who is, under applicable State conduct, reducing the amount of punitive plaint against the manufacturer to the date law concerning workplace injuries, immune damages on the basis of the economic impact from being subject to an action by the claim- that judgment is entered against the manu- and severity of all measures to which the de- ant. facturer. fendant has been or may be subjected, in- (c) RENTED OR LEASED PRODUCTS.— SEC. 107. UNIFORM STANDARDS FOR AWARD OF cluding— PUNITIVE DAMAGES. (1) Notwithstanding any other provision of (I) compensatory and punitive damage law, any person engaged in the business of (a) GENERAL RULE.—Punitive damages awards to similarly situated claimants; renting or leasing a product (other than a may, to the extent permitted by applicable (II) the adverse economic effect of stigma person excluded from the definition of prod- State law, be awarded against a defendant in or loss of reputation; uct seller under section 101 (14)(B)) shall be a product liability action that is subject to (III) civil fines and criminal and adminis- subject to liability in a product liability ac- this title if the claimant establishes by clear trative penalties; and tion under subsection (a), but any person en- and convincing evidence that the harm that (IV) stop sale, cease and desist, and other gaged in the business of renting or leasing a is the subject of the action was the result of product shall not be liable to a claimant for conduct that was carried out by the defend- remedial or enforcement orders. the tortious act of another solely by reason ant with a conscious, flagrant indifference to (C) REQUIREMENTS FOR AWARDING of ownership of such product. the safety of others. ADDITURS.—If the court awards an additur (2) For purposes of paragraph (1), and for (b) LIMITATION ON AMOUNT.— under this paragraph, the court shall state determining the applicability of this title to (1) IN GENERAL.—Except as provided in its reasons for setting the amount of the any person subject to paragraph (1), the term paragraphs (2) and (3), the amount of puni- additur in findings of fact and conclusions of ‘‘product liability action’’ means a civil ac- tive damages that may be awarded to a law. If the additur is— tion brought on any theory for harm caused claimant in a product liability action that is (i) accepted by the defendant, it shall be by a product or product use. subject to this title shall not exceed the entered by the court as a final judgment; SEC. 105. DEFENSES INVOLVING INTOXICATING greater of— (ii) accepted by the defendant under pro- ALCOHOL OR DRUGS. (A) 2 times the sum of— test, the order may be reviewed on appeal; or (a) GENERAL RULE.—Notwithstanding any (i) the amount awarded to the claimant for (iii) not accepted by the defense, the court other provision of law, a defendant in a prod- economic loss; and shall set aside the punitive damages award uct liability action that is subject to this (ii) the amount awarded to the claimant and order a new trial on the issue of punitive title shall have a complete defense in the ac- for noneconomic loss; or damages only, and judgment shall enter tion if the defendant proves that— (B) $250,000. upon the verdict of liability and damages (1) the claimant was under the influence of (2) SPECIAL RULE.—The amount of punitive after the issue of punitive damages is de- intoxicating alcohol or any drug that may damages that may be awarded in a product cided. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6259

(4) APPLICATION BY COURT.—This subsection of law, the claimant may, notwithstanding but only after the manufacturer or product shall be applied by the court and the applica- subsections (a) and (b), bring the product li- seller has provided timely written notice to tion of this subsection shall not be disclosed ability action pursuant to this title not later the employer. to the jury. than 1 year after the date of enactment of (B) RIGHTS OF EMPLOYER.— (5) Nothing in this subsection shall modify this Act. (i) IN GENERAL.—Notwithstanding any or reduce the ability of courts to order SEC. 109. SEVERAL LIABILITY FOR NON- other provision of law, with respect to an remittiturs. ECONOMIC LOSS. issue of fault submitted to a trier of fact pur- (c) BIFURCATION AT REQUEST OF ANY (a) GENERAL RULE.—In a product liability suant to subparagraph (A), an employer PARTY.— action that is subject to this title, the liabil- shall, in the same manner as any party in (1) IN GENERAL.—At the request of any ity of each defendant for noneconomic loss the action (even if the employer is not a party, the trier of fact in a product liability shall be several only and shall not be joint. named party in the action), have the right action that is subject to this title shall con- (b) AMOUNT OF LIABILITY.— to— sider in a separate proceeding whether puni- (1) IN GENERAL.—Each defendant shall be (I) appear; tive damages are to be awarded for the harm liable only for the amount of noneconomic (II) be represented; that is the subject of the action and the loss allocated to the defendant in direct pro- (III) introduce evidence; amount of the award. portion to the percentage of responsibility of (IV) cross-examine adverse witnesses; and (2) INADMISSIBILITY OF EVIDENCE RELATIVE the defendant (determined in accordance (V) present arguments to the trier of fact. ONLY TO A CLAIM OF PUNITIVE DAMAGES IN A with paragraph (2)) for the harm to the (ii) LAST ISSUE.—The issue of harm result- PROCEEDING CONCERNING COMPENSATORY DAM- claimant with respect to which the defend- ing from an action of an employer or AGES.—If any party requests a separate pro- ant is liable. The court shall render a sepa- coemployee shall be the last issue that is ceeding under paragraph (1), in any proceed- rate judgment against each defendant in an presented to the trier of fact. ing to determine whether the claimant may amount determined pursuant to the preced- (C) REDUCTION OF DAMAGES.—If the trier of be awarded compensatory damages, any evi- ing sentence. fact finds by clear and convincing evidence dence that is relevant only to the claim of (2) PERCENTAGE OF RESPONSIBILITY.—For that the harm to the claimant that is the punitive damages, as determined by applica- purposes of determining the amount of non- subject of the product liability action was ble State law, shall be inadmissible. economic loss allocated to a defendant under caused by the fault of the employer or a SEC. 108. UNIFORM TIME LIMITATIONS ON LI- this section, the trier of fact shall determine coemployee of the claimant— ABILITY. the percentage of responsibility of each per- (i) the court shall reduce by the amount of (a) STATUTE OF LIMITATIONS.— son responsible for the claimant’s harm, the claimant’s benefits— (1) IN GENERAL.—Except as provided in whether or not such person is a party to the (I) the damages awarded against the manu- paragraph (2) and subsection (b), a product action. facturer or product seller; and liability action that is subject to this title (II) any corresponding insurer’s subroga- may be filed not later than 2 years after the SEC. 110. WORKERS’ COMPENSATION SUBROGA- TION STANDARDS. tion lien; and date on which the claimant discovered or, in (ii) the manufacturer or product seller the exercise of reasonable care, should have (a) GENERAL RULE.— (1) RIGHT OF SUBROGATION.— shall have no further right by way of con- discovered, the harm that is the subject of tribution or otherwise against the employer. the action and the cause of the harm. (A) IN GENERAL.—An insurer shall have a (D) CERTAIN RIGHTS OF SUBROGATION NOT (2) EXCEPTIONS.— right of subrogation against a manufacturer AFFECTED.—Notwithstanding a finding by the (A) PERSON WITH A LEGAL DISABILITY.—A or product seller to recover any claimant’s trier of fact described in subparagraph (C), person with a legal disability (as determined benefits relating to harm that is the subject the insurer shall not lose any right of sub- under applicable law) may file a product li- of a product liability action that is subject rogation related to any— ability action that is subject to this title not to this title. (i) intentional tort committed against the later than 2 years after the date on which (B) WRITTEN NOTIFICATION.—To assert a claimant by a coemployee; or the person ceases to have the legal disabil- right of subrogation under subparagraph (A), (ii) act committed by a coemployee outside ity. the insurer shall provide written notice to the scope of normal work practices. (B) EFFECT OF STAY OR INJUNCTION.—If the the court in which the product liability ac- (b) ATTORNEY’S FEES.—If, in a product li- commencement of a civil action that is sub- tion is brought. ability action that is subject to this section, ject to this title is stayed or enjoined, the (C) INSURER NOT REQUIRED TO BE A PARTY.— running of the statute of limitations under An insurer shall not be required to be a nec- the court finds that harm to a claimant was this section shall be suspended until the end essary and proper party in a product liability not caused by the fault of the employer or a of the period that the stay or injunction is in action covered under subparagraph (A). coemployee of the claimant, the manufac- effect. (2) SETTLEMENTS AND OTHER LEGAL PRO- turer or product seller shall reimburse the insurer for reasonable attorney’s fees and (b) STATUTE OF REPOSE.— CEEDINGS.— court costs incurred by the insurer in the ac- (1) IN GENERAL.—Subject to paragraphs (2) (A) IN GENERAL.—In any proceeding relat- and (3), no product liability action that is ing to harm or settlement with the manufac- tion, as determined by the court. subject to this title concerning a product turer or product seller by a claimant who SEC. 111. FEDERAL CAUSE OF ACTION PRE- that is a durable good alleged to have caused files a product liability action that is subject CLUDED. harm (other than toxic harm) may be filed to this title, an insurer may participate to The district courts of the United States after the 20-year period beginning at the assert a right of subrogation for claimant’s shall not have jurisdiction under section 1331 time of delivery of the product. benefits with respect to any payment made or 1337 of title 28, United States Code, over (2) STATE LAW.—Notwithstanding para- by the manufacturer or product seller by any product liability action covered under graph (1), if pursuant to an applicable State reason of such harm, without regard to this title. law, an action described in such paragraph is whether the payment is made— required to be filed during a period that is (i) as part of a settlement; TITLE II—BIOMATERIALS ACCESS shorter than the 20-year period specified in (ii) in satisfaction of judgment; ASSURANCE such paragraph, the State law shall apply (iii) as consideration for a covenant not to SEC. 201. SHORT TITLE. with respect to such period. sue; or This title may be cited as the XCEPTIONS.— (3) E (iv) in another manner. ‘‘Biomaterials Access Assurance Act of (A) A motor vehicle, vessel, aircraft, or RITTEN NOTIFICATION.—Except as pro- (B) W 1995’’. train that is used primarily to transport pas- vided in subparagraph (C), an employee shall sengers for hire shall not be subject to this not make any settlement with or accept any SEC. 202. FINDINGS. subsection. payment from the manufacturer or product Congress finds that— (B) Paragraph (1) does not bar a product li- seller without written notification to the (1) each year millions of citizens of the ability action against a defendant who made employer. United States depend on the availability of an express warranty in writing as to the (C) EXEMPTION.—Subparagraph (B) shall lifesaving or life-enhancing medical devices, safety of the specific product involved which not apply in any case in which the insurer many of which are permanently implantable was longer than 20 years, but it will apply at has been compensated for the full amount of within the human body; the expiration of that warranty. the claimant’s benefits. (2) a continued supply of raw materials and (C) Paragraph (1) does not affect the limi- (3) HARM RESULTING FROM ACTION OF EM- component parts is necessary for the inven- tations period established by the General PLOYER OR COEMPLOYEE.— tion, development, improvement, and main- Aviation Revitalization Act of 1994 (49 U.S.C. (A) IN GENERAL.—If, with respect to a prod- tenance of the supply of the devices; 40101 note). uct liability action that is subject to this (3) most of the medical devices are made (c) TRANSITIONAL PROVISION RELATING TO title, the manufacturer or product seller at- with raw materials and component parts EXTENSION OF PERIOD FOR BRINGING CERTAIN tempts to persuade the trier of fact that the that— ACTIONS.—If any provision of subsection (a) harm to the claimant was caused by the (A) are not designed or manufactured spe- or (b) shortens the period during which a fault of the employer of the claimant or any cifically for use in medical devices; and product liability action that could be other- coemployee of the claimant, the issue of that (B) come in contact with internal human wise brought pursuant to another provision fault shall be submitted to the trier of fact, tissue; S 6260 CONGRESSIONAL RECORD — SENATE May 8, 1995

(4) the raw materials and component parts (1) BIOMATERIALS SUPPLIER.— essing (as defined in section 510(a)(1) of the also are used in a variety of nonmedical (A) IN GENERAL.—The term ‘‘biomaterials Federal Food, Drug, and Cosmetic Act (21 products; supplier’’ means an entity that directly or U.S.C. 360(a)(1)) of the implant; and (5) because small quantities of the raw ma- indirectly supplies a component part or raw (B) is required— terials and component parts are used for material for use in the manufacture of an (i) to register with the Secretary pursuant medical devices, sales of raw materials and implant. to section 510 of the Federal Food, Drug, and component parts for medical devices con- (B) PERSONS INCLUDED.—Such term in- Cosmetic Act (21 U.S.C. 360) and the regula- stitute an extremely small portion of the cludes any person who— tions issued under such section; and overall market for the raw materials and (i) has submitted master files to the Sec- (ii) to include the implant on a list of de- medical devices; retary for purposes of premarket approval of vices filed with the Secretary pursuant to (6) under the Federal Food, Drug, and Cos- a medical device; or section 510(j) of such Act (21 U.S.C. 360(j)) metic Act (21 U.S.C. 301 et seq.), manufactur- (ii) licenses a biomaterials supplier to and the regulations issued under such sec- ers of medical devices are required to dem- produce component parts or raw materials. tion. onstrate that the medical devices are safe (2) CLAIMANT.— (7) MEDICAL DEVICE.—The term ‘‘medical and effective, including demonstrating that (A) IN GENERAL.—The term ‘‘claimant’’ device’’ means a device, as defined in section the products are properly designed and have means any person who brings a civil action, 201(h) of the Federal Food, Drug, and Cos- adequate warnings or instructions; or on whose behalf a civil action is brought, metic Act (21 U.S.C. 321(h)). arising from harm allegedly caused directly (7) notwithstanding the fact that raw ma- (8) RAW MATERIAL.—The term ‘‘raw mate- or indirectly by an implant, including a per- terials and component parts suppliers do not rial’’ means a substance or product that— son other than the individual into whose design, produce, or test a final medical de- (A) has a generic use; and body, or in contact with whose blood or tis- vice, the suppliers have been the subject of (B) may be used in an application other sue, the implant is placed, who claims to actions alleging inadequate— than an implant. have suffered harm as a result of the im- (A) design and testing of medical devices (9) SECRETARY.—The term ‘‘Secretary’’ plant. manufactured with materials or parts sup- means the Secretary of Health and Human (B) ACTION BROUGHT ON BEHALF OF AN ES- plied by the suppliers; or Services. (B) warnings related to the use of such TATE.—With respect to an action brought on behalf or through the estate of an individual (10) SELLER.— medical devices; (A) IN GENERAL.—The term ‘‘seller’’ means (8) even though suppliers of raw materials into whose body, or in contact with whose blood or tissue the implant is placed, such a person who, in the course of a business con- and component parts have very rarely been ducted for that purpose, sells, distributes, held liable in such actions, such suppliers term includes the decedent that is the sub- ject of the action. leases, packages, labels, or otherwise places have ceased supplying certain raw materials an implant in the stream of commerce. and component parts for use in medical de- (C) ACTION BROUGHT ON BEHALF OF A (B) EXCLUSIONS.—The term does not in- vices because the costs associated with liti- MINOR.—With respect to an action brought on behalf or through a minor, such term in- clude— gation in order to ensure a favorable judg- (i) a seller or lessor of real property; ment for the suppliers far exceeds the total cludes the parent or guardian of the minor. (D) EXCLUSIONS.—Such term does not in- (ii) a provider of professional services, in potential sales revenues from sales by such clude— any case in which the sale or use of an im- suppliers to the medical device industry; (i) a provider of professional services, in plant is incidental to the transaction and the (9) unless alternate sources of supply can any case in which— essence of the transaction is the furnishing be found, the unavailability of raw materials (I) the sale or use of an implant is inciden- of judgment, skill, or services; or and component parts for medical devices will tal to the transaction; and (iii) any person who acts in only a finan- lead to unavailability of lifesaving and life- (II) the essence of the transaction is the cial capacity with respect to the sale of an enhancing medical devices; furnishing of judgment, skill, or services; or implant. (10) because other suppliers of the raw ma- (ii) a manufacturer, seller, or biomaterials terials and component parts in foreign na- supplier. SEC. 204. GENERAL REQUIREMENTS; APPLICA- tions are refusing to sell raw materials or BILITY; PREEMPTION. (3) COMPONENT PART.— component parts for use in manufacturing ENERAL EQUIREMENTS (A) IN GENERAL.—The term ‘‘component (a) G R .— certain medical devices in the United States, part’’ means a manufactured piece of an im- (1) IN GENERAL.—In any civil action cov- the prospects for development of new sources plant. ered by this title, a biomaterials supplier of supply for the full range of threatened raw (B) CERTAIN COMPONENTS.—Such term in- may raise any defense set forth in section materials and component parts for medical cludes a manufactured piece of an implant 205. devices are remote; that— (2) PROCEDURES.—Notwithstanding any (11) it is unlikely that the small market (i) has significant nonimplant applications; other provision of law, the Federal or State for such raw materials and component parts and court in which a civil action covered by this in the United States could support the large (ii) alone, has no implant value or purpose, title is pending shall, in connection with a investment needed to develop new suppliers but when combined with other component motion for dismissal or judgment based on a of such raw materials and component parts; parts and materials, constitutes an implant. defense described in paragraph (1), use the (12) attempts to develop such new suppliers (4) HARM.— procedures set forth in section 206. would raise the cost of medical devices; (A) IN GENERAL.—The term ‘‘harm’’ (b) APPLICABILITY.— (13) courts that have considered the duties means— (1) IN GENERAL.—Except as provided in of the suppliers of the raw materials and (i) any injury to or damage suffered by an paragraph (2), notwithstanding any other component parts have generally found that individual; provision of law, this title applies to any the suppliers do not have a duty— (ii) any illness, disease, or death of that in- civil action brought by a claimant, whether (A) to evaluate the safety and efficacy of dividual resulting from that injury or dam- in a Federal or State court, against a manu- the use of a raw material or component part age; and facturer, seller, or biomaterials supplier, on in a medical device; and (iii) any loss to that individual or any the basis of any legal theory, for harm alleg- (B) to warn consumers concerning the safe- other individual resulting from that injury edly caused by an implant. ty and effectiveness of a medical device; or damage. (2) EXCLUSION.—A civil action brought by a (14) attempts to impose the duties referred (B) EXCLUSION.—The term does not include purchaser of a medical device for use in pro- to in subparagraphs (A) and (B) of paragraph any commercial loss or loss of or damage to viding professional services against a manu- (13) on suppliers of the raw materials and an implant. facturer, seller, or biomaterials supplier for component parts would cause more harm (5) IMPLANT.—The term ‘‘implant’’ means— loss or damage to an implant or for commer- than good by driving the suppliers to cease (A) a medical device that is intended by cial loss to the purchaser— supplying manufacturers of medical devices; the manufacturer of the device— (A) shall not be considered an action that and (i) to be placed into a surgically or natu- is subject to this title; and (15) in order to safeguard the availability rally formed or existing cavity of the body (B) shall be governed by applicable com- of a wide variety of lifesaving and life-en- for a period of at least 30 days; or mercial or contract law. hancing medical devices, immediate action (ii) to remain in contact with bodily fluids (c) SCOPE OF PREEMPTION.— is needed— or internal human tissue through a sur- (1) IN GENERAL.—This title supersedes any (A) to clarify the permissible bases of li- gically produced opening for a period of less State law regarding recovery for harm ability for suppliers of raw materials and than 30 days; and caused by an implant and any rule of proce- component parts for medical devices; and (B) suture materials used in implant proce- dure applicable to a civil action to recover (B) to provide expeditious procedures to dures. damages for such harm only to the extent dispose of unwarranted suits against the sup- (6) MANUFACTURER.—The term ‘‘manufac- that this title establishes a rule of law appli- pliers in such manner as to minimize litiga- turer’’ means any person who, with respect cable to the recovery of such damages. tion costs. to an implant— (2) APPLICABILITY OF OTHER LAWS.—Any SEC. 203. DEFINITIONS. (A) is engaged in the manufacture, prepa- issue that arises under this title and that is As used in this title: ration, propagation, compounding, or proc- not governed by a rule of law applicable to May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6261 the recovery of damages described in para- (i) notice to the affected persons; and SEC. 206. PROCEDURES FOR DISMISSAL OF CIVIL graph (1) shall be governed by applicable (ii) an opportunity for an informal hearing. ACTIONS AGAINST BIOMATERIALS SUPPLIERS. Federal or State law. (B) DOCKETING AND FINAL DECISION.—Imme- (d) STATUTORY CONSTRUCTION.—Nothing in diately upon receipt of a petition filed pursu- (a) MOTION TO DISMISS.—In any action that this title may be construed— ant to this paragraph, the Secretary shall is subject to this title, a biomaterials sup- (1) to affect any defense available to a de- docket the petition. Not later than 180 days plier who is a defendant in such action may, fendant under any other provisions of Fed- after the petition is filed, the Secretary shall at any time during which a motion to dis- eral or State law in an action alleging harm issue a final decision on the petition. miss may be filed under an applicable law, move to dismiss the action on the grounds caused by an implant; or (C) APPLICABILITY OF STATUTE OF LIMITA- that— (2) to create a cause of action or Federal TIONS.—Any applicable statute of limitations (1) the defendant is a biomaterials sup- court jurisdiction pursuant to section 1331 or shall toll during the period during which a plier; and 1337 of title 28, United States Code, that oth- claimant has filed a petition with the Sec- (2)(A) the defendant should not, for the erwise would not exist under applicable Fed- retary under this paragraph. purposes of— eral or State law. (c) LIABILITY AS SELLER.—A biomaterials SEC. 205. LIABILITY OF BIOMATERIALS SUPPLI- (i) section 205(b), be considered to be a supplier may, to the extent required and per- manufacturer of the implant that is subject ERS. mitted by any other applicable law, be liable (a) IN GENERAL.— to such section; or as a seller for harm to a claimant caused by (ii) section 205(c), be considered to be a (1) EXCLUSION FROM LIABILITY.—Except as an implant if— provided in paragraph (2), a biomaterials seller of the implant that allegedly caused (1) the biomaterials supplier— harm to the claimant; or supplier shall not be liable for harm to a (A) held title to the implant that allegedly claimant caused by an implant. (B)(i) the claimant has failed to establish, caused harm to the claimant as a result of (2) LIABILITY.—A biomaterials supplier pursuant to section 205(d), that the supplier purchasing the implant after— that— furnished raw materials or component parts (i) the manufacture of the implant; and (A) is a manufacturer may be liable for in violation of contractual requirements or (ii) the entrance of the implant in the harm to a claimant described in subsection specifications; or (b); stream of commerce; and (ii) the claimant has failed to comply with (B) is a seller may be liable for harm to a (B) subsequently resold the implant; or the procedural requirements of subsection claimant described in subsection (c); and (2) the biomaterials supplier is related by (b). (C) furnishes raw materials or component common ownership or control to a person (b) MANUFACTURER OF IMPLANT SHALL BE parts that fail to meet applicable contrac- meeting all the requirements described in NAMED A PARTY.—The claimant shall be re- tual requirements or specifications may be paragraph (1), if a court deciding a motion to quired to name the manufacturer of the im- liable for a harm to a claimant described in dismiss in accordance with section plant as a party to the action, unless— subsection (d). 206(c)(3)(B)(i) finds, on the basis of affidavits (1) the manufacturer is subject to service (b) LIABILITY AS MANUFACTURER.— submitted in accordance with section 206, of process solely in a jurisdiction in which (1) IN GENERAL.—A biomaterials supplier that it is necessary to impose liability on the biomaterials supplier is not domiciled or may, to the extent required and permitted the biomaterials supplier as a seller because subject to a service of process; or by any other applicable law, be liable for the related manufacturer meeting the re- (2) an action against the manufacturer is harm to a claimant caused by an implant if quirements of paragraph (1) lacks sufficient barred by applicable law. the biomaterials supplier is the manufac- financial resources to satisfy any judgment (c) PROCEEDING ON MOTION TO DISMISS.— turer of the implant. that the court feels it is likely to enter The following rules shall apply to any pro- (2) GROUNDS FOR LIABILITY.—The bio- mate- should the claimant prevail. ceeding on a motion to dismiss filed under rials supplier may be considered the manu- (d) LIABILITY FOR VIOLATING CONTRACTUAL this section: facturer of the implant that allegedly caused REQUIREMENTS OR SPECIFICATIONS.—A bio- (1) AFFIDAVITS RELATING TO LISTING AND harm to a claimant only if the biomaterials materials supplier may, to the extent re- DECLARATIONS.— supplier— quired and permitted by any other applicable (A) IN GENERAL.—The defendant in the ac- (A)(i) has registered with the Secretary law, be liable for harm to a claimant caused tion may submit an affidavit demonstrating pursuant to section 510 of the Federal Food, by an implant, if the claimant in an action that defendant has not included the implant Drug, and Cosmetic Act (21 U.S.C. 360) and shows, by a preponderance of the evidence, on a list, if any, filed with the Secretary pur- the regulations issued under such section; that— suant to section 510(j) of the Federal Food, and (1) the raw materials or component parts Drug, and Cosmetic Act (21 U.S.C. 360(j)). (ii) included the implant on a list of de- delivered by the biomaterials supplier ei- (B) RESPONSE TO MOTION TO DISMISS.—In re- vices filed with the Secretary pursuant to ther— sponse to the motion to dismiss, the claim- section 510(j) of such Act (21 U.S.C. 360(j)) (A) did not constitute the product de- ant may submit an affidavit demonstrating and the regulations issued under such sec- scribed in the contract between the bio- ma- that— tion; terials supplier and the person who con- (i) the Secretary has, with respect to the (B) is the subject of a declaration issued by tracted for delivery of the product; or defendant and the implant that allegedly the Secretary pursuant to paragraph (3) that (B) failed to meet any specifications that caused harm to the claimant, issued a dec- laration pursuant to section 205(b)(2)(B); or states that the supplier, with respect to the were— (ii) the defendant who filed the motion to implant that allegedly caused harm to the (i) provided to the biomaterials supplier dismiss is a seller of the implant who is lia- claimant, was required to— and not expressly repudiated by the bio- ma- (i) register with the Secretary under sec- ble under section 205(c). terials supplier prior to acceptance of deliv- tion 510 of such Act (21 U.S.C. 360), and the (2) EFFECT OF MOTION TO DISMISS ON DISCOV- ery of the raw materials or component parts; regulations issued under such section, but ERY.— (ii)(I) published by the biomaterials sup- failed to do so; or (A) IN GENERAL.—If a defendant files a mo- plier; (ii) include the implant on a list of devices tion to dismiss under paragraph (1) or (2) of (II) provided to the manufacturer by the filed with the Secretary pursuant to section subsection (a), no discovery shall be per- biomaterials supplier; or 510(j) of such Act (21 U.S.C. 360(j)) and the mitted in connection to the action that is (III) contained in a master file that was regulations issued under such section, but the subject of the motion, other than discov- failed to do so; or submitted by the biomaterials supplier to ery necessary to determine a motion to dis- (C) is related by common ownership or con- the Secretary and that is currently main- miss for lack of jurisdiction, until such time trol to a person meeting all the requirements tained by the biomaterials supplier for pur- as the court rules on the motion to dismiss described in subparagraph (A) or (B), if the poses of premarket approval of medical de- in accordance with the affidavits submitted court deciding a motion to dismiss in accord- vices; or by the parties in accordance with this sec- ance with section 206(c)(3)(B)(i) finds, on the (iii)(I) included in the submissions for pur- tion. basis of affidavits submitted in accordance poses of premarket approval or review by the (B) DISCOVERY.—If a defendant files a mo- with section 206, that it is necessary to im- Secretary under section 510, 513, 515, or 520 of tion to dismiss under subsection (a)(2) on the pose liability on the biomaterials supplier as the Federal Food, Drug, and Cosmetic Act grounds that the biomaterials supplier did a manufacturer because the related manu- (21 U.S.C. 360, 360c, 360e, or 360j); and not furnish raw materials or component facturer meeting the requirements of sub- (II) have received clearance from the Sec- parts in violation of contractual require- paragraph (A) or (B) lacks sufficient finan- retary, ments or specifications, the court may per- cial resources to satisfy any judgment that if such specifications were provided by the mit discovery, as ordered by the court. The the court feels it is likely to enter should the manufacturer to the biomaterials supplier discovery conducted pursuant to this sub- claimant prevail. and were not expressly repudiated by the paragraph shall be limited to issues that are (3) ADMINISTRATIVE PROCEDURES.— biomaterials supplier prior to the acceptance directly relevant to— (A) IN GENERAL.—The Secretary may issue by the manufacturer of delivery of the raw (i) the pending motion to dismiss; or a declaration described in paragraph (2)(B) materials or component parts; and (ii) the jurisdiction of the court. on the motion of the Secretary or on peti- (2) such conduct was an actual and proxi- (3) AFFIDAVITS RELATING STATUS OF DE- tion by any person, after providing— mate cause of the harm to the claimant. FENDANT.— S 6262 CONGRESSIONAL RECORD — SENATE May 8, 1995 (A) IN GENERAL.—Except as provided in the Secretary has issued a final decision on surprise. But the time today has been clauses (i) and (ii) of subparagraph (B), the the petition. spent between the Senator from Wash- court shall consider a defendant to be a (f) MANUFACTURER CONDUCT OF PROCEED- ington and the Senator from West Vir- biomaterials supplier who is not subject to ING.—The manufacturer of an implant that is ginia, the Senator from West Virginia the subject of an action covered under this an action for harm to a claimant caused by consulting with many Senators on my an implant, other than an action relating to title shall be permitted to file and conduct a liability for a violation of contractual re- proceeding on any motion for summary judg- side of the aisle, and the staff of the quirements or specifications described in ment or dismissal filed by a biomaterials Senator from Washington and the staff subsection (d). supplier who is a defendant under this sec- of the Senator from West Virginia (B) RESPONSES TO MOTION TO DISMISS.—The tion if the manufacturer and any other de- working together. court shall grant a motion to dismiss any ac- fendant in such action enter into a valid and We have reached agreement. That is tion that asserts liability of the defendant applicable contractual agreement under the news. We have a product liability under subsection (b) or (c) of section 205 on which the manufacturer agrees to bear the reform bill which we are now convinced cost of such proceeding or to conduct such the grounds that the defendant is not a man- will pass. After 13 years of attempting ufacturer subject to such section 205(b) or proceeding. (g) ATTORNEY FEES.—The court shall re- to do this on the part of some, only 9 seller subject to section 205(c), unless the years on my part, this is remarkable, claimant submits a valid affidavit that dem- quire the claimant to compensate the onstrates that— biomaterials supplier (or a manufacturer ap- remarkable news. I believe that we are (i) with respect to a motion to dismiss con- pearing in lieu of a supplier pursuant to sub- in a position now to win product liabil- tending the defendant is not a manufacturer, section (f)) for attorney fees and costs, if— ity reform. the defendant meets the applicable require- (1) the claimant named or joined the Again, I want to apologize to my col- ments for liability as a manufacturer under biomaterials supplier; and leagues on both sides of the aisle that section 205(b); or (2) the court found the claim against the it has taken us so long to get here, and biomaterials supplier to be without merit (ii) with respect to a motion to dismiss then, when we got here, at the very contending that the defendant is not a seller, and frivolous. SEC. 207. APPLICABILITY. last moment, we had this technical the defendant meets the applicable require- writing problem which we, in fact, had ments for liability as a seller under section This title shall apply to all civil actions 205(c). covered under this title that are commenced to get right and we had not gotten it (4) BASIS OF RULING ON MOTION TO DISMISS.— on or after the date of enactment of this Act, right, because things were rushed. We (A) IN GENERAL.—The court shall rule on a including any such action with respect to are now in the process of doing that. It motion to dismiss filed under subsection (a) which the harm asserted in the action or the is very easy. It will be done before the solely on the basis of the pleadings of the conduct that caused the harm occurred be- end of the day and we will have the clo- parties made pursuant to this section and fore the date of enactment of this Act. ture motion tomorrow, which is al- any affidavits submitted by the parties pur- Mr. GORTON. I yield the floor. ready ordered, and on we go. suant to this section. Mr. ROCKEFELLER addressed the Then, presumably, those who oppose (B) MOTION FOR SUMMARY JUDGMENT.—Not- Chair. the bill will try to amend it. But the withstanding any other provision of law, if The PRESIDING OFFICER. The Sen- the court determines that the pleadings and Senator from Washington and the ma- affidavits made by parties pursuant to this ator from West Virginia. jority leader, Senator DOLE, and I are section raise genuine issues as concerning Mr. ROCKEFELLER. I ask unani- convinced that we can put aside those material facts with respect to a motion con- mous consent to speak on the amend- amendments, spend the 20 hours or cerning contractual requirements and speci- ment. whatever it is that we have remaining fications, the court may deem the motion to The PRESIDING OFFICER (Mr. in debate, and then go ahead and pass dismiss to be a motion for summary judg- Abraham). Without objection, it is so the bill. ment made pursuant to subsection (d). ordered. This is the story of the legislative (d) SUMMARY JUDGMENT.— Mr. ROCKEFELLER. I thank the process. It is not always beautiful and (1) IN GENERAL.— (A) BASIS FOR ENTRY OF JUDGMENT.—A Chair. today was an example of it. biomaterials supplier shall be entitled to Mr. President, there was, to put it We have on the other hand, I have to entry of judgment without trial if the court mildly, a certain amount of confusion say, listened and debated and analyzed finds there is no genuine issue as concerning as to what just happened in the last and argued every aspect of product li- any material fact for each applicable ele- hour or so. I found myself on the tele- ability and the best ways to do reform. ment set forth in paragraphs (1) and (2) of phone advising distinguished Senators It is very controversial. It is something section 205(d). with years of experience to vote for that people have strong feelings on and (B) ISSUES OF MATERIAL FACT.—With re- what we just voted on and then 5 min- it is hard to come to an agreement on, spect to a finding made under subparagraph (A), the court shall consider a genuine issue utes later to vote against it. which makes even more formidable, it of material fact to exist only if the evidence That is not my normal custom in seems to me, the agreement which has submitted by claimant would be sufficient to trying to be wise on these matters. But been reached that affects the majority allow a reasonable jury to reach a verdict for the fact is that, as the Senator from leader, the Senator from the State of the claimant if the jury found the evidence Washington indicated, there were pro- Washington, the junior Senator from to be credible. cedural and technical writing prob- West Virginia, and Senators that the (2) DISCOVERY MADE PRIOR TO A RULING ON A lems, and the technical writing prob- junior Senator from West Virginia has MOTION FOR SUMMARY JUDGMENT.—If, under lems in the bill in fact were not ad- been working with on our side who applicable rules, the court permits discovery prior to a ruling on a motion for summary dressed properly and were not done favor product liability reform. judgment made pursuant to this subsection, properly, and they have to be done I think the bill that has been put to- such discovery shall be limited solely to es- properly. But make no mistake about gether, which is now agreed on, de- tablishing whether a genuine issue of mate- it; the news of the day is not that we serves support, and I think it will get rial fact exists. just had a vote on which some people support. I think, in fact, it will win (3) DISCOVERY WITH RESPECT TO A BIO- MA- thought they were going to vote no and rather broad support. TERIALS SUPPLIER.—A biomaterials supplier they turned out voting yes or vice So I want the Presiding Officer to be shall be subject to discovery in connection versa. The news of the day is that the of good cheer and look forward to to- with a motion seeking dismissal or summary judgment on the basis of the inapplicability Senator from Washington and the Sen- morrow and maybe a day or two after of section 205(d) or the failure to establish ator from West Virginia have reached a that. the applicable elements of section 205(d) very good agreement on a final version We have made real changes to the solely to the extent permitted by the appli- of the product liability reform that we section that deals with punitive dam- cable Federal or State rules for discovery think reflects the will and the objec- ages in a way which I think will ease against nonparties. tives of Senators on both sides of the concerns, particularly on my side of (e) STAY PENDING PETITION FOR DECLARA- aisle. the aisle. We have made changes that TION.—If a claimant has filed a petition for a That is where the activity and the directly address the concerns of a num- declaration pursuant to section 205(b) with respect to a defendant, and the Secretary has time today has, in fact, been spent. It ber of Senators. not issued a final decision on the petition, was not spent on, unfortunately, wrap- I know that this substitute remains the court shall stay all proceedings with re- ping up the last-moment details. The balanced, represents real reform, and spect to that defendant until such time as 4:20 cloture vote really caught me by will solve some problems that have May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6263 been crying out for solution for all of The legislative clerk read the nomi- ing worldwide for the security of the these years. I hope the process will un- nation of John M. Deutch, of Massa- United States. tangle itself. I am now confident it chusetts, to be Director of Central In- During the course of the hearings, we will—there was a moment there when telligence. explored with Mr. Deutch whether we were not sure, but I think it will The Senate proceeded to consider the there ought to be a reorganization. His and I think it has—and we will then be nomination. confirmation hearings came in the able to give Senators on both sides a The PRESIDING OFFICER. The de- wake of extraordinary success by the chance to vote for good product liabil- bate on the nomination is limited to 2 Federal Bureau of Investigation on the ity reform. hours, equally divided and controlled Oklahoma City bombing case. We ex- This is not a product of the Contract by the Senator from Pennsylvania and plored with Mr. Deutch whether per- With America. It is not a product of the Senator from Nebraska. haps the Federal Bureau of Investiga- the Democratic Party. It is a product Mr. SPECTER addressed the Chair. tion ought to take over on worldwide of people who want reform on both The PRESIDING OFFICER. The Sen- intelligence gathering. That has been sides of the aisle, working within the ator from Pennsylvania. suggested by some. Senate, within our ways, within our be- Mr. SPECTER. Mr. President, there It would be an extraordinary change liefs to achieve compromise. That is have been requests only from Senator for the United States to do that. It the way the Senate works. MOYNIHAN, who was on the floor, for 15 would vest enormous authority in the After all, the President of the United minutes and from Senator HUTCHISON FBI, perhaps more than is wise, in a States will have to sign the bill and for 10 minutes, in addition to state- country where we prize limitations on put it into law. This is what has always ments which will be made by the dis- authority, where we prize separation of tinguished Senator from Nebraska, the struck me when people say that the power. vice chairman, Senator KERREY, and a conference process will ruin every- The FBI, though, is right now en- brief opening statement which I will thing. I have never felt that. I know gaged in very extensive operations make. So, in the event that there are the Senator from Washington agrees overseas in work on terrorism as it re- any other Senators who wish to be with me on that, and I suspect the ma- lates at least to prosecution, work on jority leader does. I know I do. Because heard on the subject, they ought to come to the floor now or at least let drug trafficking, work on organized the President, if he does not want to crime, many of those activities being sign the bill, if it does not meet his cri- the managers know of their interest in speaking. undertaken by the CIA as well. But teria, which he has laid out to us, will those were some of the subjects dis- simply veto it and that will be that. So Mr. President, the nomination of John M. Deutch to be Director of cussed. there is a discipline that works there I expressed at the hearings consider- in conference process, which is good. Central Intelligence was reported to the Senate last week, pursuant to a able concern about the Director of CIA I remind my colleagues and the lead- being a member of the President’s Cab- ership in the other body of what I have unanimous vote in the Senate Select Committee on Intelligence with a rec- inet. We have had the experience with just said. We have tended to push aside Cabinet officers before of the CIA, spe- expansionism here and focus on prod- ommendation that he be confirmed. It was a unanimous vote, 17 to 0. cifically William Casey, where we had uct liability reform. We do that in the problems on Iran-Contra, and there has agreement between the Senator from The committee held hearings on April 26 and then proceeded to that been a concern that the policymakers Washington and the Senator from West ought to be separated from the intel- Virginia. So, let the leadership on the vote last week on May 3. There is a need to move expeditiously, as I see it, ligence gatherers to the extent there other side understand that we are firm to have a strong Director of the not be the motivation to shade intel- in our resolution, and that the Presi- Central Intelligence Agency. ligence gathering to support policy, to dent is, too. He will not sign anything In consideration of Mr. John Deutch sort of cook the evidence. other than what stands within his pa- to be Director, we took up a wide vari- The Iran-Contra Joint Committee rameters of acceptability. ety of issues. We examined Mr. made a strong recommendation against So I conclude simply by saying that Deutch’s background and qualifica- that kind of a concern and that kind of the sidebar of the day was that there tions. He has an extraordinary aca- activity. But in the final analysis, was a certain amount of confusion dur- demic record. He has an extraordinary there is a need to move ahead with the ing the process at the end. But the professional record. He has been a dis- confirmation of the CIA Director, so story is that the two sides have tinguished professor at MIT. He has that it is my judgment, and I think the reached agreement—Democrats who been the head of the department there. favor reform and Republicans who judgment of others on the committee He has been the provost there. He has favor reform. I have been through this who were concerned about having the worked in the Energy Department. He reform with most of my colleagues on Director in the Cabinet, that we should has worked in the Department of De- my side and have met with a very good not hold up his confirmation in that re- fense. He currently serves as the Dep- reaction, and I assume the same is true spect. uty Secretary of the Department of De- on the Republican side. Mr. Deutch has addressed that ques- fense. So, Mr. President, I simply wanted to tion very forcefully and directly, say- It is my thought, and I believe with say that, because there was a certain ing that he will be very mindful of the concurrence of the committee amount of confusion, but that pales in those policy considerations and will members, that he has the kind of comparison to the good news of the comport himself so that intelligence strength to take over the management agreement. gathering is separate from any matters as Director of the Central Intelligence I thank the Chair and yield the floor. of policy. Agency. Mr. Deutch has made a very forceful f He comes to this position at a time of statement on taking strong action. If substantial difficulty. He comes to this there are those in the CIA, as there EXECUTIVE SESSION position at a time when the agency is were in the Aldrich Ames case, who with substantial problems of morale, in failed to act when there were lots of in- the wake of the Aldrich Ames case, dications that Aldrich Ames was in NOMINATION OF JOHN M. DEUTCH, where the agency had a spy within the fact not doing his job—when he was in- OF MASSACHUSETTS, TO BE DI- Central Intelligence Agency which toxicated on the job, when there were RECTOR OF CENTRAL INTEL- they could not ferret out and eliminate unexplained visits to foreign embas- LIGENCE themselves; hardly a recommendation sies, where he lost his files—Mr. The PRESIDING OFFICER. Under for an agency which is charged with Deutch was emphatic that if anybody the previous order, the Senate will now worldwide responsibility to gather in- was in a position of supervision over go into executive session to consider telligence. another Aldrich Ames and did not take Calendar Order No. 114, which the clerk There is, in my opinion, Mr. Presi- forceful action, that person would be will report. dent, the need for intelligence gather- fired peremptorily. S 6264 CONGRESSIONAL RECORD — SENATE May 8, 1995 Then the question was raised with ligence community with targets far facing the intelligence community, Mr. Deutch about somebody who was in more dispersed and complicated than sought and obtained assurances that a supervisory capacity who did not the traditional focus on Soviet mili- his position as a member of the Cabinet know but should have known, and Mr. tary power. The role and the priorities would not politicize intelligence, and Deutch answered very forcefully that of the intelligence community in the examined the potential impact of his that person would be fired. Government’s efforts against these and earlier involvement with issues like Mr. President, there are many people other threats—efforts which now have the Persian Gulf syndrome on his new in the CIA who have long, distin- significant diplomatic, economic, and appointment. Our objective has been to guished careers, and there are many law enforcement implications—is very determine whether he can assert the able men and women in the Agency much in need of redefinition and reor- strong and independent leadership that who can carry on. It is my hope, I dering. is so desperately needed. I have con- think the hope of the committee, that Moreover, a series of revelations have cluded that he can and I urge his the morale can be restored by a very illuminated problems in the intel- prompt confirmation by the Senate. firm and forceful Director of the ligence community that have severely In the remainder of my remarks, I Central Intelligence Agency. damaged morale among the rank and will summarize for my colleagues the We have recently had hearings on file and have eroded the public con- nature of the committee’s inquiry, and Guatemala which, again, were disturb- fidence and trust that is essential for highlight the key features of Mr. ing, with the Deputy Director of the an intelligence apparatus operating in Deutch’s testimony to the committee. CIA conceding flatly that the CIA a democracy. From the abuses of power SUMMARY OF COMMITTEE INQUIRY failed in its duty to notify both the evident in Iran-Contra to the incom- As you know, the former DCI, James House Intelligence Committee and the petence and lack of accountability that Woolsey, resigned last December. In Senate Intelligence Committee of what characterized the Aldrich Ames deba- February, the administration an- was going on in Guatemala. cle, to charges of widespread sex dis- nounced that it planned to nominate In sum and substance, Mr. President, crimination, to the latest questions retired Air Force General Michael C.P. it is my view, and I think the view of about policies and practices that re- Carns to replace Woolsey as DCI. One the committee, that John Deutch is sulted in, at the very least, an impres- month later, General Carns withdrew well qualified to take on a very, very sion of culpability in murders in tough job at this time. Central America, there is the sense of his name, citing immigration issues. Mr. President, the nomination of an intelligence bureaucracy that is not The administration then turned to John M. Deutch to be Director of only incapable of meeting our national Deputy Secretary of Defense Deutch. Central Intelligence was reported to security needs but, instead, presents a In announcing on March 11, 1995, the the Senate last week pursuant to a recurring threat to our Nation’s credi- decision to nominate Mr. Deutch as unanimous vote of the Senate Select bility and legitimacy overseas through DCI, the White House also announced Committee on Intelligence, with a rec- its frequent missteps, miscalculation, that the post would be elevated to Cab- ommendation that he be confirmed. On and mismanagement. inet-level status. Mr. Deutch’s name behalf of myself and Senator KERREY, The American people are looking for was formally submitted to the commit- in our respective capacities as chair- a Director of Central Intelligence who tee on March 29, 1995. man and vice chairman of the commit- will provide strong leadership, account- The committee required Mr. Deutch tee, we urge the Senate to act favor- ability, and a clearly defined mission. to submit sworn answers to its stand- ably on this nomination. And therein lies the promise. There is ard questionnaire for Presidential ap- The committee made a complete and growing support within the intel- pointees, setting forth his background thorough inquiry of the nominee’s ligence community, the Congress, and and financial situations. These were qualifications as well as his views on the public for significant change in the submitted to the committee on March issues of mutual concern, and con- way we conduct intelligence. The end 30, 1995. cluded that he is qualified by both ex- of the bipolar superpower conflict that On April 5, 1995, the committee re- perience and temperament to hold this dominated the cold war provides new ceived a letter from the Director of the sensitive and critical position. opportunities to build coalitions and Office of Government Ethics transmit- The Senate has moved expeditiously achieve consensus on international ting a copy of the financial disclosure in this important nomination. Never- threats. And thoughtful application of statement submitted by Mr. Deutch. theless, the intelligence community continuing advances in technology can The Director advised the committee has been with out a confirmed director greatly enhance our efficiency and ef- that is disclosed no real or potential since last December—a delay that is fectiveness. conflict-of-interest. particularly costly when the commu- This committee, along with the The chairman and vice chairman also nity so urgently needs a strong sense of House Permanent Select Committee on reviewed the FBI investigation done direction, of mission, and of manage- Intelligence and a congressionally for the White House on Mr. Deutch. ment. It is a critical time for the intel- mandated commission chaired by Les The committee held a confirmation ligence community. If Mr. Deutch is Aspin and Warren Rudman, will be tak- hearing on Mr. Deutch on April 26, 1995, confirmed as DCI, he will come to the ing a hard look at the intelligence at which time the nominee was ques- job at a time of exceptional promise community—what it’s mission should tioned on a variety of topics. Subse- and peril. be in the post-cold-war world and how quently, written questions were sub- The peril is clear. It is now conven- it should be organized to accomplish mitted to the nominee for additional tional wisdom that the euphoria which that mission—with an eye to legisla- responses. erupted after the fall of the Berlin Wall tion early next year. This is an oppor- Based upon this examination, the and the dissolution of the Soviet Em- tunity to look forward; to begin a new committee reported the nomination to pire was premature. While nostalgia for era and establish a new American the Senate on May 3, 1995, by a unani- the balance of terror between the Unit- model for foreign intelligence. mous vote, with a recommendation ed States and the Soviet Union is not A key issue for that future involves that Mr. Deutch be confirmed. in order, it is apparent that the post- the nature of the office that Mr. HIGHLIGHTS OF TESTIMONY cold-war world is not any less dan- Deutch seeks to assume. The DCI must VIEWS ON THE ROLE OF THE DCI—CABINET gerous or unstale—as the bombing in have the ear and the trust of the Presi- STATUS Oklahoma City, the World Trade Cen- dent. Yet he cannot allow his role as In his opening remarks to the com- ter bombing, and the gas attack in the confidante in any way to corrupt the mittee, Mr. Deutch described as the Tokyo subway have made shattering intelligence process or his role as intel- primary duty of the DCI ‘‘to provide clear. Global threats from inter- ligence advisor. This is the concern objective, unvarnished assessments national terrorism and narcotics smug- that underlies questions about the wis- about issues involving foreign events gling, the proliferation of weapons of dom of giving the DCI Cabinet status. to the President and other senior pol- mass destruction, and expanding orga- We have examined the nominee’s icymakers.’’ He emphasized that ‘‘with nized crime networks present the intel- views on a number of critical issues the exception of policy that bears on May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6265 the Intelligence Community, the Direc- at the hearing and those submitted Sixth, what he described as his most tor of Central Intelligence should have later for the record, that in his view, important challenge is to ‘‘improve the no foreign policy making role.’’ Speak- the DCI could more effectively manage management—and thereby the mo- ing directly to the issue of making the the intelligence community if he or she rale—of the dedicated men and women DCI a member of the Cabinet, the had budget execution authority over who make up the IC.’’ nominee explained his belief that the key segments of the community. RESPONSE TO AMES President intended this to signal the In further response to questions, Mr. The issue of management is particu- importance he places on intelligence Deutch agreed that this was a pro- larly critical in the wake of Ames. I and the confidence the President has in pitious time to consider establishing a questioned Mr. Deutch on how he Mr. Deutch. The nominee went on to Director of National Intelligence—who would ensure that he knew what was present his view that this status is im- would serve at the pleasure of the going on within the CIA so that he portant to ensure that the DCI will be President and manage the entire intel- could exert the proper management. I present when policy issues are delib- ligence community—and a separate cited former Director Gates’ admission erated so that he can present objective head of the CIA who would have a 10- that by 1987, he had only been advised assessments of alternative courses of year tenure. of about 4 or 5 compromises of U.S. action and take away from those meet- VIEWS ON THE MISSION OF THE INTELLIGENCE agents, at a time when there were in ings a better understanding of policy- COMMUNITY fact 40 or more compromised oper- maker needs. Mr. Deutch’s prepared statement out- ations. Director Gates complained that I questioned Mr. Deutch on this issue lined some of the significant dangers to ‘‘nobody bothered to share that infor- in meetings prior to the confirmation our national security today: Regional mation with Judge Webster, my prede- hearing and again, for the record, in conflicts; the spread of weapons of cessor, or with me,’’ when Gates was open session. I noted my own view that mass destruction; international terror- his Deputy. if you are in the Cabinet, you are much ism, international crime, international I wanted to know what action Mr. more likely to get involved in making drug trafficking, and their interconnec- Deutch would take if he identified a policy than if you are not in the Cabi- tion; instability in the former Soviet person that had a pretty good idea that net. I referred to the congressional re- Union; and China—as a threat to its Aldrich Ames was a mole but failed to port on Iran-Contra and Secretary neighbors and supplier of missiles. pass that information on up the chain Shultz’s assertion, as reported therein, He then described four principal pur- of command to the Director. Mr. that the President was getting faulty poses to which the intelligence commu- Deutch said he would terminate that intelligence about terrorism because nity [IC] should direct its efforts: First, individual. Moreover, when asked there was a problem in keeping intel- assuring that the President and other about reports that the supervisor of ligence separated from policy. The policymakers have the best informa- Ames, who knew that Ames had an al- committee concluded in that report tion available before making decision; cohol dependency and had observed the that ‘‘the gathering, analysis, and re- second, support to military operations; negative consequences of this depend- cording of intelligence should be done third, addressing international terror- ency, had not only failed to fire Ames, in a way that there can be no question ism, crime, and drugs, particularly im- but had, instead, written a highly com- that the conclusions are driven by the proving interagency coordination and plimentary review of his performance, actual facts rather than by what a pol- support to law enforcement; and Mr. Deutch indicated that supervisor icy advocate hopes these facts will be.’’ fourth, counterintelligence [CI] that should be fired. When questioned fur- This need to separate policymaking rigorously adheres to high security ther, he conceded that if the super- from intelligence gathering and analy- standards, accords priority to defensive visor’s supervisor should have known sis is reflected in the statute defining CI and counterespionage, and includes about this improper conduct, that su- the National Security Council. The Na- full and early cooperation within the pervisor should also be fired. tional Security Act of 1947 sets forth CI community. The key in this exchange, as empha- the members of the NSC and then des- He emphasized that the national pri- sized by the nominee, is the notion of ignates others, including the DCI and orities for intelligence collection es- accountability. It is a sense of account- the Chairman of the Joint Chiefs of tablished by the recent Presidential ability that was absent under the last Staff, as officials who are not members Decision Directive need to be imple- DCI and that is an essential ingredient but may attend and participate as the mented. of any plan to revitalize our foreign in- President directs. It is my strong sense VIEWS ON MANAGEMENT telligence apparatus. that this is the appropriate status for I applaud Mr. Deutch for his unusu- Mr. Deutch has told the committee the DCI with respect to the Cabinet as ally candid and forthright opening that if confirmed, he will review the well. statement. In it, he outlined for the Ames case and will consider the com- Mr. Deutch has assured the commit- committee the significant actions he mittee’s report on Ames in connection tee that he will hold to the proper would take immediately upon con- with any personnel action affecting the standard of conduct and that he would firmation to begin the process of individuals involved. ‘‘not allow policy to influence intel- change that is so long overdue in the VIEWS ON CONGRESSIONAL OVERSIGHT ligence judgements and, not allow in- intelligence community, or ‘‘IC.’’ First, On the issue of congressional over- telligence to interfere in the policy he indicated he would bring in several sight, Mr. Deutch emphasized in his process.’’ new people to fill upper management opening statement that he could not I believe that Mr. Deutch has the positions. In doing so, he will empha- accomplish the significant change that best of intentions in this regard and size joint operations of the IC agencies is needed in the intelligence commu- that he is certainly capable of rec- because ‘‘we can no longer afford re- nity without the strong support of Con- ognizing the line between intelligence dundant capabilities in several dif- gress. ‘‘I consider you my board of di- and policy. The committee will be sen- ferent agencies.’’ Second, he plans to rectors’’, he said. ‘‘I realize this means sitive to any indication that this review and encourage changes in the I must keep you fully and currently in- standard is not being met. Ultimately, culture and operation of the Direc- formed about the activities for which I however, the makeup of the Cabinet is torate of Operations. Third, he will would be responsible—both the good a Presidential prerogative and is not move to consolidate the management news and the bad news. I understand statutorily defined. of all imagery collection, analysis, and that I am accountable to you, and I ex- Given the delay already experienced distribution in a manner similar to the pect you to hold me to a high standard in naming Mr. Deutch, and given his NSA’s for signals intelligence. Fourth, of performance.’’ strong qualifications in every other re- he wants to manage military and intel- Mr. Deutch conceded, when ques- gard, I do not think this issue should ligence satellite acquisition in a more tioned, that, while he could not imag- stand in the way of his confirmation by integrated way. Fifth, he will put in ine it happening, if the President ever the Senate. place a planning process for meeting told him not to inform the committee With respect to DCI authorities, the the priorities and goals established by he, Mr. Deutch, would ‘‘go happily nominee noted in response to questions the Presidential Decision Directive. back to Massachusetts.’’ S 6266 CONGRESSIONAL RECORD — SENATE May 8, 1995 Moreover, the nominee assured the The PRESIDING OFFICER. The Sen- You might expect that only some- committee that he interprets the re- ator from Nebraska. body who was a glutton for punishment quirement for timely notification of a Mr. KERREY. Mr. President, I rise in would willingly volunteer and walk covert action finding, in the absence of enthusiastic support of the nomination into the set of problems that John prior notification, to mean within 48 of John M. Deutch to be Director of Deutch will face. But I can assure my hours. Specifically, Mr. Deutch said, ‘‘I Central Intelligence. While I cannot colleagues, as the distinguished chair- think that in all situations there predict a length in time that he will be man of the Committee has already should be prior notification. There may in service to his country in this capac- said, that John Deutch knows better be remote instances where that is not ity, I can predict with confidence, than this. He knows, as many of us on possible, in a very, very tiny percent- should he be confirmed, he will turn the Intelligence Committee know, we ages of the cases. Then 48-hours is what out to be one of the most effective and have a superb intelligence instrument I see as the measure of timely notifica- influential DCI’s in the history of this in this country staffed by brave and in- tion.’’ Agency. telligent people who take risks every COMMITMENTS FOR PROMPT ACTION The President of the United States, single day and make sacrifices for their At the conclusion of the hearing, I with John Deutch, is making a state- country. They provide the President, asked for, and received, a commitment ment that he intends to send a man to the military, the Cabinet, our dip- lomats and intelligence analysts a ca- from Mr. Deutch to report back to the take charge of Langley during what is pability no other country can rival: the committee as promptly as possible if obviously one of the most tumultuous capability to know most about threats confirmed—preferably within 30 days of periods ever experienced by Central In- to our country’s freedom and independ- confirmation—regarding several issues telligence. The Aldrich Ames case and ence, and threats to the lives and live- of particular importance; recent Guatemala revelations portray lihoods of Americans. First, report on any needed changes a troubled corporate culture at CIA. Unlike the domestic agencies, our in- to DCI authorities; In addition, many question whether telligence professionals cannot brag Second, improving the intelligence the intelligence community has come about their competence. To brag would community’s fulfillment of its obliga- to grips with the post-cold-war world lose the all-important source of infor- tion to keep Congress fully and cur- and whether new collection methods mation. So they are generally silent, rently informed; and technologies are required to target but they are of immense value. They Third, the need for reorganization the new threats that have emerged. need guidance, they need leadership, within the intelligence community; The twin threats of international and they need a visionary who can help Fourth, changes in personnel; domestic terrorism lead many to ques- focus their talent on the Nation’s Fifth, proposal for how to achieve tion the intelligence community’s pressing needs, and John Deutch is the downsizing in a way which creates proper role in supporting law enforce- person to do it. Adm. Bill Studeman headroom, weeds out poor performers, ment. The very structure of the com- has rendered a vital service as Acting and leaves the intelligence community munity is in question, as a joint Presi- Director. He has kept a complex enter- with the mix of skills required to ac- dential-congressional commission and prise on track during a difficult period, complish its mission; several private study groups ask and the Nation owes him its thanks. He Sixth, intelligence reassessment of whether intelligence is necessary at would be the first to agree that the in- the possibility that U.S. forces were ex- all. telligence community needs a Presi- posed to chemical or biological agents Mr. President, we have been watch- dentially appointed, senatorially con- during Desert Storm; ing, once again, another 50-year cele- firmed director. Seventh, actions taken in response to bration in the last couple of days. This Even if John Deutch’s service in the events in Guatemala; and time the celebration is the 50th anni- Defense Department were his own ac- Eighth, improving coordination with versary of the day that victory in Eu- complishment, he would be a strong law enforcement. rope was declared over Nazi forces. candidate to be DCI. Most intelligence CONCLUSION That victory is being celebrated in part funding is in defense, the military con- The foregoing summarizes only the because we are also celebrating the tinues to be the leading customer for highlights of the record before the fact that over the last 47 or so years, intelligence, and his knowledge of de- committee, which is, of course, avail- we have avoided, with significant ef- fense intelligence is matched by few in able to all Members in its entirety at forts, a third world war. For a 75-year and out of our Government. the Intelligence Committee. period, roughly from 1914, when the But another part of John Deutch’s Based upon the nominee’s statements guns of August started World War I, re´sume´ appeals to me. John Deutch is to the committee, however, his record until the fall of 1989 when the Berlin a scientist of national renown and a of distinguished service and the ab- Wall itself collapsed and Eastern Eu- distinguished science professor. Tech- sence of any disqualifying information rope began to liberate itself, during nical intelligence collection is mainly concerning him, the Senate Select that 75-year period, it is, I believe, ac- a science problem. The scientific deci- Committee on Intelligence voted to re- curate to say we experienced the blood- sion of which system to buy or develop port his nomination to the Senate with iest 75 years in the history of mankind. to best collect against a certain threat a recommendation that he be con- During that 75-year period, Mr. Presi- is typically made by lawyers advised firmed by the full Senate as Director of dent, many things occurred, including by scientists. In this administration, Central Intelligence. the institution of a policy that had the however, the scientists have come to Mr. President, before yielding the United States of America leading an ef- the fore. I, for one, feel very com- floor, I want to commend my distin- fort against a clearly identified enemy, fortable knowing that the scientific guished vice chairman, Senator and the celebration that takes place judgment of Bill Perry is making the KERREY, for his outstanding work gen- this year is not just a celebration of a ultimate acquisition decisions in de- erally with the committee and on this victory over that enemy, but a sense fense, and I will feel equal comfort nomination. that we have survived, as a human peo- with John Deutch’s scientific judgment The only other speaker who is to ple, the forecast that we may annihi- on intelligence acquisitions. The fact come to the floor on our side is Senator late ourselves through the use of nu- that he is a teacher and can explain HUTCHISON, who has an allotment of 10 clear weapons. It is a remarkable vic- these complex systems to those of us minutes, but I think there will be more tory, and I dare not on this floor take nonscientists, who are charged with in- time within the unanimous-consent a great deal of time describing it, but telligence oversight, is that much bet- agreement if Senator HUTCHISON wants it is a profound change that the new ter for the American people. more time. Or if any other Republican Director of Central Intelligence must We will get the benefit of Dr. Senators wish to partake in the discus- factor in as that individual, hopefully Deutch’s scientific expertise not a mo- sion, they can take time on our side. John Deutch, begins to shape the agen- ment too soon. New threats, new col- I thank the Chair and yield the floor. cies under his control to meet the new lection priorities, and a rapidly chang- Mr. KERREY addressed the Chair. challenges that this country faces. ing collection environment mean that May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6267 we cannot stand pat on our collection Democracy cannot function unless I am confident that John Deutch will technologies. Just to maintain the citizens make the effort to understand not permit it. edge we have now, we must fund re- those complexities and come to the CIA’s human intelligence activities, search and development on new tech- table at election time and come to the which consist mainly in getting for- nologies and make hard decisions table when it is time to influence their eigners to secretly provide informa- about which road we will go down. Senator or Representative or President tion, will always take place in the We also have to maintain the health with all of the facts and information. shadows. Human sources will have to of our intelligence industrial base, the The Director of Central Intelligence be protected, so the activities will not private companies that produce these is the President’s national intelligence be able to be publicly discussed. But remarkable systems. There are unique- officer. John Deutch’s Government CIA, no less than any other agency of ly talented people working for these background is in defense, and his testi- Government, must operate in accord- companies, engineers and technicians mony before the Committee made clear ance with American law and American who turn the requirements statement that he understands the priority of in- values. One purpose of congressional into reality. If we do not keep these telligence support to the military. But oversight of intelligence is to ensure he also understands the role of na- people at work in profitable undertak- that this is so. Oversight cannot work tional intelligence, and he understands ings, the Government will never be if CIA does not inform Congress, or an- that not every problem facing the able to afford new systems. That is swer Congress’ questions. Failure to country is a military problem. He is why Senator WARNER and I, last year, promptly inform is one of the most urged the administration to permit aware, for example, of the intelligence community’s contributions against troubling aspects of both the Ames U.S. companies to sell 1-meter space case and the Guatemala case. Bad news imagery and imaging equipment. We international terrorism, against drug trafficking, against illegal trade prac- does not improve with age. The with- did not want to see remote sensing, a tices. He knows how important intel- holding of bad news—withholding in- technology in which we lead the world, ligence is to this administration’s formation on an intelligence failure— go the way of the space launch. We also international economic decisionmak- jeopardizes the oversight system with- wanted America to dominate this ing, and he knows that warning the out which the United States cannot growing industry. The administration President about the economic crisis in conduct foreign intelligence oper- saw it the same way, and John Deutch Mexico last year was at least as impor- ations. John Deutch clearly under- is a firm supporter of the administra- tant as warning about a military crisis stands his reporting responsibilities, tion policy. He knows that our indus- in some less important region of the and I believe Directors Gates and Wool- trial base is our true national treasure, world. It is ironic that, with the end of sey and Studeman also understood. The and he will continue to watch over its the cold war, the Director of Central challenge for John Deutch is to know health. Intelligence has a broader national what is happening inside his organiza- Intelligence technology routinely charter than ever. It is an irony which tion, so the bad news gets to him first. saves American lives, but we should be John Deutch understands. That is the mark of a tight, con- alert to opportunities to make it useful The intelligence community includes fident, organization. John Deutch has to Americans in other ways. For exam- much more than the CIA. The National some great material to work with, but ple, the National Information Display Security Agency, the Defense Intel- it is up to him to forge that kind of or- Laboratory in Princeton, NJ, noticed ligence Agency, FBI, and the State De- ganization. that the technology that helped im- partment’s Bureau of Intelligence and If anybody in this great country of agery analysts understand images bet- Research all play their largely unique ours is up to that job, John Deutch is ter could also be helpful to radiologists roles. But no question, CIA, unfortu- the person to get the job done. scanning a mammogram for early signs nately, lately has been at the center of I yield the floor. of breast cancer. NIDL teamed with controversy and likely will continue to Mr. MOYNIHAN addressed the Chair. Massachusetts General Hospital to be. At least initially, the heart of John The PRESIDING OFFICER. The Sen- adapt the technology, and the outcome Deutch’s task will be to make the CIA ator from New York [Mr. MOYNIHAN] is could be as many as 15,000 American more efficient and accountable to the recognized. lives saved each year. American people. I am greatly encour- Mr. MOYNIHAN. I thank my gallant Other opportunities abound for the aged, as the chairman indicated ear- friend from Nebraska. I rise very much dual-use intelligence technology. We lier, by his testimony on the sense of in support of the position he has taken have just begun to make public use of accountability and responsibility that and that of the distinguished chairman space images and other intelligence he intends to bring to CIA’s Direc- of the committee, the Senator from collected during the cold war. The de- torate of Operations. I have visited CIA classification process has begun and we officers in the field, and I know the Pennsylvania. must push the process until we can high quality of the people John Deutch I would say by way of introduction fairly say that intelligence technology will lead. These are clear-headed, posi- that in the 103d Congress and then on serves not just a handful of tive, enthusiastic Americans. The cur- the first day of the 104th Congress, I of- decisionmakers in Washington but the rent senior managers should get credit fered legislation that would basically 250 million decisionmakers across our for recruiting and training and moti- break up the existing Central Intel- country. vating a fine crop of younger officers. ligence Agency and return its compo- Mr. President, when I was a young Now it is time, as Mr. Deutch put it in nent parts to the Department of De- man operating in the U.S. Navy Seal his own testimony, for the seniors to fense and the Department of State in team, we had a piece of advice we tried let the younger officers take the reins. the manner that the OSS, the Office of to follow all of the time, which was As they take over, they must recruit Strategic Services, was divided and that unless you had a need to know and retain more women and minorities, parceled out with the onset of peace in something, you did not press the bet and they must be alert to gender dis- 1945 and 1946, to be followed, of course, and try to acquire it. We did not dis- crimination in assignments and pro- by a cold war which has persisted al- seminate intelligence to people who did motions. The Directorate of Operations most until this moment. not have a need to know. Mr. Presi- has never been an easy place for women I had hoped to encourage a debate on dent, there are 250 million citizens of to get a fair opportunity to make their the role of intelligence and of secrecy the United States of America who need mark. Not only is gender discrimina- in the American society. That debate to know increasingly a set of complex tion illegal, it is also stupid because it has taken place. Some of the results, I facts in order to make decisions about denies the American people the brain think, can be seen in the nomination of our foreign policy, in order to make de- power of more than 50 percent of our this distinguished scientist and public cisions about our domestic policy, in people. It also creates resentments servant to this position. order to make decisions about all sorts which can dangerously weaken the It could not have been more clear of things that are increasingly confus- agency. I have heard all the excuses for than in his testimony in which he ing our citizens. discrimination, and none of them wash. made a point, self-evident we would S 6268 CONGRESSIONAL RECORD — SENATE May 8, 1995 suppose, but not frequently to be en- (See exhibit 1.) cil in the Department of State, in countered in the pronouncements of Mr. MOYNIHAN. Mr. President, what which he said of the Soviet Union, I am potential DCI’s. He said: we have is so much at variance with not one of those 6 percent forever peo- Espionage does not rest comfortably in a what was thought we would get. ple, but there it was, locked into the democracy. Secrecy, which is essential to Allen Dulles was very much part of analyses. That is what the President protect sources and methods, is not welcome the foundation of postwar intelligence, knew. in an open society. If our democracy is to having been in the OSS, served with Mr. President, in Richard Reeves re- support intelligence activities, the people great distinction in Switzerland during markable biography of John F. Ken- must be confident that our law and rules will World War II. nedy, he records that the agency told be respected. Peter Grose, in his new biography, the President that by the year 2000 the It may have come as a surprise—al- ‘‘Gentleman Spy: The Life of Allen GNP of the Soviet Union would be though it ought not to have—in recent Dulles,’’ recounts the testimony Dulles three times that of the United States. months and weeks, to find how many gave before the Senate Armed Services And that is what the President knew. A persons there are in this country who Committee on April 25, 1947, as we are person might come to him with the do not have confidence that our laws about to establish, passed the National most reasonable arguments, as did any and rules will be respected; who see the Security Act of 1947 and created this number of economists. The great theo- government in conspiratorial modes, small coordinating body, the Central rists, Friedman, Hayek, Stigler, said it directed against the people in ways Intelligence Agency. could not happen, it would be theoreti- that could be of huge consequence to Personnel for a central intelligence cally impossible. Important work done Americans. agency, he argued, ‘‘need not be very by Frank Holzman, at Tufts, and the I am not talking about what Richard numerous * * *. The operation of the Russian Research Center at Harvard Hofstadter referred to when he spoke of service must be neither flamboyant nor said, ‘‘No, no. That is all very well ‘‘the paranoid style in American poli- overshrouded with the mystery and ab- what you say professor. What I know is tics.’’ I am talking about the wide- racadabra which the amateur detective different.’’ spread belief that the CIA was some- likes to assume.’’ In a lecturing tone, The consequences have been an ex- how involved in the assassination of he tried to tell the Senators how intel- traordinary failure to foresee the President Kennedy, if we can imagine. ligence is actually assembled. central event of our time. A vast over- But there it is. Because of its glamour and mystery, over- dependence on military and similar It is important to understand how emphasis is generally placed on what is outlays, that leave us perilously close deep this is in our society. In 1956, even called secret intelligence, namely the intel- to economic difficulty ourselves. before Hofstadter spoke of it; Edward ligence that is obtained by secret means and I would like to close with a letter A. Shils of the University of Chicago— by secret agents. . . . In time of peace the written me in 1991 by Dale W. who just passed away—that great, bulk of intelligence can be obtained through overt channels, through our diplomatic and Jorgenson, professor of economics at great, social scientist, published his consular missions, and our military, naval the Kennedy School of Government, in book, ‘‘The Torment of Secrecy,’’ in and air attahce´s in the normal and proper which he said: which he wrote ‘‘The exfoliation and course of their work. It can also be obtained I believe that the importance of economic intertwinement of the various patterns through the world press, the radio, and intelligence is increasing greatly with the of belief that the world is dominated by through the many thousands of Americans, much-discussed globalization of the U.S. unseen circles of conspirators, operat- business and professional men and American economy. However the cloak-and-dagger ing behind our backs, is one of the residents of foreign countries, who are natu- model is even more inappropriate to our new characteristic features of modern soci- rally and normally brought in touch with economic situation than it was to the suc- what is going on in those countries. cessful prosecution of the Cold War that has ety.’’ A proper analysis of the intelligence ob- Such a belief was very much a fea- just concluded. The lessons for the future tainable by these overt, normal, and above- seem to me to be rather transparent. The ture of the Bolshevik society that took board means would supply us with over 80 U.S. government needs to invest a lot more shape in 1917 and 1918. The conspira- percent, I should estimate, of the informa- in international economic assessments. * ** torial decision to help found and fund tion required for the guidance of our na- (I)t should reject the CIA monopoly model in the United States, a Communist tional policy. and try to create the kind of intellectual party, half of which would be class des- Mr. President, that could not happen, competition that now prevails between CBO tiny, the discovery from the archives did not happen. We entered upon a five- and OMB on domestic policy, aided by in Moscow that John Reed received a decade mode of secret analysis, analy- Brookings, AEI [American Enterprise Insti- payment of $1.5 million in 1920. Even as sis withheld from the scrutiny, which tute], the Urban Institute, the Kennedy School, and many others. soft money, that would be a very con- is the only way we can verify the truth siderable sum today. of a hypothesis in natural science or I ask unanimous consent the entire In the pattern that societies go the social sciences. letter be printed in the RECORD at the through, it is said that organizations The result was massive miscalcula- conclusion of my remarks. become like one other. To an extraor- tion, Nicholas Eberstadt in his wonder- The PRESIDING OFFICER. Without dinary degree we emulate the Soviet ful new book, ‘‘The Tyranny of Num- objection, it is so ordered. model in our own intelligence service. bers,’’ writes ‘‘It is probably safe to say (See exhibit 2.) Unintentionally, naturally, it hap- that the U.S. Government’s attempt to Mr. MOYNIHAN. Those are the re- pens that way, but a very powerful describe the Soviet economy has been marks I would like to make, sir. I have analyses of this has just been written the largest single project in social the confidence that John Deutch, as a by Jefferson Morley in the Washington science research ever undertaken.’’ He scientist, will follow them. I have the Post under the headline ‘‘Understand- said that, sir, in 1990, in testimony be- concern that the administration will ing Oklahoma’’ in an article entitled fore the Committee on Foreign Rela- not. ‘‘Department of Secrecy: The Invisible tions. ‘‘The largest single project in so- We do know some things in social Bureaucracy That Unites Alienated cial science research ever undertaken,’’ science. Mancur Olson, in his great America in Suspicion.’’ and it was a calamity. book, ‘‘The Rise and Decline of Na- Or by Douglas Turner, in an article No one has been more forthright than tions,’’ on this day, V–E Day—I was a this weekend in the Buffalo News. I Adm. Stansfield Turner in an article in sailor on V–E Day, so I can remember spoke of these concerns in an earlier Foreign Affairs about this time. He that—I can remember the Boston Com- statement on the Senate floor entitled said when it came to predicting the mon, actually— Mancur Olson asked: ‘‘The Paranoid Style in American Poli- collapse of the Soviet Union, the cor- Why has it come about that the two na- tics,’’ which I ask unanimous consent porate view of the intelligence commu- tions whose institutions were destroyed in World War II, Germany and Japan, have had be printed in the RECORD along with nity was totally wrong. the most economic success since? Whereas the articles by Douglas Turner and Jef- I can remember the first years of the Britain—not really much success at all; the ferson Morley. Kennedy administration. I remember United States—yes, but.’’ And he came up The PRESIDING OFFICER. Without having a meeting with Walt Rostow, with a simple answer. The defeat wiped out objection, it is so ordered. Chairman of the Policy Planning Coun- all those choke points, all those rents, all May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6269 those sharing agreements, all those veto One night early in March, 1854, a group of He speaks of official Washinton’s ‘‘enor- structures that enable institutions to pre- Know-Nothings broke into the storage sheds mous secrecy system . . . which just ex- vent things from happening. And we are see- on the monument grounds and dragged the pands, if anything, which we’re in on and ev- ing it in this Government today, 5 years Pope’s marble off towards the Potomac. Save eryone out there is not, is out of, and easily after the wall came down. for the occasional ‘‘sighting’’, as we have it’s a culture that breeds paranoia.’’ Remember, 2 years before the wall come to call such phenomena, it has never to For years, Sen. Moynihan has been sound- ing a warning about what he calls our cul- came down the CIA stated that per cap- be located since. Work on the monument stopped. Years ture of paranoia. In an article he penned four ita GDP was higher in East Germany later, in 1876, Congress appropriated funds to years ago, Moynihan said Stone’s film, than in West Germany. I hope I take no complete the job, which the Corps of Engi- ‘‘JFK,’’ could ‘‘spoil a generation of Amer- liberty that I mentioned this once to neers, under the leadership of Lieutenant ican politics just when sanity is returning.’’ Dr. Deutch and added ‘‘Any taxi driver Colonel Thomas I. Casey did with great Realizing he couldn’t do much about popu- in Berlin could have told you that was flourish in time for the centennial observ- lar culture, Moynihan set about stripping not so.’’ And Dr. Deutch replied, ‘‘Any ances of 1888. down government’s role in creating fear by Dread of Catholicism ran its course, if going after the mountain of official secrets taxi driver in Washington.’’ But if we generated annually. cannot summon the capacity to change slowly. (Edward M. Stanton, then Secretary of War was convinced the assassination of To that end, on Jan. 22, 1993, Moynihan in- our institutions in our changed cir- President Lincoln was the result of a Catho- troduced a bill creating a bipartisan commis- cumstances, there will be consequences lic plot.) Other manias followed, all bril- sion on reducing and protecting government and let nobody say they were not pre- liantly describe in Richard Hofstadter’s re- secrecy. A Democratic Congress passed it dictable. velatory lecture ‘‘the Paranoid Style in and President Clinton made it law. Mr. President, I thank the Senator American Politics’’ which he delivered as the The commission had its first meeting in from Texas for her graciousness for al- Herbert Spencer Lecture at Oxford Univer- January and elected Moynihan chairman. sity within days of the assassination of John Other members include Sen. Jesse Helms, R- lowing me to speak when in fact in al- N.C., who was appointed by Sen. Majority ternation it would have been her turn. F. Kennedy. Which to this day remains a fer- tile source of conspiracy mongering. George Leader Bob Dole, R-Kansas; Ellen Hume of EXHIBIT 1 Will cited Hofstadter’s essay this past week- Annenberg Washington Program, who was [From the Congressional Record, Apr. 25, end on the television program ‘‘This Week named by the president; a Harvard professor, 1995] with David Brinkley.’’ He deals with the and Clinton’s nominee to head the CIA, John THE PARANOID STYLE IN AMERICAN POLITICS same subject matter in a superb column in Deutch. this morning’s Washington Post which has It has an office in an old Navy Building Mr. MOYNIHAN. Mr. President, As we think with view of the Potomac, and a staff direc- and, indeed, pray our way through the after- this bracing conclusion. ‘‘It is reassuring to remember that tor, Eric Biel, formerly a senior Senate staff- math of the Oklahoma City bombing, asking er. It has had a couple of organizational how such a horror might have come about, paranoiacs have always been with us, but have never defined us.’’ meetings, all public. And its first real work- and how others might be prevented, Senators ing session will be on May 17. I hope, Mr. President, as we proceed to could do well to step outside the chamber Moynihan in a television interview joked consider legislation, if that is necessary, in and look down the mall at the Washington ‘‘we’ve managed to conceal our activities so response to the bombing, we would be mind- Monument. It honors the Revolutionary gen- far by holding public hearings. Nobody goes ful of a history in which we have often over- eral who once victorious, turned his army to public hearings.’’ reached, to our cost, and try to avoid such an over to the Continental Congress and retired On the 17th, the commission will hear overreaction. to his estates. Later, recalled to the highest about official secrets from officials of the We have seen superb performance of the office in the land, he served dutifully one National Security Council, who are cooperat- FBI. What more any nation could ask of an term, then a second but then on principle ing as a result of an executive order issued internal security group I cannot conceive. not a day longer. Thus was founded the first by President Clinton three weeks ago. republic, the first democracy since the age of We have seen the effectiveness of our State Government files harbor nearly a billion Greece and Rome. troopers, of our local police forces, fire de- official secrets. There is no a more serene, confident, partments, instant nationwide cooperation It generates about 7 million of them a untroubled symbol of the nation in all the which should reassure us rather than fright- year. But the secret, Moynihan wrote, is that capital. Yet a brief glance will show that the en us. the government ‘‘only counts (secrets) up to color of the marble blocks of which the I would note in closing, Mr. President, that the level of Top Secret. monument is constructed changes about a Pope John Paul II will be visiting the United ‘‘All the real secrets are higher than that quarter of the way up. Thereby hangs a tale States this coming October. I ask unanimous with code names I am not at liberty to re- of another troubled time; not our first, just consent that Mr. Will’s column be printed in veal, having taken a kind of vow of secrecy as, surely, this will not be our last. the Record. when I became vice chairman of the Senate As befitted a republic, the monument was Select Committee on Intelligence,’’ he said. started by a private charitable group, as we [From the Buffalo News, May 8, 1995] Three million government employees have would now say, the Washington National GOVERNMENT SPOOKS, BEWARE—MOYNIHAN security clearances up to top secret. This is Monument Society. Contributions came in AIMS TO REVEAL SECRETS fairly common stuff as most field grade mili- cash, but also in blocks of marble, many tary officers, beginning with lieutenants, are with interior inscriptions which visitors (By Douglas Turner) entitled to top secret access. willing to climb the steps can see to this WASHINGTON.—For generations, artists like The plethora of secrets, security levels and day. A quarter of the way up, that is. For in Jules Verne, Graham Greene, Steven ‘‘cleared’’ employees has made a joke of the 1852, Pope Plus IX donated a block of marble Spielberg, and Peter Benchley in his novel security system itself—with ‘‘secret’’ mate- from the temple of Concord in Rome. In- ‘‘White Shark,’’ have harnessed the public’s rial spilled into defense and intelligence stantly, the American Party, or the Know- flirtation with fear for innocent profit, fame trade publications every day. Nothings (‘‘I know nothing,’’ was their and fun. ‘‘They’’ can see it, but you can’t. standard reply to queries about their plat- There is something lurking out there, or Then there are the active classified files of form) divined a Papist Plot. An installation down there created by a force beyond our the FBI, the Bureau of Alcohol Tobacco and of the Pope’s block of marble would signal knowing. Firearms, the Secret Service, the Customs, the Catholic Uprising. A fevered agitation Far down the creative scale are conspiracy Immigration and Naturalization Service, the began. As recorded by Ray Allen Billington freaks Oliver Stone, Ian Fleming and the Border Patrol, the Department of Energy, in The Protest Crusade, 1800–1860: publishers of checkout-counter tabloids. and even the Department of Agriculture. ‘‘One pamphlet, The Pope’s Strategem: In dank corners of our society is a separate Official secrecy, endemic to big govern- ‘‘Rome to America!’’ An Address to the category: Those who subsist utterly in para- ment, dies hard. As in corporate life, and in Protestants of the United States, against noia: Oliver North, Gordon Liddy, David the highest aeries of journalism, secrets are placing the Pope’s block of Marble in the Duke, Tim McVeigh and those who put on not just the key to power. They are power. Washington Monument (1852), urged Protes- war paint and military fatigues, play with Official infatuation with secrecy is re- tants to hold indignation meetings and con- assault weapons, and preach war against a flected in the forbearance in President Clin- tribute another block to be placed next to popularly-elected constitutional govern- ton’s executive order. Existing secrets must the Pope’s ‘bearing an inscription by which ment. be declassified after 25 years, he said. Future all men may see that we are awake to the Like Sen. Joseph R. McCarthy, they nurse ones after 10 years. hypocrisy and schemes of that designing, on paranoia and propagate it. This would matter in an age when breech- crafty, subtle, far seeing and far reaching Sen. Daniel Patrick Moynihan, D-N.Y., load rifles were on the cutting edge of mili- Power, which is ever grasping after the suggests this last category either exploits, or tary science. The standard is ridiculous in whole World, to sway its iron scepter, with is partly driven by the web of government se- the light of today’s expanding technology. bloodstained hands, over the millions of its crets that has grown like spores since World Thanks to the reports the CIA issued— inhabitants.’ ’’ War II. based on ‘‘evidence’’ you and I could never S 6270 CONGRESSIONAL RECORD — SENATE May 8, 1995 see or evaluate—on Soviet weaponry and the the public trust and sending innocent Ameri- Cambridge, MA, March 18, 1991. economy, this country went on a military cans to their death. Senator DANIEL PATRICK MOYNIHAN, spending binge beginning with the Vietnam ‘‘The pathology of public attitudes toward U.S. Senate, Washington, DC. war and ending only three years ago. government are due in large part to exces- DEAR PAT: This is just a personal note of But these CIA fabrications served to jus- sive and unnecessary secrecy,’’ says Steven thanks for your eloquent and stimulating tify quantum leaps in spending on the Amer- Aftergood of the American Federation of contribution to the lunch discussion with ican defense establishment, and of course Scientists, a leading advocate of government the new National Research Council Board on covert CIA. We will be paying for that build- openness in Washington. Science, Technology, and Economic Policy up for the rest of our lives. The State Department, for example, re- last Friday. Needless to say, I think you are tains the right to withhold information that absolutely right about the significance of the [From the Washington Post, Apr. 30, 1995] would ‘‘seriously and demonstrably under- long-standing intelligence failure in assess- DEPARTMENT OF SECRECY mine ongoing diplomatic activities of the ing the Soviet economy and the Soviet mili- THE INVISIBLE BUREAUCRACY THAT UNITES United States.’’ Under this standard the CIA- tary effort. While I do not concur with your ALIENATED AMERICA IN SUSPICION in-Guatemala story would almost certainly Galbraithian view of economics as a failed profession, this has to be one of the great (By Jefferson Morley) still be secret and two American women would still be wondering who murdered their failures of economics—right up there with Scapegoating is a time-honored spring husbands. the inability of economists (along with ev- sport in Washington. Professionals of the eryone else) to find a remedy for the Great pastime are already in fine mid-summer For now, the effect of Clinton’s order is ex- pected to be modest. Depression of the 1930’s. form on Topic A: Who is responsible for the On your specific arguments: In 1985 Paul Oklahoma City bombing? Skillful soundbites ‘‘I don’t think it’s going to make much dif- ference,’’ said retired Lt. Gen. William Samuelson was relying on the CIA estimates, indict various culprits: Right-wing talk so that this is not an independent piece of radio, the NRA, lone nuts and (the ever-reli- Odom, the former director of the National evidence. For every quotation you can give able) ’60s counterculture. Security Agency and a skeptic of openness from people like Lawrence Klein, you can But while the theories fly, the All-Stars of efforts. Odom recalled that a similar direc- find a counter-argument in the writings of the Washington blame game somehow over- tive from President Carter in 1978 had little Friedman, Hayek, Stigler and many others. look one of the leading suspects in the minds effect on how he, Odom, actually classified All three have been amply rewarded for their of the American people: the Department of information for the government at the time. efforts with the Nobel Prize, the National Secrecy. Aftergood praised Clinton’s directive as a Medal of Science, and the esteem of their There is no official department of secrecy, distinct improvement over the old secrecy colleagues (with the conspicuous exception complete with Cabinet officer and official rules but added ‘‘I just hope we are at the be- of your former neighbor on Francis Avenue). seal. But there is the functional equivalent: ginning of a reform process, not the end.’’ They deserve a lot of credit for the positions the federal bureaucracy that keeps the gov- That will depend, in part, on what the pub- they took in the 1930’s all the way up to the ernment’s secrets. It consists of the offices lic, the president and Congress learn from 1980’s and they are getting it. and archives in the Pentagon, the intel- Oklahoma City. It seems to me that it is better to address ligence agencies, the FBI, the Bureau of Al- Is the bombing the work of isolated mad- cohol Tobacco and Firearms and other fed- the issue of international economic assess- men with no connection to the larger politi- ments within your framework of post-Cold eral agencies that classify and guard all cal culture? Or is it a warning of the patho- sorts of information considered too sensitive War recoversion that Galbaith’s entertaining logical possibilities opened up when the fed- to be shared with the American public. The but wrong-headed view of economics as a eral government loses the faith of its people? connection between this empire of informa- failed profession. Given the importance of These questions are especially pertinent tion and the Oklahoma City bombing is not economic assessments of the Soviet Union, it obvious but it is real. for people working within the secrecy sys- is almost incredible that the U.S. govern- First, the Department of Secrecy is a sig- tem. Most of them do not hide wrongdoing ment established an in-house monopoly on nificant presence in American society and from the American people. The information these assessments. The principal academic politics. Viewed on an organizational chart, they guard is often legitimately secret: mili- centers for research in this area at Columbia the federal secrecy system is bigger than tary codes, the names of law enforcement in- and Harvard were allowed to wither away. many Cabinet agencies. According to a formants, the U.S. position in international Over the past decade, Frank Holzman of Washington Post report last year, the se- trade talks and the like. Tufts and the Russian Research Center at crecy system keeps an estimated 32,400 peo- But they shrug off the widespread mistrust Harvard has been a lonely voice in opposi- ple employed full-time—more than the Envi- of their work at their own peril. With the tion to the CIA view. ronmental Protection Agency and the De- government generating so many secrets each I believe that the importance of economic partment of Education combined. According year—an estimated 6.3 million in 1993—and intelligence is increasing greatly with the to the Office of Management and Budget, the continuing revelations about governmental much-discussed globalization of the U.S. bureaucracy of secrets may cost as much as abuses of power, the line between the para- economy. However, the cloak-and-dagger $16 billion a year to run. noia of a few and legitimate fears of the model is even more inappropriate to our new Second, mistrust of the government and its many gets harder to draw. economic situation than it was to the suc- many secrets is now raging out of control. A few years ago, the notion that the U.S. cessful prosecution of the Cold War that has The assumption that the government is not government had, over the course of several just concluded. The lessons for the future accountable for its actions is now the norm. decades, routinely conducted dangerous radi- seem to me to be rather transparent. The It is an article of faith among many on the ation experiments on thousands of unwitting U.S. government needs to invest a lot more religious and paramilitary right (including, Americans would have been regarded by in international economic assessments. Sec- apparently, one of the bombing suspects in most reasonable people as unfounded, if not ond, it should reject the CIA monopoly custody) that the federal government has ridiculous. Today, thanks to the aggressive model and try to create the kind of intellec- not been held accountable for the 1993 raid in release of long-secret documents by Sec- tual competition that now prevails between Waco which left 85 people dead. retary of Energy Hazel O’Leary, the radi- CBO and OMB on domestic policy, aided by Liberals and the left were angered but not ation experiments are cold, disturbing his- Brookings, AEI, the Urban Institute, the surprised by the recent revelations about the torical fact. Kennedy School, and many others. CIA in Guatemala. In the name of protecting O’Leary’s leadership shows that full disclo- its ‘‘sources and methods,’’ the agency An important subsidiary lesson we can shielded from justice the Guatemalan colo- sure of embarrassing material is not politi- learn from the failure of the CIA Soviet as- nel who is the leading suspect in the murder cal or institutional suicide. In fact, the De- sessments is the importance of ‘‘sunshine’’. of an American innkeeper and the husband of partment of Energy, by all accounts, enjoys Although economic intelligence is always an American lawyer. more credibility on Capitol Hill and with the going to be sensitive to somebody, it should Robert McNamara’s memoirs are an infuri- public for coming clean. be carried out in full sight of the public, in- ating reminder to moderates that the veil of We don’t know what other abuses of gov- cluding the professional peers of the intel- secrecy allowed utterly respectable main- ernmental power, if any, the secrecy system ligence analysts. I hope that the new Na- stream Washington officials to send thou- is hiding. But we do know that a citizenry tional Research Council Board can contrib- sands of American boys to slaughter in a dis- without access to its own history has no ute to the post-Cold War re-conversion of our astrous and still-divisive war. guarantee of democratic accountability. And economic intelligence establishment in a In the movie theaters of America, the most as long as democratic accountability is in positive way. As I see it, this is a daunting treacherous, evil Hollywood villains often doubt, the citizenry, not just government of- task. To use a medical analogy, this will re- work inside the Department of Secrecy. Pop- fice buildings, will remain vulnerable. quire something more like a ‘‘life style’’ ular movies like ‘‘Outbreak’’ and ‘‘Clear and change than a simple remedy for a chronic Present Danger’’ routinely depict senior offi- EXHIBIT 2 disease. cials in Washington as smooth-talking HARVARD UNIVERSITY, JOHN F. KEN- I hope that you can find the time to criminals who think nothing of betraying NEDY SCHOOL OF GOVERNMENT, present your perspective on this issue to the May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6271 policy community, say in the form of an ar- forth the members of the National Se- If we had the vehicle in place to have ticle for Public Interest. This would be an in- curity Council and then designates oth- total financial disclosure, the CIA teresting opportunity to bring your ideas ers, including the Director of Central could immediately have begun to about post-Cold War conversion to a specific Intelligence and the Chairman of the check on this lifestyle to see if there problem of great importance to the national interest. Joint Chiefs of Staff, as officials who was something that was not right. With best regards, are not members but may attend and Clearly, it was not right the way Al- Yours sincerely, participate as the President directs. I drich Ames was living. And we found DALE W. JORGENSON. believe that is also the appropriate role out later it was because he was receiv- Mrs. HUTCHISON addressed the for the DCI with respect to the Cabi- ing millions of dollars from the Rus- Chair. net. sian Government for secrets that he The PRESIDING OFFICER. The Sen- Mr. Deutch was asked these ques- was giving to them from our CIA. So ator from Texas is recognized. tions in our Intelligence Committee we need the basic information. Mrs. HUTCHISON. Mr. President, I hearing on his nomination regarding Mr. Deutch said, and promised, that am always happy to yield to the senior the Cabinet status of the Director of he would make sure that every person Senator from New York, because I al- Central Intelligence. He assured the who works for the CIA, who willingly ways enjoy hearing what he has to say. committee that he would hold to the comes to work for the CIA, will give Mr. President, the importance of in- proper standard of conduct and that he basic financial disclosures. I think that telligence gathering for our Nation is would not allow policy to influence in- is going to be a very important tool for at a critical juncture. Never has it been telligence judgments and not allow in- us to show that there is an account- as important as it is today that we telligence to interfere in the policy ability in the CIA and that an Aldridge have foreign intelligence gathering ca- process. Ames case will not as easily be re- pabilities, particularly because we are That is a very important distinction peated and, if it is repeated, that we now facing a time when weapons of that the new Director has adopted and will have the ability to go in imme- mass destruction, nuclear, chemical which I think is very important for us diately and see what the assets are and biological, are being made in dif- to keep—the separation between intel- that have been disclosed and if some- ferent parts of the world. Even worse, ligence gathering and policymaking. thing seems to be amiss. the weapons that transport those weap- The committee is going to be sensitive So these are two areas that I am sat- ons are also being developed in dif- to any indication that this standard is isfied that Mr. Deutch is going to ad- ferent parts of the world. There is an not being met, but I believe the make- dress, and he has already given me his urgent need for us to know where those up of the Cabinet is the responsibility word that there is going to be financial weapons are and where the capabilities of the President. That is not within our disclosure among the CIA employees are to transport those weapons, either mission in confirmation. And, there- and people who are working for the CIA within their own theater or over to our fore, I hope the standards that we have under contract. country. discussed will be adhered to, both by So in conclusion, Mr. President, I So, there is no question in my mind the President and by the new Director support Secretary Deutch for the role that we must have a strong foreign in- of Central Intelligence. of Director of Central Intelligence. telligence gathering capability. We I brought up two major issues in This is one of the most important also have a problem. That is we need a committee that I thought were impor- nominations that we will have before leader and we need a focus and we need tant. First, a closer working relation- us this year, because this agency needs a mission for the people who are in our ship with the oversight committees in such direction. I believe Mr. Deutch intelligence gathering operations right Congress, the Intelligence Committee can provide that direction. I have now. We have had several mishaps. The in the Senate, and the one in the worked with him as a member of the Aldrich Ames case is one that has been House. I think it is most important Armed Services Committee in his ca- talked about on this floor and it is one when you have a covert operation pacity as Deputy Secretary of Defense. that is very troubling to us, even which, of course, intelligence gathering I find him to be a person of integrity. today. Many people feel this traitor is, to have an even more strong rela- I respect his judgment, and I think he was not dealt with in a way that will tionship and communications network did a fine job as Deputy Secretary of show there is an accountability when a with the oversight committees that Defense. I think he is the person to ful- drastic mistake happens. can assess the judgments that are fill this mission at this very important The lack of management account- being made in these covert operations. time in our intelligence gathering reor- ability did demonstrate, by recent It is good for Congress and it is good ganization. events in Guatemala, the lack of infor- for the intelligence gathering, as well. I think we must take our responsibil- mation that the oversight committees It is very important that we have an ity in confirming him, to do this in a had about the situation in Guatemala. oversight and we have the ability to swift and timely manner. We have had The escalation of terrorism all over the make judgments by the duly elected of- five DCI’s in the last 10 years. This world is causing an ongoing need for us ficials in the U.S. Congress when we agency needs leadership. We need some to have intelligence-gathering capabili- are dealing with such sensitive intel- reorganization. We need a mission, and ties. ligence matters. we need to make sure that we are using So, we do need a person who can take So I talked to the new Director-des- our assets efficiently and well so that control of our central intelligence- ignate about that. And he agreed to- everyone in our country is secure so gathering operation, lift the morale of tally that we needed to have that line that we have the information that we the wonderful people who work there, of communication, and I think it has need to keep that freedom, independ- and put an accountability into the sys- been reiterated by every person who ence, and liberty that we have. tem. We also need someone who can has spoken on the floor today, and So I am supporting Mr. Deutch for make it more efficient. As we are most certainly every member of the this very purpose. I wish him well. It is downsizing our budget we need to make committee. going to be a very tough job. I hope sure that we have a mission, that we The second issue that was very im- that he will work with Members of are using our assets in the most effi- portant to me was complete financial Congress who want him to succeed, and cient way. disclosure of every person who works we do. For all of our country, we must So we need someone to come in and at the CIA and every contractor who is succeed with this new Director. show that leadership. I believe John working on CIA projects. I felt this was Thank you, Mr. President. I yield the Deutch is that person. I think the important because one of the obvious floor. President has made a good decision. things that was missed in the Aldrich Mr. KERRY. Mr. President, I am There are some issues that must be Ames case was a high-living lifestyle pleased to join my colleagues today to dealt with. First, I must say I disagree by Aldrich Ames and his family, clear- urge confirmation of John Deutch as with the President giving Cabinet rank ly one that could not be shown to have Director of Central Intelligence. As a to the Director of Central Intelligence. been supported by a person on the sal- permanent resident of Belmont, MA, The National Security Act of 1947 sets ary of Aldrich Ames. and having a lifelong involvement in S 6272 CONGRESSIONAL RECORD — SENATE May 8, 1995 the Massachusetts community, John sions of, intelligence.’’ He added that plain exactly where he is headed and Deutch is a neighbor and a man who he sees ‘‘four significant dangers to our what he would like to do. has built a national and international national security and the social and During his confirmation hearing, I reputation as a leader and as a forceful economic well-being of our citizens.’’ heard Dr. Deutch speak of bringing in a and effective professional. I described He cites major regional conflicts; the new generation of leaders at the CIA, him publicly, not long ago, as ‘‘superb spread of weapons of mass destruction; streamlining imagery operations, and and first rate’’, and I reiterate that de- international terrorism, crime, and getting to the root of problems inside scription today, without hesitation and drug trafficking; and the present nu- the Operations Directorate. with renewed respect and continued clear danger that still exists in Russia Mr. President, John Deutch brings confidence in his extraordinary ability. and the Russian republics as they move with him a demonstrated track record Let me add a few words about the toward democracy. of achievement in both government task he will face and the talent he will I also see the new Director of Central and academia. He is widely respected bring to the position of Director of Intelligence moving, as he said he within the defense community for his Central Intelligence. The world is un- would, to improve the support that the performance as Secretary Perry’s dep- doubtedly changing. It will continue to intelligence community gives to law uty at the Pentagon and within the sci- change more quickly, perhaps, than at enforcement agencies in areas of nar- entific community for his tenure at the any other time in our history. We are cotics trafficking, international crime, Massachusetts Institute of Technology. seeing old threats and new threats and terrorism. I agree with his assess- I believe he is more than equal to the emerge in a shifting political and eco- ments and I am confident he will move task of restoring luster to the CIA. nomic atmosphere that will test our re- expeditiously to address the continuing As a member of the Armed Services solve and challenge our leadership. threat of the proliferation of weapons Committee, I have worked with John Mr. President, John Deutch is un- of mass destruction, and particularly Deutch, and I have seen firsthand the doubtedly up to the challenge, and he the emerging threat of terrorist at- quality of his work and his conscien- is a leader for his time. There is no tacks with these weapons. I see the tious commitment to our national de- question about that. He understands new Director re-defining and establish- fense and to the men and women who the critical task that he will face, and ing new standards for the proper role serve our country. the importance of facing it with re- for the intelligence community in the Finally, Mr. President, as a Senator solve, strength, and a firm hand. He areas of economic intelligence, and ad- from Virginia, I’m pleased that Dr. has proven that he knows the need and dressing the issue of making informa- Deutch understands the distress of tal- has the expertise to address what we tion, when appropriate, more readily ented Agency personnel and alumni all acknowledge are operational and available by lowering classifications or who have watched the CIA and other administrative problems at the CIA. As through declassification. And I see the intelligence branches endure a rough Director of Central Intelligence he will new Director, like every other director patch. He is, in my judgment, the right face two daunting managerial tasks: of a Federal agency, looking for ways man at the right time to restore dig- First, he must try to restructure the to economize and streamline the oper- nity and respect to deserving and hard- U.S. intelligence community at a time ations at CIA to give us more for our working public servants working in the when many believe there is no longer a tax dollars. Intelligence Community. need—nor the funds—for the level of in- From all we’ve heard about John Mr. President, I have high hopes for telligence activity to which we became Deutch, I believe he has the experience, Dr. Deutch’s tenure at the CIA, and I accustomed during the cold war. He the expertise, the professionalism, the urge my colleagues to support his nom- will have to balance proper and appro- reputation, the perseverance, the quali- ination. priate intelligence activity with in- fications and the integrity to do the Mr. President, I yield the floor. creasing congressional and public scru- job, and I urge my colleagues to con- tiny of scarcer and scarcer tax dollars. firm his nomination. NOMINATION OF JOHN M. DEUTCH TO BE THE Second, in the wake of recent events Thank you, Mr. President, and I yield DIRECTOR OF CENTRAL INTELLIGENCE at the CIA, he will have to look criti- the floor. Mr. NUNN. Mr. President, I am cally at internal operations and move THE NOMINATION OF JOHN DEUTCH TO BE pleased to support the nomination of quickly to rebuild morale, public trust, DIRECTOR OF CENTRAL INTELLIGENCE John M. Deutch to be the Director of and confidence while maintaining the Mr. ROBB. Mr. President, I would Central Intelligence. The nomination integrity of America’s intelligence ca- like to add my voice in support of the of Dr. Deutch, who presently serves as pability. As far as restructuring the in- nomination of Dr. John Deutch to be the Deputy Secretary of Defense, has telligence community, I believe John Director of Central Intelligence. This received the unanimous, bipartisan Deutch has one very important advan- nomination is extremely important, support of the Senate Select Commit- tage over many who could have been Mr. President, because the Central In- tee on Intelligence. This strong support chosen to serve. He is not an architect telligence Agency is at a crossroads reflects Dr. Deutch’s outstanding of either the current intelligence sys- and I believe John Deutch has what its qualifications, including his first-rate tem or the processes that have been going to take to redirect the Agency’s performance as Deputy Secretary of put into place. He is a fresh face, a new course during its next few crucial Defense and Under Secretary of De- voice, a real leader with the talent and years. fense for Acquisition. the foresight to succeed. There is no question that strong I have had the opportunity to work Now, as far as what Secretary Deutch leadership is critical for the CIA to be closely with Secretary Deutch, both in will face at the CIA, operationally and able to transform the Agency’s mission my prior capacity as chairman of the administratively, there is a need to act into one that provides policymakers Armed Services Committee and in my expeditiously to turn things around with timely, useful, and target-specific current role as ranking minority mem- even if it means significant personnel intelligence. CNN can cover the world; ber. He has made an outstanding con- changes, and I am confident that John the CIA needs to bring greater atten- tribution at the Department of De- Deutch has the necessary judgment tion and resources to bear on countries fense, and is well-qualified to serve as and will to quickly act in the best in- and issues that represent a threat to the Director of Central Intelligence. terest of the Agency and the Nation. our national security interests. Secretary Deutch came to the De- Mr. President, the American intel- Dr. Deutch was brutally frank in his partment of Defense following a long ligence community will be well served assessment of CIA successes and fail- and distinguished academic and gov- by the experience and leadership of ures, and refreshingly candid about ernment career. His positions in aca- John Deutch who rightfully observed what he would like to accomplish as demia included service as provost and in his statement to the Intelligence DCI. His candor was unusual, since institute professor at the Massachu- Committee that ‘‘changing intelligence nominees normally go out of their way setts Institute of Technology. His prior priorities, as well as intelligence fail- to avoid categorical statements about Government experience included serv- ures, dictate that we carefully re-ex- agendas and work plans. Dr. Deutch, in ice on the staff of the Office of the Sec- amine the need for, and specific mis- contrast, went out of his way to ex- retary of Defense during the early May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6273 1960’s, and as Under Secretary of En- creasingly citizens are needing and United States the capacity, the Presi- ergy during the late 1970’s. In addition, asking for information that will enable dent the capacity, through his United he served on the Defense Science Board them to judge whether or not their tax Nations, our U.N. Ambassador, the and on many other advisory boards dollars are being well spent. I would ability to make the argument to keep over the years. argue that this condition of being un- the sanctions still tightening around In 1993, he was nominated by Presi- able to disclose sometimes puts us in a the nation of Iraq. dent Clinton and confirmed by the Sen- position of not being able to give citi- In both cases, the United States of ate to serve as the Under Secretary of zens information or having them say, America received benefit. Who knows Defense for Acquisition. When Bill ‘‘Now I understand why we are doing what the cost to the world would have Perry became the Secretary of Defense this, and I believe we are in fact get- been had North Korea been permitted in 1994, Dr. Deutch was nominated and ting our money’s worth.’’ to continue building its nuclear capa- confirmed to his current position as I would like as a consequence to iden- bility or had the sanctions been Deputy Secretary of Defense. tify for citizens two recent events that dropped from Iraq, a nation that con- I have known Secretary Deutch per- were publicly disclosed. And for the in- tinues to exhibit dangerous tendencies, sonally for many years, including the formation of citizens, it is the Presi- indeed dangerous actions. periods of his service in the Depart- dent of the United States who has the I cite those two amongst the latest ment of Energy and during his tenure controlling authority both to make a that have been disclosed publicly be- at MIT. His entire career—both in aca- classification decision and to make a cause citizens deserve to get enough in- demia and in Government service—has declassification decision. That decision formation upon which they can make a been devoted to developing creative is spelled out in statute. It is not a de- decision about whether or not we are and thoughtful approaches to national cision that can be made by either the either sort of captive to the intel- defense and intelligence policy issues. Congress, in the absence of changing ligence community, as is very often Secretary Deutch has compiled as the law, or an individual Member of suspected by many who are not on this solid record in the Department of De- Congress. But two recent disclosures, Intelligence Committee, and perhaps fense as a strong manager. He has probably, I suspect, disclosed by a deci- other citizens as well, that we in fact served the Nation well, not only in the sion made by the President to make management of internal Department of the disclosure, underscore the impor- are looking at these successes, insist- Defense functions, but also as the DOD tance of this intelligence effort. ing upon accountability, trying to as- official with primary responsibility for The first was that the United States sess the threats in the world and orga- interface with the intelligence commu- of America presented to the U.N. Secu- nize our intelligence efforts to meet nity. He knows how to solve problems, rity Council clear and present evidence those threats, to maintain the capabil- make clear decisions, and address that North Koreans were engaged in a ity to keep the United States of Amer- pressing issues. On the Armed Services policy, a strategy, an active effort to ica as safe as is humanly possible. Committee, we have appreciated his acquire nuclear capacity. We could say Let me, in addition, Mr. President, breadth of knowledge, his candor, and that they were, and people did or did point out that there are two things Mr. his willingness to engage in dialog. He not believe it. They mostly said, ‘‘Well, Deutch is going to be addressing which also has a good sense of humor, which maybe that is just the United States in some ways are a consequence of both he uses to put difficult issues in per- just sort of hung up again.’’ Because we our successes and at times our failures spective—a quality that will be most had the intelligence capacity, we pre- of the past. useful in his new position. sented information—in this case, im- The first is, many of the threats that The intelligence community faces ages—to the Security Council, and the we are now dealing with are threats many difficult challenges in the post- Security Council sees clearly North that are a consequence, sort of a resid- cold war era, particularly in the after- Korea is building nuclear capability ual, of the cold war. The proliferation math of the Ames espionage matter. and the Security Council takes actions threat on the nuclear, biological, and The Oklahoma City tragedy under- supportive of the United States’ effort chemical is a threat that came as a scores the dangers of terrorism in the to make certain that North Korea does consequence of our building capacity modern world. The tensions in the Per- not become a nuclear nation. and the Soviets’ building capacity. sian Gulf and North Asia, as well as the Again, with the use of images dis- This proliferation threat is a very real problems faced by the States of the closed to the public, our Ambassador to threat, and we are having to now take former Soviet Union, are but a few of the United Nations, Madeleine the sort of residual problem of the cold the difficult challenges facing the in- Albright, at the direction of the Presi- war and move it to the top of the list telligence community. John Deutch dent of the United States, at the time knowing that the bombing in Okla- has the experience and background to when the French and the Russians were homa City would be magnified several take on these challenges. I strongly weakening in their resolve in regard to thousand times over were either chemi- urge the Senate to confirm his nomina- sanctions on Iraq, buying into the cal, biological, or nuclear weapons to tion to be Director of Central Intel- Iraqis’ assertions that, ‘‘We are impov- be used in a terrorist effort. ligence. erished now; we don’t have very much This is a very real and present prob- Mr. KERREY addressed the Chair. money; and, no, we are not building lem. It requires the United States of The PRESIDING OFFICER (Mr. any chemical or biological chemical America to lead. No other nation is DEWINE). The Senator from Nebraska. capability, and we are not really a going to do it. We saw recently, when Mr. KERREY. Mr. President, there militaristic nation. You need not the President put sanctions on Iran, are, to my knowledge, no other Sen- worry about us any longer.’’ our friends in Europe said, ‘‘Well, we ators who wish to speak on this nomi- Our Ambassador presents, in a week- think that’s a bad idea. We want to nation. I will offer a couple of closing long trip to I think 10 or 12 nations, continue to engage with a country comments and then yield time, alert- again, images that are our intelligence that’s involved with terrorism.’’ ing colleagues who are watching of the images to these world leaders on the I do not know what they are going to possibility that we may be yielding Security Council, information clearly do; I suspect wait until something ter- back, and they have not told us they indicating that the Iraqi leader had rible were to happen. Only the United wanted to speak. They could rush over built a $1.2 billion palace, hardly the States of America can lead on that here and say a few words. sort of action taken by a nation that issue, lead trying to get Russia not to In my statement, I indicated, and it was impoverished; second, that chemi- sell nuclear technology to Iran. Only is correct, that one of the problems we cal and biological capability continued the United States of America, I believe, have with our intelligence effort is to be a problem; and that the acquisi- is willing to make the kind of diplo- that as a consequence of needing to tion of Kuwaiti military equipment matic and financial effort necessary to protect security, we are unable—the in- during their occupation of Kuwait was make this world safe in the area of nu- telligence people are unable—to brag being integrated into the Iraqi forces, clear, chemical, and biological weapons about successes, and thus not only is it giving lie to all three of the statements and the terrorism that comes from difficult for us to give credit, but in- made by the Iraqi leader and giving the that. S 6274 CONGRESSIONAL RECORD — SENATE May 8, 1995 There is a second problem, Mr. Presi- kind. And our citizens are increasingly excluding from the scope of the politi- dent, that our new, hopefully new Di- aware of the contribution of time and cal offense exception serious offenses rector of Central Intelligence is going effort that they have to make to be- typically committed by terrorists, e.g., to have to be dealing with. The distin- come informed about what is going on crimes against a Head of State or first guished Senator from New York in his in Chechnya, what is going on in the family member of either Party, air- comments referenced that, and that is former Yugoslavia, what is going on in craft hijacking, aircraft sabotage, not just a cynicism toward Govern- Mexico, what is going on in places crimes against internationally pro- ment but a precise suspicion that the where they have a difficult time pro- tected persons, including diplomats, CIA is involved in all sorts of things nouncing the name let alone making hostage-taking, narcotics-trafficking, that are bad. That the CIA is possibly decisions about what our foreign policy and other offenses for which the United responsible for the assassination of ought to be. I believe the technologies States and Hungary have an obligation John Kennedy is something that is ac- that we have at our disposal, if we to extradite or submit to prosecution tually honestly believed by some press the envelope judiciously and not by reason of a multilateral treaty, con- Americans who see a conspiracy in in a reckless fashion, can, indeed, help vention, or other international agree- which the Central Intelligence Agency our citizens make decisions and make ment. The United States and Hungary perhaps played some central role. it more likely that government of, by, also agree to exclude from the political We are going to have to face an awful and for the people works both in for- offense exception major common lot of that, Mr. President, and we are eign as well as domestic policy. crimes, such as murder, kidnapping, going to have to face it very squarely Mr. President, no one has traipsed and placing or using explosive devices. and very honestly. As I said earlier, I over to the floor to provide additional The provisions in this Treaty follow am very excited watching the accounts testimony, and I am prepared to yield generally the form and content or ex- of the celebration of the victory in Eu- back what time is remaining and yield tradition treaties recently concluded rope 50 years ago, watching old men re- the floor. by the United States. Upon entry into call the stories of bravery and heroism Mrs. HUTCHISON addressed the force, it will supersede the Convention and sacrifice. I say, with no interest in Chair. for the Mutual Delivery of Criminals, disparaging that success—I thrilled in The PRESIDING OFFICER. The Sen- Fugitives from Justice, in Certain that success and am unable to measure ator from Texas. Cases Between the Government of the truly the sacrifice and heroic behavior Mrs. HUTCHISON. We will also yield United States of America and the that was necessary, but it stands in back our time, and I will go forward Austro-Hungarian Empire, signed at stark contrast to an event that oc- and close. Washington, July 3, 1856, with certain curred, oh, I guess about a month or so f exceptions. ago when former Secretary of Defense This Treaty will make a significant McNamara published a mea culpa book REMOVAL OF INJUNCTION OF contribution to international coopera- saying that in 1966 the Secretary of De- SECRECY tion in law enforcement. I recommend fense of the United States of America, Mrs. HUTCHISON. I ask unanimous that the Senate give early and favor- with all the intelligence effort at its consent that the Injunction of Secrecy able consideration to the Treaty and disposal, had actually concluded that be removed from the extradition treaty give its advice and consent to ratifica- the war in Vietnam was unwinable. with Hungary (Treaty Document No. tion. Well, I was there in 1969. I do not re- 104–5), transmitted to the Senate by WILLIAM J. CLINTON. member McNamara saying anything THE WHITE HOUSE, May 8, 1995. about it then. And that kind of a state- the President today; and the treaty ment is the example of the sort of considered as having been read the first f thing, unfortunately, that feeds this time; referred, with accompanying pa- EXECUTIVE SESSION cynicism and this conspiracy theory pers, to the Committee on Foreign Re- and causes people to say that the Gov- lations and ordered to be printed; and ernment really is against rather than ordered that the President’s message trying to be on their side in making be printed in the RECORD. EXECUTIVE CALENDAR their lives not only safe but their lives The PRESIDING OFFICER. Without Mrs. HUTCHISON. As in executive secure as well. It means that we are objection, it is so ordered. session, I ask unanimous consent that going to have to press the envelope a The message of the President is as the Senate immediately proceed to the bit on secrecy. By that I mean we are follows: consideration of the following nomina- going to have to take great care that a To the Senate of the United States: tions on the Executive Calendar en secret is, indeed, necessary to protect With a view to receiving the advice bloc: calendar Nos. 107, 108, 109, 110, 111, the American people rather than pro- and consent of the Senate to ratifica- and 112; further, that the nominations tecting those who are operating, either tion, I transmit herewith the Treaty be confirmed en bloc, the motions to the Director of Operations or other Between the Government of the United reconsider be laid upon the table en sorts of entities. It cannot be that we States of America and the Government bloc; that any statements relating to keep a secret from the American peo- of the Republic of Hungary on Extra- the nominations appear at the appro- ple because we are afraid of what they dition, signed at Budapest on December priate place in the RECORD, the Presi- will do to us if we tell them the truth. 1, 1994. Also transmitted for the infor- dent be immediately notified of the It must be that a secret is being main- mation of the Senate is the report of Senate’s action, and that the Senate tained because we are concerned about the Department of State with respect then return to legislative session. our inability to carry out an important to this Treaty. The PRESIDING OFFICER. Without security mission if full disclosure were The Treaty is designed to update and objection, it is so ordered. to occur. standardize the conditions and proce- The nominations considered and con- As I indicated, there is a tremendous dures for extradition between the Unit- firmed en bloc are as follows: capacity in the intelligence commu- ed States and Hungary. Most signifi- THE JUDICIARY nity to help citizens in a very difficult cantly, it substitutes a dual-criminal- Maxine M. Chesney, of California, to be time acquire the information needed to ity clause for the current list of extra- United States District Judge for the North- become informed. When you are born in ditable offenses, thereby expanding the ern District of California. the United States of America, you are number of crimes for which extradition Eldon E. Fallon, of Louisiana, to be United given enormous freedoms at birth and can be granted. The Treaty also pro- States District Judge for the Eastern Dis- should have been told at some point vides a legal basis for temporarily sur- trict of Louisiana. during your public education or up- rendering prisoners to stand trial for Curtis L. Collier, of Tennessee, to be Unit- ed States District Judge for the Eastern Dis- bringing by your parents or upbringing crimes against the laws of the Request- trict of Tennessee. by others, you should have been told ing State. Joseph Robert Goodwin, of West Virginia, that freedom is not free; that a con- The Treaty further represents an im- to be United States District Judge for the tribution has to be made back of some portant step in combating terrorism by Southern District of West Virginia. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6275 DEPARTMENT OF JUSTICE A resolution (S. Res. 116) recognizing and A SALUTE TO GLEN LEE FOR HIS Joe Bradley Pigott, of Mississippi, to be commending the Lakota and Dakota Code 33-YEAR CAREER Talkers. United States Attorney for the Southern Mr. HELMS. Mr. President, B. Glen District of Mississippi for the term of four The Senate proceeded to consider the years. Lee retired the other day, and just resolution. about everybody who ever had dealings UNITED STATES INSTITUTE OF PEACE Mrs. HUTCHISON. I ask unanimous with the gentleman will testify that Harriet M. Zimmerman, of Florida, to be a consent that the resolution and pre- for 33 years he was a worthy public Member of the Board of Directors of the amble be agreed to en bloc, and the mo- servant—which is just about the best United States Institute of Peace for a term tion to reconsider be laid on the table; expiring January 19, 1999. monument to any public servant. that any statements appear in the Glen Lee is indeed admired by his fel- f RECORD as if read. low citizens. It was Hawthorne who as- LEGISLATIVE SESSION The PRESIDING OFFICER. Without serted years ago that nobody who objection, it is so ordered. Mrs. HUTCHISON. What is the pend- needs a monument ever ought to have Mr. DASCHLE. Mr. President, today, one. ing business, Mr. President? as we celebrate the 50th anniversary of The PRESIDING OFFICER. The Sen- Glen Lee does not need a monument, V–E Day, I am proud to submit a reso- ate will now return to legislative ses- but he deserves the one he has. lution honoring a special group of sion. Mr. President, B. Glen Lee’s career World War II veterans, the code talkers was devoted to his diligent work with f of the Lakota and Dakota tribes. and for the U.S. Department of Agri- COMMONSENSE PRODUCT LIABIL- In the early days of World War II, culture. He was Deputy Administrator ITY AND LEGAL REFORM ACT American radio codes were continually of the USDA’s Plant Protection and being broken by Japanese cryptog- Quarantine Program—a part of the De- The Senate continued with the con- raphers, placing American lives at partment’s Health Inspection Service. sideration of the bill. great risk. In that capacity, Mr. Lee served so well The PRESIDING OFFICER. The That changed with the code talkers, that last year he was 1 of 6 winners of pending business is H.R. 956. who used their native American Indian the 1994 Executive Excellence Award f languages to communicate and relay presented by the Professional Develop- ment League. CLOTURE MOTION critical communications. It was a code the Japanese could not decipher. And, Mr. President, in that connec- Mrs. HUTCHISON. Mr. President, I The heroic efforts of the Lakota and tion he was singled out for praise for send a cloture motion to the desk. Dakota code talkers saved many lives. having persuaded the Peoples’ Republic The PRESIDING OFFICER. The clo- And it was just one of the many ways of China to allow the entry of United ture motion having been presented in which native Americans served their States apples and other produce. under rule XXII, the Chair directs the Nation with great honor and distinc- Glen Lee was graduated from N.C. clerk to read the motion. tion and valor during World War II. State University in 1962 and began his The legislative clerk read as follows: On December 1941, there were ap- career as an inspector in the Plant CLOTURE MOTION proximately 5,000 American Indians in Pest Control Division of the Ag Re- We, the undersigned Senators, in accord- the armed service. By the end of the search Division in North Carolina. His ance with the provisions of rule XXII of the war, more than 44,500 American Indians retirement rolled around while he was Standing Rules of the Senate, do hereby served in uniform. Indeed, more than 10 serving as the top plant protection offi- move to bring to a close debate on the percent of all native Americans, alive cial in the United States. Coverdell substitute amendment to H.R. 956, He served the American people well. the product liability bill. at the time served in World War II. Bob Dole, Slade Gorton, Pete Domenici, In 1982, Congress and a Presidential f Frank Murkowski, Spencer Abraham, proclamation recognized the heroic THE MOSCOW SUMMIT Trent Lott, Kay Hutchison, Chuck contributions of the Navajo code talk- Grassley, Rick Santorum, Jay Rocke- ers and their communication efforts Mr. BIDEN. Mr. President, I rise feller, Larry Pressler, Larry Craig, Don during World War II. Today, let us also today to praise President Clinton for Nickles, Conrad Burns, Christopher his determination to push forward our Bond, Bill Frist. recognize the patriotic efforts of the Lakota code talkers who served in the national agenda with the Russians at f same line of duty. this week’s summit in Moscow. MORNING BUSINESS And let us say to them It is no secret that recently several ‘‘pilamayapelo,’’ thank you. items of dispute have arisen to cloud Mr. NICKLES. Mr. President, I ask I yield the floor. the relationship between Russia and unanimous consent that there now be a So the resolution was agreed to. the United States. In response, there period for the transaction of morning The preamble was agreed to. have been scattered voices calling on business with Senators permitted to The resolution (S. Res. 116), with its the President to cancel his trip. speak for up to 5 minutes each. premable, is as follows: Mr. President, such a course would The PRESIDING OFFICER. Without have been a profound mistake, and I objection, it is so ordered. S. RES. 116 am gratified that our President had the The Senator from Nebraska. Whereas the Lakota and Dakota Code wisdom and maturity to stay the f Talkers, Native Americans who were mem- course. Russia, both in spite of and be- bers of the Sioux Nation, worked in radio cause of her current difficulties, re- RECOGNITION AND COMMENDA- communications during World War II and mains fundamentally important to this used their Lakota and Dakota languages to TION OF THE LAKOTA AND DA- country. We must remain engaged with KOTA CODE TALKERS relay communications; Whereas Japanese cryptologists never deci- the world’s other major nuclear power Mr. KERREY. I ask unanimous con- phered the Native American languages that and continue to strive to bring her into sent that the Senate proceed to the im- were used as codes during World War II, in- a European security system of demo- mediate consideration of Senate Reso- cluding the Lakota and Dakota languages; cratic countries. lution 116, a resolution to recognize and Moreover, British Prime Minister and commend the Lakota and Dakota Whereas the Lakota an Dakota Code Talk- Major, German Chancellor Kohl, and code talkers submitted earlier today by ers deserve to be recognized for their con- French President Mitterrand all will be tribution to the successful resolution of the Senator DASCHLE and Senator PRES- attending the ceremonies marking the war effort in the Pacific: Now, therefore, be SLER. it 50th anniversary of the end of World The PRESIDING OFFICER. Without Resolved, That the Senate recognizes and War II and honoring the heroic sac- objection, it is so ordered. The clerk commends the Lakota and Dakota Code rifices that the Russian people made in will report. Talkers for their invaluable contribution to the victorious struggle against nazism. The legislative clerk read as follows: the successful resolution of World War II. In that context it is unthinkable that S 6276 CONGRESSIONAL RECORD — SENATE May 8, 1995 the President of the United States Several arms control issues will cer- EC–877. A communication from the Under would be absent. tainly be on the agenda, including Secretary of Defense (Acquisition and Tech- But President Clinton’s attendance prospects for ratification of START II, nology), transmitting, pursuant to law, a re- at the Moscow summit in no way sig- crafting a joint strategy in support of port relative to the Foreign Comparative Testing Program for fiscal year 1994; to the nals tacit approval of Russia’s brutal the indefinite extension of the Nuclear Committee on Armed Services. behavior in Chechnya. On the contrary, Nonproliferation Treaty, demarcation EC–878. A communication from the Chair- President Clinton will make clear, as between antiballistic missiles and tac- woman of the Strategic Environmental Re- he has done in the past, that while we tical missile defense, and holding to search and Development Program Council, support the territorial integrity of the the terms of the Conventional Forces transmitting, pursuant to law, the Scientific Russian Federation, we strongly con- in Europe Treaty. Advisory Board’s annual report for fiscal demn Russian attacks on civilians in President Clinton will, I am certain, year 1994; to the Committee on Armed Serv- ices. Chechnya. The President will, I trust, explain in Moscow that cooperation on the issues I have enumerated would EC–879. A communication from the Sec- also call on President Yeltsin to extend retary of Energy, transmitting, pursuant to the current cease-fire in Chechnya and strengthen Russia’s case for member- law, a report relative to the Department’s make it permanent. ship in important international bodies responses to recommendations of the Defense Mr. President, another area of pro- such as the Group of Seven Advanced Nuclear Facilities Safety Board for calendar found difference with the Kremlin is Industrial Nations. year 1995; to the Committee on Armed Serv- the proposed sale of a Russian nuclear On the other hand, threatening to ices. curtail economic and technical assist- powerplant and delivery of nuclear f technology and training to Iran. Even ance to Russia because of disagree- though, legally speaking, Moscow is ments with Russian policy, as some in INTRODUCTION OF BILLS AND correct that its proposed sale falls the majority party in Congress have JOINT RESOLUTIONS within international guidelines, I am advocated, would be ‘‘shooting our- selves in the foot,’’ since such a move The following bills and joint resolu- convinced that Iran has embarked upon tions were introduced, read the first a program to build nuclear weapons could only serve to harm the transi- tions to a free-market economy and and second time by unanimous con- and, hence, that the sale would be a sent, and referred as indicated: reckless and counter productive act. true political democracy in Russia that are very much in the United States na- By Mr. INOUYE: Although it is highly unlikely at this S. 763. A bill to authorize the Secretary of point that Russia can be made to back tional interest. Mr. President, the way to move for- Transportation to issue a certificate of docu- down totally, President Clinton—on ward in our emerging relationship with mentation and coastwise trade endorsement site, face-to-face with President for the vessel Evening Star, and for other pur- the new Russia is not to sit pouting on Yeltsin—will be able to press for im- poses; to the Committee on Commerce, the sidelines. Rather, it is to engage portant adjustments such as prevent- Science, and Transportation. the Russians in open, frank, even con- ing the sale of a gas centrifuge plant, By Mr. GLENN: tentious dialog. S. 764. A bill to amend the Indian Child which would significantly increase the Americans can be proud that we have Welfare Act of 1978 to require that deter- danger of Iran’s being able to produce a President thoroughly versed in all minations concerning the status of a child as weapons-grade enriched uranium. Also, these highly complex matters and able an Indian child be prospective the child’s the President may push for an agree- date of birth, and that determinations of to bring the full weight of the Presi- ment whereby spent nuclear fuel would membership status in an Indian tribe be dency to bear in face-to-face negotia- based on the minority status of a member or be returned from Iran to Russia. tions. I have been dismayed at recent belli- written consent of an initial member over I know that all Americans join me in the age of 18, and for other purposes; to the cose statements by Senior Russian offi- wishing President Clinton every suc- Committee on Indian Affairs. cials against NATO expansion. In Mos- cess in his vitally important mission. By Mr. MCCAIN: cow, President Clinton will make crys- f S. 765. A bill to amend the Public Buildings tal-clear to President Yeltsin that Rus- Act of 1959 to require the Administrator of sia does not have veto power over any MESSAGES FROM THE PRESIDENT General Services to prioritize construction actions of NATO, including the alli- and alteration projects in accordance with Messages from the President of the merit-based needs criteria, and for other pur- ance’s enlargement. United States were communicated to In addition, President Clinton will poses; to the Committee on Governmental the Senate by Mr. Thomas, one of his Affairs. reiterate that NATO has always been a secretaries. defensive alliance and that binding f f qualified Central and East European democracies into the alliance’s com- EXECUTIVE MESSAGES REFERRED SUBMISSION OF CONCURRENT AND SENATE RESOLUTIONS prehensive security system will en- As in executive session the Presiding hance stability in the region and there- Officer laid before the Senate messages The following concurrent resolutions by be a gain, not a danger, for Russia. from the President of the United and Senate resolutions were read, and The President might pose the rhetori- States submitting sundry nominations referred (or acted upon), as indicated: cal question to Yeltsin whether Russia which were referred to the appropriate By Mr. DOLE (for himself, Mr. INOUYE, would prefer that there be potential committees. Mr. THURMOND, Mr. HEFLIN, Mr. STE- isolated loose cannon countries in the (The nominations received today are VENS, Mr. GORTON, Mr. WARNER, Mr. middle of Europe or fully integrated printed at the end of the Senate pro- BUMPERS, Mr. CHAFEE, Mr. PELL, Mr. HATFIELD, Mr. GLENN, Mr. ROTH, Mr. members of a defensive alliance led by ceedings.) the United States. The answer is surely HELMS, Mr. MOYNIHAN, Mr. LAUTEN- the latter. f BERG, Mr. EXON, Mr. AKAKA, Mr. In Moscow, President Clinton will be FORD, Mr. HOLLINGS, Mr. DASCHLE, EXECUTIVE AND OTHER Mr. ABRAHAM, Mr. ASHCROFT, Mr. able to urge President Yeltsin to sign COMMUNICATIONS BAUCUS, Mr. BENNETT, Mr. BIDEN, Mr. Russia up formally as a member of the The following communications were BINGAMAN, Mr. BOND, Mrs. BOXER, Partnership for Peace so that it can laid before the Senate, together with Mr. BRADLEY, Mr. BREAUX, Mr. participate on an ongoing basis in a accompanying papers, reports, and doc- BROWN, Mr. BRYAN, Mr. BURNS, Mr. range of discussions with NATO. BYRD, Mr. CAMPBELL, Mr. COATS, Mr. uments, which were referred as indi- COCHRAN, Mr. COHEN, Mr. CONRAD, There are other crucially important cated: outstanding issues to discuss with the Mr. COVERDELL, Mr. CRAIG, Mr. Russians at the Moscow summit. Presi- EC–876. A communication from the Comp- D’AMATO, Mr. DEWINE, Mr. DODD, Mr. troller of the Department of Defense, trans- DOMENICI, Mr. DORGAN, Mr. dent Clinton will undoubtedly urge mitting, pursuant to law, a report relative to FAIRCLOTH, Mr. FEINGOLD, Mrs. FEIN- that Russia continue its budget auster- obligations incurred in FY 1994 by US mili- STEIN, Mr. FRIST, Mr. GRAHAM, Mr. ity and privatization programs and tary obligations in Haiti; to the Committee GRAMM, Mr. GRAMS, Mr. GRASSLEY, other economic reforms. on Appropriations. Mr. GREGG, Mr. HARKIN, Mr. HATCH, May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6277 Mrs. HUTCHISON, Mr. INHOFE, Mr. JEF- INDIAN CHILD WELFARE IMPROVEMENT ACT dian Child Welfare Act, and I urge its FORDS, Mr. JOHNSTON, Mrs. KASSE- Mr. GLENN. Mr. President, I rise passage by the Senate. BAUM, Mr. KEMPTHORNE, Mr. KEN- today to introduce the Indian Child NEDY, Mr. KERREY, Mr. KERRY, Mr. Welfare Improvement Act of 1995. Rep- By Mr. MCCAIN: KOHL, Mr. KYL, Mr. LEAHY, Mr. resentative DEBORAH PRYCE has intro- S. 765. A bill to amend the Public LEVIN, Mr. LIEBERMAN, Mr. LOTT, Mr. duced companion legislation in the Buildings Act of 1959 to require the Ad- LUGAR, Mr. MACK, Mr. MCCAIN, Mr. ministrator of General Services to MCCONNELL, Ms. MIKULSKI, Ms. House. The purpose of this bill is to MOSELEY-BRAUN, Mr. MURKOWSKI, clarify the definition of ‘‘Indian child’’ prioritize construction and alteration Mrs. MURRAY, Mr. NICKLES, Mr. in the Indian Child Welfare Act of 1978. projects in accordance with merit- NUNN, Mr. PACKWOOD, Mr. PRESSLER, Mr. President, I rise today to intro- based needs criteria, and for other pur- Mr. PRYOR, Mr. REID, Mr. ROBB, Mr. duce the Indian Child Welfare Improve- poses; to the Committee on Govern- ROCKEFELLER, Mr. SANTORUM, Mr. ment Act of 1995. Representative DEBO- mental Affairs. SARBANES, Mr. SHELBY, Mr. SIMON, RAH PRYCE has introduced companion FEDERAL BUILDINGS CONSTRUCTION AND Mr. SIMPSON, Mr. SMITH, Ms. SNOWE, legislation in the House. The purpose ALTERATION FUNDING IMPROVEMENT ACT Mr. SPECTER, Mr. THOMAS, Mr. Mr. MCCAIN. Mr. President, today THOMPSON, and Mr. WELLSTONE): of this bill is to clarify the definition S. Res. 115. A resolution expressing the of ‘‘Indian child’’ in the Indian Child I’m introducing legislation to help en- sense of the Senate that America’s World Welfare Act of 1978. sure that funding for the construction War II veterans and their families are de- Mr. President, this legislation is a di- and repair of Federal buildings is allo- serving of this nation’s respect and apprecia- rect response to a situation involving a cated according to need and priority. tion on the 50th anniversary of V–E Day; family in Ohio. The Rost family of Co- First, the bill would require the considered and agreed to. lumbus, OH received custody of twin President to submit the administra- By Mr. DASCHLE (for himself and Mr. baby girls in the State of California in tion’s building construction budget re- PRESSLER): November 1993, following the voluntary quest in the form of a prioritized list of S. Res. 116. A resolution recognizing and projects. Second, and most impor- commending the Lakota and Dakota Code relinquishment of parental rights by Talkers; considered and agreed to. both birth parents. The biological fa- tantly, the bill would require the Gen- ther did not disclose his native Amer- eral Services Administration to pre- f ican heritage in response to a specific pare and maintain a ranked priority STATEMENTS ON INTRODUCED question on the relinquishment docu- list of all ongoing and proposed con- BILLS AND JOINT RESOLUTIONS ment. In February 1994, the birth fa- struction projects. The list would be ther informed his mother of the pend- updated and reprioritized with each By Mr. INOUYE: ing adoption. Two months later in new project added either through ad- S. 763. A bill to authorize the Sec- April 1994, the birth father’s mother ministrative or congressional action. retary of Transportation to issue a cer- enrolled herself, the birth father and Last year, the U.S. Government tificate of documentation and coast- the twin girls with the Pomo Indian spent nearly $400 million on Federal wise trade endorsement for the vessel Tribe in California. The adoption agen- building construction and repair. That Evening Star, and for other purposes; to cy was then notified that the twins is an enormous sum of money. Clearly, the Committee on Commerce, Science, may be eligible for tribal membership, the Federal building construction pro- and Transportation. and that the adoption could not be fi- gram can and must share in the sac- DOCUMENTATION FOR THE VESSEL ‘‘EVENING nalized without a determination of the rifice as we seek to gain control over STAR’’ applicability of the Indian Child Wel- the deficit. Mr. INOUYE. Mr. President, this pri- fare Act. As we rein in spending, it’s more crit- vate relief bill that I am introducing The bill I am introducing today clari- ical now than ever to ensure that would authorize a certificate of docu- fies existing law. The definition of In- scarce financial resources are allocated mentation and coastwise trade en- dian child in my bill would limit the to our highest priorities. dorsement for the vessel Evening Star, a applicability of the Indian Child Wel- In order to trim the fat in an in- small boat to be used for interisland fare Act to those living on a reserva- formed and efficient manner Congress, charters. I ask unanimous consent that tion and their children, and those who the administration and the taxpaying the bill be printed in the RECORD. are members of an Indian tribe. In ad- public must know what our construc- There being no objection, the bill was dition, the bill would stipulate that for tion priorities are. ordered to be printed in the RECORD, as the purpose of a child custody proceed- Earlier this year, during debate on follows: ing involving an Indian child, member- the rescission bill, the Senate consid- S. 763 ship in an Indian tribe is effective from ered proposals to cut Federal construc- Be it enacted by the Senate and House of Rep- the actual date of admission in the In- tion funding. The list of projects pro- resentatives of the United States of America in dian tribe and cannot be applied retro- posed for defunding was rather arbi- Congress assembled, actively. trary and capricious. The tenets of SECTION 1. CERTIFICATE OF DOCUMENTATION. To do otherwise, Mr. President, is good government dictate that when we Notwithstanding sections 12106 through not acting in the best interests of the reduce spending, our lowest priorities 12108 of title 46, United States Code, and sec- adopted children, and that is my prin- should be put on the chopping block tion 27 of the Merchant Marine Act, 1920 (46 cipal concern—the interests of the chil- first. Yet, Congress can not readily de- U.S.C. App. 883), the Secretary of Transpor- dren. termine what those priorities are. By tation may issue a certificate of documenta- Mr. President, I believe that this bill requiring the General Services Admin- tion and coastwise trade endorsement for the vessel EVENING STAR, hull identification does not in any way weaken or com- istration, which administers the Fed- number HA2833700774, and State of Hawaii promise current law or protections ex- eral building fund, to maintain a registration number HA8337D. tended to Native American children ranked list of project priorities, we can and families. The Indian Child Welfare be sure that funding decisions will be By Mr. GLENN: Act was enacted to provide safeguards made on the basis of merit rather than S. 764. A bill to amend the Indian or standards with respect to State politics or congressional caprice. Child Welfare Act of 1978 to require court proceedings involving Indian Mr. President, foremost, this amend- that determinations concerning the child custody matters, in an effort to ment will help us address the pork bar- status of a child as an Indian child be curb involuntary separation of Indian rel politics which has played far too prospective the child’s date of birth, children from their Indian families, great a role in the process of Federal and that determinations of member- heritage, and culture. These objectives building construction. Currently, when ship status in an Indian tribe be based and protections are not threatened by a member decides a new building is on the minority status of a member or the bill I am introducing. needed in his or her State or district, written consent of an initial member Mr. President, the Rost family is now the General Services Administration over the age of 18, and for other pur- facing a very difficult situation. This conducts what’s known as an 11b sur- poses; to the Committee on Indian Af- bill and the one introduced by Rep- vey to determine the need. In most fairs. resentative PRYCE will clarify the In- cases, the GSA determines that a need S 6278 CONGRESSIONAL RECORD — SENATE May 8, 1995 exists. The study is then used to justify [Mr. LEVIN] was added as a cosponsor of NELL, Ms. MIKULSKI, Ms. MOSELEY- project authorization and appropria- S. 457, a bill to amend the Immigration BRAUN, Mr. MURKOWSKI, Mrs. MURRAY, tion, even though a finding of need is and Nationality Act to update ref- Mr. NICKLES, Mr. NUNN, Mr. PACKWOOD, not a finding that such a project is a erences in the classification of children Mr. PRESSLER, Mr. PRYOR, Mr. REID, priority. for purposes of United States immigra- Mr. ROBB, Mr. ROCKEFELLER, Mr. As projects that are not in the Presi- tion laws. SANTORUM, Mr. SARBANES, Mr. SHELBY, dent’s budget request are added by S. 641 Mr. SIMON, Mr. SIMPSON, Mr. SMITH, Congress we do not always have a clear At the request of Mrs. KASSEBAUM, Ms. SNOWE, Mr. SPECTER, Mr. THOMAS, idea of where they are ranked among the name of the Senator from South Mr. THOMPSON, and Mr. WELLSTONE) competing priorities. Passage of this Carolina [Mr. THURMOND] was added as submitted the following resolution; legislation will ensure that this vital a cosponsor of S. 641, A bill to reau- which was considered and agreed to: information is readily available. thorize the Ryan White CARE Act of S. RES. 115 I hope that the relevant committees 1990, and for other purposes. Whereas on May 7, 1945 in Reims, France, will expeditiously examine this pro- S. 644 the German High command signed the docu- posal in the hope that we can approve At the request of Mr. CAMPBELL, the ment of surrender, surrendering all air, land rapidly this relatively minor but I be- name of the Senator from Idaho [Mr. and sea forces unconditionally to the Allies; lieve important and helpful change in Whereas President Harry S Truman pro- CRAIG] was added as a cosponsor of S. procedure. claimed May 8, 1945 to be V–E Day: 644, a bill to amend title 38, United Whereas May 8, 1995 is the 50th Anniver- f States Code, to reauthorize the estab- sary of that proclamation: ADDITIONAL COSPONSORS lishment of research corporations in Whereas, the courage and sacrifice of the the Veterans Health Administration, American fighting men and women who S. 12 and for other purposes. served with distinction to save the world At the request of Mr. ROTH, the from tyranny and aggression should always SENATE CONCURRENT RESOLUTION 9 names of the Senator from New York be remembered; Now, therefore, be it At the request of Mr. MURKOWSKI, the [Mr. D’AMATO], the Senator from Kan- Resolved, the United States Senate joins name of the Senator from New Hamp- sas [Mr. DOLE], the Senator from North with a grateful nation in expressing our re- shire [Mr. SMITH] was added as a co- spect and appreciation to the men and Carolina [Mr. FAIRCLOTH], the Senator sponsor of Senate Concurrent Resolu- women who served in World War II, and their from Pennsylvania [Mr. SANTORUM], tion 9, a concurrent resolution express- families. Further, we remember and pay trib- the Senator from Mississippi [Mr. ing the sense of the Congress regarding ute to those Americans who made the ulti- LOTT], the Senator from Kentucky [Mr. a private visit by President Lee Teng- mate sacrifice and gave their life for their MCCONNELL], the Senator from Wyo- hui of the Republic of China on Taiwan country. ming [Mr. SIMPSON], the Senator from to the United States. f Maine [Ms. SNOWE], the Senator from AMENDMENT NO. 545 Michigan [Mr. ABRAHAM], the Senator SENATE RESOLUTION 116—COM- At the request of Mr. BUMPERS the from California [Mrs. FEINSTEIN], and MENDING THE LAKOTA AND DA- names of the Senator from North Da- the Senator from Kentucky [Mr. FORD] KOTA CODE TALKERS kota [Mr. DORGAN], and the Senator were added as cosponsors of S. 12, a bill Mr. DASCHLE (for himself, Mr. from Illinois [Mr. SIMON] were added as to amend the Internal Revenue Code of INOUYE, Mr. MCCLAIN, and Mr. PRES- cosponsors of amendment No. 545 in- 1986 to encourage savings and invest- SLER) submitted the following resolu- tended to be proposed to H.R. 1158, a ment through individual retirement tion; which was agreed to: bill making emergency supplemental accounts, and for other purposes. S. RES. 116 appropriations for additional disaster S. 254 assistance and making rescissions for Whereas the Lakota and Dakota Code At the request of Mr. LOTT, the name Talkers, Native Americans who were mem- the fiscal year ending September 30, of the Senator from Massachusetts bers of the Sioux Nation, worked in radio 1995, and for other purposes. [Mr. KENNEDY] was added as a cospon- communications during World War II and sor of S. 254, A bill to extend eligibility f used their Lakota and Dakota languages to relay communications; for veterans’ burial benefits, funeral SENATE RESOLUTION 115—RELAT- Whereas Japanese cryptologists never deci- benefits, and related benefits for veter- ING TO THE 50TH ANNIVERSARY phered the Native American languages that ans of certain service in the United OF V–E DAY were used as codes during World War II, in- States merchant marine during World By Mr. DOLE (for himself, Mr. cluding the Lakota and Dakota languages; War II. and INOUYE, Mr. THURMOND, MR. HEFLIN, S. 343 Whereas the Lakota and Dakota Code Mr. STEVENS, Mr. GORTON, Mr. WAR- Talkers deserve to be recognized for their At the request of Mr. DOLE, the name NER, Mr. BUMPERS, Mr. CHAFEE, Mr. contribution to the successful resolution of of the Senator from Tennessee [Mr. PELL, Mr. HATFIELD, Mr. GLENN, Mr. the war effort in the Pacific: Now, therefore, FRIST] was added as a cosponsor of S. ROTH, Mr. HELMS, Mr. MOYNIHAN, Mr. be it 343, a bill to reform the regulatory LAUTENBERG, Mr. EXON, Mr. AKAKA, Resolved, That the Senate recognizes and process, and for other purposes. Mr. FORD, Mr. HOLLINGS, Mr. DASCHLE, commends the Lakota and Dakota Code S. 351 Talkers for their invaluable contribution to Mr. ABRAHAM, Mr. ASHCROFT, Mr. BAU- the successful resolution of World War II. At the request of Mr. HATCH, the CUS, Mr. BENNETT, Mr. BIDEN, Mr. f name of the Senator from Louisiana BINGAMAN, Mr. BOND, Mrs. BOXER, Mr. [Mr. BREAUX] was added as a cosponsor BRADLEY, Mr. BREAUX, Mr. BROWN, Mr. AMENDMENTS SUBMITTED of S. 351, a bill to amend the Internal BRYAN, Mr. BURNS, Mr. BYRD, Mr. Revenue Code of 1986 to make perma- CAMPBELL, Mr. COATS, Mr. COCHRAN, nent the credit for increasing research Mr. COHEN, Mr. CONRAD, Mr. COMMONSENSE PRODUCT activities. COVERDELL, Mr. CRAIG, Mr. D’AMATO, LIABILITY REFORM ACT S. 426 Mr. DEWINE, Mr. DODD, Mr. DOMENICI, At the request of Mr. SARBANES, the Mr. DORGAN, Mr. FAIRCLOTH, Mr. name of the Senator from Florida [Mr. FEINGOLD, Mrs. FEINSTEIN, Mr. FRIST, MOSELEY-BRAUN AMENDMENT NO. MACK] was added as a cosponsor of S. Mr. GRAHAM, Mr. GRAMM, Mr. GRAMS, 691 426, a bill to authorize the Alpha Phi Mr. GRASSLEY, Mr. GREGG, Mr. HARKIN, (Ordered to lie on the table.) Alpha Fraternity to establish a memo- Mr. HATCH, Mrs. HUTCHISON, Mr. Ms. MOSELEY-BRAUN submitted an rial to Martin Luther King, Jr., in the INHOFE, Mr. JEFFORDS, Mr. JOHNSTON, amendment intended to be proposed by District of Columbia, and for other pur- Mrs. KASSEBAUM, Mr. KEMPTHORNE, Mr. her to amendment No. 690, proposed by poses. KENNEDY, Mr. KERREY, Mr. KERRY, Mr. Mr. COVERDELL, to amendment No. 596, S. 457 KOHL, Mr. KYL, Mr. LEAHY, Mr. LEVIN, proposed by Mr. GORTON, to the bill At the request of Mr. SIMON, the Mr. LIEBERMAN, Mr. LOTT, Mr. LUGAR, (H.R. 596) to establish legal standards name of the Senator from Michigan Mr. MACK, Mr. MCCAIN, Mr. MCCON- and procedures for product liability May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6279 litigation, and for other purposes; as BIFURCATED PROCEEDING.—Notwithstanding procedure established or recognized under follows: any other provision of this Act, in any pro- the law of the State in which the product li- ceeding to determine whether the claimant ability action is brought or under the rules In the pending amendment, on page 21 in an action that is subject to this Act may of the court in which such action is main- strike lines 7 through 12. be awarded compensatory damages and puni- tained. tive damages, evidence of the defendant’s fi- (2) WRITTEN NOTICE OF ACCEPTANCE OR RE- FEINGOLD AMENDMENT NO. 692 nancial condition and other evidence bearing JECTION.—Except as provided in paragraph (Ordered to lie on the table.) on the amount of punitive damages shall not (3), not later than 10 days after the service of be admissible unless the evidence is admissi- an offer to proceed under paragraph (1), an Mr. FEINGOLD submitted an amend- ble for a purpose other than for determining offeree shall file a written notice of accept- ment intended to be proposed by him the amount of punitive damages. ance or rejection of the offer. to amendment No. 690, proposed by Mr. (B) PROCEEDING WITH RESPECT TO PUNITIVE (3) EXTENSION.—The court may, upon mo- COVERDELL to amendment No. 596, pro- DAMAGES.—Evidence that is admissible in a tion by an offeree made prior to the expira- posed by Mr. GORTON to the bill, separate proceeding conducted under para- tion of the 10-day period specified in para- H.R. 956, supra; as follows: graph (1) shall include evidence that bears on graph (2), extend the period for filing a writ- the factors listed in paragraph (3). On page 7, line 23, insert in section ten notice under such paragraph for a period (3) FACTORS.—Notwithstanding any other 101(12)(B)(i) after the word ‘‘negligence’’ the of not more than 60 days after the date of ex- provision of this Act, in determining the following: ‘‘or any product designed or mar- piration of the period specified in paragraph amount of punitive damages awarded in an keted primarily for the use of children’’. (2). Discovery may be permitted during such action that is subject to this Act, the court period. shall consider the following factors: (b) DEFENDANT’S PENALTY FOR UNREASON- SHELBY (AND HEFLIN) (A) The likelihood that serious harm would ABLE REFUSAL.— AMENDMENT NO. 693 arise from the misconduct of the defendant (1) IN GENERAL.—The court shall assess rea- in question. sonable attorney’s fees (calculated in accord- (Ordered to lie on the table.) (B) The degree of the awareness of the de- Mr. SHELBY (for himself and Mr. ance with paragraph (2)) and costs against fendant in question of that likelihood. the offeree, incurred by the offeror during HEFLIN) submitted an amendment in- (C) The profitability of the misconduct to trial if— tended to be proposed by them to the defendant in question. (A) a defendant as an offeree refuses to pro- amendment No. 690, proposed by Mr. (D) The duration of the misconduct and ceed pursuant to the alternative dispute res- COVERDELL to amendment No. 596, pro- any concealment of the conduct by the de- olution procedure referred to subsection fendant in question. posed by Mr. GORTON to the bill, (a)(1); (E) The attitude and conduct of the defend- H.R. 956, supra; as follows: (B) final judgment is entered against the ant in question upon the discovery of the defendant for harm caused by the product At the appropriate place insert the follow- misconduct and whether the misconduct has that is the subject of the action; and ing: terminated. (C) the refusal by the defendant to proceed SEC. . LIABILITY FOR CERTAIN CLAIMS RELAT- (F) The financial condition of the defend- pursuant to such alternative dispute resolu- ING TO DEATH. ant in question. tion was unreasonable or not made in good In any civil action in which the alleged (G) The total effect of other punishment faith. harm to the claimant is death and, as of the imposed or likely to be imposed upon the de- (2) REASONABLE ATTORNEY’S FEES.—For effective date of this Act, the applicable fendant in question as a result of the mis- purposes of this subsection, a reasonable at- State law provides, or has been construed to conduct, including any awards of punitive or torney’s fee shall be calculated on the basis provide, for damages only punitive in nature, exemplary damages to persons similarly sit- of an hourly rate, which shall not exceed the a defendant may be liable for any such dam- uated to the claimant and the severity of hourly rate that is considered acceptable in ages without regard to this section, but only criminal penalties to which the defendant in the community in which the attorney prac- during such time as the State law so pro- question has been or is likely to be sub- tices law, taking into consideration the vides. jected. qualifications and experience of the attorney (H) Any other factor that the court deter- and the complexity of the case. mines to be appropriate. DODD AMENDMENTS NOS. 694–695 (c) GOOD FAITH REFUSAL.—In determining (4) REASONS FOR SETTING AWARD AMOUNT.— whether the refusal of an offeree to proceed (Ordered to lie on the table.) (A) IN GENERAL.—Notwithstanding any pursuant to the alternative dispute proce- Mr. DODD submitted two amend- other provision of this Act, with respect to dure referred to in subsection (a)(1) was un- ments intended to be proposed by him an award of punitive damages in an action reasonable or not made in good faith, the to amendment No. 690, proposed by Mr. that is subject to this Act, in findings of fact court shall consider— and conclusions of law issued by the court, GORTON to the bill, H.R. 956, supra; as (1) whether the case involves potentially the court shall clearly state the reasons of follows: complicated questions of fact; the court for setting the amount of the (2) whether the case involves potentially AMENDMENT NO. 694 award. The statements referred to in the pre- dispositive issues of law; Strike section 106 of the amendment and ceding sentence shall demonstrate the con- (3) the potential expense faced by the insert the following new section: sideration of the factors listed in subpara- offeree in retaining counsel for both the al- SEC. 106. UNIFORM STANDARDS FOR AWARDS OF graphs (A) through (G) of paragraph (3). If ternative dispute resolution procedure and PUNITIVE DAMAGES. the court considers a factor under subpara- to litigate the matter for trial; (a) GENERAL RULE.—Notwithstanding any graph (H) of paragraph (3), the court shall (4) the professional capacity of available other provision of this Act, punitive damages state the effect of the consideration of the mediators within the applicable geographic may, to the extent permitted by applicable factors on setting the amount of the award. area; and State law, be awarded against a defendant in (B) REVIEW OF DETERMINATION OF AWARD (5) such other factors as the court consid- an action that is subject to this Act if the AMOUNT.—The determination of the amount ers appropriate. claimant establishes by clear and convincing of the award shall only be reviewed by a evidence that the harm that is the subject of court as a factual finding and shall not be set aside by a court unless the court deter- the action was the result of conduct that was HEFLIN (BY REQUEST) carried out by the defendant with a con- mines that the amount of the award is clear- scious, flagrant indifference to the safety of ly erroneous. AMENDMENT NO. 696 others. (Ordered to lie on the table.) AMENDMENT NO. 695 (b) BIFURCATION AND JUDICIAL DETERMINA- Mr. HEFLIN (by request) submitted TION.— At the appropriate place in the amend- an amendment intended to be proposed ment, insert the following new section: (1) IN GENERAL.—Notwithstanding any by him to amendment No. 690, proposed other provision of this Act, in an action that SEC. . ALTERNATIVE DISPUTE RESOLUTION is subject to this Act in which punitive dam- PROCEDURES. by Mr. COVERDELL to amendment No. ages are sought, the trier of fact shall deter- (a) IN GENERAL.— 596, proposed by Mr. GORTON to the bill, mine, concurrent with all other issues pre- (1) SERVICE OF OFFER.—A claimant or a de- H.R. 956, supra; as follows: sented, whether such damages shall be al- fendant in a product liability action that is At the appropriate place in the amendment lowed. If such damages are allowed, a sepa- subject to this title may, not later than 60 that is pending insert the following: rate proceeding shall be conducted by the days after the service of the initial com- court to determine the amount of such dam- plaint of the claimant or the applicable INSURABILITY OF PUNITIVE DAMAGES ages to be awarded. deadline for a responsive pleading (whichever (1) Insurance companies properly licensed (2) ADMISSIBLE EVIDENCE.— is later), serve upon an adverse party an under state law shall be permitted to issue (A) INADMISSIBILITY OF EVIDENCE RELATIVE offer to proceed pursuant to any voluntary, policies covering liability giving rise to pu- ONLY TO A CLAIM OF PUNITIVE DAMAGES IN A nonbinding alternative dispute resolution nitive or exemplary damages. S 6280 CONGRESSIONAL RECORD — SENATE May 8, 1995 (2) Nothing herein shall require insurers to (2) Nothing herein shall require insurers to personal jurisdiction over such manufacturer offer such insurance policies for punitive or offer such insurance policies for punitive or if the court determines that the manufac- exemplary damages. exemplary damages. turer knew or reasonably should have known (3) Such policies shall be effective in all (3) Such policies shall be effective in all that the product would be imported for sale states of the United States, notwithstanding States of the United States, notwithstanding or use in the United States. state law to the contrary. State law to the contrary. (2) SERVICE OF PROCESS.—Process in any ac- tion described in paragraph (1) may be served HARKIN AMENDMENT NO. 704 at any location at which the foreign manu- BOXER AMENDMENTS NOS. 697–702 facturer is located, has an agent, or regu- (Ordered to lie on the table.) (Ordered to lie on the table.) larly transacts business. Mrs. BOXER submitted six amend- Mr. HARKIN submitted an amend- (b) ADMISSION.—In any product liability ac- ments intended to be proposed by her ment intended to be proposed by him tion that is subject to this title, if a foreign to amendment No. 690, proposed by Mr. to amendment No. 690, proposed by Mr. manufacturer of the product fails to furnish any testimony, document, or other thing COVERDELL to amendment No. 596, pro- COVERDELL to amendment No. 596, pro- upon a duly issued discovery order by the posed by Mr. GORTON to the bill, H.R. posed by Mr. GORTON to the bill, H.R. court in such action, that failure shall be 956, supra; as follows: 956, supra; as follows: deemed to be an admission by such manufac- AMENDMENT NO. 697 In section 106(b)(2)(B) of the matter pro- turer of any and all facts to which the dis- covery order relates. In section 103, strike subsection (a) and in- posed to be inserted, strike ‘‘Punitive dam- sert the following new subsection: ages’’ and all that follows through the end of the subparagraph and insert the following: AMENDMENT NO. 707 (a) GENERAL RULE.—Except as otherwise provided under applicable State law, in any ‘‘(i) Notwithstanding paragraph (1), the On page 18, strike lines 18–25 and insert in product liability action that is subject to amount of punitive damages that may be lieu thereof: this title filed by a claimant for harm caused awarded in any product liability action that The amount of punitive damages that may by a product, a product seller other than a is subject to this title against an owner of an be awarded to a claimant in any civil action manufacturer shall be liable to a claimant unincorporated business, or any partnership, subject to this section shall not exceed ten (10) percent of the net worth of the defendant only if the claimant establishes that the corporation, unit of local government, or or- against whom they are imposed. product that allegedly caused the harm that ganization that has 25 or more full-time em- is the subject of the complaint was sold, ployees shall be the greater of— rented, or leased by the product seller. (I) an amount determined under paragraph HOLLINGS AMENDMENT NO. 708 (1); or (II) 2 times the average value of the annual (Ordered to lie on the table.) AMENDMENT NO. 698 compensation of the chief executive officer Mr. HOLLINGS submitted an amend- At the appropriate place, insert the follow- (or the equivalent employee) of such entity ment intended to be proposed by him ing: ‘‘Notwithstanding Section 106 with re- during the 3 full fiscal years of the entity to amendment No. 690, proposed by Mr. gard to Uniform Standards for Award of Pu- immediately preceding the date of which the COVERDELL to amendment No. 596, pro- nitive Damages, the limitation of amount for award of punitive damages is made. punitive damages shall not apply to facial posed by Mr. GORTON to the bill, H.R. (ii) For the purposes of this subparagraph, 956, supra; as follows: disfigurement.’’ the term ‘compensation’ includes the value of any salary, benefit, bonus, grant, stock At the appropriate place, insert the follow- AMENDMENT NO. 699 option, insurance policy, club membership, ing: At the appropriate place, insert the follow- or any other matter having pecuniary SEC. . NO PREEMPTION OF RECENT TORT RE- ing: ‘‘Notwithstanding Section 106 with re- value.’’. FORM LAWS. gard to Uniform Standards for Award of Pu- Notwithstanding any other provision of nitive Damages, the limitation of amount for this Act to the contrary, nothing in this Act SPECTER AMENDMENTS NOS. 705– preempts any provision of State law— punitive damages shall not apply to brain 707 damage.’’ (1) if the legislature of that State consid- (Ordered to lie on the table.) ered a legislative proposal dealing with that provision in connection with reforming the AMENDMENT NO. 700 Mr. SPECTER submitted three tort laws of that State during the period be- At the appropriate place, insert the follow- amendments intended to be proposed ginning on January 1, 1980, and ending on the ing: ‘‘Notwithstanding Section 106 with re- by him to amendment No. 690, proposed date of enactment of this Act, without re- gard to Uniform Standards for Award of Pu- by Mr. COVERDELL to amendment No. gard to whether such proposal was adopted, nitive Damages, the limitation of amount for 596, proposed by Mr. GORTON to the bill, modified and adopted, or rejected; or punitive damages shall not apply to the loss H.R. 956, supra; as follows: (2) adopted after the date of enactment of of human reproductive function.’’ AMENDMENT NO. 705 this Act. AMENDMENT NO. 701 On page 23, after line 7, add the following GORTON AMENDMENT NO. 709 At the appropriate place, insert the follow- new subsection: ing: ‘‘Notwithstanding Section 106 with re- (c) EXCEPTION.— Mr. GORTON proposed an amend- gard to Uniform Standards for Award of Pu- (1) IN GENERAL.—Notwithstanding sub- ment No. 690, proposed by Mr. sections (a) and (b), in a product liability ac- nitive Damages, the limitation of amount for COVERDELL to amendment No. 596, pro- tion that is subject to this title, the liability punitive damages shall not apply to the loss posed by Mr. GORTON to the bill, H.R. of a limb.’’ of the defendant for noneconomic loss shall be joint and several if the percentage of re- 956, supra; as follows: sponsibility of the defendant is determined In lieu of the language proposed to be in- AMENDMENT NO. 702 to be greater than or equal to 15 percent of serted insert the following: Strike all of Title II in the pending amend- the harm to the claimant. SECTION 1. SHORT TITLE. ment. (2) DETERMINATION OF PERCENTAGE OF RE- This Act may be cited as the ‘‘Product Li- SPONSIBILITY.—For purposes of paragraph (1), ability Fairness Act of 1995’’. HEFLIN (BY REQUEST) in a product liability action that is subject TITLE I—PRODUCT LIABILITY AMENDMENT NO. 703 to this title, the trier of fact shall determine SEC. 101. DEFINITIONS. the percentage of responsibility of each de- For purposes of this Act, the following (Ordered to lie on the table.) fendant for the harm to the claimant. Mr. HEFLIN (by request) submitted definitions shall apply: (1) ACTUAL MALICE.—The term ‘‘actual mal- AMENDMENT NO. 706 an amendment intended to be proposed ice’’ means specific intent to cause serious by him to amendment No. 690, proposed On page 27, after line 23, insert the follow- physical injury, illness, disease, or damage by Mr. COVERDELL to amendment No. ing: to property, or death. 596, proposed by Mr. GORTON to the bill, SEC. 111. FOREIGN PRODUCTS. (2) CLAIMANT.—The term ‘‘claimant’’ H.R. 956, supra; as follows: (a) GENERAL RULE.— means any person who brings a product li- (1) IN GENERAL.—Notwithstanding any ability action and any person on whose be- At the appropriate place in the amendment other provision of law, in any product liabil- half such an action is brought. If an action is that is pending insert the following: ity action that is subject to this title for any brought through or on behalf of— INSURABILITY OF PUNITIVE DAMAGES harm sustained in the United States that re- (A) an estate, the term includes the dece- (1) Insurance companies properly licensed lates to the purchase or use of a product dent; or under State law shall be permitted to issue manufactured outside the United States by a (B) a minor or incompetent, the term in- policies covering liability giving rise to pu- foreign manufacturer, the Federal district cludes the legal guardian of the minor or in- nitive or exemplary damages. court in which the action is filed shall have competent. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6281

(3) CLAIMANT’S BENEFITS.—The term loss of consortium, injury to reputation, and (2) ACTIONS EXCLUDED.— ‘‘claimant’s benefits’’ means the amount humiliation; and (A) ACTIONS FOR DAMAGE TO PRODUCT OR paid to an employee as workers’ compensa- (B) does not include economic loss. COMMERCIAL LOSS.—A civil action brought for tion benefits. (12) PERSON.—The term ‘‘person’’ means loss or damage to a product itself or for com- (4) CLEAR AND CONVINCING EVIDENCE.— any individual, corporation, company, asso- mercial loss, shall not be subject to the pro- (A) IN GENERAL.—Subject to subparagraph ciation, firm, partnership, society, joint visions of this title governing product liabil- (A), the term ‘‘clear and convincing evi- stock company, or any other entity (includ- ity actions, but shall be subject to any appli- dence’’ is that measure of degree of proof ing any governmental entity). cable commercial or contract law. that will produce in the mind of the trier of (13) PRODUCT.— (B) ACTIONS FOR NEGLIGENT ENTRUST- fact a firm belief or conviction as to the (A) IN GENERAL.—The term ‘‘product’’ MENT.—A civil action for negligent entrust- truth of the allegations sought to be estab- means any object, substance, mixture, or ment shall not be subject to the provisions of lished. raw material in a gaseous, liquid, or solid this title governing product liability actions, (B) DEGREE OF PROOF.—The degree of proof state that— but shall be subject to any applicable State required to satisfy the standard of clear and (i) is capable of delivery itself or as an as- law. convincing evidence shall be— sembled whole, in a mixed or combined (b) SCOPE OF PREEMPTION.— (i) greater than the degree of proof re- state, or as a component part or ingredient; (1) IN GENERAL.—This Act supersedes a quired to meet the standard of preponder- (ii) is produced for introduction into trade State law only to the extent that State law ance of the evidence; and or commerce; applies to an issue covered under this title. (iii) has intrinsic economic value; and (ii) less than the degree of proof required (2) ISSUES NOT COVERED UNDER THIS ACT.— (iv) is intended for sale or lease to persons to meet the standard of proof beyond a rea- Any issue that is not covered under this for commercial or personal use. sonable doubt. title, including any standard of liability ap- (B) EXCLUSION.—The term ‘‘product’’ does (5) COMMERCIAL LOSS.—The term ‘‘commer- plicable to a manufacturer, shall not be sub- not include— cial loss’’ means any loss or damage to a ject to this title, but shall be subject to ap- (i) tissue, organs, blood, and blood products product itself, loss relating to a dispute over plicable Federal or State law. used for therapeutic or medical purposes, ex- (c) STATUTORY CONSTRUCTION.—Nothing in its value, or consequential economic loss the cept to the extent that such tissue, organs, recovery of which is governed by the Uni- this title may be construed to— blood, and blood products (or the provision (1) waive or affect any defense of sovereign form Commercial Code or analogous State thereof) are subject, under applicable State commercial law, not including harm. immunity asserted by any State under any law, to a standard of liability other than law; (6) DURABLE GOOD.—The term ‘‘durable negligence; and good’’ means any product, or any component (2) supersede or alter any Federal law; (ii) electricity, water delivered by a util- (3) waive or affect any defense of sovereign of any such product, which has a normal life ity, natural gas, or steam. expectancy of 3 or more years or is of a char- immunity asserted by the United States; (14) PRODUCT LIABILITY ACTION.—The term (4) affect the applicability of any provision acter subject to allowance for depreciation ‘‘product liability action’’ means a civil ac- under the Internal Revenue Code of 1986, and of chapter 97 of title 28, United States Code; tion brought on any theory for harm caused (5) preempt State choice-of-law rules with which is— by a product. respect to claims brought by a foreign nation (A) used in a trade or business; (15) PRODUCT SELLER.— or a citizen of a foreign nation; (B) held for the production of income; or (A) IN GENERAL.—The term ‘‘product sell- (6) affect the right of any court to transfer (C) sold or donated to a governmental or er’’ means a person who— venue or to apply the law of a foreign nation private entity for the production of goods, (i) in the course of a business conducted for or to dismiss a claim of a foreign nation or training, demonstration, or any other simi- that purpose, sells, distributes, rents, leases, of a citizen of a foreign nation on the ground lar purpose. prepares, blends, packages, labels, or other- of inconvenient forum; or (7) ECONOMIC LOSS.—The term ‘‘economic wise is involved in placing a product in the (7) supersede or modify any statutory or loss’’ means any pecuniary loss resulting stream of commerce; or common law, including any law providing for from harm (including any medical expense (ii) installs, repairs, refurbishes, recondi- loss, work loss, replacement services loss, tions, or maintains the harm-causing aspect an action to abate a nuisance, that author- loss due to death, burial costs, and loss of of the product. izes a person to institute an action for civil damages or civil penalties, cleanup costs, in- business or employment opportunities), to (B) EXCLUSION.—The term ‘‘product seller’’ the extent that recovery for the loss is per- does not include— junctions, restitution, cost recovery, puni- mitted under applicable State law. (i) a seller or lessor of real property; tive damages, or any other form of relief for (8) HARM.—The term ‘‘harm’’ means any (ii) a provider of professional services in remediation of the environment (as defined physical injury, illness, disease, or death, or any case in which the sale or use of a prod- in section 101(8) of the Comprehensive Envi- damage to property, caused by a product. uct is incidental to the transaction and the ronmental Response, Compensation, and Li- The term does not include commercial loss essence of the transaction is the furnishing ability Act of 1980, 42 U.S.C. 9601(8)) or the or loss or damage to a product itself. of judgment, skill, or services; or threat of such remediation. (9) INSURER.—The term ‘‘insurer’’ means (iii) any person who— (d) CONSTRUCTION.—To promote uniformity the employer of a claimant, if the employer (I) acts in only a financial capacity with of law in the various jurisdictions, this title is self-insured, or the workers’ compensation respect to the sale of a product; or shall be construed and applied after consid- insurer of an employer. (II) leases a product under a lease arrange- eration of its legislative history. (10) MANUFACTURER.—The term ‘‘manufac- ment in which the lessor does not initially (e) EFFECT OF COURT OF APPEALS DECI- turer’’ means— select the leased product and does not during SIONS.—Notwithstanding any other provision (A) any person who is engaged in a busi- the lease term ordinarily control the daily of law, any decision of a circuit court of ap- ness to produce, create, make, or construct operations and maintenance of the product. peals interpreting a provision of this title any product (or component part of a prod- (16) STATE.—The term ‘‘State’’ means each (except to the extent that the decision is uct), and who designs or formulates the prod- of the several States of the United States, overruled or otherwise modified by the Su- uct (or component part of the product), or the District of Columbia, the Commonwealth preme Court) shall be considered a control- has engaged another person to design or for- of Puerto Rico, the Virgin Islands, Guam, ling precedent with respect to any subse- mulate the product (or component part of American Samoa, and the Commonwealth of quent decision made concerning the inter- the product); the Northern Mariana Islands, and any other pretation of such provision by any Federal or (B) a product seller, but only with respect territory or possession of the United States, State court within the geographical bound- to those aspects of a product (or component or any political subdivision thereof. aries of the area under the jurisdiction of the part of a product) which are created or af- (17) TIME OF DELIVERY.—The term ‘‘time of circuit court of appeals. fected when, before placing the product in delivery’’ means the time when a product is SEC. 103. ALTERNATIVE DISPUTE RESOLUTION the stream of commerce, the product seller delivered to the first purchaser or lessee of PROCEDURES. produces, creates, makes, constructs, de- the product that was not involved in manu- (a) SERVICE OF OFFER.—A claimant or a de- signs, or formulates, or has engaged another facturing or selling the product, or using the fendant in a product liability action that is person to design or formulate, an aspect of a product as a component part of another subject to this title may, not later than 60 product (or component part of a product) product to be sold. days after the service of the initial com- made by another person; or SEC. 102. APPLICABILITY; PREEMPTION. plaint of the claimant or the applicable (C) any product seller that is not described (a) APPLICABILITY.— deadline for a responsive pleading (whichever in subparagraph (B) that holds itself out as a (1) ACTIONS COVERED.—Subject to para- is later), serve upon an adverse party an manufacturer to the user of the product. graph (2), this title applies to any product li- offer to proceed pursuant to any voluntary, (11) NONECONOMIC LOSS.—The term ‘‘non- ability action commenced on or after the nonbinding alternative dispute resolution economic loss’’— date of enactment of this Act, without re- procedure established or recognized under (A) means subjective, nonmonetary loss re- gard to whether the harm that is the subject the law of the State in which the product li- sulting from harm, including pain, suffering, of the action or the conduct that caused the ability action is brought or under the rules inconvenience, mental suffering, emotional harm occurred before such date of enact- of the court in which such action is main- distress, loss of society and companionship, ment. tained. S 6282 CONGRESSIONAL RECORD — SENATE May 8, 1995

(b) WRITTEN NOTICE OF ACCEPTANCE OR RE- tion under subsection (a), but any person en- and convincing evidence that the harm that JECTION.—Except as provided in subsection gaged in the business of renting or leasing a is the subject of the action was the result of (c), not later than 10 days after the service of product shall not be liable to a claimant for conduct that was carried out by the defend- an offer to proceed under subsection (a), an the tortious act of another solely by reason ant with a conscious, flagrant indifference to offeree shall file a written notice of accept- of ownership of such product. the safety of others. ance or rejection of the offer. (2) For purposes of paragraph (1), and for (b) LIMITATION ON AMOUNT.— (c) EXTENSION.—The court may, upon mo- determining the applicability of this title to (1) IN GENERAL.—Except as provided in tion by an offeree made prior to the expira- any person subject to paragraph (1), the term paragraphs (2) and (3), the amount of puni- tion of the 10-day period specified in sub- ‘‘product liability action’’ means a civil ac- tive damages that may be awarded to a section (b), extend the period for filing a tion brought on any theory for harm caused claimant in a product liability action that is written notice under such subsection for a by a product or product use. subject to this title shall not exceed the period of not more than 60 days after the SEC. 105. DEFENSES INVOLVING INTOXICATING greater of— date of expiration of the period specified in ALCOHOL OR DRUGS. (A) 2 times the sum of— subsection (b). Discovery may be permitted (a) GENERAL RULE.—Notwithstanding any (i) the amount awarded to the claimant for during such period. other provision of law, a defendant in a prod- economic loss; and SEC. 104. LIABILITY RULES APPLICABLE TO uct liability action that is subject to this (ii) the amount awarded to the claimant PRODUCT SELLERS. title shall have a complete defense in the ac- for noneconomic loss; or (a) GENERAL RULE.— tion if the defendant proves that— (B) $250,000. (1) IN GENERAL.—In any product liability (1) the claimant was under the influence of (2) SPECIAL RULE.—The amount of punitive action that is subject to this title filed by a intoxicating alcohol or any drug that may damages that may be awarded in a product claimant for harm caused by a product, a not lawfully be sold over-the-counter with- liability action that is subject to this title product seller other than a manufacturer out a prescription, and was not prescribed by against an individual whose net worth does shall be liable to a claimant, only if the a physician for use by the claimant; and not exceed $500,000 or against an owner of an claimant establishes— (2) the claimant, as a result of the influ- unincorporated business, or any partnership, (A) that— ence of the alcohol or drug, was more than 50 corporation, association, unit of local gov- (i) the product that allegedly caused the percent responsible for the accident or event ernment, or organization which has fewer harm that is the subject of the complaint which resulted in the harm to the claimant. than 25 full-time employees, shall not exceed was sold, rented, or leased by the product the lesser of— (b) CONSTRUCTION.—For purposes of this seller; section, the determination of whether a per- (A) 2 times the sum of— (ii) the product seller failed to exercise son was intoxicated or was under the influ- (i) the amount awarded to the claimant for economic loss; and reasonable care with respect to the product; ence of intoxicating alcohol or any drug (ii) the amount awarded to the claimant and shall be made pursuant to applicable State for noneconomic loss; or (iii) the failure to exercise reasonable care law. was a proximate cause of harm to the claim- (B) $250,000. SEC. 106. REDUCTION FOR MISUSE OR ALTER- ant; or (3) EXCEPTION.— ATION OF PRODUCT. (B) that— (A) DETERMINATION BY COURT.—Notwith- (i) the product seller made an express war- (a) GENERAL RULE.— standing subsection (c), in a product liability ranty applicable to the product that alleg- (1) IN GENERAL.—Except as provided in sub- action that is subject to this title, if the edly caused the harm that is the subject of section (c), in a product liability action that court makes a determination, after consider- the complaint, independent of any express is subject to this title, the damages for ing each of the factors in subparagraph (B), warranty made by a manufacturer as to the which a defendant is otherwise liable under that the application of paragraph (1) or (2) same product; applicable State law shall be reduced by the would result in an award of punitive dam- (ii) the product failed to conform to the percentage of responsibility for the harm to ages that is insufficient to punish the egre- warranty; and the claimant attributable to misuse or alter- gious conduct of the defendant against whom (iii) the failure of the product to conform ation of a product by any person if the de- the punitive damages are to be awarded or to to the warranty caused harm to the claim- fendant establishes that such percentage of deter such conduct in the future, the court ant; or the harm was proximately caused by a use or shall determine the additional amount of pu- (C) that— alteration of a product— nitive damages in excess of the amount de- (i) the product seller engaged in inten- (A) in violation of, or contrary to, the ex- termined in accordance with paragraph (1) or tional wrongdoing, as determined under ap- press warnings or instructions of the defend- (2) to be awarded to the claimant (referred to plicable State law; and ant if the warnings or instructions are deter- in this paragraph as the ‘‘additur’’) in a sepa- (ii) such intentional wrongdoing w±as a mined to be adequate pursuant to applicable rate proceeding in accordance with this para- proximate cause of the harm that is the sub- State law; or graph. ject of the complaint. (B) involving a risk of harm which was (B) FACTORS FOR CONSIDERATION.—In any (2) REASONABLE OPPORTUNITY FOR INSPEC- known or should have been known by the or- proceeding under subparagraph (A), the TION.—For purposes of paragraph (1)(A)(ii), a dinary person who uses or consumes the court shall consider— product seller shall not be considered to have product with the knowledge common to the (i) the extent to which the defendant acted failed to exercise reasonable care with re- class of persons who used or would be reason- with actual malice; spect to a product based upon an alleged fail- ably anticipated to use the product. (ii) the likelihood that serious harm would ure to inspect a product if the product seller (2) USE INTENDED BY A MANUFACTURER IS arise from the misconduct of the defendant; had no reasonable opportunity to inspect the NOT MISUSE OR ALTERATION.—For the pur- (iii) the degree of the awareness of the de- product that allegedly caused harm to the poses of this title, a use of a product that is fendant of that likelihood; claimant. intended by the manufacturer of the product (iv) the profitability of the misconduct to (b) SPECIAL RULE.— does not constitute a misuse or alteration of the defendant; (1) IN GENERAL.—A product seller shall be the product. (v) the duration of the misconduct and any deemed to be liable as a manufacturer of a (b) STATE LAW.—Notwithstanding section concurrent or subsequent concealment of the product for harm caused by the product if— 3(b), subsection (a) of this section shall su- conduct by the defendant; (A) the manufacturer is not subject to persede State law concerning misuse or al- (vi) the attitude and conduct of the defend- service of process under the laws of any teration of a product only to the extent that ant upon the discovery of the misconduct State in which the action may be brought; or State law is inconsistent with such sub- and whether the misconduct has terminated; (B) the court determines that the claimant section. (vii) the financial condition of the defend- would be unable to enforce a judgment (c) WORKPLACE INJURY.—Notwithstanding ant; against the manufacturer. subsection (a), the amount of damages for (viii) the cumulative deterrent effect of (2) STATUTE OF LIMITATIONS.—For purposes which a defendant is otherwise liable under other losses, damages, and punishment suf- of this subsection only, the statute of limita- State law shall not be reduced by the appli- fered by the defendant as a result of the mis- tions applicable to claims asserting liability cation of this section with respect to the conduct, reducing the amount of punitive of a product seller as a manufacturer shall be conduct of any employer or coemployee of damages on the basis of the economic impact tolled from the date of the filing of a com- the plaintiff who is, under applicable State and severity of all measures to which the de- plaint against the manufacturer to the date law concerning workplace injuries, immune fendant has been or may be subjected, in- that judgment is entered against the manu- from being subject to an action by the claim- cluding— facturer. ant. (I) compensatory and punitive damage (c) RENTED OR LEASED PRODUCTS.— SEC. 107. UNIFORM STANDARDS FOR AWARD OF awards to similarly situated claimants; (1) Notwithstanding any other provision of PUNITIVE DAMAGES. (II) the adverse economic effect of stigma law, any person engaged in the business of (a) GENERAL RULE.—Punitive damages or loss of reputation; renting or leasing a product (other than a may, to the extent permitted by applicable (III) civil fines and criminal and adminis- person excluded from the definition of prod- State law, be awarded against a defendant in trative penalties; and uct seller under section 101 (14)(B)) shall be a product liability action that is subject to (IV) stop sale, cease and desist, and other subject to liability in a product liability ac- this title if the claimant establishes by clear remedial or enforcement orders; and May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6283 (ix) any other factor that the court deter- (B) Paragraph (1) does not bar a product li- seller without written notification to the mines to be appropriate. ability action against a defendant who made employer. (C) REQUIREMENTS FOR AWARDING an express warranty in writing as to the (C) EXEMPTION.—Subparagraph (B) shall ADDITURS.—If the court awards an additur safety of the specific product involved which not apply in any case in which the insurer under this paragraph, the court shall state was longer than 20 years, but it will apply at has been compensated for the full amount of its reasons for setting the amount of the the expiration of that warranty. the claimant’s benefits. additur in findings of fact and conclusions of (C) Paragraph (1) does not affect the limi- (3) HARM RESULTING FROM ACTION OF EM- law. If the additur is— tations period established by the General PLOYER OR COEMPLOYEE.— (i) accepted by the defendant, it shall be Aviation Revitalization Act of 1994 (49 U.S.C. (A) IN GENERAL.—If, with respect to a prod- entered by the court as a final judgment; 40101 note). uct liability action that is subject to this (ii) accepted by the defendant under pro- (c) TRANSITIONAL PROVISION RELATING TO title, the manufacturer or product seller at- test, the order may be reviewed on appeal; or EXTENSION OF PERIOD FOR BRINGING CERTAIN tempts to persuade the trier of fact that the (iii) not accepted by the defense, the court ACTIONS.—If any provision of subsection (a) harm to the claimant was caused by the shall set aside the punitive damages award or (b) shortens the period during which a fault of the employer of the claimant or any and order a new trial on the issue of punitive product liability action that could be other- coemployee of the claimant, the issue of that damages only, and judgment shall enter wise brought pursuant to another provision fault shall be submitted to the trier of fact, upon the verdict of liability and damages of law, the claimant may, notwithstanding but only after the manufacturer or product after the issue of punitive damages is de- subsections (a) and (b), bring the product li- seller has provided timely written notice to cided. ability action pursuant to this title not later the employer. (4) APPLICATION BY COURT.—This subsection than 1 year after the date of enactment of (B) RIGHTS OF EMPLOYER.— shall be applied by the court and the applica- this Act. (i) IN GENERAL.—Notwithstanding any tion of this subsection shall not be disclosed other provision of law, with respect to an SEC. 109. SEVERAL LIABILITY FOR NON- to the jury. ECONOMIC LOSS. issue of fault submitted to a trier of fact pur- (c) BIFURCATION AT REQUEST OF ANY suant to subparagraph (A), an employer (a) GENERAL RULE.—In a product liability PARTY.— action that is subject to this title, the liabil- shall, in the same manner as any party in (1) IN GENERAL.—At the request of any ity of each defendant for noneconomic loss the action (even if the employer is not a party, the trier of fact in a product liability named party in the action), have the right shall be several only and shall not be joint. action that is subject to this title shall con- to— (b) AMOUNT OF LIABILITY.— sider in a separate proceeding whether puni- (I) appear; (1) IN GENERAL.—Each defendant shall be tive damages are to be awarded for the harm (II) be represented; liable only for the amount of noneconomic that is the subject of the action and the (III) introduce evidence; loss allocated to the defendant in direct pro- amount of the award. (IV) cross-examine adverse witnesses; and portion to the percentage of responsibility of (2) INADMISSIBILITY OF EVIDENCE RELATIVE (V) present arguments to the trier of fact. the defendant (determined in accordance ONLY TO A CLAIM OF PUNITIVE DAMAGES IN A (ii) LAST ISSUE.—The issue of harm result- with paragraph (2)) for the harm to the PROCEEDING CONCERNING COMPENSATORY DAM- ing from an action of an employer or claimant with respect to which the defend- AGES.—If any party requests a separate pro- coemployee shall be the last issue that is ant is liable. The court shall render a sepa- ceeding under paragraph (1), in any proceed- presented to the trier of fact. rate judgment against each defendant in an ing to determine whether the claimant may (C) REDUCTION OF DAMAGES.—If the trier of amount determined pursuant to the preced- be awarded compensatory damages, any evi- fact finds by clear and convincing evidence ing sentence. dence that is relevant only to the claim of that the harm to the claimant that is the (2) PERCENTAGE OF RESPONSIBILITY.—For punitive damages, as determined by applica- subject of the product liability action was purposes of determining the amount of non- ble State law, shall be inadmissible. caused by the fault of the employer or a economic loss allocated to a defendant under SEC. 108. UNIFORM TIME LIMITATIONS ON LI- coemployee of the claimant— this section, the trier of fact shall determine ABILITY. (i) the court shall reduce by the amount of the percentage of responsibility of each per- (a) STATUTE OF LIMITATIONS.— the claimant’s benefits— son responsible for the claimant’s harm, (1) IN GENERAL.—Except as provided in (I) the damages awarded against the manu- whether or not such person is a party to the paragraph (2) and subsection (b), a product facturer or product seller; and action. liability action that is subject to this title (II) any corresponding insurer’s subroga- may be filed not later than 2 years after the SEC. 110. WORKERS’ COMPENSATION SUBROGA- tion lien; and TION STANDARDS. date on which the claimant discovered or, in (ii) the manufacturer or product seller the exercise of reasonable care, should have (a) GENERAL RULE.— shall have no further right by way of con- discovered, the harm that is the subject of (1) RIGHT OF SUBROGATION.— tribution or otherwise against the employer. (A) IN GENERAL.—An insurer shall have a the action and the cause of the harm. (D) CERTAIN RIGHTS OF SUBROGATION NOT right of subrogation against a manufacturer (2) EXCEPTIONS.— AFFECTED.—Notwithstanding a finding by the (A) PERSON WITH A LEGAL DISABILITY.—A or product seller to recover any claimant’s trier of fact described in subparagraph (C), person with a legal disability (as determined benefits relating to harm that is the subject the insurer shall not lose any right of sub- under applicable law) may file a product li- of a product liability action that is subject rogation related to any— ability action that is subject to this title not to this title. (i) intentional tort committed against the later than 2 years after the date on which (B) WRITTEN NOTIFICATION.—To assert a claimant by a coemployee; or the person ceases to have the legal disabil- right of subrogation under subparagraph (A), (ii) act committed by a coemployee outside ity. the insurer shall provide written notice to the scope of normal work practices. (B) EFFECT OF STAY OR INJUNCTION.—If the the court in which the product liability ac- (b) ATTORNEY’S FEES.—If, in a product li- commencement of a civil action that is sub- tion is brought. ability action that is subject to this section, ject to this title is stayed or enjoined, the (C) INSURER NOT REQUIRED TO BE A PARTY.— the court finds that harm to a claimant was running of the statute of limitations under An insurer shall not be required to be a nec- not caused by the fault of the employer or a this section shall be suspended until the end essary and proper party in a product liability coemployee of the claimant, the manufac- of the period that the stay or injunction is in action covered under subparagraph (A). turer or product seller shall reimburse the effect. (2) SETTLEMENTS AND OTHER LEGAL PRO- insurer for reasonable attorney’s fees and (b) STATUTE OF REPOSE.— CEEDINGS.— court costs incurred by the insurer in the ac- (1) IN GENERAL.—Subject to paragraphs (2) (A) IN GENERAL.—In any proceeding relat- tion, as determined by the court. and (3), no product liability action that is ing to harm or settlement with the manufac- SEC. 111. FEDERAL CAUSE OF ACTION PRE- subject to this title concerning a product turer or product seller by a claimant who CLUDED. that is a durable good alleged to have caused files a product liability action that is subject The district courts of the United States harm (other than toxic harm) may be filed to this title, an insurer may participate to shall not have jurisdiction under section 1331 after the 20-year period beginning at the assert a right of subrogation for claimant’s or 1337 of title 28, United States Code, over time of delivery of the product. benefits with respect to any payment made any product liability action covered under (2) STATE LAW.—Notwithstanding para- by the manufacturer or product seller by this title. graph (1), if pursuant to an applicable State reason of such harm, without regard to law, an action described in such paragraph is whether the payment is made— TITLE II—BIOMATERIALS ACCESS required to be filed during a period that is (i) as part of a settlement; ASSURANCE shorter than the 20-year period specified in (ii) in satisfaction of judgment; SEC. 201. SHORT TITLE. such paragraph, the State law shall apply (iii) as consideration for a covenant not to This title may be cited as the with respect to such period. sue; or ‘‘Biomaterials Access Assurance Act of (3) EXCEPTIONS.— (iv) in another manner. 1995’’. (A) A motor vehicle, vessel, aircraft, or (B) WRITTEN NOTIFICATION.—Except as pro- SEC. 202. FINDINGS. train that is used primarily to transport pas- vided in subparagraph (C), an employee shall Congress finds that— sengers for hire shall not be subject to this not make any settlement with or accept any (1) each year millions of citizens of the subsection. payment from the manufacturer or product United States depend on the availability of S 6284 CONGRESSIONAL RECORD — SENATE May 8, 1995 lifesaving or life-enhancing medical devices, (15) in order to safeguard the availability (i) to be placed into a surgically or natu- many of which are permanently implantable of a wide variety of lifesaving and life-en- rally formed or existing cavity of the body within the human body; hancing medical devices, immediate action for a period of at least 30 days; or (2) a continued supply of raw materials and is needed— (ii) to remain in contact with bodily fluids component parts is necessary for the inven- (A) to clarify the permissible bases of li- or internal human tissue through a sur- tion, development, improvement, and main- ability for suppliers of raw materials and gically produced opening for a period of less tenance of the supply of the devices; component parts for medical devices; and than 30 days; and (3) most of the medical devices are made (B) to provide expeditious procedures to (B) suture materials used in implant proce- with raw materials and component parts dispose of unwarranted suits against the sup- dures. that— pliers in such manner as to minimize litiga- (6) MANUFACTURER.—The term ‘‘manufac- (A) are not designed or manufactured spe- tion costs. turer’’ means any person who, with respect cifically for use in medical devices; and SEC. 203. DEFINITIONS. to an implant— (B) come in contact with internal human As used in this title: (A) is engaged in the manufacture, prepa- tissue; (1) BIOMATERIALS SUPPLIER.— ration, propagation, compounding, or proc- (4) the raw materials and component parts (A) IN GENERAL.—The term ‘‘biomaterials essing (as defined in section 510(a)(1) of the also are used in a variety of nonmedical supplier’’ means an entity that directly or Federal Food, Drug, and Cosmetic Act (21 products; indirectly supplies a component part or raw U.S.C. 360(a)(1)) of the implant; and (5) because small quantities of the raw ma- material for use in the manufacture of an (B) is required— terials and component parts are used for implant. (i) to register with the Secretary pursuant medical devices, sales of raw materials and (B) PERSONS INCLUDED.—Such term in- to section 510 of the Federal Food, Drug, and component parts for medical devices con- cludes any person who— Cosmetic Act (21 U.S.C. 360) and the regula- stitute an extremely small portion of the (i) has submitted master files to the Sec- tions issued under such section; and overall market for the raw materials and retary for purposes of premarket approval of (ii) to include the implant on a list of de- medical devices; a medical device; or vices filed with the Secretary pursuant to (6) under the Federal Food, Drug, and Cos- (ii) licenses a biomaterials supplier to section 510(j) of such Act (21 U.S.C. 360(j)) metic Act (21 U.S.C. 301 et seq.), manufactur- produce component parts or raw materials. and the regulations issued under such sec- ers of medical devices are required to dem- tion. onstrate that the medical devices are safe (2) CLAIMANT.— (A) IN GENERAL.—The term ‘‘claimant’’ (7) MEDICAL DEVICE.—The term ‘‘medical and effective, including demonstrating that device’’ means a device, as defined in section the products are properly designed and have means any person who brings a civil action, or on whose behalf a civil action is brought, 201(h) of the Federal Food, Drug, and Cos- adequate warnings or instructions; metic Act (21 U.S.C. 321(h)). (7) notwithstanding the fact that raw ma- arising from harm allegedly caused directly (8) RAW MATERIAL.—The term ‘‘raw mate- terials and component parts suppliers do not or indirectly by an implant, including a per- son other than the individual into whose rial’’ means a substance or product that— design, produce, or test a final medical de- (A) has a generic use; and vice, the suppliers have been the subject of body, or in contact with whose blood or tis- sue, the implant is placed, who claims to (B) may be used in an application other actions alleging inadequate— than an implant. (A) design and testing of medical devices have suffered harm as a result of the im- (9) SECRETARY.—The term ‘‘Secretary’’ manufactured with materials or parts sup- plant. means the Secretary of Health and Human plied by the suppliers; or (B) ACTION BROUGHT ON BEHALF OF AN ES- Services. (B) warnings related to the use of such TATE.—With respect to an action brought on (10) SELLER.— medical devices; behalf or through the estate of an individual (A) IN GENERAL.—The term ‘‘seller’’ means (8) even though suppliers of raw materials into whose body, or in contact with whose a person who, in the course of a business con- and component parts have very rarely been blood or tissue the implant is placed, such ducted for that purpose, sells, distributes, held liable in such actions, such suppliers term includes the decedent that is the sub- leases, packages, labels, or otherwise places have ceased supplying certain raw materials ject of the action. an implant in the stream of commerce. and component parts for use in medical de- (C) ACTION BROUGHT ON BEHALF OF A vices because the costs associated with liti- MINOR.—With respect to an action brought (B) EXCLUSIONS.—The term does not in- gation in order to ensure a favorable judg- on behalf or through a minor, such term in- clude— ment for the suppliers far exceeds the total cludes the parent or guardian of the minor. (i) a seller or lessor of real property; potential sales revenues from sales by such (D) EXCLUSIONS.—Such term does not in- (ii) a provider of professional services, in suppliers to the medical device industry; clude— any case in which the sale or use of an im- (9) unless alternate sources of supply can (i) a provider of professional services, in plant is incidental to the transaction and the be found, the unavailability of raw materials any case in which— essence of the transaction is the furnishing and component parts for medical devices will (I) the sale or use of an implant is inciden- of judgment, skill, or services; or lead to unavailability of lifesaving and life- tal to the transaction; and (iii) any person who acts in only a finan- enhancing medical devices; (II) the essence of the transaction is the cial capacity with respect to the sale of an (10) because other suppliers of the raw ma- furnishing of judgment, skill, or services; or implant. terials and component parts in foreign na- (ii) a manufacturer, seller, or biomaterials SEC. 204. GENERAL REQUIREMENTS; APPLICA- tions are refusing to sell raw materials or supplier. BILITY; PREEMPTION. component parts for use in manufacturing (3) COMPONENT PART.— (a) GENERAL REQUIREMENTS.— certain medical devices in the United States, (A) IN GENERAL.—The term ‘‘component (1) IN GENERAL.—In any civil action cov- the prospects for development of new sources part’’ means a manufactured piece of an im- ered by this title, a biomaterials supplier of supply for the full range of threatened raw plant. may raise any defense set forth in section materials and component parts for medical (B) CERTAIN COMPONENTS.—Such term in- 205. devices are remote; cludes a manufactured piece of an implant (2) PROCEDURES.—Notwithstanding any (11) it is unlikely that the small market that— other provision of law, the Federal or State for such raw materials and component parts (i) has significant nonimplant applications; court in which a civil action covered by this in the United States could support the large and title is pending shall, in connection with a investment needed to develop new suppliers (ii) alone, has no implant value or purpose, motion for dismissal or judgment based on a of such raw materials and component parts; but when combined with other component defense described in paragraph (1), use the (12) attempts to develop such new suppliers parts and materials, constitutes an implant. procedures set forth in section 206. would raise the cost of medical devices; (4) HARM.— (b) APPLICABILITY.— (13) courts that have considered the duties (A) IN GENERAL.—The term ‘‘harm’’ (1) IN GENERAL.—Except as provided in of the suppliers of the raw materials and means— paragraph (2), notwithstanding any other component parts have generally found that (i) any injury to or damage suffered by an provision of law, this title applies to any the suppliers do not have a duty— individual; civil action brought by a claimant, whether (A) to evaluate the safety and efficacy of (ii) any illness, disease, or death of that in- in a Federal or State court, against a manu- the use of a raw material or component part dividual resulting from that injury or dam- facturer, seller, or biomaterials supplier, on in a medical device; and age; and the basis of any legal theory, for harm alleg- (B) to warn consumers concerning the safe- (iii) any loss to that individual or any edly caused by an implant. ty and effectiveness of a medical device; other individual resulting from that injury (2) EXCLUSION.—A civil action brought by a (14) attempts to impose the duties referred or damage. purchaser of a medical device for use in pro- to in subparagraphs (A) and (B) of paragraph (B) EXCLUSION.—The term does not include viding professional services against a manu- (13) on suppliers of the raw materials and any commercial loss or loss of or damage to facturer, seller, or biomaterials supplier for component parts would cause more harm an implant. loss or damage to an implant or for commer- than good by driving the suppliers to cease (5) IMPLANT.—The term ‘‘implant’’ means— cial loss to the purchaser— supplying manufacturers of medical devices; (A) a medical device that is intended by (A) shall not be considered an action that and the manufacturer of the device— is subject to this title; and May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6285 (B) shall be governed by applicable com- with section 206, that it is necessary to im- the Federal Food, Drug, and Cosmetic Act mercial or contract law. pose liability on the biomaterials supplier as (21 U.S.C. 360, 360c, 360e, or 360j); and (c) SCOPE OF PREEMPTION.— a manufacturer because the related manu- (II) have received clearance from the Sec- (1) IN GENERAL.—This title supersedes any facturer meeting the requirements of sub- retary, State law regarding recovery for harm paragraph (A) or (B) lacks sufficient finan- if such specifications were provided by the caused by an implant and any rule of proce- cial resources to satisfy any judgment that manufacturer to the biomaterials supplier dure applicable to a civil action to recover the court feels it is likely to enter should the and were not expressly repudiated by the damages for such harm only to the extent claimant prevail. biomaterials supplier prior to the acceptance that this title establishes a rule of law appli- (3) ADMINISTRATIVE PROCEDURES.— by the manufacturer of delivery of the raw cable to the recovery of such damages. (A) IN GENERAL.—The Secretary may issue materials or component parts; and (2) APPLICABILITY OF OTHER LAWS.—Any a declaration described in paragraph (2)(B) (2) such conduct was an actual and proxi- issue that arises under this title and that is on the motion of the Secretary or on peti- mate cause of the harm to the claimant. not governed by a rule of law applicable to tion by any person, after providing— SEC. 206. PROCEDURES FOR DISMISSAL OF CIVIL the recovery of damages described in para- (i) notice to the affected persons; and ACTIONS AGAINST BIOMATERIALS graph (1) shall be governed by applicable (ii) an opportunity for an informal hearing. SUPPLIERS. Federal or State law. (B) DOCKETING AND FINAL DECISION.—Imme- (a) MOTION TO DISMISS.—In any action that (d) STATUTORY CONSTRUCTION.—Nothing in diately upon receipt of a petition filed pursu- is subject to this title, a biomaterials sup- this title may be construed— ant to this paragraph, the Secretary shall plier who is a defendant in such action may, (1) to affect any defense available to a de- docket the petition. Not later than 180 days at any time during which a motion to dis- fendant under any other provisions of Fed- after the petition is filed, the Secretary shall miss may be filed under an applicable law, eral or State law in an action alleging harm issue a final decision on the petition. move to dismiss the action on the grounds caused by an implant; or (C) APPLICABILITY OF STATUTE OF LIMITA- that— (2) to create a cause of action or Federal TIONS.—Any applicable statute of limitations (1) the defendant is a biomaterials sup- court jurisdiction pursuant to section 1331 or shall toll during the period during which a plier; and 1337 of title 28, United States Code, that oth- claimant has filed a petition with the Sec- (2)(A) the defendant should not, for the erwise would not exist under applicable Fed- retary under this paragraph. purposes of— eral or State law. (i) section 205(b), be considered to be a (c) LIABILITY AS SELLER.—A biomaterials SEC. 205. LIABILITY OF BIOMATERIALS SUPPLI- manufacturer of the implant that is subject ERS. supplier may, to the extent required and per- mitted by any other applicable law, be liable to such section; or (a) IN GENERAL.— (ii) section 205(c), be considered to be a as a seller for harm to a claimant caused by (1) EXCLUSION FROM LIABILITY.—Except as seller of the implant that allegedly caused an implant if— provided in paragraph (2), a biomaterials harm to the claimant; or (1) the biomaterials supplier— supplier shall not be liable for harm to a (B)(i) the claimant has failed to establish, (A) held title to the implant that allegedly claimant caused by an implant. pursuant to section 205(d), that the supplier caused harm to the claimant as a result of (2) LIABILITY.—A biomaterials supplier furnished raw materials or component parts purchasing the implant after— that— in violation of contractual requirements or (i) the manufacture of the implant; and (A) is a manufacturer may be liable for specifications; or (ii) the entrance of the implant in the harm to a claimant described in subsection (ii) the claimant has failed to comply with stream of commerce; and (b); the procedural requirements of subsection (B) is a seller may be liable for harm to a (B) subsequently resold the implant; or (b). (2) the biomaterials supplier is related by claimant described in subsection (c); and (b) MANUFACTURER OF IMPLANT SHALL BE common ownership or control to a person (C) furnishes raw materials or component NAMED A PARTY.—The claimant shall be re- parts that fail to meet applicable contrac- meeting all the requirements described in quired to name the manufacturer of the im- tual requirements or specifications may be paragraph (1), if a court deciding a motion to plant as a party to the action, unless— liable for a harm to a claimant described in dismiss in accordance with section (1) the manufacturer is subject to service subsection (d). 206(c)(3)(B)(i) finds, on the basis of affidavits of process solely in a jurisdiction in which (b) LIABILITY AS MANUFACTURER.— submitted in accordance with section 206, the biomaterials supplier is not domiciled or (1) IN GENERAL.—A biomaterials supplier that it is necessary to impose liability on subject to a service of process; or may, to the extent required and permitted the biomaterials supplier as a seller because (2) an action against the manufacturer is by any other applicable law, be liable for the related manufacturer meeting the re- barred by applicable law. harm to a claimant caused by an implant if quirements of paragraph (1) lacks sufficient (c) PROCEEDING ON MOTION TO DISMISS.— the biomaterials supplier is the manufac- financial resources to satisfy any judgment The following rules shall apply to any pro- turer of the implant. that the court feels it is likely to enter ceeding on a motion to dismiss filed under (2) GROUNDS FOR LIABILITY.—The bio- mate- should the claimant prevail. this section: rials supplier may be considered the manu- (d) LIABILITY FOR VIOLATING CONTRACTUAL (1) AFFIDAVITS RELATING TO LISTING AND facturer of the implant that allegedly caused REQUIREMENTS OR SPECIFICATIONS.—A bio- DECLARATIONS.— harm to a claimant only if the biomaterials materials supplier may, to the extent re- (A) IN GENERAL.—The defendant in the ac- supplier— quired and permitted by any other applicable tion may submit an affidavit demonstrating (A)(i) has registered with the Secretary law, be liable for harm to a claimant caused that defendant has not included the implant pursuant to section 510 of the Federal Food, by an implant, if the claimant in an action on a list, if any, filed with the Secretary pur- Drug, and Cosmetic Act (21 U.S.C. 360) and shows, by a preponderance of the evidence, suant to section 510(j) of the Federal Food, the regulations issued under such section; that— Drug, and Cosmetic Act (21 U.S.C. 360(j)). and (1) the raw materials or component parts (B) RESPONSE TO MOTION TO DISMISS.—In re- (ii) included the implant on a list of de- delivered by the biomaterials supplier ei- sponse to the motion to dismiss, the claim- vices filed with the Secretary pursuant to ther— ant may submit an affidavit demonstrating section 510(j) of such Act (21 U.S.C. 360(j)) (A) did not constitute the product de- that— and the regulations issued under such sec- scribed in the contract between the bio- ma- (i) the Secretary has, with respect to the tion; terials supplier and the person who con- defendant and the implant that allegedly (B) is the subject of a declaration issued by tracted for delivery of the product; or caused harm to the claimant, issued a dec- the Secretary pursuant to paragraph (3) that (B) failed to meet any specifications that laration pursuant to section 205(b)(2)(B); or states that the supplier, with respect to the were— (ii) the defendant who filed the motion to implant that allegedly caused harm to the (i) provided to the biomaterials supplier dismiss is a seller of the implant who is lia- claimant, was required to— and not expressly repudiated by the bio- ma- ble under section 205(c). (i) register with the Secretary under sec- terials supplier prior to acceptance of deliv- (2) EFFECT OF MOTION TO DISMISS ON DISCOV- tion 510 of such Act (21 U.S.C. 360), and the ery of the raw materials or component parts; ERY.— regulations issued under such section, but (ii)(I) published by the biomaterials sup- (A) IN GENERAL.—If a defendant files a mo- failed to do so; or plier; tion to dismiss under paragraph (1) or (2) of (ii) include the implant on a list of devices (II) provided to the manufacturer by the subsection (a), no discovery shall be per- filed with the Secretary pursuant to section biomaterials supplier; or mitted in connection to the action that is 510(j) of such Act (21 U.S.C. 360(j)) and the (III) contained in a master file that was the subject of the motion, other than discov- regulations issued under such section, but submitted by the biomaterials supplier to ery necessary to determine a motion to dis- failed to do so; or the Secretary and that is currently main- miss for lack of jurisdiction, until such time (C) is related by common ownership or con- tained by the biomaterials supplier for pur- as the court rules on the motion to dismiss trol to a person meeting all the requirements poses of premarket approval of medical de- in accordance with the affidavits submitted described in subparagraph (A) or (B), if the vices; or by the parties in accordance with this sec- court deciding a motion to dismiss in accord- (iii)(I) included in the submissions for pur- tion. ance with section 206(c)(3)(B)(i) finds, on the poses of premarket approval or review by the (B) DISCOVERY.—If a defendant files a mo- basis of affidavits submitted in accordance Secretary under section 510, 513, 515, or 520 of tion to dismiss under subsection (a)(2) on the S 6286 CONGRESSIONAL RECORD — SENATE May 8, 1995

grounds that the biomaterials supplier did establish the applicable elements of section AMENDMENT NO. 711 not furnish raw materials or component 205(d) solely to the extent permitted by the At the appropriate place in title I, insert parts in violation of contractual require- applicable Federal or State rules for discov- the following: ments or specifications, the court may per- ery against nonparties. SEC. . TRULY UNIFORM STANDARDS FOR ALL mit discovery, as ordered by the court. The (e) STAY PENDING PETITION FOR DECLARA- STATES. discovery conducted pursuant to this sub- TION.—If a claimant has filed a petition for a (a) PUNITIVE DAMAGES.—Notwithstanding paragraph shall be limited to issues that are declaration pursuant to section 205(b) with any other provision of this Act or any limi- directly relevant to— respect to a defendant, and the Secretary has tation under State law, punitive damages (i) the pending motion to dismiss; or not issued a final decision on the petition, may be awarded to a claimant in a product (ii) the jurisdiction of the court. the court shall stay all proceedings with re- liability action subject to this title. The (3) AFFIDAVITS RELATING STATUS OF DE- spect to that defendant until such time as amount of punitive damages that may be FENDANT.— the Secretary has issued a final decision on awarded may not exceed the greater of— (A) IN GENERAL.—Except as provided in the petition. (1) an amount equal to 3 times the amount clauses (i) and (ii) of subparagraph (B), the (f) MANUFACTURER CONDUCT OF PROCEED- awarded to the claimant for the economic court shall consider a defendant to be a ING.—The manufacturer of an implant that is loss on which the claim is based, or biomaterials supplier who is not subject to the subject of an action covered under this an action for harm to a claimant caused by (2) $250,000. title shall be permitted to file and conduct a (b) STATUTE OF REPOSE.—Notwithstanding an implant, other than an action relating to proceeding on any motion for summary judg- liability for a violation of contractual re- any other provision of this Act, no product ment or dismissal filed by a biomaterials quirements or specifications described in liability action subject to this title concern- supplier who is a defendant under this sec- subsection (d). ing a product that is a durable good alleged tion if the manufacturer and any other de- to have caused harm (other than toxic harm) (B) RESPONSES TO MOTION TO DISMISS.—The fendant in such action enter into a valid and court shall grant a motion to dismiss any ac- may be filed more than 20 years after the applicable contractual agreement under tion that asserts liability of the defendant time of delivery of the product. This sub- under subsection (b) or (c) of section 205 on which the manufacturer agrees to bear the section supersedes any State law that re- the grounds that the defendant is not a man- cost of such proceeding or to conduct such quires a product liability action to be filed ufacturer subject to such section 205(b) or proceeding. during a period of time shorter than 20 years seller subject to section 205(c), unless the (g) ATTORNEY FEES.—The court shall re- after the time of delivery. claimant submits a valid affidavit that dem- quire the claimant to compensate the onstrates that— biomaterials supplier (or a manufacturer ap- AMENDMENT NO. 712 (i) with respect to a motion to dismiss con- pearing in lieu of a supplier pursuant to sub- On page 22, beginning with line 11, strike tending the defendant is not a manufacturer, section (f)) for attorney fees and costs, if— through line 7 on page 23. the defendant meets the applicable require- (1) the claimant named or joined the ments for liability as a manufacturer under biomaterials supplier; and AMENDMENT NO. 713 (2) the court found the claim against the section 205(b); or On page 8, strike lines 1 through 4 and in- biomaterials supplier to be without merit (ii) with respect to a motion to dismiss sert the following: contending that the defendant is not a seller, and frivolous. (13) PRODUCT LIABILITY ACTION.—The term the defendant meets the applicable require- SEC. 207. APPLICABILITY. ‘‘product liability action’’ means a civil ac- ments for liability as a seller under section tion, brought against a manufacturer, seller, 205(c). This title shall apply to all civil actions covered under this title that are commenced or any other person responsible for the dis- (4) BASIS OF RULING ON MOTION TO DISMISS.— on or after the date of enactment of this Act, tribution of a product in the stream of com- (A) IN GENERAL.—The court shall rule on a merce, involving a defect or design of the motion to dismiss filed under subsection (a) including any such action with respect to product on any theory for harm caused by solely on the basis of the pleadings of the which the harm asserted in the action or the the product. parties made pursuant to this section and conduct that caused the harm occurred be- any affidavits submitted by the parties pur- fore the date of enactment of this Act. suant to this section. AMENDMENT NO. 714 (B) MOTION FOR SUMMARY JUDGMENT.—Not- Strike section 106, relating to punitive withstanding any other provision of law, if HOLLINGS AMENDMENTS NOS. 710– damages. the court determines that the pleadings and 728 affidavits made by parties pursuant to this AMENDMENT NO. 715 (Ordered to lie on the table.) section raise genuine issues as concerning On page 18, beginning with line 7, strike material facts with respect to a motion con- Mr. HOLLINGS submitted 19 amend- through line 2 on page 20. cerning contractual requirements and speci- ments intended to be proposed by him fications, the court may deem the motion to to amendment No. 690, proposed by Mr. AMENDMENT NO. 716 dismiss to be a motion for summary judg- COVERDELL to amendment No. 596, pro- Strike subsection (b) of section 106, relat- ment made pursuant to subsection (d). posed by Mr. GORTON to the bill, H.R. ing to limitations on the amount of punitive (d) SUMMARY JUDGMENT.— 956, supra; as follows: damages. (1) IN GENERAL.— (A) BASIS FOR ENTRY OF JUDGMENT.—A AMENDMENT NO. 710 biomaterials supplier shall be entitled to AMENDMENT NO. 717 At the appropriate place in title I, insert entry of judgment without trial if the court On page 18, beginning with line 17, strike the following: finds there is no genuine issue as concerning down to line 11 on page 19. any material fact for each applicable ele- SEC. . TRULY UNIFORM STANDARDS FOR ALL ment set forth in paragraphs (1) and (2) of STATES. AMENDMENT NO. 718 section 205(d). (a) PUNITIVE DAMAGES.—Notwithstanding Strike subsection (c) of section 106. (B) ISSUES OF MATERIAL FACT.—With re- any other provision of this Act or any limi- spect to a finding made under subparagraph tation under State law, punitive damages AMENDMENT NO. 719 (A), the court shall consider a genuine issue may be awarded to a claimant in a product On page 19, beginning with line 12, strike of material fact to exist only if the evidence liability action subject to this title. The through line 2 on page 20. submitted by claimant would be sufficient to amount of punitive damages that may be allow a reasonable jury to reach a verdict for awarded may not exceed 2 times the sum of— AMENDMENT NO. 720 the claimant if the jury found the evidence (1) the amount awarded to the claimant for to be credible. the economic loss on which the claim is Strike lines 19 through 23 on page 27. (2) DISCOVERY MADE PRIOR TO A RULING ON A based; and MOTION FOR SUMMARY JUDGMENT.—If, under (2) the amount awarded to the claimant for AMENDMENT NO. 721 applicable rules, the court permits discovery noneconomic loss. Strike lines 9 through 18 on page 12. prior to a ruling on a motion for summary (b) STATUTE OF REPOSE.—Notwithstanding judgment made pursuant to this subsection, any other provision of this Act, no product AMENDMENT NO. 722 such discovery shall be limited solely to es- liability action subject to this title concern- Strike lines 7 through 12 on page 21. tablishing whether a genuine issue of mate- ing a product that is a durable good alleged rial fact exists. to have caused harm (other than toxic harm) AMENDMENT NO. 723 (3) DISCOVERY WITH RESPECT TO A may be filed more than 20 years after the BIOMATERIALS SUPPLIER.—A biomaterials time of delivery of the product. This sub- On page 5, beginning with ‘‘The’’ on line 10, supplier shall be subject to discovery in con- section supersedes any State law that re- strike through line 12. nection with a motion seeking dismissal or quires a product liability action to be filed summary judgment on the basis of the inap- during a period of time shorter than 20 years AMENDMENT NO. 724 plicability of section 205(d) or the failure to after the time of delivery. Strike lines 8 through 14 on page 10. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6287 AMENDMENT NO. 725 ment of Japan, called the ‘‘United States- other purposes, S. 543, a bill to provide At the appropriate place, insert the follow- Japan Framework for a New Economic Part- for the extension of the deadline under ing: nership’’, which established automotive the Federal Power Act applicable to trade regulations as one of 5 priority areas SEC. . NO PREEMPTION OF RECENT TORT RE- the construction of a hydroelectric FORM LAWS. for negotiations, to seek market-opening ar- rangements based on objective criteria and project in Oregon, and for other pur- Notwithstanding any other provision of poses, S. 547, a bill to provide for the this Act to the contrary, nothing in this Act which would result in objective progress; preempts any provision of State law incon- Inasmuch as, a healthy American auto- extension of the deadlines applicable to sistent with this Act if the legislature of mobile industry is of central importance to certain hydroelectric projects under that State considered a legislative proposal the American economy, and to the capability the Federal Power Act, and for other dealing with that provision in connection of the United States to fulfill its commit- purposes, S. 549, a bill to provide for with reforming the tort laws of that State ments to remain as an engaged, deployed, the extension of the deadline under the Pacific power; during the period beginning on January 1, Inasmuch as, after 18 months of negotia- Federal Power Act applicable to the 1980, and ending on the date of enactment of tions with the Japanese, beginning in Sep- construction of three hydroelectric this Act, without regard to whether such tember 1993, the U.S. Trade Representative projects in the State of Arkansas, S. proposal was adopted, modified and adopted, concluded that no progress had been or rejected. 552, a bill to provide for the refurbish- achieved, leaving the auto parts market in ment and continued operation of a Japan ‘‘virtually closed’’; AMENDMENT NO. 726 small hydroelectric facility in central Inasmuch as, in October, 1994, the United Montana by adjusting the amount of At the appropriate place, insert the follow- States initiated an investigation under Sec- ing: tion 301 of the Trade Act of 1974 into the Jap- charges to be paid to the United States SEC. . NO PREEMPTION OF RECENT TORT RE- anese auto parts market, which could result under the Federal Power Act and for FORM LAWS. in the imposition of trade sanctions on a va- other purposes, S. 595, a bill to provide Notwithstanding any other provision of riety of Japanese imports into the United for the extension of a hydroelectric this Act to the contrary, nothing in this Act States unless measurable progress is made in project located in the State of West preempts any provision of State law adopted penetrating the Japanese auto parts market; Virginia, and S. 611 a bill to provide for after the date of enactment of this Act. Inasmuch as, the latest round of U.S.- the extension of time limitation for a Japan negotiations on automotive trade, in AMENDMENT NO. 727 Whistler, Canada, collapsed in failure on FERC-issued hydroelectric license. On page 1, after line 3, insert the following: May 5, 1995, and the U.S. Trade Representa- Those who wish to submit written SEC. 2. STATE IMPLEMENTATION REQUIRED. tive, Ambassador Kantor, stated the ‘‘gov- statements should write to the Com- Notwithstanding any provision of this Act ernment of Japan has refused to address our mittee on Energy and Natural Re- to the contrary, nothing in this Act shall su- most fundamental concerns in all areas’’ of sources, U.S. Senate, Washington, DC persede any provision of State law or rule of automotive trade, and that ‘‘discrimination 20510. For further information, please civil procedure unless that State has enacted against foreign manufacturers of autos and call Judy Brown or Howard Useem at auto parts continues.’’ a law providing for the application of this 202–224–6567. Act in that State. Inasmuch as, President Clinton stated, on May 5, 1995, that the U.S. is ‘‘committed to COMMITTEE ON ENERGY AND NATURAL AMENDMENT NO. 728 taking strong action’’ regarding Japanese RESOURCES imports into the U.S. if no agreement is On page 27, after line 23, insert the follow- Mr. NICKLES. Mr. President, I would reached. ing: like to announce for the public that a Now, therefore, be it SEC. 111. APPLICATION OF ACT LIMITED TO DO- Declared, That it is the Sense of the Senate hearing has been scheduled before the MESTIC PRODUCTS. that— Subcommittee on Energy Production Notwithstanding any other provision of (1) the Senate supports the efforts of the and Regulation. this Act, this Act shall not apply to any President to continue to strongly press the The hearing will take place Tuesday, product, component part, implant, or medi- Government of Japan, through bilateral ne- June 6, 1995, at 9:30 a.m. in room SD–366 cal device that is not manufactured in the gotiations under the agreed ‘‘Framework for United States within the meaning of the Buy of the Dirksen Senate Office Building a New Economic Partnership,’’ for sharp re- in Washington, DC. American Act (41 U.S.C. 10a) and the regula- ductions in the trade imbalances in auto- tions issued thereunder, or to any raw mate- motive sales and parts through the elimi- The purpose of this hearing is to re- rial derived from sources outside the United nation of unfair and restrictive Japanese ceive testimony on S. 708, a bill to re- States. market-closing practices and regulations; peal section 210 of the Public Utility and Regulatory Policies Act of 1978. BYRD (AND OTHERS) AMENDMENT (2) If such results-oriented negotiations are Those who wish to submit written NO. 729 not concluded satisfactorily, appropriate and statements should write to the Com- reasonable measures, up to and including (Ordered to lie on the table.) mittee on Energy and Natural Re- trade sanctions, should be imposed in accord- sources, U.s. Senate, Washington, DC Mr. BYRD (for himself, Mr. BAUCUS, ance with Section 301 of the trade Act of 20510. For further information, please and Mr. REID) submitted an amend- 1974. call Judy Brown or Howard Useem at ment intended to be proposed by them f to amendment No. 690, proposed by Mr. 202–224–6567. COVERDELL to amendment No. 596, pro- NOTICES OF HEARINGS SUBCOMMITTEE ON FORESTS AND PUBLIC LAND posed by Mr. GORTON to the bill, H.R. COMMITTEE ON ENERGY AND NATURAL MANAGEMENT 956, supra; as follows: RESOURCES Mr. CRAIG. Mr. President, I would At the appropriate place, insert Mr. NICKLES. Mr. President, I would like to announce for the public that a Inasmuch as, the United States and Japan like to announce for the public that a hearing has been scheduled before the have a long and important relationship hearing has been scheduled before the Subcommittee on Forests and Public which serves as an anchor of peace and sta- Subcommittee on Energy Production Land Management. bility in the Pacific region; and Regulation. The hearing will take place Tuesday, Inasmuch as, tension exists in an other- The hearing will take place Thurs- May 23, 1995, at 9:30 a.m., in room SD– wise normal and friendly relationship be- day, May 18, 1995, at 2 p.m. in room SD– 366 of the Dirksen Senate Office Build- tween the United States and Japan because of persistent and large trade deficits which 366 of the Dirksen Senate Office Build- ing in Washington, DC. are the result of practices and regulations ing in Washington, DC. The purpose of this hearing is to re- which have substantially blocked legitimate The purpose of this hearing is to re- ceive testimony regarding S. 620, Rec- access of American products to the Japanese ceive testimony on S. 283, a bill to pro- lamation Facilities Transfer Act. market; vide for the extension of the deadline Those wishing to testify or who wish Inasmuch as, the current account trade under the Federal Power Act applicable to submit written statements should deficit with Japan in 1994 reached an historic to two hydroelectric projects in Penn- write to the Committee on Energy and high level of $66 billion, of which $37 billion, sylvania, and for other purposes, S. 468, Natural Resources, attention Betty or 56 percent, is attributed to imbalances in automotive sector, and of which $12.8 billion a bill to provide for the extension of Nevitt, U.S. Senate, Washington, DC is attributable to auto parts flows: the deadline under the Federal Power 20510. For further information, please Inasmuch as, in July, 1993, the Administra- Act applicable to the construction of a call Jim Beirne at (202) 224–2564 or tion reached a broad accord with the Govern- hydroelectric project in Ohio, and for Betty Nevitt at 202–224–0765. S 6288 CONGRESSIONAL RECORD — SENATE May 8, 1995 COMMITTEE ON ENERGY AND NATURAL Since my last report, dated April 24, 1995, have more direct impact on my State, RESOURCES there has been no action that affects the cur- North Dakota, and the people who live Mr. President, I would like to an- rent level of budget authority, outlays or there than the 1995 farm bill. For a nounce for the public that a hearing revenues. farm State, for a State with a predomi- Sincerely, has been scheduled before the full Com- nantly rural economy, it is critically JUNE E. O’NEILL, mittee on Energy and Natural Re- Director. important legislation. sources to consider S. 638, the Insular When Congress and the President Development Act of 1995. THE CURRENT LEVEL REPORT FOR THE U.S. SENATE, FIS- begin to draft that legislation, I be- The hearing will take place Thurs- CAL YEAR 1995, 104TH CONGRESS, 1ST SESSION, AS lieve it is essential that we be about day, May 25, 1995, at 2 p.m., in room OF CLOSE OF BUSINESS MAY 5, 1995 the business of fundamental reform. SD–366 of the Dirksen Senate Office [In billions of dollars] The time for farm program facelifts Building in Washington, DC. has long since passed. It is time for Those wishing to testify or who wish Budget res- Current olution (H. Current level over/ real change, change that returns the to submit written statements should Con. Res. level 2 under reso- farm program to its fundamental and write to the Committee on Energy and 218) 1 lution original mission: helping family farm- Natural Resources, U.S. Senate, Wash- ON-BUDGET ers survive and prosper. ington, DC 20510. For further informa- Budget authority ...... 1,238.7 1,233.1 ¥5.6 I recently wrote a guest editorial Outlays ...... 1,217.6 1,216.2 ¥1.4 tion, please call Jim Beirne at (202) 224– Revenues: which was published in a number of 2564 or Betty Nevitt at 202–224–0765. 1995 ...... 977.7 978.2 0.5 North Dakota newspapers which out- 1995–99 ...... 5,415.2 5,405.7 ¥9.5 f Deficit ...... 241.0 238.0 ¥3.1 lined my thinking on this important Debt subject to limit ...... 4,965.1 4,764.5 ¥200.6 issue in some detail. I would like to ADDITIONAL STATEMENTS OFF-BUDGET share that article, and those thoughts, Social Security outlays: with my colleagues and ask that it be 1995 ...... 287.6 287.5 ¥0.1 3 reprinted at this point in the RECORD. BUDGET SCOREKEEPING REPORT 1995–99 ...... 1,562.6 1,562.6 0. Social Security revenues: The editorial follows: 1995 ...... 360.5 360.3 ¥0.2 ∑ Mr. DOMENICI. Mr. President, I 1995–99 ...... 1,998.4 1,998.2 ¥0.2 NO MORE FACELIFTS FOR THE FARM hereby submit to the Senate the budg- PROGRAM—IT’S TIME FOR REAL REFORM 1 Reflects revised allocation under section 9(g) of H. Con. Res. 64 for the et scorekeeping report prepared by the Deficit-Neutral reserve fund. (By U.S. Senator Byron L. Dorgan) Congressional Budget Office under sec- 2 Current level represents the estimated revenue and direct spending ef- fects of all legislation that Congress has enacted or sent to the President The new U.S. Secretary of Agriculture, tion 308(b) and in aid of section 311 of for his approval. In addition, full-year funding estimates under current law Dan Glickman, is coming to North Dakota the Congressional Budget Act of 1974, are included for entitlement and mandatory programs requiring annual ap- Friday at my invitation to meet with family propriations even if the appropriations have not been made. The current as amended. This report meets the re- level of debt subject to limit reflects the latest U.S. Treasury information on farmers. His visit comes at both an oppor- quirements for Senate scorekeeping of public debt transactions. tune and very challenging time. 3 section 5 of Senate Concurrent Resolu- Less than $50 million. This year Congress will cut federal spend- Note: Detail may not add due to rounding. ing to reduce the deficit. It will also write a tion 32, the first concurrent resolution new five year farm program. The two are on the budget for 1986. THE ON-BUDGET CURRENT LEVEL REPORT FOR THE U.S. closely related. Budget pressures will limit This report shows the effects of con- SENATE, 104TH CONGRESS, 1ST SESSION, SENATE the amount of money available for a farm gressional action on the budget SUPPORTING DETAIL FOR FISCAL YEAR 1995 AS OF program. through May 5, 1995. The estimates of CLOSE OF BUSINESS MAY 5, 1995 Farm program price supports have already been cut deeply—slashed by 62% since 1986— budget authority, outlays, and reve- [In millions of dollars] nues, which are consistent with the but still, some leaders in the new Congress technical and economic assumptions of Budget au- are pushing for even deeper cuts. House Ma- thority Outlays Revenues jority Leader Dick Armey (R–TX) and Sen- the concurrent resolution on the budg- ate Agriculture Committee Chair Richard et (H. Con. Res. 218), show that current ENACTED IN PREVIOUS SESSIONS Lugar (R–IN) are calling outright for the fed- level spending is below the budget reso- Revenues ...... 978,466 eral farm program to be phased down and, ef- lution by $5.6 billion in budget author- Permanents and other spending fectively, abolished. legislation ...... 750,307 706,236 ...... Those of us who believe that a decent farm ity and $1.4 billion in outlays. Current Appropriation legislation ...... 738,096 757,783 ...... level is $0.5 billion over the revenue Offsetting receipts ...... (250,027) (250,027) ...... program is essential to the survival of family floor in 1995 and below by $9.5 billion farmers face a major challenge. To retain a Total previously en- decent farm program, we are going to have over the 5 years 1995–99. The current es- acted ...... 1,238,376 1,213,992 978,466 to propose new, and more effective ap- timate of the deficit for purposes of ENACTED THIS SESSION proaches. We must take a fresh look at what calculating the maximum deficit 1995 Emergency Supplementals works and what doesn’t in the farm program. amount is $238 billion, $3.1 billion and Rescissions Act (Public I hope that will be the focus of the discus- Law 104–6)...... (3,386) (1,008) ...... below the maximum deficit amount for Self-Employed Health Insurance sion in North Dakota on Friday with the 1995 of $241 billion. Act (Public Law 104–7) ...... (248) Secretary of Agriculture. At the outset we have to admit that the Since my last report, dated April 24, Total enacted this ses- 1995, there has been no action that af- sion ...... (3,386) (1,008) (248) current farm program doesn’t work very fects the current level of budget au- well. ENTITLEMENTS AND First, price supports are too low to offer thority, outlays, or revenues. MANDATORIES real protection to family-sized farms. That’s The report follows: Budget resolution baseline esti- because the nation’s largest farms—often big mates of appropriated enti- U.S. CONGRESS, tlements other mandatory corporate farms—soak up too much of the CONGRESSIONAL BUDGET OFFICE, programs not yet enacted .... (1,887) 3,189 ...... farm program’s funds. Total current level 1 ...... 1,233,103 1,216,173 978,218 Washington, DC, May 8, 1995. Total budget resolution ...... 1,238,744 1,217,605 977,700 Second, the current farm program is far Hon. PETE DOMENICI, Amount remaining: too complicated. Chairman, Committee on the Budget, U.S. Sen- Under budget resolution ...... 5,641 1,432 ...... Third, it is built on a ‘‘supply manage- ate, Washington, DC. Over budget resolution ...... 518 ment’’ approach that no longer works. In the DEAR MR. CHAIRMAN: The attached report 1 In accordance with the Budget Enforcement Act, the total does not in- new global market place of the 1990’s and be- for fiscal year 1995 shows the effects of Con- clude $3,905 million in budget authority and $7,442 million in outlays in yond, it is virtually impossible for one na- funding for emergencies that have been designated as such by the Presi- gressional action on the 1995 budget and is dent and the Congress, and $841 million in budget authority and $917 mil- tion to control supplies. When we cut pro- current through May 5, 1995. The estimates lion in outlays for emergencies that would be available only upon an official duction of a commodity, other countries of budget authority, outlays and revenues budget request from the President designating the entire amount requested eargerly step in and fill the gap. as an emergency requirement. are consistent with the technical and eco- The bottom line is that the current farm Notes: Numbers in parentheses are negative. Detail may not add due to nomic assumptions of the 1995 Concurrent rounding.• program does not do a good job serving as a Resolution on the Budget (H. Con. Res. 218). safety net for family farmers nor does it do f This report is submitted under Section 308(b) much to boost market prices for farm com- and in aid of Section 311 of the Congressional TIME FOR REAL FARM REFORM modities. Budget Act, as amended, and meets the re- Under the current program, we have ended quirements of Senate scorekeeping of Sec- ∑ Mr. DORGAN. Mr. President, no up with more government employees to run tion 5 of S. Con. Res. 32, the 1986 First Con- other legislation which is likely to the farm program, and fewer family farmers. current Resolution on the Budget. come before the Congress this year will That’s moving in the wrong direction. May 8, 1995 CONGRESSIONAL RECORD — SENATE S 6289 So, this year we need real reform—not an- eral farm program dollars. It will provide the tutelage, the Bruins have advanced to other farm program facelift. strongest price support for the first incre- the NCAA tournament’s second round A NEW APPROACH ment of production which will provide the five times, the Sweet 16 three times, The first thing we must do in re-thinking most help for family sized farms. It will end the practice of providing unnec- the Elite Eight twice and, in 1995, the federal farm program is to establish a earned the crowning achievement as new benchmark for farm legislation, one essary and unlimited price protection to the that focuses on preserving and building a nation’s largest corporate farms, while NCAA National Champions. network of family farms which are the back- shortchanging the nation’s family farmers. And it is important to note that Jim bone of rural America’s economy and its My farm program proposal would also end Harrick’s successes have not all come communities. the practice of paying price supports to off- farm investors. We would define who is real- on the basketball court. He and his The first sentence in the new 1995 Farm wife, Sally, celebrate 34 years of mar- Bill should state, clearly, that the objective ly a farmer and who is farming the system. of the federal farm program is to help pre- Under my plan, the farm price safety net riage and proudly speak of their three serve and build a network of family farms. would go to actual farm operators (and re- sons, Monte, Jim, and Glenn, and of Everything after that must work to make tired farmers who derive a majority of their their granddaughter, Morgan Paige. that goal a reality. income from crop-share arrangements). The safety net would extend only to those who His integrity and character are well If the purpose of the farm program isn’t to known and have earned him invitations give family farmers an opportunity to make are engaged in the day-to-day running of a a living on the farm, then we ought to scrap farm operation or depend on a farm oper- to travel the world as an American it. We don’t need a farm program that helps ation for a majority of their income. goodwill ambassador. giant agri-factories plow the ground. We would repeal and close the loopholes by His dedication to the game, his con- which some of the biggest landholders and THE DORGAN PLAN TO STRENGTHEN FAMILY corporations receive multiple farm program cern with the well-being of the players, FARMS entitlements. his focus and determination, and the I propose a family farm-targeted farm pro- We need to get back to the original pur- integrity of the UCLA program all gram, which would provide a better price pose of agricultural programs: to preserve show his fine qualities as a coach and safety net for family farmers. and protect a network of family farms and as an American.∑ It would end government interference so help them compete in an unpredictable world that all farmers could make their own pro- in which weather, market conditions, and f duction decisions based on the best use of economic policies constantly undermine their land resources, the opportunities of the their efficiency and their productivity. ORDERS FOR TUESDAY, MAY 9, marketplace, and their skills and knowledge My family farm targeted farm program as producers. would give family farmers a chance—an op- 1995 Here is how it would work: portunity—to preserve a production system Mrs. HUTCHISON. Mr. President, I 1. My plan would establish a new Family and a lifestyle that is important to our coun- ask unanimous consent that when the Farm Target Price at $4.50 per bushel on try.∑ wheat (compared to the current target price Senate completes its business today, it f of $4.00 per bushel) up to the first 20,000 bush- stand in recess until the hour of 9:15 els of production. Proportional target prices HONORING THE UNIVERSITY OF a.m. on Tuesday, May 9, 1995; that fol- and production levels would be set to cover CALIFORNIA AT LOS ANGELES lowing the prayer, the Journal of pro- feed grains or a producer’s mix of basic farm BASKETBALL COACH JIM ceedings be deemed approved to date, program commodities. 2. Farmers would be free to make their HARRICK the time for the two leaders be re- own decisions about what they produce based ∑ Mr. ABRAHAM. Mr. President, I rise served for their use later in the day, on the market situation. Production beyond to pay tribute to a great man and a and there then be a period for the the amount of grain eligible for target great head coach; Jim Harrick of the transaction of morning business, not to prices, would be up to the farmer, and would UCLA Bruins. extend beyond the hour of 10:30 a.m., not receive farm program benefits. If someone wants to farm an entire county, While everyone may be familiar with with Senators permitted to speak for they have every right to do that. But under Jim’s most recent accomplishment, up to 5 minutes each, with the excep- my plan, they, like family-sized farms would winning the 1995 NCAA Championship, tion of the following: Senator THOMAS, get price protection for 20,000 bushels of those that have followed his career see 20 minutes; Senator DASCHLE or his wheat produced. What they produce above a man that has accepted challenge designee, 20 minutes; Senator LEVIN, 20 that, they do without any government inter- after challenge and built a reputation minutes; Senator SANTORUM, 10 min- ference, and without price supports—they as- for success. utes; I further ask unanimous consent sume all the risks of the market place. Jim attended the University of 3. On those first 20,000 bushels of wheat, that at the hour of 10:30 a.m., the Sen- the plan would provide non-recourse market- Charleston were, in addition to receiv- ate proceed to a vote on the confirma- opportunity loans set at out-of-pocket pro- ing his bachelor’s degree in speech, he tion of the nomination of John Deutch duction costs as determined by the Secretary earned a place in the Hall of Fame and to be Director of CIA, to be imme- of Agriculture. Crops produced beyond this Alumni Gallery of Achievement. He diately followed by a vote on the mo- benchmark level would not be eligible for then went on to complete his master’s tion to invoke cloture on the this loan. degree in education from the Univer- Coverdell-Dole amendment. 4. It would extend the Conservation Re- sity of Southern California. serve Program (CRP) and make it more flexi- Jim began his coaching career at The PRESIDING OFFICER. Without ble to assist producers in meeting steward- Morningside High in Los Angeles, aver- objection, it is so ordered. ship and environmental goals. Savings Mrs. HUTCHISON. Mr. President, I achieved by making some changes in the aging over 25 victories and winning CRP program could be used to restore fund- three Sky League titles in four sea- now ask unanimous consent that Sen- ing for other conservation programs that as- sons. After distinguishing himself as an ators have until 10:15 a.m. Tuesday to sist farmers, and to improve farm program assistant coach at Utah State and later file first-degree and second-degree support prices. UCLA, Jim accepted the head coach po- amendments; further, that the Senate 5. It would limit participation in the farm sition at Pepperdine University. In his stand in recess between the hours of price support program to those who are ac- nine seasons at Pepperdine, coach 12:30 and 2:15 Tuesday for the weekly tively engaged in farming, and end program payments to off-farm investors. We could use Harrick won five conference titles, four policy luncheons to meet. the savings to improve the safety net of WCAC Coach of the Year Awards, and, The PRESIDING OFFICER. Without price supports for family farmers. of course, the invitation to come back objection, it is so ordered. My plan tightly focuses federal farm pro- to UCLA as the new head coach. Mrs. HUTCHISON. Mr. President, for grams—and dollars—on family farmers. It The UCLA basketball program has the information of all Senators, there would put price supports under family farm- flourish under Jim’s direction. He is will be two consecutive rollcall votes ers, rather than under farm commodities. the first UCLA coach to have 7 con- beginning at 10:30 tomorrow morning. It will provide our farm families the oppor- secutive 20-win seasons and 7 straight tunity to make a living at efficient levels of The first vote is on the Deutch nomina- production. tournament bids in his initial 7 sea- tion, to be followed by a vote on the It will provide an abundant supply of effi- sons. At 146 wins and 54 losses, he also cloture motion on the Coverdell-Dole ciently produced food and fiber for our na- owns the best UCLA record after his amendment. tion, and make the best use of limited fed- first 200 games. Under coach Harrick’s S 6290 CONGRESSIONAL RECORD — SENATE May 8, 1995 APPOINTMENTS BY THE VICE the Senator from Arkansas [Mr. THE TERM OF 4 YEARS, VICE VICKI MILES-LAGRANGE, RESIGNED. PRESIDENT PRYOR]; and the Senator from Hawaii The PRESIDING OFFICER. The [Mr. AKAKA]. f Chair, on behalf of the Vice President, f pursuant to 22 U.S.C. 276h–276k, as CONFIRMATIONS RECESS UNTIL 9:15 A.M. amended, appoints the Senator from TOMORROW Executive nominations confirmed by New Mexico [Mr. BINGAMAN] as a mem- the Senate May 8, 1995: ber of the Senate Delegation to the Mrs. HUTCHISON. Mr. President, if Mexico-United States there is no further business to come be- U.S. INSTITUTE OF PEACE Interparliamentary Group during the fore the Senate, I now ask unanimous HARRIET M. ZIMMERMAN, OF FLORIDA, TO BE A MEM- BER OF THE BOARD OF DIRECTORS OF THE U.S. INSTI- first session of the 104th Congress, to consent that the Senate stand in recess TUTE OF PEACE FOR A TERM EXPIRING JANUARY 19, 1999. be held in Tucson, AZ, May 12–14, 1995. under the previous order. THE ABOVE NOMINATION WAS APPROVED SUBJECT TO THE NOMINEE’S COMMITMENT TO RESPOND TO RE- The Chair, on behalf of the Vice There being no objection, the Senate, QUESTS TO APPEAR AND TESTIFY BEFORE ANY DULY President, in accordance with 22 U.S.C. at 6:22 p.m., recessed until Tuesday, CONSTITUTED COMMITTEE OF THE SENATE. May 9, 1995, at 9:15 a.m. 1928a–1928d, as amended, appoints the THE JUDICIARY following Senators as members of the f MAXINE M. CHESNEY, OF CALIFORNIA, TO BE U.S. DIS- Senate delegation to the North Atlan- TRICT JUDGE FOR THE NORTHERN DISTRICT OF CALI- tic Assembly Spring Meeting during NOMINATIONS FORNIA. ELDON E. FALLON, OF LOUISIANA, TO BE U.S. DISTRICT the first session of the 104th Congress, Executive nominations received by JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA. to be held in Budapest, Hungary, May the Senate May 8, 1995: CURTIS L. COLLIER, OF TENNESSEE, TO BE U.S. DIS- TRICT JUDGE FOR THE EASTERN DISTRICT OF TEN- 25–29, 1995: CIVIL LIBERTIES PUBLIC EDUCATION FUND NESSEE. The Senator from Alaska [Mr. MUR- JOSEPH ROBERT GOODWIN, OF WEST VIRGINIA, TO BE LEO K. GOTO, OF COLORADO, TO BE A MEMBER OF THE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF KOWSKI]; the Senator from Colorado BOARD OF DIRECTORS OF THE CIVIL LIBERTIES PUBLIC WEST VIRGINIA. EDUCATION FUND FOR A TERM OF 2 YEARS. (NEW POSI- [Mr. BROWN]; the Senator from New TION). DEPARTMENT OF JUSTICE Hampshire [Mr. GREGG]; the Senator DEPARTMENT OF JUSTICE from Texas [Mrs. HUTCHISON]; the Sen- JOE BRADLEY PIGOTT, OF MISSISSIPPI, TO BE U.S. AT- PATRICK M. RYAN, OF OKLAHOMA, TO BE U.S. ATTOR- TORNEY FOR THE SOUTHERN DISTRICT OF MISSISSIPPI ator from Louisiana [Mr. JOHNSTON]; NEY FOR THE WESTERN DISTRICT OF OKLAHOMA FOR FOR THE TERM OF 4 YEARS. May 8, 1995 CONGRESSIONAL RECORD — Extensions of Remarks E 955 EXTENSIONS OF REMARKS

SENATE COMMITTEE MEETINGS 11:00 a.m. Rules and Administration Appropriations To hold hearings to examine manage- Title IV of Senate Resolution 4, Agriculture, Rural Development, and Re- ment guidelines for the future of the agreed to by the Senate on February 4, lated Agencies Subcommittee Smithsonian Institution. 1977, calls for establishment of a sys- To hold hearings on proposed budget es- SD–106 tem for a computerized schedule of all timates for fiscal year 1996 for Food, Special on Aging meetings and hearings of Senate com- Nutrition, and Consumer Services, and To hold hearings to examine ways the mittees, subcommittees, joint commit- Food and Consumer Service, each of private sector can assist in making tees, and committees of conference. the Department of Agriculture. long term care more affordable and ac- This title requires all such committees SD–138 cessible. 1:30 p.m. SD–562 to notify the Office of the Senate Daily Armed Services 10:00 a.m. Digest—designated by the Rules Com- To hold hearings with the Committee on Appropriations mittee—of the time, place, and purpose the Judiciary to examine the role of Interior Subcommittee of the meetings, when scheduled, and the military in combatting terrorism. To hold hearings on proposed budget es- any cancellations or changes in the SD–106 timates for fiscal year 1996 for the Bu- meetings as they occur. Judiciary reau of Indian Affairs, Department of As an additional procedure along To hold hearings with the Committee on the Interior. with the computerization of this infor- Armed Services to examine the role of SD–116 mation, the Office of the Senate Daily the military in combatting terrorism. Foreign Relations SD–106 Near Eastern and South Asian Affairs Sub- Digest will prepare this information for 2:00 p.m. committee printing in the Extensions of Remarks Energy and Natural Resources To hold hearings to examine United section of the CONGRESSIONAL RECORD To hold hearings on the Federal Energy States assistance programs in the Mid- on Monday and Wednesday of each Regulatory Commission’s Notice of dle East. week. Proposed Rulemaking and Supple- SD–419 Meetings scheduled for Tuesday, May mental Proposed Rulemaking, Promot- Labor and Human Resources 9, 1995, may be found in the Daily Di- ing Wholesale Competition Through Disability Policy Subcommittee Open-Access Non-Discriminatory To hold hearings to examine proposed gest of today’s RECORD. Transmission Services by Public Utili- legislation relating to the education of MEETINGS SCHEDULED ties (Docket No. RM95–8–000), and Re- individuals with disabilities. covery Stranded Costs by Public Utili- SD–430 ties and Transmitting Utilities (Docket Veterans’ Affairs MAY 10 No. RM94–7–001). To hold hearings on the reorganization of 9:30 a.m. SD–366 the Veterans Health Administration, Energy and Natural Resources Select on Intelligence and the requirement of 38 U.S.C. 510(b) To hold hearings on the nomination of To hold closed hearings on intelligence for the Department of Veterans Affairs James John Hoecker, of Virginia, to be matters. to provide 90 days notice to the Con- a Member of the Federal Emergency SH–219 gress before an administrative reorga- Regulatory Commission, Department 3:00 p.m. nization may take effect. of Energy. Armed Services SR–418 SD–366 Airland Forces Subcommittee 10:30 a.m. Finance To hold open and closed (SR–222) hear- Appropriations To hold hearings on S. 16, to establish a ings on S. 727, authorizing funds for fis- Foreign Operations Subcommittee commission to review the dispute set- cal year 1996 for military activities of To hold hearings on proposed budget es- tlement reports of the World Trade Or- the Department of Defense and the fu- timates for fiscal year 1996 for foreign ganization. ture years defense program, focusing assistance programs, focusing on the SD–215 on tactical intelligence and related ac- Agency for International Development. Judiciary tivities in the Army and Air Force. SR–325 Immigration Subcommittee SR–232A 1:00 p.m. To hold hearings on verification of appli- Joint Library Appropriations cant identity for purposes of employ- To hold an organizational meeting. Interior Subcommittee ment and public assistance. S–4, Capitol To hold hearings on proposed budget es- SD–226 timates for fiscal year 1996 for the In- 10:00 a.m. MAY 11 dian Health Service, Department of Environment and Public Works 9:30 a.m. Health and Human Services. Business meeting, to mark up S. 440, to Appropriations SD–116 provide for the designation of the Na- Transportation Subcommittee 1:30 p.m. tional Highway System. To hold hearings on proposed budget es- Environment and Public Works SD–406 timates for fiscal year 1996 for the Fed- Superfund, Waste Control, and Risk As- Foreign Relations eral Transit Administration, Depart- sessment Subcommittee To hold hearings on the nominations of ment of Transportation. To resume hearings oversight hearings Larry C. Napper, of Texas, to be Am- SD–192 on the implementation of the Com- bassador to Latvia, Peter Tomsen, of Finance prehensive Environmental Response, California, to be Ambassador to the Re- To resume hearings on the fiscal sol- Compensation, and Liability Act. public of Tajikistan, Lawrence Palmer vency of Medicare and the status of the SD–406 Taylor, of Pennsylvania, to be Ambas- program’s delivery of health care serv- 2:00 p.m. sador to the Republic of Estonia, ices. Appropriations Jenonne R. Walker, of the District of SD–215 Labor, Health and Human Services, and Columbia, to be Ambassador to the Judiciary Education Subcommittee Czech Republic, and James Alan Wil- Terrorism, Technology, and Government To hold hearings to examine incidences liams, of Virginia, for the rank of Am- Information Subcommittee of violence at women’s health clinics. bassador during his tenure of service as To hold hearings to examine issues relat- SD–138 the Special Coordinator for Cyprus. ing to the Internet system. SD–419 SD–226

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. E 956 CONGRESSIONAL RECORD — Extensions of Remarks May 8, 1995 Appropriations Commerce, Science, and Transportation nization of the Bureau of Indian Af- Commerce, Justice, State, and the Judici- Science, Technology, and Space Sub- fairs. ary Subcommittee committee SR–485 To hold hearings on proposed legislation To hold hearings to examine NASA’s 10:00 a.m. authorizing supplemental appropria- space shuttle and reusable launch vehi- Judiciary tions for disaster assistance for the cle programs. Business meeting, to consider pending Oklahoma City bombing. SR–253 calendar business. SD–608 Finance SD–226 2:30 p.m. To resume hearings on the fiscal sol- 10:30 a.m. Armed Services vency of Medicare and the status of the Appropriations Readiness Subcommittee program’s delivery of health care serv- Foreign Operations Subcommittee To resume hearings on S. 727, authorizing ices, focusing on methods to preserve To hold hearings on proposed budget es- funds for fiscal year 1996 for military and improve the Medicare program. timates for fiscal year 1996 for foreign activities of the Department of Defense SD–215 assistance programs. and the future years defense program, Labor and Human Resources SH–216 focusing on environmental, military Disability Policy Subcommittee 2:00 p.m. construction and BRAC programs. To resume hearings to examine proposed Appropriations SR–222 legislation relating to the education of Labor, Health and Human Services, and individuals with disabilities. Education Subcommittee Judiciary SD–430 To hold hearings on proposed budget es- Immigration Subcommittee timates for fiscal year 1996 for the Na- To hold oversight hearings on the Immi- MAY 17 tional Institutes of Health, Depart- gration and Naturalization Service, De- ment of Health and Human Services. partment of Justice. 9:30 a.m. SD–192 SD–226 Appropriations VA, HUD, and Independent Agencies Sub- Appropriations Treasury, Postal Service, and General Gov- MAY 12 committee To hold hearings to examine the Na- ernment Subcommittee 9:30 a.m. tional Academy of Public Administra- To hold hearings on proposed budget es- Appropriations tion’s study on the Environmental Pro- timates for fiscal year 1996 for the VA, HUD, and Independent Agencies Sub- tection Agency. Treasury Department, and the Federal committee SD–G50 Election Commission. To hold hearings on proposed budget es- Appropriations SD–192 timates for fiscal year 1996 for the En- Interior Subcommittee Energy and Natural Resources vironmental Protection Agency, the To hold hearings on proposed budget es- Energy Production and Regulation Sub- Council on Environmental Quality, and timates for fiscal year 1996 for the Na- committee the Agency for Toxic Substances and tional Park Service, Department of the To hold hearings on proposed legislation Disease Registry. Interior. to extend the deadlines of certain hy- SD–192 SD–192 droelectric projects, including S. 283, S. 10:00 a.m. Energy and Natural Resources 468, S. 543, S. 547, S. 549, S. 552, S. 595, Appropriations Business meeting, to consider pending and S. 611. Legislative Branch Subcommittee calendar business. SD–366 To hold hearings on proposed budget es- SD–366 timates for fiscal year 1996 for the Sec- Finance MAY 19 retary of the Senate, the Sergeant at To continue hearings on the fiscal sol- 9:30 a.m. Arms and Doorkeeper of the Senate, vency of Medicare and the status of the Appropriations the Senate Legal Counsel, and the Sen- program’s delivery of health care serv- VA, HUD, and Independent Agencies Sub- ate Office of Fair Employment Prac- ices, focusing on methods to preserve committee tices. and improve the Medicare program. To hold hearings on proposed budget es- SD–116 SD–215 timates for fiscal year 1996 for the De- 2:00 p.m. partment of Housing and Urban Devel- MAY 15 Armed Services opment. SD–192 2:00 p.m. Acquisition and Technology Subcommittee 10:00 a.m. Appropriations To resume hearings on S. 727, to author- ize appropriations for fiscal year 1996 Appropriations Legislative Branch Subcommittee for military activities of the Depart- Legislative Branch Subcommittee To hold hearings on proposed budget es- ment of Defense, and to prescribe mili- To hold hearings on proposed budget es- timates for fiscal year 1996 for the Li- tary personnel strengths for fiscal year timates for fiscal year 1996 for the Ar- brary of Congress, the Congressional 1996, focusing on dual-use technology chitect of the Capitol, and the Govern- Budget Office, and the U.S. Capitol Po- programs. ment Printing Office. lice. SR–232A SD–116 SD–116 Governmental Affairs MAY 18 MAY 22 Post Office and Civil Service Subcommit- 9:30 a.m. 2:00 p.m. tee Energy and Natural Resources Governmental Affairs To hold hearings on Federal pension re- To hold hearings to examine the admin- Post Office and Civil Service Subcommit- form. istration of timber contracts in the tee SD–342 Tongass National Forest and adminis- To resume hearings on Federal pension tration of the Tongass Timber Reform reform. MAY 16 Act of 1990. SD–342 9:30 a.m. SD–366 Agriculture, Nutrition, and Forestry Rules and Administration MAY 23 To resume hearings on proposed legisla- To resume hearings to examine manage- 9:30 a.m. tion to strengthen and improve United ment guidelines for the future of the Agriculture, Nutrition, and Forestry States agricultural programs, focusing Smithsonian Institution. To resume hearings on proposed legisla- on rural development and credit. SD–106 tion to strengthen and improve United SR–328A Small Business States agricultural programs, focusing Appropriations To hold hearings to examine the Small on Federal nutrition programs. Defense Subcommittee Business Administration’s 7(a) business SR–328A To hold hearings on proposed budget es- loan program. Appropriations timates for fiscal year 1996 for the De- SD–628 Defense Subcommittee partment of Defense, focusing on envi- Indian Affairs To hold hearings on proposed budget es- ronmental programs. To hold oversight hearings on the rec- timates for fiscal year 1996 for the De- SD–192 ommendations of the Joint Depart- partment of Defense, focusing on finan- ment of the Interior/Bureau of Indian cial management. Affairs/Tribal Task Force on Reorga- SD–192 May 8, 1995 CONGRESSIONAL RECORD — Extensions of Remarks E 957 Energy and Natural Resources MAY 26 JUNE 13 Forests and Public Land Management Sub- 10:00 a.m. 9:30 a.m. committee Appropriations Agriculture, Nutrition, and Forestry To hold hearings on S. 620, to direct the Legislative Branch Subcommittee Production and Price Competitiveness Secretary of the Interior to convey, To hold hearings on proposed budget es- Subcommittee upon request, certain property in Fed- timates for fiscal year 1996 for the Gen- To hold hearings on proposed legislation eral reclamation projects to bene- eral Accounting Office, and the Office to strengthen and improve United ficiaries of the projects and to set forth of Technology Assessment. States agricultural programs, focusing a distribution scheme for revenues SD–116 on commodity policy. from reclamation project lands. SR–328A Appropriations SD–366 JUNE 6 Indian Affairs Defense Subcommittee 9:30 a.m. To hold hearings on S. 479, to provide for To hold hearings on proposed budget es- Agriculture, Nutrition, and Forestry administrative procedures to extend timates for fiscal year 1996 for the De- Forestry, Conservation, and Rural Revital- partment of Defense, focusing on Federal recognition to certain Indian ization Subcommittee health programs. groups. To hold hearings on proposed legislation SD–192 SR–485 to strengthen and improve United States agricultural programs, focusing JUNE 15 MAY 24 on resource conservation. 9:30 a.m. 9:30 a.m. SR–328A Agriculture, Nutrition, and Forestry Appropriations Appropriations Production and Price Competitiveness Interior Subcommittee Defense Subcommittee Subcommittee To hold hearings on proposed budget es- To hold hearings on proposed budget es- To resume hearings on proposed legisla- timates for fiscal year 1996 for the timates for fiscal year 1996 for the De- tion to strengthen and improve United United States Fish and Wildlife Serv- partment of Defense, focusing on intel- States agricultural programs, focusing ice, Department of the Interior. ligence programs. on commodity policy. SD–192 S–407, Capitol SR–328A 10:00 a.m. Appropriations Agriculture, Nutrition, and Forestry Interior Subcommittee JUNE 20 Research, Nutrition, and General Legisla- To hold hearings on proposed budget es- 9:30 a.m. tion Subcommittee timates for fiscal year 1996 for the De- Appropriations To hold hearings on proposed legislation partment of the Interior. Defense Subcommittee to strengthen and improve United SD–138 To hold hearings on proposed budget es- States agricultural programs, focusing Energy and Natural Resources timates for fiscal year 1996 for the De- on research and the future of U.S. agri- Energy Production and Regulation Sub- partment of Defense, focusing on counternarcotic programs. culture. committee SD–192 SR–328A To hold hearings on S. 708, to repeal sec- tion 210 of the Public Utility Regu- JUNE 27 MAY 25 latory Policies Act of 1978. 10:00 a.m. SD–366 9:30 a.m. Agriculture, Nutrition, and Forestry Appropriations Defense Subcommittee Marketing, Inspection, and Product Pro- JUNE 7 To hold hearings on proposed budget es- motion Subcommittee 9:30 a.m. timates for fiscal year 1996 for the De- To hold hearings on proposed legislation Appropriations partment of Defense. to strengthen and improve United VA, HUD, and Independent Agencies Sub- SD–192 States agricultural programs, focusing committee on Federal farm export programs. To hold hearings on proposed budget es- SR–328A timates for fiscal year 1996 for the Na- POSTPONEMENTS Finance tional Service and the Selective Serv- Social Security and Family Policy Sub- ice System. MAY 9 committee SD–192 9:00 a.m. To hold hearings to examine the finan- 10:00 a.m. Armed Services cial and business practices of the Judiciary Personnel Subcommittee American Association of Retired Per- Youth Violence Subcommittee Readiness Subcommittee sons (AARP). To hold hearings to examine the welfare To hold joint hearings on S. 727, author- SD–215 system’s effect on youth violence. izing funds for fiscal year 1996 for mili- 2:00 p.m. SD–226 tary activities of the Department of Energy and Natural Resources Defense, and the future years defense To hold hearings on S. 638, to authorize program, focusing on military family funds for United States insular areas. housing issues. SD–366 SR–232A Monday, May 8, 1995 Daily Digest Senate Senate will resume consideration of the bill on Chamber Action Tuesday, May 9, 1995, with a second cloture vote Routine Proceedings, pages S6227–S6290 to occur thereon. Measures Introduced: Three bills and two resolu- Removal of Injunction of Secrecy: The injunction tions were introduced, as follows: S. 763–765, and of secrecy was removed from the following treaty: S. Res. 115 and 116. Pages S6276±77, S6278 Extradition Treaty with Hungary (Treaty Doc. Measures Passed: No. 104–5). The treaty was transmitted to the Senate today, V–E Day: By a unanimous vote of 94 yeas (Vote considered as having been read for the first time, and No. 154), Senate agreed to S. Res. 115, expressing referred, with accompanying papers, to the Commit- the sense of the Senate that America’s World War tee on Foreign Relations and ordered to be printed. II veterans and their families are deserving of this Page S6274 nation’s respect and appreciation on the 50th anni- Nomination Considered: Senate began consider- versary of V–E Day. Pages S6254±55, S6256 ation of the nomination of John M. Deutch, of Mas- Commending the Lakota and Dakota Code sachusetts, to be Director of Central Intelligence. Talkers: Senate agreed to S. Res. 116, recognizing Pages S6263±74 and commending the Lakota and Dakota Code Talk- Senate will resume consideration of the nomina- ers. Page S6275 tion on Tuesday, May 9, 1995, with a vote to occur Product Liability Fairness Act: Senate continued thereon. Page S6289 consideration of H.R. 956, to establish legal stand- Appointments: ards and procedures for product liability litigation, Mexico-United States Interparliamentary taking action on amendments proposed thereto, as Group: The Chair, on behalf of the Vice President, follows: Pages S6242±63, S6275 pursuant to 22 U.S.C. 276h–276k, as amended, ap- Pending: pointed Senator Bingaman as a member of the Sen- (1) Gorton Amendment No. 596, in the nature of ate Delegation to the Mexico-United States a substitute. Page S6242 Interparliamentary Group during the First Session of (2) Coverdell/Dole Amendment No. 690 (to the 104th Congress, to be held in Tucson, Arizona, Amendment No. 596), in the nature of a substitute. May 12–14, 1995. Page S6290 Page S6242 North Atlantic Assembly Spring Meeting: The (3) Gorton/Rockefeller Modified Amendment No. Chair, on behalf of the Vice President, in accordance 709 (to Amendment No. 690), in the nature of a with 22 U.S.C. 1928a–1928d, as amended, ap- substitute. Pages S6247±63 pointed Senators Murkowski, Brown, Gregg, During consideration of this measure today, Senate Hutchison, Johnston, Pryor, and Akaka as members also took the following action: of the Senate Delegation to the North Atlantic As- By 43 yeas to 49 nays (Vote No. 153), three-fifths sembly Spring Meeting during the First Session of of those Senators duly chosen and sworn not having the 104th Congress, to be held in Budapest, Hun- voted in the affirmative, Senate failed to agree to gary, May 25–29, 1995. Page S6290 close further debate on Coverdell/Dole Amendment Nominations Confirmed: Senate confirmed the fol- No. 690, listed above. Pages S6255±56 lowing nominations: A third motion was entered to close further de- Joe Bradley Pigott, of Mississippi, to be United bate on Amendment No. 690, listed above and, in States Attorney for the Southern District of Mis- accordance with the provisions of Rule XXII of the sissippi for the term of four years. Standing Rules of the Senate, a vote on the third Maxine M. Chesney, of California, to be United cloture motion could occur on Wednesday, May 10, States District Judge for the Northern District of 1995. Page S6275 California. D 561 D 562 CONGRESSIONAL RECORD — DAILY DIGEST May 8, 1995 Eldon E. Fallon, of Louisiana, to be United States Recess: Senate convened at 11 a.m., and recessed at District Judge for the Eastern District of Louisiana. 6:22 p.m., until 9:15 a.m., on Tuesday, May 9, Curtis L. Collier, of Tennessee, to be United 1995. (For Senate’s program, see the remarks of the States District Judge for the Eastern District of Ten- Acting Majority Leader in today’s RECORD on page nessee. S6290.) Joseph Robert Goodwin, of West Virginia, to be United States District Judge for the Southern Dis- Committee Meetings trict of West Virginia. Harriet M. Zimmerman, of Florida, to be a Mem- (Committees not listed did not meet) ber of the Board of Directors of the United States Institute of Peace for a term expiring January 19, 1996 BUDGET 1999. Pages S6274±75, S6290 Committee on the Budget: Committee began markup of Nominations Received: Senate received the follow- a proposed concurrent resolution on the fiscal year ing nominations: 1996 budget for the Federal Government, but did Leo K. Goto, of Colorado, to be a Member of the not complete action thereon, and will meet again to- Board of Directors of the Civil Liberties Public Edu- morrow. cation Fund for a term of two years. RAMSPECK ACT Patrick M. Ryan, of Oklahoma, to be United Committee on Governmental Affairs: Subcommittee on States Attorney for the Western District of Okla- Post Office and Civil Service concluded hearings to homa for the term of four years. Page S6290 review the implementation of the Ramspeck Act of Communications: Page S6276 1940, which allows the Federal Government to re- Statements on Introduced Bills: Pages S6277±78 tain the services of certain former congressional em- ployees, and S. 177, to repeal the Ramspeck Act, Additional Cosponsors: Page S6278 after receiving testimony from Senator McCain; Amendments Submitted: Pages S6278±87 James B. King, Director, Office of Personnel Man- Notices of Hearings: Pages S6287±88 agement; Nancy R. Kingsbury, Director, Federal Human Resource Management Issues, General Gov- Additional Statements: Pages S6288±89 ernment Division, General Accounting Office; and Record Votes: Two record votes were taken today. Mark R. Levin, Landmark Legal Foundation, Kansas (Total–154) Pages S6255±56, S6256 City, Missouri. h House of Representatives COMMITTEE MEETINGS FOR TUESDAY, Chamber Action MAY 9, 1995 The House was not in session today. Its next (Committee meetings are open unless otherwise indicated) meeting will be held at 12:30 p.m. on Tuesday, May Senate 9. Committee on Appropriations, Subcommittee on Defense, to hold hearings on proposed budget estimates for fiscal year 1996 for the Department of Defense, focusing on Committee Meetings National Guard and Reserve programs, 9:45 a.m., SD–192. AMERICAN OVERSEAS INTERESTS ACT Subcommittee on Military Construction, to hold hear- Committee on International Relations: Subcommittee on ings on proposed budget estimates for fiscal year 1996 for International Operations and Human Rights began military construction programs, focusing on the Navy and markup of H.R. 1561, American Overseas Interests Air Force, 10 a.m., SD–138. Committee on Armed Services, Subcommittee on SeaPower, Act. to hold hearings on S. 727, authorizing funds for fiscal Will continue tomorrow. year 1996 for military activities of the Department of De- fense and the future years defense program, focusing on the Department of the Navy’s implementation of its strategy for Littoral Warfare, 9:30 a.m., SR–222. May 8, 1995 CONGRESSIONAL RECORD — DAILY DIGEST D 563

Committee on the Budget, business meeting, to continue Subcommittee on Human Resources and Intergovern- markup of a proposed concurrent resolution on the fiscal mental Relations, oversight hearing on Department of year 1996 budget for the Federal Government, 9 a.m., Veterans Affairs: ‘‘Opportunities for Cost Savings,’’ 10:30 SH–216. a.m., 2247 Rayburn. Committee on Environment and Public Works, Subcommit- Committee on House Oversight, Task Force on Contested tee on Superfund, Waste Control, and Risk Assessment, Election, hearing on Thirty-Sixth Congressional District to resume oversight hearings on the implementation of of California, 10 a.m., 1310 Longworth. the Comprehensive Environmental Response, Compensa- Committee on International Relations, hearing on H.R. tion, and Liability Act (CERCLA), 9 a.m., SD–406. 1561, American Overseas Interests Act, 10 a.m., 2172 Committee on Finance, to hold hearings on the fiscal sol- Rayburn. vency of Medicare and the status of the program’s deliv- Subcommittee on International Operations and Human ery of health care services, focusing on the 1995 Annual Rights, to continue markup of H.R. 1541, American Reports of the Board of Trustees of the Federal Hospital Overseas Interests Act, 12:30 p.m., 2172 Rayburn. Insurance Trust and the Supplementary Medical Insurance Committee on the Judiciary, hearing on Telecommuni- Trust Fund, 9:30 a.m., SD–215. cations: The Role of the Department of Justice, 9:30 Committee on Labor and Human Resources, Subcommittee a.m., 2141 Rayburn. on Disability Policy, to hold joint hearings with the Committee on Resources, hearing on H.R. 70, to permit House Committee on Economic and Education Oppor- export of certain domestically produced crude oil, 11 tunity Committee’s Subcommittee on Early Childhood, a.m., 1334 Longworth. Youth and Families on the 20th anniversary of the imple- Subcommittee on Energy and Mineral Resources, over- mentation of Part B of the Individuals With Disabilities sight hearing on sodium mineral leasing issues: What is Education Act, 9 a.m., SD–608. ‘‘fair market value’’ royalty on trona, and what are the implications on the export market for soda ash? 2 p.m., NOTICE 1324 Longworth. Subcommittee on National Parks, Forests and Lands, For a listing of Senate Committee Meetings sched- oversight hearing on Federal Land Exchange Policies and uled ahead, see pages E955–57 in today’s RECORD. Regulations, 10 a.m., 1324 Longworth. Committee on Rules, to consider H.R. 961, Clean Water House Amendments of 1995, 1:30 p.m., H–313 Capitol. Committee on Agriculture, Subcommittee on Livestock, Committee on Standards of Official Conduct, executive, to Dairy, and Poultry, hearing on the Effects of the Elimi- consider pending business, 4 p.m., HT–2M Capitol. nation of the Wool and Mohair Program on the American Committee on Ways and Means, Subcommittee on Over- Sheep and Wool Industry, 2 p.m., 1302 Longworth. sight, hearing on the Targeted Jobs Tax Credit, the Ex- Committee on Appropriations, Subcommittee on National clusion for Employer-Provided Educational Assistance, the Security, on 1996/1997 Air Force Budget Overview, 1:30 Orphan Drug Credit and Other Temporary Tax Provi- p.m., H–140 Capitol. sions, 10 a.m., 1100 Longworth. Committee on Banking and Financial Services, to markup Permanent Select Committee on Intelligence, executive, hear- Glass-Steagall reform legislation, 10 a.m., 2128 Rayburn. ing on Intelligence Personnel, 2 p.m., H–405 Capitol. Committee on Economic and Educational Opportunities, Sub- committee on Postsecondary Education, Training and Joint Meetings Life-Long Learning, hearing on Title IX, 9 a.m., 2175 Joint Hearing: Senate Committee on Labor and Human Rayburn. Resources, Subcommittee on Disability Policy, to hold Committee on Government Reform and Oversight, Sub- joint hearings with the House Committee on Economic committee on Government Management, Information, and Education Opportunity Committee’s Subcommittee and Technology, to continue oversight hearings on Na- on Early Childhood, Youth and Families on the 20th an- tional Performance Review, with emphasis on Strengthen- niversary of the implementation of Part B of the Individ- ing Departmental Management, 2 p.m., 311 Cannon. uals with Disabilities Education Act, 9 a.m., SD–608. D 564 CONGRESSIONAL RECORD — DAILY DIGEST May 8, 1995

Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9:15 a.m., Tuesday, May 9 12:30 p.m., Tuesday, May 9

Senate Chamber House Chamber Program for Tuesday: After the recognition of four Sen- Program for Tuesday: Consideration of the following ators for speeches and the transaction of any morning Suspension: H.R. 1139, Striped Bass Conservation business (not to extend beyond 10:30 a.m.), Senate will Amendments Act of 1995; and vote on the nomination of John M. Deutch, of Massachu- Consideration of H.R. 1361, Coast Guard Authoriza- setts, to be Director of Central Intelligence, following tion Act of fiscal year 1996 (open rule, 1 hour of general which Senate will vote on a motion to close further de- debate). bate on Coverdell/Dole Amendment No. 690 (to Amend- ment No. 596), to H.R. 956, Product Liability Fairness Act. (Senate will recess from 12:30 p.m. until 2:15 p.m. for re- spective party conferences.)

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