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

Vol. 143 WASHINGTON, WEDNESDAY, MARCH 19, 1997 No. 36 Senate The Senate met at 10:30 a.m. and was Senate Joint Resolution 23, the Leahy RESERVATION OF LEADER TIME called to order by the President pro resolution. Following debate on these The PRESIDING OFFICER. If the tempore [Mr. THURMOND]. resolutions, Senators should anticipate Senator will suspend, under the pre- stacked rollcall votes at approximately vious order the leadership time is re- PRAYER 11:30. served. The Chaplain, Dr. Lloyd John Following disposition of these resolu- f Ogilvie, offered the following prayer: tions, the Senate may proceed to either Sovereign God, we submit our lives the certification of Mexico or the nom- APPOINTMENT OF AN INDE- to Your authority. Fill our minds with ination of Merrick Garland. Additional PENDENT COUNSEL TO INVES- clear convictions that You are in votes are, therefore, possible during to- TIGATE ALLEGATIONS OF ILLE- charge of our lives and our work today. day’s session following the stacked GAL FUNDRAISING We commit it all to You. votes. Mr. BENNETT. Mr. President, under May this commitment result in a The majority leader has asked me to the previous order, we now have an new, positive attitude that exudes joy remind Senators that this is the last hour of debate equally divided, and I and hope about what You are going to week prior to our adjournment for the have been designated as the manager do today and in the future. We leave 2-week Easter recess, so he would ap- to control the time on this side. I do the results completely in Your hands. preciate Senators continuing to co- not see a colleague yet who will con- Our need is not to get control of our operate and adjusting their schedules trol the time on the other side. lives, but to commit our lives to Your accordingly for the scheduling of legis- The PRESIDING OFFICER. Under control. You know what You are doing lation and votes. the previous order, the Senate will now and will only what is best for us and I thank my colleagues for their at- proceed to Senate Joint Resolution 22 our Nation. tention. for 1 hour, with 30 minutes under the There is nothing that can happen control of the distinguished Senator from Utah, 20 minutes under the con- that You cannot use to deepen our re- f lationship with You. So when success trol of Senator LEAHY, and 10 minutes comes, help us to develop an attitude under the control of Senator BYRD. UNANIMOUS-CONSENT AGREE- The clerk will report. of gratitude. When difficulties arise, MENT—NOMINATION OF MERRICK The legislative clerk read as follows: help us immediately turn to You and B. GARLAND A joint resolution (S.J. Res. 22) to express receive from You an attitude of for- the sense of the Congress concerning the ap- titude. Mr. BENNETT. Mr. President, as in executive session, I ask unanimous plication by the Attorney General for the ap- We place our hands in Yours and ask pointment of an independent counsel to in- You to lead us. Through our Lord and consent that at 3 o’clock today the vestigate allegations of illegal fundraising in Savior. Amen. Senate proceed to executive session to the 1996 Presidential election campaign. consider the nomination of Merrick B. f The Senate resumed consideration of Garland, to be U.S. circuit judge, and the joint resolution. RECOGNITION OF THE ACTING for it to be considered under the fol- The PRESIDING OFFICER. The Sen- MAJORITY LEADER lowing time agreement: 3 hours equally ator from Utah. The PRESIDENT pro tempore. The divided in the usual form. I further ask Mr. BENNETT. Mr. President, some able acting majority leader is recog- unanimous consent that immediately general observations prior to getting nized. following the expiration or yielding into the details of this resolution, I f back of the debate time, the Senate think, are in order. As this matter has proceed to a vote on the confirmation come before the Nation in the form of SCHEDULE of the nomination, and immediately press reports, television commentary, Mr. BENNETT. Mr. President, on be- following that vote, the President be newspaper analyses, et cetera, some- half of the majority leader, I announce immediately notified of the Senate’s thing that is very disturbing to me has that today the Senate will resume con- action and the Senate resume legisla- happened. That is, a single cloak of sideration of Senate Joint Resolution tive business. suspicion regarding illegalities and im- 22, the independent counsel resolution. It is my understanding this has been proprieties has been cast over all as- By previous order, from 10:30 a.m. to cleared on the Democratic side. pects of anything relating to campaign 11:30 a.m., the Senate will conclude de- The PRESIDING OFFICER (Mr. financing, campaign fundraising, and bate on Senate Joint Resolution 22, the HAGEL). Without objection, it is so or- campaign expenditures. Somehow, any- independent counsel resolution, and dered. thing related to raising money or

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

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VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2492 CONGRESSIONAL RECORD — SENATE March 19, 1997 spending money in a campaign has now that went into bringing people into the tion perfectly clear that I do not think become tainted, and we find people in White House, whether it is for over- we should appoint an independent the press and people in this Chamber nights in the Lincoln bedroom, orga- counsel because people in the press, or casting aspersions that, in my view, nized and orchestrated by the Presi- people in this Chamber, get all exer- are inappropriate and uncalled for. dent’s own hand, or for the coffees, as cised about activities in the three I would like to set the terms of the they were called, has reached a level of areas I have just described. None of discussion in this fashion. I suggest unprecedented pattern of activity, and them is serious enough to justify an that, of course, the first dividing line is I consider it to be inappropriate. independent counsel. Let’s focus on the between that which is legal and that I will stipulate that it apparently fourth area I have described, which I which is illegal. Many times in the was not illegal. That does not mean we consider to be the truly sinister areas. press reports no one is making this di- should not comment about it, we Mr. President, with that general viding line. They are attacking any- should not express our opinions about statement and overview, I am prepared thing dealing with fundraising as if it its appropriateness. But, clearly, it now to turn to my colleague from were all the same and all in the same does not call for the appointment of an Michigan and yield such time to him as pot. We should make it clear, we independent counsel. It is something he may require from his 30 minutes so should understand that many of the we can talk about in the political that we keep the time balanced in this things that are done for political fund- arena. It is on the legal side of the line. debate. raising are perfectly legal and, in my If we think it is inappropriate, we Mr. LEVIN. I thank my friend from view, perfectly appropriate, while there should say so. If we think the pattern Utah. are other things that are clearly ille- of activity in this area is just over- The PRESIDING OFFICER. The Sen- gal, and obviously anything illegal is whelmingly improper, we have the ator from Michigan. not appropriate. right to say so. But we must recognize, Mr. LEVIN. I thank the Senator for If I may, I was disturbed by some of once again, that some of that activity his invariable courtesy. I ask unani- the comments made on this floor with may clearly not have been illegal. mous consent that I be yielded 10 min- respect to the actions of the majority Drawing the line and coming over to utes. Senator LEAHY is not yet here, leader, primarily by the minority lead- the side of that which is illegal, I find, but I ask that, I am sure with his ap- er. The suggestion was left in the once again, there are degrees of ille- proval. minds of some people that the majority gality. Let me give you an example The PRESIDING OFFICER. Without leader was being accused of doing that has been heavily reported in the objection, it is so ordered. something illegal or improper by urg- press: the receipt of a $50,000 check by Mr. LEVIN. Mr. President, we will be ing people to attend a Republican fund- Maggie Williams, the chief of staff to voting on two resolutions later this raiser and urging people to support the the First Lady, while Ms. Williams was morning. The first resolution, that of Republican Party. Not only was it not in the White House. That apparently is the majority leader, is a clearly par- illegal nor was it improper, it was per- illegal. tisan document, for a number of rea- fectly appropriate for the majority Naturally, we take breaking of the sons which I will get into in a moment. leader of the Republican Party to en- law seriously. I don’t think we need an The second resolution, which Senator gage in this kind of activity. Just as, independent counsel, however, to inves- LEAHY and I have introduced, intends to be completely fair about it, in my tigate Maggie Williams accepting a to carry out the spirit and the purpose view it was perfectly appropriate and $50,000 check while in the White House, of the independent counsel law without perfectly proper for the senior Senator and I don’t think it is worth some of prejudging the Attorney General re- from Connecticut [Mr. DODD], in his the furor that has been created in the view and, unlike the first resolution of role as the general chairman of the press. If she broke the law in that in- the majority leader, the alternative Democratic National Committee, to stance, I think the Justice Department resolution includes allegations against engage in fundraising activity on be- and the FEC, whoever is the appro- Members of Congress. The majority half of the Democratic Party in the priate legal authority, can handle that leader’s resolution, the first resolution last campaign. The Senator from Con- without any difficulty and does not re- we will be voting on, does not in its necticut has not been attacked on the quire an independent counsel and, final clause, its action clause, make floor, as the majority leader was, but frankly, in my view, may not even re- reference to congressional campaigns, he has been attacked in the press, as quire the tremendous hue and cry that but only to the Presidential campaign. people have tried to cast the cloak of has risen in this area in the press. The second resolution avoids pre- impropriety that I described over all Again, I do not mean to minimize judging the Attorney General’s review, fundraising activities. someone who violates a regulation or urges that the review be carried out I will stand here and defend the right restriction, but there is a difference be- without any political favoritism or any of the senior Senator from Connecticut tween violations that are either inad- political pressure, and, perhaps most to do what he has done on behalf of the vertent, relatively innocent or spring- important, includes in that review Democratic National Committee as ing out of a lack of understanding of Members of Congress and allegations being perfectly appropriate as well as the rules to those violations that, in against Members of Congress. legal, just as I defend the right of the my view, are truly sinister. We should The first resolution is a partisan doc- majority leader for what he has done in not be talking about an independent ument for a number of reasons. First, fundraising activities that are per- counsel unless we have moved from the it mentions Democratic problems ex- fectly appropriate as well as legal. legal side of campaign funding and clusively. Second, it omits what it Now, on the legal side of the line those things that are perfectly appro- should include, which is a review of ac- there have been activities that have priate, toward those things that are tivities of Members of Congress. And, taken place that, in my view, while perhaps inappropriate and improper, third, it includes what it should omit, legal, are not appropriate. It is, per- across the line to those violations that which is a prejudgment of the process haps, legal for the President to have are inadvertent or relatively minor. We of the law that it seeks to invoke. had the kind of extensive contact with still don’t have the necessity of calling The independent counsel law provides campaign donors in the White House for an independent counsel until we that the Attorney General, upon re- that we have seen reported in the cross over into the territory of those ceipt of certain specific information press. The President has suggested that infractions that are truly sinister and from a credible source against certain every President has met donors in the have serious implications about misuse groups, including Members of Congress, White House, and therefore this is per- of power in very high places. shall take certain actions. It doesn’t fectly OK. I will agree, once again, that It is my opinion that there have been prejudge that action. The independent previous Presidents have on occasion enough violations in very high places counsel law doesn’t say that the Attor- met with donors to their party or to in areas that I think are truly sinister ney General, in the absence of specific their particular campaigns while in the that an independent counsel is, indeed, information from a credible source, White House. It is my personal opinion called for. But before I get into the de- will seek an independent counsel. It is that the scale and the organized effort tails of that, I want to make my posi- only when those first two steps are

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2493 taken where she determines that there than those that would be covered by television ads attacking somebody who is specific information from a credible this resolution, particularly in the area is running for Congress, for the Senate, source that then the independent coun- of tax-exempt organizations. in this case. sel law says she shall seek or, in the Just 2 months ago, the specially ap- A group using the same offices as case of Members of Congress or other pointed investigative subcommittee of Americans for Tax Reform, also a tax- than the specific covered officials, she the House Ethics Committee released a exempt group, puts on an ad on tele- may seek an independent counsel. unanimous bipartisan report relative vision saying the following: ‘‘When The purpose of this law, in which I to Speaker GINGRICH. Clinton was running, he promised a have been so deeply involved with Sen- Here is what that bipartisan report middle-class tax cut. Then he raised ator Cohen as my Republican counter- found. This is a quote: my taxes. He was just lying to get part in now three reauthorizations, the The subcommittee found that in regard to elected. This year he’ll lie some purpose of this law is to get an inde- two projects, Mr. Gingrich engaged in activ- more . . .’’ pendent investigation of top Govern- ity involving 501(c)(3) organizations that was That is a tax-exempt group that is ment officials at either end of Pennsyl- substantially motivated by partisan, polit- not supposed to be putting on partisan vania Avenue free from the taint of ical goals. ads, but the resolution of the majority politics. That is the purpose of this The subcommittee also found—these leader does not provide that the Attor- law, to try to remove the allegations are the words of the subcommittee— ney General will look into that kind of which swirl too often in election cam- that ‘‘it was clear that Mr. Gingrich in- activity by tax exempts; only Demo- paigns, or otherwise, that could involve tended’’—I emphasize the word ‘‘in- crats are mentioned and only the Pres- criminal activities, to remove the con- tended’’—‘‘that the [American Oppor- idential election is mentioned. sideration of those allegations against tunities Workshop] and Renewing The PRESIDING OFFICER. The Sen- certain individuals and groups from American Civilization Projects’’—those ator’s 10 minutes have expired. Do you partisan politics. are the 501(c)(3)’s—‘‘have substantial wish to yield more time? The independent counsel law, as I partisan, political purposes.’’ Mr. LEVIN. I thank the Chair, and I said, covers really three groups. First, The subcommittee said—this is a bi- think I better reserve the balance of there are covered officials—the Presi- partisan report—that ‘‘In addition, he Senator LEAHY’s time. dent, Vice President, Cabinet officials, was aware that political activities in The PRESIDING OFFICER. The Sen- a few named others. Where there is spe- the context of 501(c)(3) organizations ator from Utah. cific information from a credible were problematic.’’ Mr. BENNETT. Thank you, Mr. source that a crime may have been Mr. President, it is illegal for President. May I inquire how much time I have committed by one of these covered offi- 501(c)(3) organizations to participate in partisan activities. It violates the law. remaining? cials, then the Attorney General, if she The PRESIDING OFFICER. Nineteen finds those things have occurred, she Yet, you have here a bipartisan sub- committee of the House that finds that minutes and fifteen seconds. must seek an independent counsel. Mr. BENNETT. I thank the Chair. The second group is other persons Mr. GINGRICH, in regard to two Mr. President, I am interested in the where she might have a conflict of in- projects, engaged in activity that was comments by my friend from Michigan. terest. motivated by partisan goals and that He is a distinguished lawyer. I have And the third group is Members of he intended—he intended—that those never had the experience of going to Congress, where, in the case the first projects—I am using their words— law school. But I must respond out of steps have been taken and there is spe- ‘‘have substantial partisan, political experience relating to the political cir- cific information from a credible purposes’’ and ‘‘he was aware that po- cumstance. source, then she may, if she determines litical activities in the context of He decries at length ‘‘no reference to it is in the public interest, seek an 501(c)(3) organizations were problem- Members of Congress’’ and gives us an independent counsel. It is that third atic.’’ example out of the life of NEWT GING- You talk about specific information group which is omitted from the major- RICH, Speaker of the House, in saying, ity leader’s resolution. from a credible source. Pretty specific, why does not the resolution call on The law specifically provides for cer- pretty credible, bipartisan sub- Janet Reno to investigate the Speaker? tain congressional participation committee of the House of Representa- Mr. President, if Janet Reno were to through the Judiciary Committee. This tives, part of the ethics committee. decide that there was further action is very important as the Supreme And yet, in the first resolution that we that needed to be taken with respect to Court, in upholding this law in the case will be voting on, no suggestion to the Mr. GINGRICH, I doubt that she would of Morrison versus Olson, made special Attorney General that she review the run into any resistance in the White reference to the fact that the involve- possibility that the public interest re- House to that decision. I doubt that the ment of the Congress was limited be- quires her to seek an independent President would think that was not a cause the Supreme Court ruled under counsel relative to Members of Con- good idea for her to do that or send her the separation of powers doctrine that gress. Only the Presidential election is any kind of direction or subtle hints the Congress could not control the in the ‘‘action’’ clause in the resolution saying, ‘‘Do not pursue Mr. GINGRICH.’’ independent counsel process. And so before us. No reference to anything but The reason we have an independent the Supreme Court, in the Morrison Democratic activities in the ‘‘whereas’’ counsel operation is because the Attor- case, pointed out that the involvement clause. ney General is indeed subject to pres- of Congress was limited to members of There are other tax exempts that sure from the White House. And there the Judiciary Committee writing a let- should be considered by the Attorney is no such pressure with reference to ter to the Attorney General which, in General as provided for by the inde- Members of Congress, particularly turn, would trigger a report from her pendent counsel—$4.5 million went Members of Congress of the opposing within 30 days. That is what the inde- from the Republican National Com- party. pendent counsel law provides. mittee to a tax-exempt group called In this body, both the Senator from This resolution goes way beyond Americans for Tax Reform. Michigan and I sat with Dave Duren- that, because it would put the Senate According to the Washington Post, 20 berger. Dave Durenberger found out di- on record, albeit in a nonbinding way, million pieces of mail were sent out by rectly that there was no problem in the nonetheless the full Senate on record, that organization, millions of phone Justice Department coming after a which is far different than a letter calls in 150 congressional districts. Member of Congress. from members of the Judiciary Com- They even put on television ads in There are Members in this body who mittee. States, and in one State against a col- were here when Harrison Williams, I have indicated the partisan nature league of ours, attacking him for not known as ‘‘Pete,’’ was pursued by the of the first resolution that we are showing up for work. ‘‘That is wrong,’’ Justice Department and his own party going to be voting on. Let me just give said the television ad. This is by an or- and ultimately went to jail. a few examples of allegations made ganization that is not supposed to en- In the structure of our Government, against Members of Congress or others gage in partisan activity, putting on with the separation of powers, there is

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2494 CONGRESSIONAL RECORD — SENATE March 19, 1997 no pressure on the Attorney General in does explicitly put pressure on her. It but at the time of the meeting he was the executive branch that would pre- jumps to a conclusion as to what she a Federal employee. So here you have vent him or her from going after a should find at the end of a process. We the President, two non-Federal em- Member of the legislative branch, but should not do it. If anybody else is ployees and two Federal employees. there is clear pressure within the exec- doing it, they should not do it. We The discussion is whether or not John utive branch that could prevent an At- should not do it. Huang will move from his position at torney General from going after a Mr. BENNETT. I thank my friend the Department of Commerce to be- member of the executive branch. And from Michigan for correcting my legal come vice chairman of finance of the lack of understanding. And I do stand that is why the independent counsel Democratic National Committee. So statute was created. corrected and accept that instruction. I think the omission from the major- I say to him, and to any who feel, as here is the discussion in the Oval Of- ity leader’s resolution with respect to he apparently does, that Mr. GINGRICH fice, including the President, regarding Members of Congress is a recognition should be included in this, that I would the future role of John Huang, taking that the independent counsel was never be happy to have Mr. GINGRICH in- place in the presence of two of Mr. intended to go after a Member of Con- cluded in the resolution if indeed there Huang’s former associates in the pri- gress and it would be inappropriate to were evidence suggesting there was vate world. go after Members of Congress to put something that had not already come Mr. Huang made that move from the that in. It would fundamentally change out in the proceedings that have al- Commerce Department to the Demo- the nature of the independent counsel ready gone forward. cratic National Committee where he circumstance. The reason I am supporting this reso- raised, according to the Democratic lution is that I feel there is informa- Now, Mr. President—— National Committee, $3.4 million, $1.6 Mr. LEVIN. Would the Senator yield? tion that is being hidden within the ex- million of which has had to be returned Mr. BENNETT. I would be happy to. ecutive branch, coming from some- Mr. LEVIN. When the Senator says it where. I do not know whether it is by the Democratic National Com- was never intended that the inde- coming from the White House. I do not mittee because they have been deter- pendent counsel go after a Member of know whether it is coming from the ex- mined to be either inappropriate or il- Congress, I must yield myself 2 min- ecutive office of the President. But legal. utes to answer that. from somewhere, there seems to be Now, when you ask the question, do The law specifically provides that some kind of pressure being applied to we know everything we need to know when the Attorney General determines the Attorney General to keep her from about Mr. Huang and his activities it would be in the public interest, that proceeding with the appointment of an stemming from that meeting in the indeed she ‘‘may seek’’—I am quoting independent counsel, as Members of Oval Office presided over by the Presi- the law—‘‘an independent counsel for this body individually have urged her or relating to Members of Congress.’’ dent of the United States, we have Mr. It is very specific in the law. And I to do, including Members of the Demo- Huang taking the fifth amendment, re- just used the exact words, reading. cratic side of this body, who have urged fusing to tell us anything further on Members of Congress are included in the Attorney General to proceed with the grounds that it might incriminate this law. Indeed, it was the current ma- the appointment of the independent him. He joins with Charlie Trie, Pau- jority in this body that insisted that counsel. line Kanchanalak, Mark Middleton, For example, the senior Senator from Members of Congress be included in the and Webster Hubbell in taking the fifth New York [Mr. MOYNIHAN] has said it is law and wanted to make it mandatory, amendment, saying they will not co- time for an independent counsel. I am and now they are left out of the resolu- operate with the investigation on the sure my friend from Michigan would tion of the majority leader. grounds that it might tend to incrimi- not stand to censure the senior Senator The ultimate resolution was to make nate them. There are others who have it discretionary where the Attorney from New York for making that expres- sion. He has expressed that freely, not taken the fifth amendment but General found it in the public interest who have left the country, including to do so. But the majority in this body openly, and publicly as is his right. All the resolution does that is offered John H.K. Lee, Charlie Trie, Pauline had determined that Members of Con- by the majority leader is give other Kanchanalak, Arief and Soraya gress be included. They were included, Members of the Senate the opportunity Wiriadinata, Charles DeQueljoe, and left discretionary, but it is very pre- to make the same expression in a vote Mr. Riady. cise. If I can disagree with my dear friend, for a sense of the Senate—not binding, Of the four people who were in that it is very precise that Members of the not with a force of law, simply making meeting along with the President, one Congress are included in the inde- public the fact that they agree with has taken the fifth amendment and the pendent counsel law when it is deter- Senator MOYNIHAN in his calling for a other has left the country. Roughly mined by the Attorney General it independent counsel. half of the money that Mr. Huang Now, why is it that we feel there are would be in the public interest. raised has already been returned by the things that need to be examined with I will use 1 more minute. Democratic National Committee on an independent counsel that have not The pressure that the Senator from the grounds that it was either illegal Utah talks about, which he presumes been? There are many, and our time is limited, but let me go quickly, Mr. or inappropriate. I think this summa- comes from the White House—if it rizes the fact that we need much fur- does—is wrong. We should not com- President, to one example of something that I think calls out for the attention ther investigation into, (a), what was pound any such alleged pressure if, in decided at that meeting, and (b), what fact, it exists by putting pressure on of an independent counsel. On the 13th was done subsequent to that meeting her by this legislative body. Pressure of September, 1995, there was a meeting as a result of those decisions, but of from any source is wrong. If the White in the Oval Office, not in the Demo- the four non-Presidential participants House pressures her, it is wrong. cratic National Committee, not in By the way, she has shown tremen- some other governmental office, in the in that meeting, half of them are un- dous independence, tremendous inde- Oval Office in the White House. Presi- available to us to give us a version. pendence when it comes to the selec- dent Clinton, of course, was there and There are many more examples. I see tion of a decision to seek an inde- with him were four other individuals— my friend from West Virginia has ar- pendent counsel. This Attorney Gen- James Riady, not a Federal employee, rived. I will reserve such additional eral has shown no reluctance to seek an executive, indeed, an owner of the time as I have to summarize this later, the appointment of independent coun- Lippo Group; Bruce Lindsey, who was a and I yield the floor. sel. Government Federal employee and is So if there is pressure, there should the Deputy White House counsel; Jo- The PRESIDING OFFICER (Mr. not be pressure from any source, White seph Giroir, Lippo joint venture part- HUTCHINSON). The Senator from West House or Congress. That is exactly why ner and adviser and a former partner of Virginia. this first resolution, it seems to me, the Rose Law Firm in Arkansas, again, Mr. BYRD. Mr. President, on March runs so counter to the spirit of the not a Federal employee; and John 11, this body voted 99 to 0 to adopt a independent counsel law, because it Huang, a former executive with Lippo resolution that provides more than $4.3

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2495 million to the Committee on Govern- force looking into fundraising efforts and through the quality of that govern- mental Affairs for the sole purpose of in connection with the 1996 Presi- ance, to inspire and to uplift our peo- investigating any and all improper or dential election. In addition, a Federal ple. illegal activities stemming from the grand jury has already begun hearing So I urge each of my colleagues to 1996 federal elections. The investiga- testimony in connection with cam- focus on that opportunity and on the tion will cover the presidential and paign contributions to the Democratic great and long tradition of this body. congressional elections, and the results National Committee. But under the Let’s put aside this and all other un- will be made known to the public early independent counsel statute, each of wise techniques for embarrassing each next year. those efforts would cease. There would other and do something for the good of I believe that one of the primary rea- be no further authority for the Attor- the American people. If there are those sons the resolution had the full support ney General to convene grand juries or who want to embarrass themselves by of the Senate was because of the var- to issue subpoenas. Where is the logic? wrongdoing, they will be found out be- ious compromises that succeeded in Where is the logic in that, Mr. Presi- cause there are processes already at making the scope of the investigation dent? work to ferret out that information both bipartisan and fair. Absent those The decision to invoke the inde- and bring it to the full light of day. So accommodations, the resolution would pendent counsel process is, by law, a let us leave the investigation of cam- have been seen by the American people decision for the Attorney General paign abuses by both political parties as nothing more than an attempt by alone to make. Let us let the law work in the hands of the very capable people one party to gain political advantage as it was intended. We should not, charged with conducting them and over the other. through some misguided attempt at avoid the allure of ‘‘piling on’’ for po- That is why I am deeply concerned grandstanding, pass a resolution that litical advantage. It is time for us to with the direction now being taken serves no legitimate purpose except to remember our real duties and our with this measure. Unlike the resolu- score political home runs. Such a heavy responsibility to legislate and to tion that received the full support of course tends to call into question the govern for the common good and, by the Senate on March 11, this resolution integrity of the Justice Department that example, so encourage our Presi- specifically targets for investigation and of the entire independent counsel dent to do the same. by an independent counsel the Presi- process. Mr. President, I yield the floor. dent, the Vice President, unnamed This resolution has not had the ben- Mr. MOYNIHAN. Mr. President, I will White House officials, and the Demo- efit of committee examination and has vote against both the Republican and cratic National Committee, and it does been moved to the calendar by par- the Democrat resolutions. so based on nothing more substantial liamentary device—I suppose through I hold that the Attorney General than ‘‘reports in the media.’’ rule XIV. While that may be acceptable should appoint an independent counsel Mr. President, the American people for some measures, and is acceptable to investigate alleged improprieties by are painfully aware that both parties for some measures, I feel that, on a Democrats and by Republicans in fund- are guilty of abusing the campaign fi- matter this sensitive, a committee raising for the 1996 Presidential and nancing system currently in place. But should have certainly had the oppor- congressional campaigns. I believe the this resolution would seek to exploit— tunity to pass some judgment. The public will only be reassured if an inde- apparently for paritsan political ad- Congress is attempting to direct an At- pendent counsel looks into what has vantage—the actions of only a Demo- torney General, when the law specifies been happening. The issues must be cratic President and the Democratic the decision to invoke the independent aired in an independent, nonpartisan Party. Now, where is the objectivity? counsel is and ought to be, by constitu- setting. And if there have been viola- Where is the objectivity in that propo- tional necessity, that of the Attorney tions of law, there must be con- sition? General alone. sequences. Even if we disregard fairness, there is There is a mean spirit alive in this Last week, after much debate, the simply no logical reason why the Sen- town currently, Mr. President, which is Senate agreed to fund the Govern- ate needs to be spending its time on destructive, overly partisan and overt- mental Affairs Committee probe into this resolution. The simple truth is ly partisan, and thoroughly regret- illegal and improper fundraising and that the law governing the appoint- table. We seem to have completely for- spending practices in the 1996 Federal ment of an independent counsel al- gotten about the mundane necessities election campaigns. A unanimous Sen- ready provides a process that the At- of governing, like crafting a budget and ate believed that a credible investiga- torney General must follow. That proc- dealing with the myriad problems that tion requires that we look not only at ess is clearly laid out in the U.S. Code, face the American people. our President, but also at ourselves. and it does not—I repeat, does not—in- Instead, we are engaged in a feeding So, too, should an independent counsel. clude sense of the Congress resolutions. frenzy, like sharks that have tasted a Senate Joint Resolution 22 suggests The fact is, Mr. President, that this little blood and hunger for more. If you that the scope of the independent coun- is an unprecedented behest. have ever observed sharks being fed red sel’s investigation should be limited to Never before has the Congress at- meat, you know that it is not a pretty the allegations of wrong-doing by tempted to dictate the naming of an picture. And I am sure that the ex- Democrats in the 1996 Presidential independent counsel. We have never cesses of partisanship emanating from campaign. There is no mention of an passed any measure that would tell the Washington these days and being wit- investigation of congressional cam- Attorney General, as this resolution nessed by the American people are far paigns. does, that she ‘‘should’’ apply for the from appetizing. Senate Joint Resolution 23 does not appointment of an independent coun- No one is suggesting that we turn our call for the appointment of an inde- sel. The reason we haven’t done so is backs on corruption or fail to explore pendent counsel. To say again, in my because that would unnecessarily po- wrongdoing. But I implore some in this view, an independent counsel is the liticize a procedure that was expressly body to cool off and to try to get a only entity capable of conducting an designed to restore public confidence sense of perspective on this entire mat- investigation without dissolving into after Watergate by taking politics out ter. partisan bias. And it is the only way of of our criminal justice system. Service in the U.S. Senate is a tre- proceeding that avoids the appearance Furthermore, I find it ironic that we mendous honor. Each of us has ex- of conflict of interest. are debating this resolution at the pended great personal effort to get Mr. BIDEN. Mr. President, I would same time that the Justice Depart- here, including the straining of our like to offer just few comments to indi- ment’s Office of Public Integrity is ac- personal lives in order to attain a won- cate why I believe the course chosen by tively engaged in an investigation of derful prize, a seat in this great body. the majority today relating to the the very matters that this resolution The benefits of winning that prize in- independent counsel is unwarranted. seeks to have investigated. Career clude the opportunity to participate in First, the official responsible for ini- prosecutors are, as we speak, already governing the greatest country on tiating the appointment of an inde- working as part of an independent task Earth, the United States of America, pendent counsel—Attorney General

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2496 CONGRESSIONAL RECORD — SENATE March 19, 1997 Janet Reno—has maintained the high- think it possible that all the other Sen- the administration of justice and is not est standards of integrity and profes- ators who do not sit on the Judiciary authorized by the independent counsel sionalism. Second, the Attorney Gen- Committee can prudently or accu- law. I believe it an inappropriate effort eral has proven her willingness to re- rately make this judgement. to subvert the independent counsel quest the appointment of independent Not only do we have a comprehensive process. counsels in the past when she believed task force already reviewing the 1996 We spent 4 days debating this. We the statutory standard was met. And, campaign fundraising issues, but we have yet to confirm one single judge. third, the Attorney General has al- also have an Attorney General who has We may possibly have a vote on a ready undertaken a serious inquiry repeatedly shown her independence, in- nominee to one of the almost 100 Fed- into the campaign fundraising issues tegrity, and willingness to call for an eral judge vacancies before we go on and continues to consider, as the facts independent counsel. Since taking of- our second vacation. We have not had 1 develop, whether to seek an inde- fice, Attorney General Reno has re- minute of debate on a budget resolu- pendent counsel. quested the appointment of at least tion. We have not had 1 minute of de- As we review the facts, we must re- four independent counsels—Kenneth bate on the chemical weapons treaty. member that the independent counsel Starr, Donald C. Smaltz, David M. Bar- We have not had 1 minute of debate on statute is triggered only upon receipt rett, and Daniel S. Pearson—to inves- the juvenile crime bill. But we spent 4 of specific, credible evidence that high- tigate wrongdoing of high executive days on this. ranking Government officials listed in branch officials and other individuals I would have thought that the day the statute may have violated our covered by the statute. the President leaves for an inter- criminal laws. This is an appropriately In short, the most prudent course national summit with the President of high threshold that must be met before today is to wait for the Justice Depart- Russia would not be an appropriate the process of appointing an inde- ment’s investigation to be completed. time for attacking the President. I pendent counsel can go forward. This Then, and only then, can the need for would have thought it a time for com- standard is not met by vague allega- appointment of an independent counsel ing together to demonstrate to the rest tions. The law does not apply to uneth- can be evaluated based on a complete of the world that Democrats and Re- ical, improper, or unseemly conduct. and full record. publicans can work together and can at Rather, the statute is triggered only I would also add that this is con- least show support for the President of after the Attorney General determines, sistent with how I have proceeded in the United States as he pursues the in- after consulting with career Justice past cases. For example, in 1992, I, terests of the United States in his Department prosecutors and engaging along with several other Democratic meetings with the President of Russia. in a serious, deliberative process, that Senators on the Judiciary Committee That is the way we have always done the statutory test has been satisfied. sent a letter to then-Attorney General it. In my 22 years here, under the ma- The conduct of the 1996 elections are William Barr requesting that he call jority leadership of Mr. Mansfield, Mr. being carefully scrutinized by the De- for an independent counsel to inves- BYRD, Mr. Baker, Mr. Mitchell, and Mr. partment of Justice. A task force com- tigate the possibility that high-rank- Dole, we have always, always followed prised of career prosecutors from the ing officials engaged in obstruction of the rule that we do not bring some- Public Integrity Section of the Crimi- justice in the prosecution of a par- thing onto the floor of this Senate at- nal Division, supported by over 30 FBI ticular case. I did so only after Attor- tacking the President of the United agents, has been assembled to explore ney General Barr had appointed a spe- States as he is about to go into a sum- fully the range of issues that have been cial counsel, indicating that the Attor- mit. raised. This task force will determine ney General had already concluded Apparently, as the distinguished Sen- which, if any, of the allegations war- that criminal conduct may have taken ator from West Virginia said, there is a rant criminal investigation. Of course, place. I called for an independent coun- meanness going through this town, and if the task force receives specific evi- sel at that point to ensure that this in- that rule that has always been fol- dence from a credible source that a vestigation be carried out by someone lowed, a bipartisan rule always fol- person covered by the Independent whose independence was clear, rather lowed with Democratic and Republican Counsel Act may have violated the law, than by a special counsel hired by the Presidents, always followed with a preliminary investigation under the Attorney General. Democratic and Republican leaders, is Finally, we also need to keep in mind act would be initiated. But, to date, not going to be followed here today. I that there are some costs to appointing the Attorney General has determined think that is unfortunate. I think it an independent counsel at this time. gives an unfortunate image to the rest that the Department has not received An inquiry is already well under way— of the world, and it certainly is not in such evidence. FBI agents have been assigned to the In short, we are at the early stages of the best traditions of the U.S. Senate. task force and, according to press re- the task force’s operations where the It is also ironic that we are being ports, subpoenas have been issued and job is best left to career investigators asked to take this action today know- a grand jury has been convened. Once and prosecutors. ing that last Thursday the Republicans an independent counsel is appointed, What is more, under the independent and Democrats on the House and Sen- that inquiry must be shut down and counsel statute, it is the Judiciary ate Judiciary Committees sent written the independent counsel will have to Committee—not the full Senate—which requests to the Attorney General in- start from scratch. And as we know has the most proper oversight role of voking the statutory provisions that from past experience, independent the independent counsel process. I ar- counsel investigations can linger for provide a limited role for Congress in gued last week that was unnecessary years. So if we are interested in resolv- the independent counsel process. for the Judiciary Committee to make And, of course, this resolution would ing this matter, and getting answers as any conclusions at this time as to the call for an independent counsel only for soon as possible, we ought to allow the propriety of appointing an independent the President—it is restricted to the Justice Department to go forward and counsel. But, a majority of the com- 1996 Presidential campaign. This reso- put our trust in Attorney General Reno mittee did exactly that last week. Now, to trigger the independent counsel lution carefully crafted so that it won’t the full Senate has been called on to statute only if and when she deems it touch any of the Republicans or Demo- embark on an even more unnecessary necessary. crats in the Senate or Republicans or and unwarranted course by asking all Mr. LEAHY addressed the Chair. Democrats in the House. In other Senators to—in effect—substitute their The PRESIDING OFFICER. The Sen- words, we say we are like Caesar’s wife, judgement for that of the career inves- ator from Vermont. we are above all this, we are untainted tigators and prosecutors. I do not be- Mr. LEAHY. How much time remains by any scandals. But go after the Presi- lieve that the members of the Judici- for the Senator from Vermont? dent and the Vice President; and, inci- ary Committee who spend so much of The PRESIDING OFFICER. The Sen- dentally, let’s really slam the Presi- their time overseeing Justice Depart- ator from Vermont has 61⁄2 minutes. dent as he heads off to negotiate with ment activities could make such a Mr. LEAHY. Mr. President, Senate the only other President of a nuclear judgement now—so, I certainly do not Joint Resolution 22 does not advance superpower. I think the resolution

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2497 takes too narrow a view if we are up to As to the argument that this resolu- I cannot understand how anyone who making demands upon the Attorney tion somehow exempts Members of is familiar with the language of the General for an independent counsel. Congress and somehow exempts mem- independent counsel statute can dis- The resolution shields congressional bers of the Republican Party from any agree with this resolution. And I have fundraising practices from investiga- action on the part of the Attorney Gen- gone back and read it and reread it. I tion. eral, I point out the effective language have been around when this statute has Boy, somebody is not reading the of the resolution which says, ‘‘It is the been passed, and modified and passed paper. It didn’t make sense to try to sense of Congress that the Attorney again. Frankly, I have always had shield us from an investigation when General should make application to the some reservations about it. But it is on the same limits were proposed in con- Special Division of the United States the books, and it is clear when it nection with the funding resolution for Court of Appeals to the District of Co- should be activated. the Governmental Affairs Committee, lumbia for the appointment of an inde- That statute sets two thresholds for and it does not make sense or increase pendent counsel to investigate allega- the process of appointing an inde- our credibility with the public now. tions of illegal fundraising in the 1996 pendent counsel. The first is whether Indeed, today, the Washington Post Presidential election campaign.’’ there have been credible and serious al- had a front page story reporting that a There is nothing in there that says legations of illegal acts by high offi- lobbyist for a foreign government was she shall not exercise this right with cials. And it defines who these high of- shaken down last summer by the same respect to a Member of Congress, that ficials may be. Member of the House who now chairs she shall not go after a Republican That doesn’t mean anyone has to be their investigation into alleged cam- nominee, that she shall not do any of presumed guilty. As long as the allega- paign fundraising abuses. Incidentally, the other things that are simply an ex- tions are credible and serious, the stat- this was not only the lobbyist but, if pression that she should do it with re- ute requires the Attorney General to this article is accurate, it even went to spect to the Presidential campaign, take action. the ambassador of a foreign power. and no reference in that resolve por- Clearly, that first threshold has been We on the Judiciary Committee and tion of even Democrats rather than Re- met by what we already know from in the Congress have done all that the publicans. news reports about illegal foreign do- With that, Mr. President, I yield the statute allows with respect to the de- nations and the use of White House fa- remainder of the time to the majority termination by the Attorney General. cilities for campaign fundraising. The 30-day period for the Attorney leader. The PRESIDING OFFICER. The dis- I need not repeat all the instances General’s response has begun to run. others have cited during this debate. We do not need to do anything further tinguished majority leader is recog- nized. One expose has followed another. One on this at this time. admission has followed another. One We ought to get about the real busi- ORDER FOR MORNING BUSINESS explanation or excuse is followed by ness of the U.S. Senate and abandon Mr. LOTT. Mr. President, I ask unan- another. Without judging anyone in- this ill-conceived effort to instruct the imous consent that immediately fol- Attorney General how to proceed. She lowing the stacked votes today that volved, it is as clear as can be that the doesn’t need our guidance and I do not there be a period of morning business first threshold of the independent want to derail the investigations that until the hour of 3 p.m. today, with counsel statute has already been met. are under way. Senators permitted to speak for up to 5 But if anyone disagrees with that as- But if we have to engage in this kind minutes each with the exception of the sertion let them consider the second threshold of the law, the second set of of sideshow, as the President leaves for following: Senator DASCHLE, or his des- an international summit, let us at ignee, in control of up to 60 minutes; circumstances that permits the Attor- least restrain ourselves from seeking Senator BENNETT, or his designee, in ney General to take action. That sec- to pressure the head of our Federal law control of up to 30 minutes; Senator ond threshold is the existence of a per- enforcement agency and instead pass BROWNBACK for up to 10 minutes; and, ceived conflict of interest on the part the alternative form of resolution that Senator CLELAND for up to 15 minutes. of an Attorney General who is ap- urges her to resist political pressure The PRESIDING OFFICER. Without pointed by the President and con- and follow the law. Incidentally, unlike objection, it is so ordered. fronted with possible illegal activities the original resolution, the alternative Mr. LOTT. Mr. President, today after involving the White House. resolution, Senate Joint Resolution 23, months of media exposes and the This provision was put in the inde- does not shield the Congress from any American people asking questions pendent counsel statute in 1978 in order investigation. about exactly what is going on here, I to extricate Attorneys General from I reserve the remainder of my time. think the question that we are trying serious situations just like the one in Mr. BENNETT addressed the Chair. to answer today is, ‘‘Why hasn’t Attor- which the Attorney General finds her- The PRESIDING OFFICER. The Sen- ney General Reno appointed an inde- self now. Confronted by myriad allega- ator from Utah. pendent counsel to investigate these tions of wrongdoing within the admin- Mr. BENNETT. Mr. President, I ap- matters?’’ Members of both parties, istration, of which she is a part, it is preciate the admonition by the senior Democrats as well as Republicans, have not her role to pass judgment on them, Senator from West Virginia and re- asked that question, and they can’t get and it should not be. Under the law, it peated by the Senator from Vermont a satisfactory answer. They have called is her responsibility to trigger the with respect to meanness. I have made on the Attorney General under the law court process by which an independent every attempt during this presentation involving the independent counsel to counsel takes over the role and does to make sure that there is none in any appoint an independent counsel. Sen- the job which the law deliberately of the things that I have said, and to ator MOYNIHAN, Senator FEINGOLD, and takes out of her hands. remind Senators in my opening com- I think others in both parties have said Listen to the Attorney General her- ments that I think many Members of this is the way that we should proceed, self on this point when she testified, this body have inappropriately been and this independent counsel should be just 4 years ago, on the reenactment of stigmatized by the press and others for appointed. the independent counsel statute: doing that which is perfectly appro- That is why we brought before the It is absolutely essential for the public to priate and perfectly legal. Senate Senate Joint Resesolution 22 to have confidence in the system, and you can- I must once again make reference to express the sense of this body ‘‘that the not do that when there is a conflict or an ap- what I consider to be an inappropriate Attorney General should make applica- pearance of conflict in the person who is, in attack on the motives of the majority tion to the Special Division of the effect, the chief prosecutor. leader that was mounted by the minor- United States Court of Appeals for the In other words, the Attorney General ity leader earlier during this debate. I District of Columbia for the appoint- herself. think that is inappropriate. The major- ment of an independent counsel to in- Who did deny that this second ity leader is acting out his good mo- vestigate allegations of illegal fund- threshold for applying the independent tives, even though there may be some raising in the 1996 Presidential election counsel has been more than met? who disagree with him. campaign.’’ Through no fault of her own, Attorney

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2498 CONGRESSIONAL RECORD — SENATE March 19, 1997 General Reno is caught in an excru- I respectfully suggest that the effort things involve the President. They may ciating conflict of interest. If she were being made here to include the Con- not come to that conclusion in the end. to aggressively investigate charges of gress in this resolution is, once again, But this is the way to get at the bot- misconduct by senior administration just a distraction. That is as polite a tom of what really has happened. So I officials, she could be accused of excess term as I can find for something that is urge my colleagues here today do not zeal to protect her own reputation for irrelevant to the Nation’s concern be distracted. We have a very clear res- integrity. If, on the other hand, she about what we have seen happening. olution here that just says it is the does not uncover wrongdoing, she But what has been the modus ope- sense of the Senate that the thresholds would be accused of letting the guilty randi? Every time another new, serious have been met to provide for an inde- escape because of political consider- allegation comes out, the alternative pendent counsel and that we should do ations. by the Democrats has been to attack that, make it very clear what our posi- To shield the Attorney General—any the people who are going to be in crit- tion is and go on with the substantive Attorney General—from that predica- ical positions. Senator FRED THOMP- business that we have to do around ment, and to protect the integrity of SON, who is chairman of Governmental here. the entire Department of Justice, is Affairs, his motives were impugned Some people say, how are you going the essential and primary purpose of when we were moving through with to deal with the budget, less taxes, less the independent counsel statute. setting up the investigation for Gov- spending, less Washington, more free- If that is all so obvious, why then, ernmental Affairs. Insinuations, well, dom if you are going to be fighting on the question might be asked, is the this has 2,000 ramifications. And now these other things? As a matter of fact, Senate considering this resolution today DAN BURTON, the chairman of maybe now we are in a position to today? The answer is that we are com- the committee in the House who has a move on. We have a committee that pelled to take this step, formally ex- job to do, yes, attack him. has been funded. They can do their in- pressing the sense of this institution, That has been the way it has been vestigation, their hearings. If we have for two reasons. done for the last 4 years. Anytime you an independent counsel appointed, First—it is quite common, and, in get accused by somebody or somebody which clearly I think the law has pro- fact, almost always when there are se- has a job to do, go after them. That is vided for, and the threshold has been rious issues being debated that don’t what is at stake here—distraction, ob- met, then we can go on about our other necessarily require a law to be passed— fuscation, say, well, they do it, too. No. business. the Senate expresses its collective So much of what has happened here is I urge my colleagues to vote for Sen- sense on the issue of national import. not normal; it is not the way it has al- ate Joint Resolution 22, I believe it is, If we do not do that with regard to this ways been done. and then vote to table the other resolu- matter, I think we will be slighting our That campaign is the heart of mat- tion that is pending, because it is no duty. ter. The campaign has been the focus more than a distraction because the Second, this resolution is a result of and the forum on other issues whereas law already provides for that coverage. our rising frustration with what seems what we are trying to get at is a very Mr. President, I ask for the yeas and to be determined inaction on the part serious matter here, illegal foreign nays. of the Attorney General to appoint, or contributions. I mean even the word es- The PRESIDING OFFICER. Is there a start the process to appoint, an inde- pionage has been suggested in all this. sufficient second? pendent counsel. Like the American We are talking about staggering sums There appears to be. people, we must wonder what it will of money that have been raised and in The yeas and nays were ordered. take to jar the Department of Justice unusual ways. Mr. LEAHY. Mr. President, do I not to activate the independent counsel That campaign continues to generate have a minute, 40 seconds remaining? law. After all, the Department is not media allegations about improper—we The PRESIDING OFFICER. The Sen- dealing with one or two frivolous alle- voted on that last week—as well as il- ator from Vermont has 1 minute, 42 gations. It is dealing with a steady legal conduct. seconds. drip, drip, drip of revelations over a pe- If anyone is tempted to take the posi- Mr. LOTT. Mr. President, if the Sen- riod of several months that has now be- tion of a pox on both houses, I have ator will yield 1 second. come a tainted stream of suspicion. news for them. It is not true that ev- Mr. LEAHY. On the Senator’s time. There is only one way to clean it up, erybody in politics per se behaves alike Mr. LOTT. On my time. Do I have and that is through the appointment of or ignores the law or pushes the limits any time left or has all time on this an independent counsel. Let me remind of legality. There are clearly things in side expired? my colleagues that the purpose of such the law that may be debatable, but The PRESIDING OFFICER. The lead- an appointment is not just to prosecute they are legal and they are appro- er continues to have leader time. the guilty but to clear the innocent. In priate. If we want to go back and have Mr. LOTT. I thank the Chair. neither case should that be seen as a a debate—and we will have a debate Mr. LEAHY. Mr. President, I have partisan endeavor. this year on campaign finance reform, listened to the soothing words of my Nonetheless, many of our colleagues but before we start trying to reform good friend from Mississippi, but they on the other side of the aisle find fault the law, I think we need to look at how do not bring out the fact the Attorney with this resolution. They say it ought do we find out what happened. Who did General has already formed a task to apply to the Congress as well. But what? What has gone on here? force of experienced prosecutors to in- the independent counsel statute al- If anyone is tempted to take that po- vestigate whether criminal conduct ready does apply to Members of Con- sition, I think they need to reconsider. took place in the 1996 Federal election gress. We do not all do it, and I do not think campaigns involving, as well, 30 agents If the Attorney General has received that it is going to work to just try to from the Federal Bureau of Investiga- credible and serious allegations of ille- shove it off by trying to drag the Con- tion with subpoena power and testi- gal activity by one or more Members of gress into it. We are trying to get at mony reportedly being heard before a Congress, she is already fully empow- what has happened. grand jury. If a preliminary investiga- ered to ask the Federal court to name The independent counsel, by the way, tion is begun under the statute and an an independent counsel. And it has is not necessarily going to be a slap at independent counsel is appointed, all been done in the past. Believe me, it the President. In fact, that is the way this investigation stops, clang, like has been done. The conflict is not be- to quiet this thing down, have the that. And to say that we are looking at tween the administration and the Con- process go forward, have an appro- Congress is interesting. If you read gress. The Attorney General can take priate investigation, find out what hap- Senate Joint Resolution 22, it speaks that action. The perceived conflict of pened, who did what, by an inde- only of investigating allegations of il- interest is when you have the Attorney pendent counsel. legal fundraising in the 1996 Presi- General of the same party of the people As a matter of fact, I am going to dential election campaign. If you look in control of the White House where al- presume that it may not reach to the at Senate Joint Resolution 23, which legations are being made. President. I do not think all of these the majority leader wants tabled, it

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2499 speaks of Members of Congress as well The preamble was agreed to. General should exercise her best professional as Presidential elections. It is very The joint resolution (S.J. Res. 22), judgment, without regard to political pres- clear they do not want it going to the with its preamble, reads as follows: sures, on whether to invoke the independent counsel process to investigate alleged crimi- Members of Congress question. S.J. RES. 22 I still say I am disappointed not to nal misconduct relating to any election cam- Whereas 28 U.S.C. §§ 591 et seq., allows the paign. hear why we have broken decades and Attorney General to make application to the decades and decades of tradition to Special Division of the United States Court The Senate resumed consideration of bring up something obviously aimed di- of Appeals for the District of Columbia for the joint resolution. rectly at the President of the United the appointment of an independent counsel when there is specific and credible informa- The PRESIDING OFFICER. Who States as he leaves for a summit meet- tion that there may have been violations of yields time? ing with the President of the only Federal criminal law (other than a class B or Mr. LEAHY addressed the Chair. other nuclear superpower. It has never C misdemeanor or infraction) and the inves- been done, it has never been allowed by tigation of such violations by the Depart- The PRESIDING OFFICER. The Sen- majority leaders of either Republicans ment of Justice may result in a political ator from Vermont is recognized. or Democrats with either Republican conflict of interest; Mr. LEAHY. Mr. President, the full or Democratic Presidents. Perhaps at Whereas this Attorney General has pre- scope of fundraising irregularities on viously exercised that discretion to apply for some point in this Congress we will go the appointment of an independent counsel both sides of the aisle and on both ends back to the traditions of comity that to investigate the Whitewater matter on the of Pennsylvania Avenue should be the we have seen before. But, in the mean- basis of a political conflict of interest; subject of investigation. time, let us vote on this resolution, but Whereas there has been specific, credible Today, we have seen reports that a let us also vote on Senate Joint Reso- information reported in the media that offi- cers and agents of the Democratic National lobbyist for a foreign government was lution 23, which would include the Con- being shaken down and a foreign am- gress. I call on all my colleagues to be Committee and the President’s reelection campaign may have violated Federal crimi- bassador was contacted in this regard courageous enough to speak up and say nal laws governing political fundraising ac- by the House Member who chairs the we will support investigations of our- tivities in connection with the 1996 Presi- committee charged with investigating selves as well as the President. dential election campaign; allegations of fundraising abuses. I yield the floor. Whereas, according to reports in the The PRESIDING OFFICER. All time media, the Attorney General has found such The resolution that many just voted has expired. The question is on the en- allegations of sufficient gravity that she has for carefully excludes any attention to grossment and third reading of the created a task force within the Department congressional conduct. The resolution joint resolution. of Justice and convened a grand jury to fur- on which we are now prepared to vote The joint resolution was ordered to ther investigate them; lets the chips fall where they may. It be engrossed for a third reading and Whereas there has been specific, credible includes congressional election cam- information reported in the media that sen- was read the third time. ior White House officials took an active role paign activities. The PRESIDING OFFICER. The joint in and supervised the activities of the Presi- Having just voted to instruct the At- resolution having been read the third dent’s reelection campaign and the Demo- torney General to apply for an inde- time, the question is on the passage of cratic National Committee in connection pendent counsel to investigate those the joint resolution. The yeas and nays with the 1996 Presidential election campaign; with the Presidential campaign, let us have been ordered. The clerk will call Whereas there is specific, credible informa- tion reported in the media that the decision- proceed to support—not dodge by try- the roll. ing to table—a resolution that would The assistant legislative clerk called making structure and implementation of fundraising activities carried out by the allow the Attorney General to proceed the roll. Democratic National Committee and the with respect to congressional fund- The result was announced—yeas 55, President’s reelection campaign were super- raising abuses, as well. Otherwise, the nays 44, as follows: vised by White House officials, including the American people are going to see this [Rollcall Vote No. 32 Leg.] President and Vice President; and as a blatant political attack on the YEAS—55 Whereas it is apparent that any investiga- President as he goes to Helsinki that tion by the Department of Justice allega- Abraham Frist McConnell excludes any attention to ourselves. Allard Gorton Murkowski tions concerning the fundraising activities of Ashcroft Gramm Nickles the Democratic National Committee and the Mr. BENNETT addressed the Chair. Bennett Grams Roberts President’s reelection campaign will result The PRESIDING OFFICER. The Sen- Bond Grassley Roth in a political conflict of interest because Brownback Gregg Santorum such an investigation will involve those sen- ator from Utah. Burns Hagel Sessions ior White House officials who took an active Mr. BENNETT. Mr. President, as my Campbell Hatch Shelby Chafee Helms role in and supervised the activities of the friends on the Democratic side of the Smith, Bob Coats Hutchinson President’s reelection campaign and the Smith, Gordon aisle have so often reminded us during Cochran Hutchison Democratic National Committee: Now, H. the debate, there is a mechanism going Collins Inhofe therefore, be it Snowe forward in the Governmental Affairs Coverdell Jeffords Resolved by the Senate and House of Rep- Specter Craig Kempthorne resentatives of the United States of America in Committee to investigate all aspects of D’Amato Kyl Stevens the 1996 campaign, congressional as Thomas Congress assembled, That it is the sense of the DeWine Lott well as Presidential. This is clearly not Domenici Lugar Thompson Congress that the Attorney General should Enzi Mack Thurmond make application to the Special Division of the function of an independent counsel. Faircloth McCain Warner the United States Court of Appeals for the The function of an independent coun- District of Columbia for the appointment of NAYS—44 an independent counsel to investigate allega- sel is to investigate allegations of the Akaka Feinstein Levin tions of illegal fundraising in the 1996 Presi- most serious and difficult kinds of Baucus Ford Lieberman dential election campaign. lawbreaking. I know of no such allega- Biden Glenn Mikulski tions that would require a special Bingaman Graham Moseley-Braun f Boxer Harkin counsel in the area outside of those Moynihan RELATIVE TO THE DECISION OF Breaux Hollings Murray that we have talked about during the Bryan Inouye Reed THE ATTORNEY GENERAL ON debate. Therefore, I intend to vote Bumpers Johnson Reid THE INDEPENDENT COUNSEL Byrd Kennedy against this resolution because it does Robb Cleland Kerrey PROCESS not address the problem that we face. Rockefeller Conrad Kerry Sarbanes The PRESIDING OFFICER. The Whatever problem is there will be Daschle Kohl Chair lays before the Senate Senate Dorgan Landrieu Torricelli clearly handled, and handled com- Durbin Lautenberg Wellstone Joint Resolution 23 for 2 minutes of de- petently, by the Governmental Affairs Feingold Leahy Wyden bate equally divided. Committee. The clerk will report. ANSWERED ‘‘PRESENT’’—1 The legislative clerk read as follows: Mr. LOTT addressed the Chair. Dodd A joint resolution (S.J. Res. 23) expressing The PRESIDING OFFICER. The ma- The joint resolution was passed. the sense of the Congress that the Attorney jority leader.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2500 CONGRESSIONAL RECORD — SENATE March 19, 1997 Mr. LOTT. Mr. President, I move to done so. At the very least, I would have The resolution before the Senate ex- table Senate Joint Resolution 23 and preferred that she conduct a prelimi- presses the Sense of the Congress that ask for the yeas and nays. nary investigation on her own. But she the Attorney General should do only as The PRESIDING OFFICER. Is there a has refused to do even this. I would she pleases. But, it goes on to provide, sufficient second? There is a sufficient have preferred to have requested that if she does decide to initiate the inde- second. she seek an independent counsel with- pendent counsel process, the Attorney The yeas and nays were ordered. out having to set forth, in such a pub- General should be sure to include Mem- The PRESIDING OFFICER. The lic manner as the law requires, the spe- bers of Congress. It seems my col- question is on agreeing to the motion cific and credible evidence which war- leagues want to have the best of both to lay on the table Senate Joint Reso- rants such an appointment. But in worlds. It appears from the language of lution 23. The yeas and nays have been order for us to require the Attorney their alternative resolution that they ordered. The clerk will call the roll. General to take certain minimal steps do not want to go on record as having The legislative clerk proceeded to toward investigating whether an inde- asked for an independent counsel. But, call the roll. pendent counsel is warranted, we were heaven forbid, should an independent Mr. HATCH. Mr. President, under required by law to send our letter. In counsel be appointed, he or she should Federal law, the Attorney General may short, the Independent Counsel Act is be instructed to initiate a partisan conduct a preliminary investigation to the law of the land and, notwith- fishing expedition of Congress. determine whether to apply to the spe- standing its relative flaws, we on the The Democrats’ proposal that an cial division of the Court of Appeals for Judiciary Committee have an obliga- independent counsel, if appointed, the D.C. Circuit for appointment of an tion to abide by it. should have jurisdiction to investigate independent counsel whenever she re- I am hopeful that Attorney General Members of Congress is insupportable ceives specific information from a cred- Reno, for whom I continue to have under the independent counsel statute. ible source constituting grounds for in- great respect, will appreciate the con- The entire purpose of the statute is vestigating whether a Federal criminal cerns set forth in our letter, and will to avoid the existence or appearance of law was violated by a specified cat- agree that an independent counsel a conflict of interest in Justice Depart- egory of executive branch officials, or should be appointed forthwith to inves- ment investigations. This conflict is where she determines that there are tigate these matters. Recent develop- inherent whenever an investigation in- grounds for investigating whether a ments have, I believe, made clear that volves any of the high-ranking execu- criminal law has been violated, and a thorough Justice Department inves- tive branch officials enumerated in 28 conducting the investigation would tigation into possible fundraising vio- U.S.C. 591(a), and may also arise—and create a conflict of interest. If, after lations in connection with the 1996 indeed has been found by the Attorney conducting a preliminary investiga- Presidential campaign will raise an in- General to have arisen—when an inves- tion, the Attorney General determines herent conflict of interest, and cer- tigation involves other executive that further investigation is war- tainly raises at least the appearance of branch officials. 28 U.S.C. 591(c)(1). ranted, she shall apply for the appoint- such a conflict, and that the appoint- Such a conflict plainly does not, how- ment of an independent counsel. The ment of an independent counsel is ever, ordinarily exist with respect to appointment of an independent counsel therefore required to ensure public con- Justice Department investigations of is a serious matter and one which the fidence in the integrity of our electoral Members of Congress. As the Senate Attorney General should only initiate process and system of justice. Report on the Independent Counsel Re- when necessary. That is why I, and With respect to the proposed alter- authorization Act states: many others, had refrained from join- native resolution proposed by some of ing the assortment of calls for Attor- my colleagues on the other side of the . . . no inherent conflict exists in Justice ney General Reno to appoint an inde- aisle, Senate Joint Resolution 23, I Department investigations and prosecutions pendent counsel in connection with the must oppose this resolution. This reso- of Members of Congress. This conflict does lution comes on the heels of a letter not exist, because the Attorney General is 1996 Presidential campaign. not part of the legislative branch and is not Yet, last week, all 10 Republicans on some of my Democrat colleagues have under the control of any Member of Con- the Judiciary Committee felt the time written to the Attorney General urging gress. The Department also has a long his- had come to request such an appoint- her, should she decide to apply for an tory of successful prosecutions of Members ment. We sent a letter to the Attorney independent counsel, to request an of Congress. . . . Public perception of a con- General, as we are authorized to do by independent counsel who will inves- flict of interest is also not a problem. . . . the independent counsel statute, re- tigate the ‘‘full scope of fundraising Also, in 1993, the Department of Justice tes- questing that she make an application irregularities.’’ They argued in that tified that no inherent conflict of interests in its prosecuting Members of Congress. . . . for an independent counsel. letter that the Attorney General I must confess, as I did then, to a de- should ‘‘avoid partisanship’’ by in- The statute does provide that the At- gree of frustration with the Inde- structing the independent counsel to torney General may conduct a prelimi- pendent Counsel Act. Did I appreciate investigate Republicans who have nary investigation with respect to a having to send our letter? Certainly ‘‘skirted the spirit’’ of the law. I appre- Member of Congress where first ‘‘the not. However, the law sets forth a spe- ciate what my colleagues were doing Attorney General receives information cific process by which Congress is to with their letter and I appreciate what sufficient to constitute grounds to in- request that the Attorney General they are doing with this resolution. vestigate whether a Member of Con- begin the process by which an inde- Their loyalty to their political party is gress may have violated’’ a Federal pendent counsel is appointed, and this duly noted. But, as I have said repeat- criminal law, and second the Attorney process requires the Judiciary Com- edly, the appointment of an inde- General ‘‘determines that it would be mittee to make what the other party pendent counsel is a serious matter and in the public interest’’ to conduct a will inevitably characterize as partisan partisan proportionality should not be preliminary investigation. 28 United charges in order to trigger the Attor- a consideration. Would these Senators States Code 591(c)(2). Neither of these ney General’s responsibilities. In order have sent this letter had the majority two required findings are even sug- for Congress to trigger the most pre- not sent its letter? Would we be debat- gested by the Democrats’ proposed res- liminary steps for the Department of ing their resolution had the majority olution, nor does it appear that they Justice to take to consider the need for leader not turned to his resolution? I could even arguably be present here. an independent counsel, the law essen- think we all know the answer to that First, the Democrats have made no tially provides that the party not in question. Furthermore, neither their specific allegations that a Member of control of the executive branch make letter nor their resolution cite any Congress has violated a criminal law, specific charges when and if the Attor- congressional activities which inde- thus warranting further investigation. ney General fails to act on her own. I pendently warrant an independent Whereas the Attorney General has for would have preferred to have had the counsel nor do they actually urge the over 3 months been conducting an ex- Attorney General seek an independent Attorney General to appoint an inde- tensive investigation into alleged fund- counsel on her own. But she has not pendent counsel. raising violations by members of the

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2501 Democratic National Committee [DNC] [Rollcall Vote No. 33 Leg.] coming to the floor and exercising and the executive branch, I am aware YEAS—58 whatever rights we have as Senators in of no such investigation pertaining to Abraham Frist Moynihan order to try to guarantee a debate on Members of Congress, and the Demo- Allard Gorton Murkowski it. For years, we have been making an crats’ proposed resolution does not Ashcroft Gramm Nickles effort to pass this convention or to Bennett Grams even purport to make such allegations. Roberts pass a convention that regulates chem- Bond Grassley Roth The independent counsel statute plain- Brownback Gregg Santorum ical weapons. The United States of ly does not authorize the appointment Burns Hagel Sessions America has made a policy decision of an independent counsel with juris- Campbell Hatch Shelby Chafee Helms not to produce them. So we are watch- Smith, Bob diction to go on an undefined fishing Coats Hutchinson ing 161 nations who signed off on this, Smith, Gordon expedition to dig up unspecified viola- Cochran Hutchison H. and 68 of whom have ratified it, come Collins Inhofe tions by Members of Congress. Snowe together without the United States to Second, I can imagine no reason—and Coverdell Jeffords Craig Kempthorne Specter set up the protocol that will govern the my Democrat colleagues have sug- D’Amato Kyl Stevens verification and regulatory process for gested none—why it would be in the DeWine Lott Thomas chemical weapons and their precursors public interest to initiate independent Domenici Lugar Thompson Enzi Mack Thurmond for years to come. If we are not allowed counsel proceedings with respect to Faircloth McCain Warner in the U.S. Senate to debate this and Members of Congress. The legislative Feingold McConnell Wellstone have a vote, we will not have per- history clearly indicates that there are NAYS—41 formed our constitutional responsibil- two instances when independent coun- Akaka Feinstein Leahy ities. sel proceedings are in the public inter- Baucus Ford Levin I know the majority leader—he and I est under section 591(c)(2). The first is Biden Glenn Lieberman have had a number of conversations on where there would be a real or appar- Bingaman Graham Mikulski this personally. I would like to begin ent conflict of interest for the Attor- Boxer Harkin Moseley-Braun Breaux Hollings now at least to ascertain publicly, and ney General to investigate a Member of Murray Bryan Inouye Reed on the record, where we may be going Congress. While we could imagine that Bumpers Johnson Reid so that we don’t lose this critical time. Byrd Kennedy there might be instances in which an Robb I would like to know if the majority Cleland Kerrey Rockefeller Attorney General would have a conflict Conrad Kerry leader can guarantee us that we are Sarbanes in investigating Members of Congress Daschle Kohl going to have an opportunity to vote of the same party, only in the most ex- Dorgan Landrieu Torricelli Wyden up or down on this convention, or traordinary circumstance would an At- Durbin Lautenberg whether we have to begin to be a little torney General have a conflict in inves- ANSWERED ‘‘PRESENT’’—1 more creative. tigating Members of the other party. In Dodd Mr. LOTT. Mr. President, if the dis- any event, we are confident that this The motion to lay on the table the tinguished Senator from Massachusetts Attorney General is fully capable of in- joint resolution (S.J. Res. 23) was will yield, I would be glad to respond. vestigating Members of Congress of agreed to. Mr. KERRY. I yield, without giving both parties. Mr. KERRY addressed the Chair. up my right to the floor. The third reason for initiating inde- The PRESIDING OFFICER. The ma- The PRESIDING OFFICER (Mr. pendent counsel proceedings with re- jority leader. ALLARD). The Senator from Massachu- spect to Members of Congress is when Mr. LOTT. As the Senator from Mas- setts is recognized. ‘‘there is a danger of disparate treat- sachusetts recalls, this issue was re- Mr. KERRY. Mr. President, it is my ment if the case were handled by the ported by the committee in the last understanding that the Senate will be Department of Justice,’’ such that ‘‘a Congress, and I made a commitment in in a period of morning business now, is Member of Congress were unfairly sub- connection with other bills that we that correct? jected to a more rigorous application would bring it to a vote. In fact, I be- The PRESIDING OFFICER. The Sen- of criminal law than other citizens.’’ lieve it was scheduled for a vote, or we ator is correct. This danger, however, clearly does not were moving toward a vote. But for a arise with respect to allegations that f variety of reasons—and there is no use laws regulating the fundraising activi- MORNING BUSINESS rehashing the history of it—the Sec- ties of public officials have been vio- retary of State called and asked that lated; if the law only applies to public The PRESIDING OFFICER. There we pull it back and not force it to a officials, there is no possibility of dis- will now be a period for morning busi- vote last year. We honored that re- parate treatment between Members of ness until 3 o’clock. quest. Congress and private citizens. In any f This year, there have been a number event, my colleagues on the other side of discussions. The President did call CHEMICAL WEAPONS CONVENTION of the aisle have not even attempted to and ask that we meet with his Director TREATY articulate why there would be a danger of the NSC, Sandy Berger, to talk of disparate treatment if the Justice Mr. KERRY. Mr. President, I rise for about how we could bring it to a con- Department were to investigate Mem- a few moments to speak with respect clusion. At his request, I did meet with bers of Congress. to the Chemical Weapons Convention him, and Senator HELMS met with him. In closing, Attorney General Reno treaty. I notice the majority leader is Other Senators that are interested has appointed four independent coun- here. I wanted to try to get the major- have been talking with the President’s sels to date. It is the sense of a major- ity leader’s attention for a moment, if representative. And we continue to ity of the members of the Judiciary I can. Mr. President, I know that Sen- work on that. I think some good Committee that the need to avoid even ator BIDEN, who is the ranking member progress has been made as a result of the appearance of a conflict of interest, of the committee, has been in discus- those meetings. Some conditionalities and thereby to ensure the public’s con- sions and negotiations with a number have been more or less agreed to. Of fidence in our system of justice, re- of parties, and many of us who have course, until it is final, it is never quires an independent counsel in con- been deeply involved in this issue for a final. Some have been agreed to, some nection with the 1996 Presidential cam- long period of time are growing in- are still being discussed, and some paign. However, the record does not creasingly concerned. probably will have to have amend- warrant, nor does the law permit, the I raised the subject of the Chemical ments or votes on them when it comes appointment of an independent counsel Weapons Convention on the floor a cou- to the floor of the Senate. to investigate Congress. Accordingly, I ple weeks ago and signaled that a great The Senator is absolutely right. We urge my colleagues to oppose Senate many of us were growing sufficiently have made a decision to destroy our Joint Resolution 23. concerned that we are running out of chemical weapons. That is a fact. We The result was announced—yeas 58, legislative time on this important are doing that. He is also right that a nays 41, as follows: treaty that we were poised to consider number of countries have ratified that

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2502 CONGRESSIONAL RECORD — SENATE March 19, 1997 treaty; some very important ones have committee. But action early on, when return—that, between now and when not. Not only the United States has we come back, to get it to the floor in we return, the administration, the not, but neither has Russia. The indi- a way where everybody will be com- chairman, and the appropriate parties cations are that they may or may not. fortable with what amendments will be have to come to cloture. If they can’t Of course, neither has Iran. offered. There is a possibility that a come to cloture—— There are some real questions that statute may be offered, or a regular Mr. LOTT. Closure. are legitimate questions on both sides bill, to be considered in conjunction Mr. KERRY. Come to cloture on of this issue. One of them is, of course, with the Chemical Weapons Conven- these issues, and, if they can’t come to the verification question. How do you tion. that resolution, this should be on the verify what some of the rogue coun- I have given a long answer, but I am floor of the Senate for us to deal with tries may or may not be doing? How do saying this to make it clear to you in a matter of legislative urgency. you deal with some of the questions that I am working aggressively to ad- I know, Mr. President, that there is a about things like the poison gas that dress the concerns on all sides of this significant group of us prepared to ex- we have seen in Japan? How do you issue. I will continue to do so. I know ercise every right available to us with deal with an issue like tear gas being you are concerned, and other concerns respect to the Senate business in order used in our country? Also, there are are concerned. You may feel that you to try to guarantee that we have the very important questions like constitu- have to do more. But I have learned opportunity to act on the Chemical tional questions with regard to search over the years that as long as every- Weapons Convention. and seizure in our country. The admin- body is talking, you are probably mak- Mr. LOTT. Mr. President, if the Sen- istration representative indicated, yes, ing progress, and we are talking. I have ator will yield, one thing is that I do that is an area where there is concern, also learned that when you have a not want to mislead the Senator with and we need to work on that. Work has chairman that has legitimate concerns, regard to the probability of hearings. I been done, and we continue to work on you have to give that chairman time to assume that was a possibility. I do not it. deal with those concerns. think it needs long hearings. But I This week, I met with the chairman We are trying to do that. think a day or two—and I have not of the committee and talked through Mr. KERRY. Mr. President, let me asked for those or called for them, and where we are and how we can continue say to the distinguished majority lead- the chairman may or may not feel that to proceed on this matter. I have er that, first of all, I thank him for they are needed. talked to other Senators on both sides taking the time to have this colloquy. So I may have mislead when I was in- of the aisle and both sides of the issue, I think it is very important. dicating that we are talking about an- as to how we can move it forward. I But let me say to the distinguished other whole round of hearings. I agree talked to Mr. Berger again and I urged majority leader that during the years with the Senator. I do not think a lot him to do a couple things. One of those that I was the ranking member negoti- of hearings need to be done again. things is to seriously address, with the ating this with the distinguished chair- But I wanted to clarify that point. I chairman of the Foreign Relations man of committee, we traveled over all didn’t mean to infer that we were going Committee, some very important par- of this ground. We have had these hear- through a long list or that a decision allel issues. Although they are not nec- ings. The Foreign Relations Committee has been made. But it is something essarily tied together on a parallel has had them. The Intelligence Com- that I have asked: Is there going to be basis, they are related and of great mittee has had them. The Armed Serv- a need for a hearing on a day or so be- concern. The State Department reau- ices Committee has had them. And we fore action could occur? It could. thorization. In the previous year, I all know sort of what the clouds are think the State Department kind of in- that are there. There is no new sort of There is another point. I want to dicated, no, we don’t want to do any- definition with respect to those clouds. commend the Senator from Arizona, thing. That is not a tenable position. I For this Senator—and I know I speak Senator KYL, who has spent a lot of don’t think that is the administra- for several other Senators, and I think time and has worked on these issues tion’s position. two or three of them are on the floor when he was in the House Armed Serv- I think the new Secretary of State right now—we do not want to wind up ices Committee and continues to be has indicated that she understands and in the situation which I have seen pre- very interested in them. He is very wants to do some of these things and viously. I negotiated the agreement knowledgeable when you talk about ar- has been talking to the chairman about that brought us to the floor last year ticle X, article XI, and all of the rami- that. I am hoping that additional con- with a vote. We all know we got caught fications. He knows what is in this con- versations are occurring on that today up in the politics of the Presidential vention. He has very legitimate con- between the Secretary of State and the campaign, and that predicated that it cerns, some of which have been ad- chairman of the committee. In another may not have been the best moment. dressed in a way that I think the Sen- parallel issue, for this very afternoon I The problem is that we run out of ator from Massachusetts would agree have been able to call together a meet- time. The clock tolls on us automati- with and find acceptable. Others are ing of the key players, Democrats and cally on April 29. We do not want to still open, and there is time to work on Republicans, House and Senate, on the wind up in a situation where there is those. U.N. reform matters. We met once with an ability on the floor to have so little I want to recognize the work of Sen- the Secretary of State. We are meeting time left that we can’t work through ator KYL. He may want to respond or today with the new U.N. Ambassador, the problems. Recognizing the road we comment on some of what has been and we are getting a process to see how have traveled here, I do not want to said here today. we deal with the United Nations re- come back to a situation where we I just wanted to make that one clari- forms and, of course, the money that have kind of sat here while the nego- fication. the U.N. would like to have from the tiations are going on and then there is Mr. KERRY. I appreciate that, Mr. United States. no window of opportunity to suffi- President. I know that the Senator So, again, that is a parallel. A lot of ciently let the legislative process work from Michigan, Senator LEVIN, is people are involved. None of these its will. equally as versed and has had a long in- issues are easily resolved. All of them Mr. LOTT. Mr. President, will the terest. I know that all of us believe are very important—what we do about Senator yield? very deeply that where there may be a chemical weapons, about the State De- Mr. KERRY. I will in just a moment. legitimate question, we are and have partment reauthorization, U.N. reform, I would like to say to the majority been—and I think the administration and with regard to what happens leader that we would like to help the has been—fully prepared to try to sug- processwise. I know what you are ask- majority leader and others to leverage gest legitimacy. But we can’t allow an ing there. the reality here. What we would like to endless series of questions to be an ex- It is our hope that we will be able to suggest is that there be sort of an in- cuse for putting us in the box where get this issue up in April. It probably ternal date certain within the Senate— the U.S. Senate cannot perform its would involve some hearings in the we would suggest that date be when we constitutional responsibility to advise

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2503 and consent on a treaty as important waste, supplemental appropriations, if you assume some action must be as this one. the TEAM Act, comptime, flextime, taken, you have to back off that in So we are in the predicament here legislation regarding chemical weap- order to get the work done. where we want to offer a good-faith ef- ons, the Chemical Weapons Convention Mr. LEVIN. I thank the Senator. fort to work through every single one treaty, and others. Mr. KERRY. I thank the majority of those particular issues. But we have It is on our list of things that we an- leader for his time on this. We will ob- to signal that we can’t do so simulta- ticipate will be considered before we viously be discussing it in the next day neously taking away from ourselves come back. or so, and I look forward to our coming our own rights to be guaranteed that Mr. KERRY. Mr. President, the prob- forward to some kind of mutual agree- the Senate ought to be able to have a lem is that this particular convention ment. I thank the Chair. vote. stands in a different place from all of Mr. BINGAMAN addressed the Chair. Mr. DORGAN. Mr. President, will the those other things which the majority The PRESIDING OFFICER. The Sen- Senator yield? leader has listed, and for obvious rea- ator from New Mexico. Mr. KERRY. I yield. sons. The other things don’t have a Mr. BINGAMAN. Mr. President, I just Mr. DORGAN. I appreciate the Sen- drop-dead date on them which runs wanted to also comment on this issue ator yielding. into the convention processes them- and state that I think we are to the To the majority leader I would say selves, which are controlled by other point where it is not responsible for the the power of the majority in the Con- countries—not by us. Senate to go on with its other business gress is a power to schedule. There are So I think everybody understands if we cannot get agreement among Sen- a number of us on our side of the aisle how it works around here. We could ators to bring up this very important who have been patient to the edge of wind up in a situation where we would matter on a timely basis. I think clear- our abilities on this issue. And the have a very long debate. And if we need ly we can do other work while we wait question that is being asked is, Will we to have a very long debate, we want to for the time certain to bring up the have an opportunity to consider the make certain that we have the ability Chemical Weapons Convention, but if chemical weapons treaty on the floor to adequately flesh out concerns for all we cannot get agreement to bring it of the Senate? What I heard the Sen- Members and still not run up against up, then I do not think it is responsible ator from Mississippi say is that he that deadline, or drop-dead date. for us to go ahead and proceed with hoped that would be the case. I very So I think what we are really trying business as usual. much would like to hear a commitment today to say to the majority leader is Unfortunately, under the rules of the at some point today or tomorrow, be- that this has to be the first priority Senate, the only option available to fore we leave, that we will when we re- when we come back, or clearly stated those of us in the minority is to insist turn have an opportunity at a time cer- as to what the date will be with a date that this issue, which is time sensitive, tain to continue the chemical weapons certain. be given attention by the Senate or at treaty. All we are trying to do is help the least get scheduled for attention by the Mr. LOTT. As the distinguished Sen- majority leader convey that message Senate before we proceed to other mat- ator knows, if he will yield, Mr. Presi- to parties on his side because other- ters, and I would expect to do that in dent, the scheduling does to a large de- wise, obviously, we are left no choice the future. I do think the majority gree rest in the hands of the majority but to try to do whatever we can to le- leader is trying to move ahead with leader. But it is usually done in coordi- verage a date. We are not precluding this, but evidently there are objections nation with both sides of the aisle. nor predetermining an outcome. But being raised by others. I do not ques- Like on the Mexico certification, or de- we are asking for the Senate to be able tion that amendments will be offered. I certification, issue, quite often it can to exercise its rights and privileges. do not question that real issues will be be objected to. I mean that, if I today Mr. LEVIN. Mr. President, will the raised about different portions of the proceeded to call up the House-passed Senator from Massachusetts yield for a treaty. That is what we are designated version with the idea of offering a bi- question? I wonder if the majority to do under the Constitution, to debate partisan substitute to it, we would leader might listen because the drop- those issues and vote on them. We do have to get agreement to do that. The dead date issue is a critical issue on have a responsibility, though, to have a other option is to just call up decerti- this, of course, and the Senate should final vote on this treaty in a timely fication, which we could do, and start be allowed to work its will in whatever fashion, and I think until we can get the 10-hour process running. way in time so that, if we ratify, our agreement to do that, it is very dif- The point, though, is that you have ratification will be relevant. ficult to proceed with business as to work with a lot of different parties. My question to the Senator from usual. And I intend to do that. I think the de- Massachusetts is this: We do not know I yield the floor, Mr. President. cision will come up in April, and we precisely the drop-dead date in terms Mr. FORD addressed the Chair. will work in the direction to say that of Senate ratification, assuming it does The PRESIDING OFFICER. The mi- we can get it up by a date certain. Once ratify the treaty. But will the Senator nority whip. again, I think it might raise expecta- from Massachusetts agree that it is Mr. FORD. Mr. President, let me add tions beyond what is achievable. some number of days in advance of my voice to this for just a moment. But we are continuing to work on April 29? For many of us who have chemical that, and we are going to do it this Mr. KERRY. Yes. weapons stored in our State—and there very day. Mr. LEVIN. I am wondering whether are a good many States—this piece of Mr. KERRY. Mr. President, I would the majority leader, if I could just ask, legislation becomes highly important like to reiterate. is aware of that fact. Could I ask the because certain language we hope to be The PRESIDING OFFICER. The Sen- majority leader whether or not, on the in this treaty will allow us to look for ator’s 5 minutes has expired. time of the Senator from Massachu- alternate sources other than burning Mr. KERRY. I ask unanimous con- setts, if the Senate does in fact ratify or destroying by burning. And so par- sent that I be permitted to finish this it, that ratification needs to come ticularly in my case, where we have colloquy. some days in advance of the 29th in the nerve gas, this treaty becomes The PRESIDING OFFICER. Without order to meet the 29th deadline? vital to us. And to have it timely con- objection, it is so ordered. Mr. LOTT. I am aware that when you sidered becomes a very important as- Mr. LOTT. Will the Senator yield? have a treaty issue, there are actions pect of alternative sources under this As further evidence, if I could, I gave that occur after the treaty that could international treaty. the Democratic leader yesterday and take time. We will have to—at some So I am here pleading for my con- members of our conference—and I pre- point we could have a full debate about stituency to eliminate the so-called sume it was given to the Democratic what that drop-dead date is. That is chemical weapons. We are being held caucus—a list of items that we antici- the point here. It is not a specific date up for reorganization of the State De- pate we will consider prior to the Me- in terms of having to take up the trea- partment, reorganization of United Na- morial Day recess. It includes nuclear ty to get the work done, but it is a fact tions, this thing or that thing. We are

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2504 CONGRESSIONAL RECORD — SENATE March 19, 1997 held up when we have a deadline of You see, Mr. President, those who they see negative ads. But perhaps the April 28 and we have people out there follow Federal election campaigns fact that you are spending more on ad- worried about chemical weapons and know that there have been some dra- vertising is not helping the low regard how you destroy them. We have the an- matic changes over the last few dec- people have for your product. In this swer under this piece of legislation, but ades. Federal election campaign costs case, the voters told us, in 1996, in the we cannot go forward with it. have increased from an estimated $2.65 November election, that they had a Mr. President, I hope you will listen billion in the 1996 cycle—that is a pretty low regard for the product, the to my friend from New Mexico, that threefold increase over campaign candidates, all of us. there is going to be an effort to bring spending just 20 years ago even adjust- I think there is a message here, an this piece of legislation up because of ing for inflation—$2.6 billion on our important message about the future of the deadline. If we worried about dead- campaigns. In the 1995-96 election this democracy. We can talk about spe- lines, we would have a budget. We do cycle, the Democratic Party commit- cial investigations: Did someone vio- not have a budget. But this is an inter- tees raised $332 million, a 73-percent in- late the law in 1996, Democrat or Re- national treaty, and it has a deadline. crease over the $192 million raised just publican, and should we hold them ac- And for one, I do not want to miss it 4 years before. The Republicans outdid countable if they did? But if we do not because of the chemical weapons that us, as usual, raising $549 million, a 74- get down to the root cause of the prob- need to be destroyed and the way they percent increase over the $316 million lem here, if we do not address what I are to be destroyed so that we might that they raised 4 years earlier. consider to be the serious issue of cam- protect your constituents. Take a look at congressional races. paign finance reform, I can guarantee I yield the floor. In 1976, all congressional races in the the cynicism and skepticism among Mr. DURBIN addressed the Chair. United States cost $99 million. By 1996, voters will just increase. So, we have The PRESIDING OFFICER. The Sen- 20 years later, that $99 million had heard a lot of talk today about the ator from Illinois. mushroomed to $626 million—more sense of urgency and the need to deal Mr. DURBIN. Mr. President, I seek than a sixfold increase. quickly with this whole question of recognition under the time allocated to Soft money. Well, for those who do campaign finance reform. Some of my Senator DASCHLE in morning business. not follow this closely, it may be a cu- colleagues have said, ‘‘Oh, don’t move The PRESIDING OFFICER. The Sen- riosity to use these terms ‘‘hard too quickly now; let us make sure we ator has up to 60 minutes. money’’ and ‘‘soft money,’’ but politi- make the right changes.’’ Mr. DURBIN. I thank the Chair. cians know what it is all about. Soft Let me show a little illustration. f money is kind of the mystery money in How much time have we spent on the politics. And has it grown. Take a look issue of campaign finance reform in the COMPREHENSIVE CAMPAIGN at the fact that since 1992, the amount last 10 years? Mr. President, 6,742 pages FINANCE REFORM of soft money in campaigns has tripled, of hearings; 3,361 floor speeches—add Mr. DURBIN. Mr. President, over the from $86 million to $263 million. one for this one today; 2,748 pages of re- last several days of debate in this Stepping aside from the whole debate ports from the Congressional Research Chamber we have heard those who fa- about the nature of campaigns and Service, 1,063 pages of committee re- vored the appointment of a special whether they are too negative, too per- ports; 113 votes in the Senate; 522 wit- counsel say that time is of the essence, sonal and too nasty, most everyone nesses; 49 days of testimony; 29 sets of and that we should move forward and will concede that we are plowing more hearings by 8 different congressional ask the Attorney General to make this and more money into our political committees; 17 filibusters; 8 cloture appointment as quickly as possible. In campaigns in America. votes on one bill; 1 Senator arrested fact, they were so determined to pass There is a curious thing that has to and dragged to the floor—with bodily this resolution as a bon voyage gift to be noted, though. As political cam- injury, I might add—and 15 reports the President as he heads off to the paigns have become longer, more ex- issued by 6 different congressional Helsinki summit that we had to vote pensive, and more negative, voters committees. And what do we have to today. Today, before the President left, have apparently decided not to partici- show for it? Nada, zero, zilch, nothing. we had to make certain that this ges- pate in elections. Consider this. Be- What we have to show for it is the call ture was made. Many of us felt this was tween 1948 and 1968, 60 percent of the for an independent counsel to deter- unnecessary and ill-timed and, frankly, electorate showed up to vote in a Presi- mine whether someone has violated the unprecedented, that this type of em- dential election. Then from 1972 to 1992, laws under the current system. I think barrassment would be directed at the we saw a 53 percent turnout, a decline there is a lot more to this. President as he left our shores to head after Watergate. Listen to what hap- I hope my colleagues join me in be- off for a critical summit with the only pened in 1996, the most expensive Fed- lieving that if this process of investiga- other superpower with nuclear weapons eral election in our history for congres- tion does not lead to reform, the Amer- in the world. And yet those who pre- sional candidates, senatorial can- ican people will be disappointed. It is vailed on the majority side were con- didates and Presidential candidates, one thing to be hyperinflated with vinced that time was of the essence: let heaping dollar upon dollar in this elec- moral rectitude about the violations of us move forward and do it now. tion process. The voters out there lis- campaign law. But that is not enough. Catching that spirit, I come before tened carefully and a majority of them Just cataloging the sins of the current the Senate today with the suggestion decided to stay home. So, for the first system, that is not enough. The real that we not stop with this resolution time since 1948, we had fewer than 50 test is whether we are prepared to but go even further and plumb the percent of the electorate turning out to change the system, reform the law, and depths of the real problem that we are vote in a Presidential election; 49 per- return public confidence to our demo- examining here. It goes beyond the 1996 cent of the electorate turned out. Is it cratic process. Presidential campaign. It goes beyond not interesting that the more money There are a lot of options out there. the Democratic Party. What we are fo- we plow into our election campaigns, One of those that is frequently spoken cusing on is our very campaign finance the fewer voters turn out? of is the McCain-Feingold legislation, I system itself as used by Presidential Consider if you had a company and believe the only bipartisan campaign candidates, congressional candidates, you were designing a marketing pro- reform bill before us. Two Republican Democrats and, yes, Republicans. gram and you went to the owners of Senators and, I believe, 22 Democratic And so today I am hoping that that the company and said, ‘‘We have just Senators have come together in an ef- same sense of urgency, that same com- got the statistics and information fort to have campaign finance reform. I mitment to truth, and that same perse- back. After we spent millions of dollars have cosponsored it. It may not be the verance that we find changes to win on advertising, people are buying fewer best, or the only, but it is a good one. back the confidence of the American products.’’ It might raise some serious We should consider it as a starting people will be demonstrated when I call questions. Maybe your advertising point in the debate. a resolution before this body in a few campaign is not what it should be—and Yesterday, my colleague from Min- moments. I think the voters tell us that when nesota, Senator WELLSTONE, Senator

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2505 KERRY of Massachusetts, and others have access to those people who have ons treaty, a treaty that has been in announced agreement to introduce a the wealth or the economical clout or the works for a number of years, has plan modeled after the Maine election the political clout in America. That been signed by many countries, and law reform. It is a very interesting pro- turns the very idea of representative would end the spread of poisonous gas posal which would really deflate the democracy on its head. That takes the around our world and make this a safer money in politics. Senator WELLSTONE very goodness of our country and turns world. I would like to be working on is here to join me in this debate and de- it on its head. That takes the Amer- that, but we cannot get it to the floor scribe that bill and his own thoughts ican dream and turns it on its head. I of the Senate. I hope it will get here on that subject. have said it before, but it is worth re- soon. The power of scheduling, of There are lots of ideas, good ideas. peating, that if you believe in the course, is not on this side of the aisle. We have to really dedicate ourselves standard that each person ought to The Senator from Illinois raises the with the same sense of urgency and count as one and no more than one, other issue that I would like for us to with the same passion to reforming the then you would be for reform. be working on, and that is the issue of system that we are dedicated to inves- My last point, because I could talk campaign finance reform. No one who tigating wrongdoing under the current about this for a long, long time, my has been paying attention in this coun- political finance system. colleague was kind enough to mention try can fail to understand the need for At this point, I yield to my colleague the McCain-Feingold bill. He was kind us to consider campaign finance re- from Minnesota. enough to mention the bill that yester- form. The Senator from Illinois is sim- Mr. WELLSTONE. I thank the Sen- day we agreed to introduce, Senator ply raising the question, and a rec- ator from Illinois. KERRY and I, and Senator GLENN and ommendation is implicit, to say we The PRESIDING OFFICER. Does the Senator REID; and Senator BUMPERS would like, by a date certain, to have a Senator seek recognition in his own was there as well. commitment to consider campaign fi- right? Mr. President, the point today is as nance reform on the floor of the Sen- Mr. WELLSTONE. Mr. President, I follows. I think people—unfortunately, ate. That is what the Senator from the do seek recognition. but the proof is going to be in eating State of Illinois is saying to the Senate The PRESIDING OFFICER. The Sen- the pudding—believe that what is going with his resolution, a resolution that I ator is speaking within the 60 minutes? on in the Congress amounts to little think is timely, one that I support and Mr. WELLSTONE. Of course, the more than symbolic politics. I think one that I hope will allow us to reach Senator will stay within the 60 min- people believe we are going to have a an agreement with the majority party utes. And, I say to my colleague from committee investigation, an attempt on a date certain to bring campaign fi- Oklahoma, far less than 60 minutes. I to move some of these issues to the nance reform to the floor of the Sen- just wanted to add a couple of things to Rules Committee, maybe try and bury ate. what the Senator from Illinois has just this here, maybe have hearings and The Senator from Illinois held up a said. hearings and hearings, then have a va- chart that shows the number of hear- First of all, I really appreciate the riety of different charges or counter- ings that have been held, the number of emphasis of the Senator from Illinois charges made, maybe more polariza- pages of testimony, the number of wit- on representative democracy in our tion, maybe more accusations. Then, nesses. There doesn’t need to be a great country. I think this is the central after all is said and done, it will be the deal more discussion about whether we issue for this Congress. I think this is same moving picture shown over and should be considering campaign fi- the most important issue in American over and over again, where you have nance reform. The system is broken, it politics. I have spoken before on the hearings, speeches, reports, witnesses, ought to be fixed, and there isn’t just floor of the Senate about this. I am not you name it, followed by the same one answer to fix it. There are a num- going to repeat what I have said al- hearings, the same speeches, the same ber of ideas, probably from both sides ready. calls to action, the same kind of inves- But I really think, if we want to have of the aisle, that can contribute to an tigations, followed by inaction. I do approach that will address this in a people engaged in the political process, not understand, for the life of me, why if we want people to register to vote way the American people believe we we do not move forward. I think the ought to address this issue. and vote in elections, if we want people purpose of this resolution is to say, set to believe in our political process, if we So, this issue is not one that will a date. simply go away. This is not an issue want people to believe in us, then I A good friend of mine, Jim High- you can bury in the backyard some- think we absolutely have to deal with tower, who was great on the Ag Com- where and forget about it. Every day this awful mix of money and politics. mittee, loves to say, ‘‘You don’t have when you read the newspapers, you see Because regular people—which I use in to be ‘Who’s Who’ to know what’s stories, again, about this campaign or a positive way—in Illinois and Min- what.’’ People in this country have fig- that campaign, about this administra- nesota and Oklahoma and around the ured this out. It is time for reform. We tion or that Member of Congress. The country, know that, No. 1, too much know more than enough about what is American people, I think soon, will in- money is spent on these campaigns; wrong. We know more than enough sist to know who in the Congress, in No. 2, some people count more than about what is wrong with this game, the House and the Senate, contributed others and there is too much special in- the ways it is broken, and it is time to to making campaign finance reform a terest access and influence; No. 3, there fix it. is too much of a money chase and Sen- So this resolution calls for a date reality and who stood in the way. ators from both political parties have certain. It is right on mark, and I am I guess the message here is for those to spend entirely too much time rais- proud to support it. who do not want to see any reform of ing money. Mr. DORGAN addressed the Chair. our campaign financing system, our I just ran for office. I had to raise the The PRESIDING OFFICER. The Sen- message is to them: Get out of the way, money. ator from North Dakota. let us at least have a shot on the floor And, No. 4, I think people in the Mr. DORGAN. Mr. President, I rise of the Senate in crafting, hopefully, a country know that it is getting dan- also to support the unanimous-consent bipartisan approach, if we can craft it, gerously close to the point where ei- request that will be propounded by the a campaign finance reform proposal ther you are a millionaire yourself, or Senator from Illinois. that gives the American people some you have to be very dependent upon Almost the first question from our confidence that the abuses we have those that have the hugest amounts of constituents that all of us, I suppose, read about, the excesses, the expo- capital for these expensive capital-in- when we reach the airport going back nential growth in campaign spending tensive TV campaigns. Otherwise, you to our States, confront is, ‘‘Well, what in this country can come to an end. are disqualified. are you working on?’’ I know what I I happen to feel very strongly that In a democracy, people should not be, would like to be working on. A moment one of the ingredients that is necessary de facto, disqualified because they are ago we talked about the need for this is spending limits. The Supreme Court not wealthy or because they do not Senate to work on the chemical weap- had a decision in Buckley versus

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2506 CONGRESSIONAL RECORD — SENATE March 19, 1997 Valeo—it was a 5 to 4 decision, I be- raising activities in any public build- The PRESIDING OFFICER. Objec- lieve —in which they said it is per- ing. tion is heard. fectly constitutional to limit political There was a question raised as to Mr. NICKLES addressed the Chair. contributions, but it is unconstitu- whether or not an employee at the The PRESIDING OFFICER. The Sen- tional to limit political expenditures. White House was handed a check for ator from Oklahoma is recognized. Far be it for me to speak over the the Democratic National Committee Mr. NICKLES. Did you conclude, I shoulder of the Supreme Court, but, by which she then turned over to the com- ask my colleague from Illinois? the same token, I don’t understand mittee, and whether that was legal or Mr. DURBIN. Yes. Mr. NICKLES. I will just make a cou- that logic. proper. We know 2 years ago a Repub- ple brief comments concerning cam- It seems to me, and we have had de- lican Congressman on the floor of the paign finance. bate on this on a constitutional amend- House walked around handing out cam- One, I share some of the concerns of ment just in the last days, it seems to paign checks from tobacco companies my colleague from Illinois. I will be me that part of the answer to this to their favorite candidates, and that, happy to work with him. I did object to problem is to reasonably limit cam- of course, raises a bipartisan question the resolution saying we wanted to paign expenditures for all politicians about the propriety of receiving or dis- have it done by May 31 or July 4. But running for all offices in a fair and tributing campaign checks in a public I am committed to making campaign thoughtful way. We do not deserve the building, on the floor of the House or reform. And I will work with my col- kind of campaigns that the American the Senate. These are all legitimate league and friend from Illinois and oth- people are now getting. and bipartisan questions. ers to try and see if we cannot come up There are other models around the This morning’s Washington Post with a bipartisan package that would world. I kind of like the British sys- raised a question on the front page as do just that. tem, where they apparently sound a to whether a Member of Congress was It may not include everything that starting gun, or whatever it is, and for putting some pressure on a certain everybody has been talking about, but 30 or 45 days, they scramble and wres- group to raise money for him in the it will be constitutional, and, hope- tle and debate and do whatever you do last campaign, and the pressure went fully, may be passable through both in campaigns, and the fur flies and the so far as to suggest that the Ambas- Houses. It may not include everything. dust is all over, and then the bell goes sador from the country involved was We may have to pass a couple pieces of off and it is over. It is over. Then they saying, ‘‘This is unusual; we have never legislation before we are done. But I vote. had this kind of pressure put on us.’’ have been charged with the responsi- In this country, my Lord, what hap- The same charges are made against the bility on this side to try to put to- pens is years in advance of an election White House: Did they go too far in so- gether a package that is saleable. I will now, we have campaign activities liciting contributions? Again, a bipar- work with my colleague and friend cranking up for President and the Sen- tisan problem and one we clearly from Illinois to try to make that hap- ate and Congress, and it never ends. It should address. pen. bores the American people to death, For those who have tunnel vision on Mr. DURBIN. Will the Senator yield? first of all, and second, they have be- this and see all of the sins and wrong- Mr. NICKLES. I will be happy to. come so long and so expensive, is it any doing only on the Democratic side, I Mr. DURBIN. I thank my colleague wonder that 50 percent of the American think in all honesty, they know better. from Oklahoma for his statement. And people said when it comes time to cast- We are all guilty of this. We are guilty it may be progress. I hope it is. Would the Senator be kind enough to ing a vote, they say, ‘‘Count me out, of this at the congressional level, at tell me his thoughts as to whether or I’m not going to participate’’? the Presidential level, Democrats and not we should accomplish significant There are a lot of things we need to Republicans, and to merely turn that and meaningful campaign finance re- do to reform our political system and spotlight on one group or one party form this year so that the 1998 election make it better. It seems to me job one really does not get to the real chal- cycle can be a cleaner, perhaps better is this issue of reforming the campaign lenge here. And the real challenge is, managed election with more interest finance system, the method by which will we change the system? and participation by our voters across The resolution that I am going to all campaigns are financed in this the country? country. The Senator from Illinois is offer says to the Senate, let us make a Mr. NICKLES. I will be happy to tell simply saying today, let us have an op- commitment, both sides of the aisle, my colleague, if you are asking me portunity, a commitment, a date by that by a time certain, we will bring to what the effective date of the legisla- which the Senate will consider cam- this floor campaign finance reform leg- tion will be, I am not sure. But I do paign finance reform. I am pleased to islation and pass it by a time certain. think that we have an interest, and I support him, and I hope others in the I do not presume what that might in- would say a bipartisan interest, in try- Senate will do the same. I yield the clude. I do not presume to suggest that ing to do some things together: Greater floor. any bill pending might be passed. We disclosure, trying to make sure that The PRESIDING OFFICER (Mr. ROB- might come up with a new work prod- nobody is forced or compelled to con- ERTS). Who seeks time? uct completely, totally, but I do sug- tribute to any campaign against their Mr. DURBIN addressed the Chair. gest to you that unless and until we will, maybe making some change in The PRESIDING OFFICER. The Sen- make this commitment to reform the contribution limits, increasing indi- ator from Illinois is recognized. system, the skepticism and cynicism vidual limits, maybe reducing other Mr. DURBIN. Mr. President, there will continue and may increase. limits. Possibly we can get a bipartisan have been a lot of headlines in the last So, Mr. President, on behalf of myself coalition on that, and doing a few several weeks of embarrassment to and Senators DORGAN and WELLSTONE, other things that we might be able to both political parties. There have been I ask unanimous consent that the Sen- get agreement on. a lot of questions asked about the sys- ate proceed to the immediate consider- But the effective date, well, that tem by which we raise funds at all lev- ation of Senate Resolution 65, a resolu- would be one of the things we will have els. Questions were raised about the tion calling on the Senate to commit to wrestle with. That is a challenge. use of a telephone by the Vice Presi- to bring comprehensive campaign fi- Some of those things for disclosure, I dent, and I do not know, frankly, what nance reform legislation to the floor by expect could be effective certainly for was legal and what was proper in that May 31 and to adopt, as a goal, the en- the 1998 election. If you changed indi- situation, but we all know that at least actment of such legislation by July 4 of vidual contributions, which I am con- two Members of this body have ac- this year; that the resolution be agreed templating offering as one suggestion, knowledged that they used their office to and the motion to reconsider be laid whether that should be effective imme- telephones in campaigns gone by to on the table. diately or effective post the 1998 elec- raise money. They said they will never The PRESIDING OFFICER. Is there tion is something we will have to dis- do it again, as the Vice President has objection? cuss. said. But it raises a bipartisan chal- Mr. NICKLES. Mr. President, I ob- Mr. DURBIN. Will the Senator yield lenge to us in limiting campaign fund- ject. further?

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2507 Mr. NICKLES. Yes. The Victim Rights Clarification Act I very much appreciate the support of Mr. DURBIN. Could the Senator give is necessary because a Federal judge my colleagues in both the Senate and me some assurance by the majority interpreted his sequestration power as the House who have made this bill pos- leadership that this issue should come authorizing the exclusion of victims of sible today. I am very grateful for their to the floor this calendar year? crime from trial who will only be wit- assistance. I know that I am speaking Mr. NICKLES. I will just tell my col- nesses at sentencing. The district judge on behalf of hundreds of victims and league, I have been charged with the presiding over the Oklahoma City the families in Oklahoma City, that responsibility of trying to make sure bombing case basically gave the vic- they are grateful for this legislation, that we are ready to do that. It is my tims and their families two choices. and a special thank you to my col- hope and expectation that we will be They could attend the trial and witness leagues, Senator INHOFE and Senator ready to do that—not tie this down to the trial—or in this case we have LEAHY and Senator KENNEDY and Sen- a particular timetable—but I hope that closed-circuit TV for the families, ator HATCH, for making this bill pos- we will be able to do it in the not-too- since the trial is actually in Denver sible. and many of the families are in Okla- distant future. Maybe we will be able I yield the floor. to meet the timeframe as suggested by homa City. So they have closed-circuit my colleague from Illinois. I am not TV. They have two options: They can Mr. LEAHY addressed the Chair. ready to give a date. But you are say- view the trial in Denver or in Okla- The PRESIDING OFFICER. The Sen- ing for this year. I hope that will be homa City, or they could participate in ator from Vermont is recognized. the case. the sentencing phase of the trial. Mr. LEAHY. Mr. President, I am Most of the families of the victims Mr. DURBIN. If the Senator would pleased to join my friends, Mr. HATCH, further yield. wanted to do both—or many wanted to the two Senators from Oklahoma, and do both. They should not have had to I will return and my colleagues will Senator GRASSLEY, as an original co- make that decision. This legislation return with similar resolutions in the sponsor of the Victim Rights Clarifica- will clarify that. hopes that we can reach a bipartisan tion Act of 1997. agreement for a timetable to consider Such rulings as the judge made ex- I am glad we are considering and this issue. Absent that agreement, tend sequestration far beyond what passing this important legislation. many of us are afraid that we will once Congress has intended. The accused has They are doing this in an expeditious again fall into this morass of hearings no legitimate basis for excluding a vic- tim who will not testify during the and bipartisan manner. and speeches and a lot of jawboning trial. Congress thought it already and very little progress on the subject. Two of the most important rights adopted a provision precluding such se- I hope that my colleague from Okla- Congress can safeguard for crime vic- questration in the victims’ bill of tims are the right to witness the trial homa will join me in that effort. rights. This bill clarifies the pre- Mr. NICKLES. I thank my friend. of the accused and the right to be existing law so it is indisputable that f heard in connection with the sen- district courts cannot deny victims and tencing decision. The Victim Rights VICTIM RIGHTS CLARIFICATION surviving family members the oppor- ACT OF 1997 Clarification Act is not the first time tunity to watch the trial merely be- Congress has addressed these two ideas. Mr. NICKLES. Mr. President, I ask cause they will provide information In 1990, we passed the Victims’ Rights unanimous consent that the Senate during the sentencing phase of the pro- and Restitution Act, providing that proceed to the immediate consider- ceedings. crime victims shall have the right to This bill also applies to all pending ation of H.R. 924 just received from the be present in all public court pro- cases and in no way singles out a case House. ceedings related to the offense, unless for unique or special treatment. Rath- The PRESIDING OFFICER. Without the court determines the testimony by er, a serious problem has come to light objection, it is so ordered. the victim would be materially af- The clerk will report. and Congress has responded by clari- The bill clerk read as follows: fying the applicable Federal law across fected. A bill (H.R. 924) to amend title 18, United the country from this day forward. In the Violent Crime Control Act of States Code, to give further assurance to the The U.S. Supreme Court has specifi- 1994, Congress included several victims’ right of victims of crime to attend and ob- cally upheld the power of Congress to rights provisions. For instance, we serve the trials of those accused of the make ‘‘changes in law’’ that apply even amended rule 32 of the Federal Rules of crime. in pending cases. In Robertson versus Criminal Procedure to require Federal The Senate proceeded to consider the Seattle Audubon Society, a unanimous judges at the sentencing for crimes of bill. court explained that Congress can violence or sexual assault to determine Mr. NICKLES. Mr. President, I wish ‘‘modify the provisions at issue’’ in if the victim wishes to make a state- to thank my colleague and friend, Sen- pending and other cases. This bill ment. ator LEAHY, for his cooperation in makes it clear that Federal crime vic- Last year, we enacted the Televised bringing this bill to the floor. As I tims will not be denied the chance to Proceedings for Crime Victims Act as mentioned, the House passed this bill watch the court proceedings simply be- part of the Antiterrorism and Effective yesterday. It was by a vote of 418 to 9. cause they wish to be heard at sen- I also want to thank my colleagues, Death Penalty Act of 1996. That re- tencing. sponded to the difficulties created for Senator HATCH, Senator INHOFE—who This bill will be enforced through victims of the Oklahoma City bombing. is an original cosponsor of this legisla- normal legal channels. Federal district tion with me—Senator GRASSLEY and courts will make the initial determina- Mr. President, I think this is impor- Senator KENNEDY and their staffs for tion of the applicability of the law. In tant because so often what we set in working together with our staff to disputed cases, the courts will hear the criminal procedures in the Federal make this bill possible. from the Department of Justice, coun- court are then adopted by the State And I want to thank the bipartisan sel for the affected victims, and coun- courts. During my days as a pros- and bicameral cooperation that we sel for the accused. If the district court ecutor, I felt victims should have com- have had because we have negotiated persists in denying a victim the right plete access to the court during a trial with the House, came up with similar to observe a trial in violation of the and that victims should be heard upon legislation to correct, I think, a mis- law, both the Department of Justice sentencing. Frankly, I found many take, a problem. and the victims can seek appellate re- times when the person being sentenced Mr. President, we introduce this leg- view through the appropriate plead- had suddenly gotten religion, had sud- islation on behalf of the victims of the ings. denly become a model person, usually Oklahoma City bombing and other vic- Once again, Mr. President, this is an dressed in a better suit and tie than I tims of crime. This legislation will important piece of bipartisan legisla- wore as a prosecutor and was able to clarify the rights of victims to attend tion that will clarify the intent of Con- cry copious tears seeking forgiveness and observe the trial of the accused gress with respect to a victim’s right and saying how it was all a mistake, and also testify at the sentencing hear- to attend and observe a trial and tes- sometimes reality came to the court- ing. tify at sentencing. room

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2508 CONGRESSIONAL RECORD — SENATE March 19, 1997 only when the victim would speak. I re- ment or presenting information in rela- Congress has ensured that the Federal member one such victim had very little tion to the sentence during the sen- Rules of Criminal Procedure provide to say, with heavy scars on her face tencing phase of the proceedings solely this right to victims of violent crimes that would probably never heal. That because the victim has witnessed the when the defendant is tried in federal said more than she might. trial. court. I say that, Mr. President, because in Just as importantly, the Victim Recent court decisions have made it enacting this legislation, we affect not Rights Clarification Act will not: evident that some clarification of this only Federal courts directly, which of Apply to victims who testify during right is badly needed. These decisions course I think is important, but I say the guilt phase of a trial. have excluded from trials victims and to my colleagues in the Senate that Eliminate a judge’s discretion to ex- survivors who might give impact testi- after this is experienced in the Federal clude a victim’s testimony during the mony at sentencing. courts for a couple of years, we are sentencing phase that will unfairly Generally, witnesses may be excluded going to find the same procedures fol- prejudice the jury. Specifically, the from viewing a trial until they have lowed by State courts all over this legislation allows for a judge to ex- testified. The rationale for this rule, country. We saw it in the Federal clude a victim if he or she finds basis— known as the rule on witnesses and em- Rules of Civil Procedure. We see it in independent of the sole fact that the bodied in rule 615 of the Federal Rules the Federal Rules of Criminal Proce- victim witnessed the trial—that the of Evidence, is the need to prevent wit- dure. If they work in the Federal victim’s testimony during the sen- nesses from collaborating on their tes- courts, they tend to work in the State tencing phase will create unfair preju- timony, as well as the need to prevent courts. dice. each witness from shaping his or her I am glad to join with my friend from Attempt to strip a defendant of his or testimony to the testimony that al- Oklahoma, the distinguished senior her constitutional rights. ready has been presented. Those ra- Senator from Oklahoma and his col- Overturn any final court judgments. tionales do not apply, however, when victims testify at sentencing about the league, Senator INHOFE, in support of My cosponsors and I worked together effect of the crime on their own lives. this legislation which shows how re- to pass this legislation within a time- As a result of this bill, victims and sur- sponsive Congress can be to victims’ frame that could benefit the victims in vivors will be permitted to observe the rights. the Oklahoma City bombing cases. The Supreme Court has also spoken Our final legislative product, how- trial and still testify about the effect of the crime on their lives, without to whether victim impact statements ever, will not only assist the victims in running afoul of the policy are permissible in death penalty cases. the Oklahoma City bombing case, but In the 1991 case Payne versus Ten- crime victims throughout the United underpinnings for excluding witnesses nessee, the Supreme Court made clear States. from viewing a trial. Another rationale for application of that a sentencing jury in a capital case In response to real people, real prob- the rule on witnesses, and one that has may consider victim impact evidence lems and real pain, Congress has dem- onstrated its ability to find a real solu- been advanced to prevent victims from relating to the victim’s personal char- both observing the trial and presenting acteristics and the emotional impact of tion—the Victim Rights Clarification Act of 1997. impact testimony, holds that a victim the murder on the victim’s family. may testify only about the effect of the The Court observed that it is an af- Mr. HATCH. Mr. President, I rise crime on his or her life, not about the front to the civilized members of the today to speak briefly in support of H.R. 924, the Victims’ Rights Clarifica- effect of the trial on his life. But, Mr. human race to say that at sentencing President, for the victim the trial is in a capital case, a parade of witnesses tion Act of 1997. A companion to this bill was introduced this past Friday by one of the effects of the crime and be- may praise the background, character, comes forever a part of the victim’s Senator NICKLES as S. 447, which is co- and good deeds of the defendant, but life. sponsored by Senator INHOFE, myself, nothing may be said that bears upon Remember, this amendment deals Senator LEAHY, and Senator GRASSLEY. the character of, or the harm imposed only with victim impact testimony. By upon, the victims. I was proud to be an original cosponsor that point in the process, the defendant Unfortunately, the victims in the of this vital bill because it advances already has been convicted. In my Oklahoma City bombing case are being the rights of crime victims in the view, it is not unfair for the law to categorically excluded from both criminal justice process. This bill will treat the effect on a victim of viewing watching the trial and providing vic- ensure that victims of a crime who a trial as part of the effect of the tim impact testimony. Thus the vic- may be victim-impact witnesses at the crime, since the trial is a proximate, tims are faced with an excruciating di- sentencing phase of a trial are able to reasonably foreseeable consequence of lemma: If they sit outside the court- attend that trial and still testify at the commission of a crime. As the re- room during the trial, they may never sentencing. sult, a victim should be free to see the learn the details of how the justice sys- Mr. President, too often the victims trial and still give victim-impact testi- tem responded to this horrible crime. of crime seem to be forgotten as the mony at sentencing. On the other hand, if they attend the wheels of justice turn. In a sense, they This bill will ensure that victims of trial, they will never be able to tell the are victimized twice—first by the crimes have an opportunity to allevi- jury the full extent of the suffering the criminal, and then by a justice system ate some of their suffering through crime has caused to them and to their that too frequently treats them as ir- witnessing the operation of the crimi- families. relevant to the administration of jus- nal justice system. Moreover, this bill I do not believe that current law tice. will accomplish this salutary result thrusts this painful choice upon vic- This legislation clarifies that the vic- without having forced upon them the tims in this country. However, recent tims and survivors of crime who might cruel choice of observing the trial or court rulings reveal the need to clarify present testimony at sentencing about giving impact testimony at sentencing. and even hone existing law. That is ex- the effects of the defendant’s act Indeed, the bill before the Senate is a actly what Congress is doing by pass- should not be prevented from observing significant improvement over the legis- ing the Victim Rights Clarification Act the trial. It also clarifies that, con- lation originally introduced in the of 1997. versely, observing the trial is not other body because, unlike the original This important legislation will: grounds for excluding a victim or sur- House bill, it specifically ensures that Clarify that a court shall not exclude vivor from presenting impact testi- victims have the right both to attend a victim from witnessing a trial on the mony at sentencing. In 1991, the Su- the trial and provide impact testimony basis that the victim may, during the preme Court ruled in Payne v. Ten- at sentencing. The opportunity to do sentencing phase of the proceedings, nessee [501 U.S. 808] ruled that victims both is critical to providing closure to make a statement or present informa- and survivors may be given the right to victims and ensuring justice for vic- tion in relation to the sentence. provide testimony at sentencing about tims, as well as defendants and society. Specify that a court shall not pro- the victim and the impact of the crime Mr. President, this provision is not hibit a victim from making a state- on the victim’s family. Since then, controversial. I hope that it can be

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2509 passed by the Senate and sent to the I might mention that this is the pelled to pay time and attention: issues President for his approval without third piece of legislation that we have such as eliminating the Federal deficit, delay. passed that deals directly, or has had taking care of those who have served Mr. INHOFE. Mr. President, I am some impact, I guess, as a result of the this Nation in the Armed Forces, car- pleased to join my colleagues, Senators Oklahoma City bombing. Last Con- ing for our elderly and our young, im- NICKLES and LEAHY in getting through gress, we passed legislation dealing proving our environment, and recom- the Senate H.R. 924, the Victim Allocu- with habeas corpus reform, one of the mitting our educational system to ex- tion Clarification Act. This is an im- most significant improvements, I cellence. However, as important as portant issue for victims and their think, in our statutes dealing with these issues are, in my opinion, they families of the Murrah Federal Build- criminal law in a long time. We wanted are all secondary to the basic issue be- ing bombing. Clearly, we would not to have an end to endless appeals. I fore us—the need to recapture the have been able to get this through un- think the Oklahoma City tragedy gave public’s faith in our democratic proc- less there was widespread support for us great momentum to make that hap- esses and our democratic institutions. clarifying congressional intent with re- pen. I remember several of the victims Without that faith, all of these other spect to the rights of victims and their coming to testify, urging Congress to endeavors will be undermined. families. enact a crime bill, but also urging Con- Confucius, the noted Chinese sage, Although the Victims Rights and gress to enact habeas reform because once wrote that there were three Resolution Act of 1990 provided that they wanted to see justice soon rather things that make up a great nation: victims have the right to be present at than later. First, a strong defense; second a vig- all public court proceedings, it condi- We also passed legislation to allow orous economy; and third, the faith of tioned that on a court determination closed-circuit TV so victims would not people in their government. Confucius that the testimony by the victim have to go all the way to Denver. I was noted that a great nation might do would not be materially affected if the disappointed the decision was made without a strong defense, or that a victim heard other testimony at the that the trial would be held in Denver. great nation might be able to do with- trial. Recent courts decisions have held Originally, the judge said the people out a vigorous economy, but, Confucius that victims cannot attend the trial would have to attend to witness the noted that a great nation could not re- and submit a victim’s impact state- trial. This trial could last for months. main great without the faith of the ment. H.R. 924 clarifies congressional We passed legislation basically man- people in their government. intent by allowing the victim and their dating that closed-circuit TV would be Mr. President, I am committed to family to both attend the trial and sub- allowed in this case and, hopefully, supporting programs and plans for a mit a statement during the sentencing other cases. Hopefully, we will not strong defense for our Nation. I serve phase. have other cases, but if we have an- on the Senate Armed Services Com- I believe this language has reached a other case that might be identical to mittee with great pride and a sense of delicate balance between protecting this, the victims and their families awesome responsibility in this regard. I the rights of the victims while main- would not have to travel several hun- also am committed to a vigorous econ- taining the constitutional protections dred miles just to be able to witness omy, and to upgrading the quality of of the defendant. As noted by Senator the trial. education in America, in particular to NICKLES, it is critical that we pass H.R. Finally, we passed this legislation, creating hope for all of our qualified 924 before the trial in the Oklahoma this important legislation, to allow youngsters that they will have an op- City bombing case begins on March 31. victims and their families to be able to portunity to go to college or to receive I appreciate the efforts of all involved witness a trial and also, if they desire, vocational training. In furtherance of in getting through the Senate and to be able to testify during the sen- this objective, I am a cosponsor of S. House expeditiously. tencing phase. This would not have 12, a program designed to provide a Mr. NICKLES. Mr. President, I ask happened if we did not have bipartisan $1,500 tax credit and a $10,000 tax deduc- unanimous consent that the bill be support. tion to working families so they can deemed read a third time and passed, Again, I thank my colleagues for see their children achieve the Amer- and the motion to reconsider be laid making it happen. I am delighted. On ican dream. But I am especially com- upon the table, and that any state- behalf of hundreds of Oklahoma City mitted to doing those things which we ments relating to the bill appear at the families who are directly impacted, we need to do to enhance the faith of peo- appropriate place in the RECORD. say thank you to both our colleagues ple in this country in their own Gov- The PRESIDING OFFICER. Without in the House and the Senate for passing ernment by cleaning up the campaign objection, it is so ordered. this legislation today. finance mess. The bill (H.R. 924) was deemed read a I yield the floor. When I first came to Washington as a third time and passed. The PRESIDING OFFICER. The Sen- young college student in the fall of Mr. NICKLES. Mr. President, I move ator from Georgia is recognized. 1963, I was inspired by President Ken- to reconsider the vote. f nedy to get involved in public service. Mr. LEAHY. I move to lay that mo- I especially enjoyed meeting and learn- tion on the table. CAMPAIGN FINANCE REFORM ing from Members of the Senate. I can The motion to lay on the table was NEEDED vividly recall personal meetings with agreed to. Mr. CLELAND. Mr. President, I rise Senators Russell and Talmadge from The PRESIDING OFFICER. The Sen- to speak on the floor of the U.S. Senate Georgia, and a young Senator from ator from Oklahoma. for the first time. I do so with mixed West Virginia named ROBERT C. BYRD. Mr. NICKLES. Mr. President, I thank emotions. Following in the great tradi- In those days, my heart was stirred to my friend and colleague, Senator tion of this seat once held by such devote my life to politics. LEAHY from Vermont. We have done notables as Dick Russell and Sam Many of us in this Chamber today something rather unusual. We worked Nunn, I am poignantly aware that got our first taste of politics in the together in a very bipartisan fashion to freshman Senators should be seen and early sixties. For me, that introduction do some good work, and we did it very not heard. However, there is an issue was a positive one. quickly. It is not often that Congress building in this country which I feel However, when I was sworn in here passes legislation this quickly, and we obligated to comment on and regarding on the Senate floor on January 7 of did so. which I can no longer remain silent. this year, I could not help but think Also, I want to thank Senator This is the issue of reforming the way how differently our current leaders and DASCHLE and Senator LOTT because we we finance our political campaigns at our current institutions are perceived wanted to expedite this. We would like the Federal level, particulary seats in by today’s public, especially our young to get it to the President before he the U.S. Congress, and especially seats people. I do not believe that our leaders leaves the country today. This trial in the U.S. Senate. or our institutions are of lesser caliber happens to start on the 31st of this There are many other issues facing that those of my youth, but something month. our Nation to which we are all com- has obviously gone wrong. We in public

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2510 CONGRESSIONAL RECORD — SENATE March 19, 1997 office today face a hostile and cynical tures, and establish rules for everyone paign finance abuses. I serve on the public, quite willing to take the worst to play by, the average citizen will Governmental Affairs Committee possible reports about us and believe have less and less chance to serve in which will be conducting this inves- them instantly. One of the reasons for this body or run for public office. Sen- tigation. I fully support the purposes this attitude toward our public offi- ator DASCHLE predicts that at the cur- for which this investigation is in- cials, I think, is the constant money rent pace of the money chase, in only tended, but I’m saddened it has to be chase that U.S. House and U.S. Senate 29 years the average Senate race will undertaken in the first place. I only campaigns have become. Additionally, cost $143 million. hope that this effort will result in when this money is spent on 30-second This is insanity. meaningful campaign finance reform character assassination ads which have We cannot allow the Congress of the this year. become the staple of American politics, United States, especially the U.S. Sen- After we pass McCain-Feingold, we can we expect our public to truly speak ate, to become a millionaires’ club will need to turn to additional reforms highly of us? dominated by the rich and run by the in order to further improve our elec- I believe the single most important powerful special interests. This system toral process. I am working on legisla- step we can take in the Congress this continues to take its toll on this body tion which would strengthen the Fed- year in restoring public confidence and as the money chase continues. The exo- eral Election Commission. The pro- faith in our democracy is to enact dus of distinguished, veteran legisla- posal would do several things: Alter meaningful campaign finance reform. tors who have voluntarily departed the Commission structure to remove This is not a problem for Democrats. from the U.S. Senate in the last 2 years the possibility of partisan gridlock; This is not a problem for Republicans. is at an historic level. Even in my first eliminate current restrictions on the It is a problem for us all. We must act 2 months in the Senate, I have seen Commission’s ability to launch crimi- together in a bipartisan manner to noted Republican and Democratic leg- nal investigations, and to impose time- clean up a system which has gotten islators like DAN COATS, JOHN GLENN, ly, and effective penalties against vio- completely out of control and which and WENDELL FORD announce their re- lations of campaign law; and mandate undermines both the operation and rep- tirement from this body partially be- electronic filing of all reports. utation of our entire national Govern- cause of the frustration of spending the In addition, my proposal would ex- ment. next 2 years doing nothing but raising pand the free air time provisions of Throughout my early days in this money for their upcoming campaign. McCain-Feingold in order to help level body, I and all of my colleagues have Senator FORD spoke the thoughts of the playing field for challengers, and been under a constant barrage of re- many when he said on his retirement: attack the single biggest factor in driv- ports of campaign financing impropri- The job of being a U.S. Senator today has ing up campaign expenditures—expen- eties in the 1996 elections. I feel very unfortunately become a job of raising money sive television costs. Finally, I am strongly that our current campaign to be reelected instead of a job doing the peo- looking for methods to effectively en- system has become a national embar- ple’s business. Traveling to New York, Cali- fornia, Texas, or basically any State in the force a shorter timeframe for the con- rassment. duct of campaign-related activities. Will Rogers said back in the 1930’s country, weekend after weekend for the next 2 years is what candidates must do if they Strengthening enforcement, expand- that, ‘‘Politics has got so expensive hope to raise the money necessary to com- ing public access to information about that it takes lots of money to even get pete in a Senatorial election. Democracy as candidates and their ideas, and reduc- beat with.’’ How true that is, especially we know it will be lost if we continue to ing the length of the campaign season today. In the 1960’s a Georgia politician allow government to become one bought by will, in my judgment, build upon the remarked, ‘‘The only thing tainted the highest bidder, for the highest bidder. solid foundation which I hope we will Candidates will simply become bit players about political money is that it ’taint create when we enact S. 25. mine and ’taint enough.’’ and pawns in a campaign managed and ma- The American public isn’t laughing nipulated by paid consultants and hired We have important work ahead, and anymore. They are demanding a guns. often times there will be legitimate change in the attitudes of politicians The essential first step in repairing partisan, philosophical, and regional on the question of campaign fund- the current system is passage this year differences of opinion which should be raising. We currently have a political of S. 25, the bipartisan McCain-Fein- voiced and acted upon. However, we system which is drowning in money gold campaign finance reform bill. I am have a shared interest, as Senators, but and rife with real and potential con- very proud to be an original cosponsor more importantly, as American citi- flicts of interest. Simply stated, we of this proposal. It was the very first zens, in always acting to enhance the have too many dollars chasing and piece of legislation I attached my name respect our citizens have for our great being chased by too many politicians to as a U.S. Senator. Briefly outlined, country and our democratic institu- too much of the time. the bill would: ban soft money con- tions, especially this body. This unseemly money chase has tributions to national political parties; In that spirit, and with that commit- taken its toll in terms of public con- ban contributions by political action ment, I urge my colleagues to join in fidence. The election year of 1996 wit- committees to Federal candidates; es- the cause of mending our broken cam- nessed both a record high in the tablish voluntary spending limits, in- paign finance system. Let us create a amount of money spent in pursuit of cluding limits on personal spending, new campaign finance system which in- Federal office—a staggering $800 mil- and require that at least 60 percent of stills public confidence rather than un- lion—and the second worst voter turn- funds be raised from home State indi- dermines it, and aids the governing out in American history! In 1996, 10 viduals for Senate candidates; provide process rather than hinders it. million fewer voters went to the polls candidates who abide by these spending President Grover Cleveland was to cast their ballots in that Presi- limits with limited free and discounted right: ‘‘A public office is a public dential year than went to the polls 2 television time and a discount on post- trust.’’ The current money chase we all years earlier. What’s wrong with this age rates; require greater disclosure of engage in is severely eroding that picture? Some $220 million was spent independent expenditures; and prohibit trust. We must act to change a cam- on Senate races alone. In my Senate contributions from those who are ineli- paign finance system that is broken, or race in Georgia, I raised and spent gible to vote in Federal elections, in- continue to see good men and women some $3.5 million, but was outspent by cluding non-American citizens. from all walks of life and from all po- a multimillionaire who spent over $10 Mr. President, the best endorsement litical persuasions broken by it. million running for the Senate seat—$7 I can think of for this measure is that Mr. President, I yield the floor. million of which was his own money. Is had McCain-Feingold been in effect for Several Senators addressed the it any wonder that more and more of the 1996 elections, we would not now Chair. our citizens see that there is a for sale need to divert our attention away from The PRESIDING OFFICER. The Sen- sign on more and more public offices in the many serious problems facing our ator from Kansas is recognized. America? If we don’t bring about re- country in order to devote time and en- Mr. FEINGOLD. Will the Senator form of this process, limit expendi- ergy toward the investigation of cam- yield for a brief comment?

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2511 Mr. BROWNBACK. Just for a brief as someone who is fresh off the cam- reer. I am proud to call him a friend comment. I have a limited period of paign trail. I am sure that what he has and colleague. time. had to say is something of importance, f and I hope it will be read by our col- f PRIVILEGE OF THE FLOOR leagues. He comes in the great tradi- CONGRATULATIONS TO SENATOR tion of Senators from Georgia. When I Mr. GRAHAM. Mr. President, I ask CLELAND ON HIS MAIDEN SPEECH first came to Washington as a new unanimous consent that Ms. Delia Mr. FEINGOLD. I thank the Senator. Member of the Congress, we had Sen- Lasanta, a fellow in our office, be al- All I wanted to do is be the first to con- ator Walter George in the U.S. Senate, lowed privileges of the floor during gratulate the Senator from Georgia on and Senator Richard Russell, who was consideration of the legislation that I his first speech as a Member of this my mentor in many ways, and it was I will be introducing this afternoon with body. I can’t tell you how delighted we who introduced the resolution to name my friend and colleague, the Senator all are to have the Senator from Geor- the old Senate Office Building in honor from Idaho [Mr. CRAIG]. gia here. The Senator from Georgia ran of Senator Richard Russell. Of course, The PRESIDING OFFICER. Without a tough race. I know the Senator from there was also Sam Nunn, who followed objection, it is so ordered. Georgia has run other races before. in Senator Russell’s footsteps. (The remarks of Mr. GRAHAM and Mr. The people of Georgia know well that I congratulate the distinguished Sen- CRAIG pertaining to the introduction of the Senator from Georgia did not come ator. He is a true American hero. I S. 472 are located in today’s RECORD to this campaign finance reform issue know that he will be an outstanding under ‘‘Statements on Introduced Bills in the last few weeks, or just after the Member of this institution. I congratu- and Joint Resolutions.’’) revelations of the last election. The late him. The PRESIDING OFFICER. The Sen- Senator from Georgia has been a leader I hope that all Senators will take ator from Missouri. in Georgia and in the country for years note of what Senator CLELAND has said f in authoring and considering and mov- in his speech today. It will be well ing forward the issue of campaign fi- COMMUNICATIONS DECENCY ACT worth their time to read that speech. nance reform. I can’t think of anything I thank him. Mr. BOND. Mr. President, I rise that made me happier than when the And I thank the distinguished Sen- today to join with a number of my col- Senator from Georgia said his first bill ator from Kansas. leagues to say there was a very impor- would be to cosponsor our bipartisan Mr. BROWNBACK addressed the tant argument in the Supreme Court effort. On behalf of my colleagues and Chair. today over the constitutionality of the myself, it is a great moment in the The PRESIDING OFFICER. The Sen- Communications Decency Act, which Senate to have the Senator from Geor- ator from Kansas. we passed last year. You will recall gia join us and to hear his first speech. Mr. BROWNBACK. Mr. President, I that we passed a bill to make it dif- Mr. WELLSTONE. Mr. President, I want to recognize and congratulate the ficult to communicate pornography to wonder if I may have 30 seconds. Senator from Georgia for joining the children. The day it was passed and Mr. BROWNBACK. Yes. signed, the American Civil Liberties Mr. WELLSTONE. Mr. President, I body. I am joining him on his first Union jumped in to say it was uncon- echo what my colleague from Wis- maiden speech. stitutional. I’m sorry, but I think the consin has said. I believe, I say to the I also thank the Senator from West ACLU has it all wrong. I was very Senator from Georgia, that when we Virginia for educating and sharing pleased to be one of a group of Sen- pass the reform bill in this Congress— with us some of the culture and the ators, including the occupant of the and we must and we will—the words ut- history of the U.S. Senate, which I Chair, who signed a brief in support of tered in the Senator’s first speech on think is always beneficial for us to Congress’ effort to impose reasonable the floor of the Senate will be remem- have and to be able to share with the regulations and restrictions to prevent bered and will be part of a good piece of American people the history, the abil- the worst form of pornography from history in this country. I thank my ity, and the nature of this body as it reaching our children. colleague from Georgia, and I thank was set up by the Founding Fathers Congress can regulate speech when the people from Georgia for sending and which has been maintained with there is a compelling reason. That has him here. most of its integrity since that time Mr. BYRD. Mr. President, will the and age of what they set forward. been clear. That has been held con- Senator yield for a brief comment? I I think it is always positive for us to stitutional in many instances, and I ask unanimous consent that he retain know the history and the nature and suggest that there is no more compel- his right to the floor and that the time why we serve and how we should serve. ling need than to protect our children consumed by me and by the two Sen- Mr. BYRD. Mr. President, I thank and future generations from exposure ators preceding me not come out of the the distinguished Senator for his very to explicit pornographic pictures and Senator’s time. kind and overly charitable remarks. messages, and from the people who Mr. BROWNBACK. I am happy to Mr. BROWNBACK. They are not send them. yield for a minute, if I could please, sir. overly charitable at all. The government, both the Federal The PRESIDING OFFICER. Without (The remarks of Mr. BROWNBACK per- Government and State and local gov- objection, it is so ordered. taining to the introduction of S. 471 are ernments, have engaged in efforts to Mr. BYRD. Mr. President, I join with located in today’s RECORD under regulate pornography. We regulate others of my colleagues in compli- ‘‘Statements on Introduced Bills and media available to children such as the menting the distinguished Senator Joint Resolutions.’’) sale of books and magazines, the view- from Georgia on his maiden speech. Mr. GRAHAM addressed the Chair. ing and sale of films, the use of tele- It used to be, Mr. President, that The PRESIDING OFFICER (Mr. phone services to communicate adult when a new Senator came to this body, SANTORUM). The Senator from Florida. messages, and the broadcast media. So, he waited several months before he Mr. GRAHAM. Mr. President, first, I this has been done and it has been done spoke. Then when he made his maiden wish to add to the remarks that have for a very good and I believe a very speech, other Senators who had been been made this afternoon in recogni- compelling reason. The standard put notified that he was going to make a tion of the first speech given as a Mem- forth in the Communications Decency speech would come to the floor and ber of the U.S. Senate by our new col- Act is even more stringent than that, gather around him and listen to his league, the Senator from Georgia. He in terms of the limitations of it. The speech. In those days we did not have has represented this Nation with great constraints are more severely limited the public address system. So Senators distinction throughout his life, and we than the constraints on the broadcast generally moved toward the desk of the are gratified that he has now joined us media. We have tightened up the defi- Senator who was speaking so they in the Senate. I am confident that the nitions and made the ban much nar- could hear him better. remarks he made a few minutes ago rower. I have enjoyed listening to the distin- will be illustrative of the contributions The Internet is clearly the latest guished Senator. He comes here today he will make throughout his Senate ca- means of communications. Any of us

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2512 CONGRESSIONAL RECORD — SENATE March 19, 1997 who have children knows how readily THE BUCK MUST REST not know what was going on. Legiti- accessible the Internet is. If you are SOMEWHERE ELSE mate questions were raised: If you did like I am, when you have a computer Mr. COATS. Mr. President, yester- not know what was going on with a 150- problem you ask your child how to fix day, I took the floor to detail what I member staff that went to the very es- it, because the children know how to thought was an extremely disturbing sence of the Presidency, of who sees make it work. My forehead still breaks and very potentially abuse of Execu- the President, of what the involvement out in perspiration and my hands tive power of the White House to im- of these individuals is relative to fund- shake when I try to send e-mail. But properly influence the outcome of the raising for the election, if you are not the kids can not only send the e-mail American Presidential election. As aware of that going on, how are you for you, they can tell you how to send part of that chronology of events of in- possibly going to manage a multithou- it, fix the problems on it, and make formation that we now know that has sand-member agency with 12 separate things happen. We want to make sure been printed and that we are aware of, divisions as important to the security that what they do not make happen is I detailed the situation relative to the of the United States as the Central In- that they get access to things that are latest scandal that has been reported telligence Agency? now banned to them through adult in the press, and that involves Mr. So even though the White House book stores, through broadcast media, Lake, former National Security Ad- blamed partisan Republicans, we now through telephone communications. viser to the President, an individual know that the vice chairman of the In- They should not be subject to the devi- nominated for the job as Director of telligence Committee had raised his ants, the pornographers, the child mo- the CIA. own concerns about Mr. Lake’s quali- lesters who want to use the Internet in Mr. Lake, as we all now know, with- fications and what his role was and the an interactive way to get access to our drew his name from consideration the role of the National Security Council children. day after a major story broke about a in terms of all this fundraising morass that the administration is caught up There are, unfortunately, an abun- problem involving the Democratic Na- tional Committee, the Central Intel- in. dance of examples of where perverts Mr. President, fortunately, publica- have used Internet communications to ligence Agency, the National Security Council, and the fundraising operation tions that are following the story are communicate with and to lure young not buying the White House response. children to locations away from their of the White House. I think this is probably the most damaging, or at The New York Times editorial today homes. They have used pornography as states: a tool. Not only have they polluted least one of the most damaging allega- tions relative to the entire fundraising In the end, Mr. Lake was undone by Mr. children’s minds with this pornog- Clinton’s reckless 1996 election campaign raphy, but they have used it as a tool efforts by the Democratic Party for and the failure of top White House officials, for their own, very sick purposes. this last election. We now know that including Mr. Lake, to insulate American the Central Intelligence Agency was In Louisville, I know there was a 12- foreign policy from fundraising efforts. used by the Democratic National Com- year-old girl who was sent a bus ticket That is an extraordinary statement, mittee to encourage access to the and left home without her parents Mr. President, and I want to repeat it. President by an individual who is an knowing about it. These examples have The New York Times editorial today international fugitive and was a major happened time and time again. I be- refuting the White House response to donor to the Democratic Party. lieve this Congress had every right to Mr. Lake’s withdrawal from nomina- The administration, in response to tion to be CIA Director, states: say it is OK for adults to communicate Mr. Lake’s withdrawal, indicated that anything they want but you cannot be In the end, Mr. Lake was undone by Mr. it was the confirmation process by Clinton’s reckless 1996 election campaign sending material to children that is members of the Intelligence Com- pornographic. You cannot be putting and the failure of top White House officials, mittee that is at fault in the with- including Mr. Lake, to insulate American pornographic information on the kiddie drawal of the Lake nomination. The foreign policy from fundraising efforts. chat rooms. fault, Mr. President, I suggest, lies Jim Hoagland, in today’s Washington Contrary to what the ACLU will tell elsewhere. The Lake nomination was Post, states: you, the Communications Decency Act eventually undermined because Mr. [Lake] is not a victim of the system but of does not ban speech or interrupt the Lake was forced to operate, or at least the President he served. His angry words try free exchange of ideas. There is tech- chose to operate or was forced to oper- to obscure an embarrassment and the true nology available that can keep chil- ate, in the very center, the very heart dimension of one more political fiasco at the Clinton White House. One more close Clinton dren from gaining access to it. And if it of a political fundraising machine takes a pornographer a little more dif- associate is badly damaged while the Presi- whose abuses are revealed to us each dent cruises on with high but flagging ap- ficulty to communicate pornographic day as we pick up the paper in the proval ratings. materials to another consenting adult, morning. To continue: so they do not get the information be- The White House blames partisan Re- The system that did in Tony Lake is the fore children, I am not going to lose publicans, and yet a major story in the one that allowed the fundraisers to trump any sleep over it. New York Times today, titled ‘‘Lead- Lake’s staff repeatedly over access to the There is every reason that we can, ing Democrat Tells of Doubt of CIA White House. under the Communications Decency Nominee, White House Was Warned, In Washington the system is people—peo- Act, continue to use the Communica- Senator KERREY’s Reservations May ple who are supremely attuned to the wishes, Have Persuaded Lake Not To Fight the needs, and whims of the boss. If Roger tions Decency Act for communicating Tamraz, Chinese arms supplier Wang Jun, medical information, discussing lit- GOP,’’ hardly speaks to a partisan ef- Thai trade lobbyist Pauline Kanchanalak erature—these are not banned. If the fort to dethrone Mr. Lake. and the others made it into the White House, purpose is getting pornography, for Legitimate questions were asked of it is ultimately because Bill Clinton commu- pornographic purposes or even personal Mr. Lake of what his role was as Na- nicated, in one form or another, that he did whims of those who communicate it, to tional Security Adviser to the Presi- not want tight screening of campaign con- children, that the Communications De- dent in terms of clearing certain indi- tributors. In the end, Tony Lake paid the cency Act bans. viduals to come to the White House for price for Clinton’s need not to know. That from today’s Washington Post. I think this should be upheld. I am various favors, coffees, Lincoln Bed- Then, finally, Maureen Dowd in the proud to be one of the signers of the room stays, et cetera, and, on several New York Times states: brief and we will all be watching to see occasions—at least two that we know of—the National Security Council Although Mr. Lake’s ‘‘haywire’’ line got this very important case resolved by all the attention— the U.S. Supreme Court. issued very direct reservations and, in fact, warnings about certain individ- That is referring to a process ‘‘gone I yield the floor. uals who, nevertheless, attended more haywire’’ that Mr. Lake stated— Mr. COATS addressed the Chair. than one meeting at the White House. it was another sentence in his letter that The PRESIDING OFFICER. The Sen- Mr. Lake’s response was that he es- provided the real reason for his withdrawal. ator from Indiana. sentially was out of the loop; he did Quoting Ms. Dowd:

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2513 In addition, the story today about the ac- attention to the recently passed Senate When foreign countries wish to influ- tivities of Mr. Roger Tamraz is likely to lead resolution in that regard. I think these ence the most economically powerful to further delay as an investigation pro- are serious issues and they must be ad- country in the world for purposes of ceeds. dressed. commerce or access to its decision- Maureen Dowd goes on to state: Finally, let me just say that the making, that in itself is of concern. Mr. Lake would have had a tough time ex- practice of this administration and this And it has to be this Congress that un- plaining why he was missing in action while President of simply saying, the process derstands that and this President that the Democratic Party tried to use the CIA to is corrupt, that the Congress is par- understands that and in no way allows pressure Mr. Lake’s office to help get an ac- tisan, that all of this has to do with foreign policy, decisionmaking, or any cused embezzler and big donor access to the part of that process to be biased by White House. The cold war might be over, politics and none of this has to do with but don’t these agencies have something bet- ethics and legal violations, that that is undue influence. And yet day after day, ter to do than vet global hustlers and fat a lame excuse and removal from ac- now almost hourly, the stories pile up. cats? countability and responsibility that we Tony Lake is now part of that story. Sheila Heslin, an NSC Asia expert with a expect in the leadership of this coun- Janet Reno must step aside from regard for ethics unusually high for the Clin- try. what appears to be at this moment a ton White House, offered to shield the Presi- Mr. President, I yield the floor. gross conflict of interest and do what is dent from the notorious Roger Tamraz. But Mr. CRAIG addressed the Chair. her statutory responsibility, and that like the ubiquitous Johnny Chung, who also The PRESIDING OFFICER. The Sen- is to appoint an independent counsel. got into the White House despite tepid NSC Then let the chips fall where they may. warnings, Mr. Tamraz had his run of the peo- ator from Idaho. ple’s house. Mr. CRAIG. Mr. President, let me And I do not know where they will fall. So that’s why Tony Lake pulled out: thank the Senator from Indiana for And I do not think the Senator from Indiana knows. She concludes— bringing together for us what is a per- plexing issue. We are talking about allegations, al- He was not Borked. He was Tamrazzed. I had watched from afar, because I legations that were first launched, not Mr. President, former President am not a Member of the Intelligence by a politician, but by the media itself. Harry Truman had on his desk a sign Committee, the process of the inter- It was an article in the Los Angeles that said, ‘‘The buck stops here.’’ Un- viewing of the nominee, Tony Lake. Times back in the latter days of the fortunately, it seems that the sign While I know there was considerable last campaign that argued that some- posted throughout the White House controversy and an unwillingness on how there appeared to be an issue of and throughout this administration is the part of this administration to send corruption or an issue of compromise ‘‘The Buck Must Rest Somewhere Else; forth the full FBI file, that was really or an issue of illegality as it relates to It Sure Doesn’t Stop Here.’’ the only argument I ever heard. Fi- how this administration, most impor- Mr. President, we have a very serious nally some of that file came, but cer- tantly, this President and his Presi- situation before us. We have allega- tainly not all of it did, nor was there dential campaign had raised money. tions, backed by substantial evidence, ever full disclosure. Now Janet Reno, do your job. Call that the executive power of the White Yet on the evening news last night I the independent counsel. Get on with House was abused to improperly influ- watched a very indignant President the business of ferreting out whether ence the outcome of an American Pres- talking about the corruption of the there were illegal acts involved in the idential election. We have serious ques- procedure. And nowhere during all of corruption of or the compromise of this tions about foreign governments’ in- this did I understand that there was President and this President’s foreign volvement at invitation by the Demo- any corruption, only a request for policymaking. cratic Party and the Clinton adminis- knowledge, for information to decide And, thank goodness, through all of tration, involvement in helping corrupt whether the No. 1 intelligence officer the winnowing process Tony Lake is American elections. We have serious of this country was eligible to serve in now out of the picture and we can get allegations, backed by considerable that position. on with the business of reviewing evidence, that the privilege of Amer- The Senator from Indiana has told us nominees who can meet the test of in- ican citizenship has been distorted and the rest of the story. And the rest of tegrity and legitimacy in conducting undermined to serve the President’s re- the story is that Tony Lake is a ref- what is still a very important part of election. And now we are forced to ask, ugee of this administration’s this country’s affairs, and that is our were American intelligence services mispractices, if not illegal acts. He is intelligence-gathering network, the manipulated by this administration as not a refugee of this Congress’ failure eyes and ears of a government who is part of this fundraising machine? to act, because we were doing what is responsible for conducting the foreign All of this, Mr. President, speaks for our constitutional responsibility. policy of a nation that still remains the need for independent counsel, I, too, today voted for an independent critical to the security of our country speaks for the need to move this proc- counsel. Two weeks ago I called for an and our financial and economic well- ess outside of the Congress because independent counsel, as I think most of being. clearly the administration has taken us were growing to believe that any- I thank my colleague from Indiana the position that whatever is said by thing we did here would be either for so clearly pointing these issues out. this Member or any other Member of tainted by the opposition or tainted by I yield back my time. Mr. COATS. Mr. President, I suggest the Republican Party is simply par- the media as somehow a partisan act. tisan politics, that everything that What the Intelligence Committee of the absence of a quorum. The PRESIDING OFFICER. The happens is directed from a partisan the Senate did was not partisan. It was clerk will call the roll. basis. constitutional. It was responsible. The legislative clerk proceeded to What we are trying to get at here, What the President did in his ‘‘mea call the roll. Mr. President, is the truth. What we culpa, mea culpa’’ last night was the Mr. BYRD. Mr. President, I ask unan- are trying to do is examine what stat- first to the altar of the sinners to say imous consent that the order for the utes were violated, trying to examine ‘‘not I’’ when in fact the stories are quorum call be rescinded. what ethics rulings were violated, try- now pouring out that somehow the The PRESIDING OFFICER. Without ing to impose some standards on the process was corrupted and that Tony objection, it is so ordered. way in which we conduct elections in Lake, as an instrument of that process, Mr. BYRD. Mr. President, what is the this country and the way in which the grew corrupt along with it. business before the Senate? White House is viewed and held by oc- Just because the great Soviet empire The PRESIDING OFFICER. We are in cupants of that White House and what and communism as a sweeping rave of morning business until 3 o’clock, with its purpose should be. ‘‘isms’’ around the world seems to be a 5-minute limitation. Mr. President, for that reason, I sup- on the rapid decline, is foreign policy Mr. BYRD. Mr. President, I will need ported the resolution to call for an and the integrity of foreign policy in more than 5 minutes. May I ask the independent counsel. I would hope that our country any less important? I distinguished Senator from Nevada, the Attorney General would pay close would suggest that it is not. does he wish to speak?

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2514 CONGRESSIONAL RECORD — SENATE March 19, 1997 Mr. BRYAN. Mr. President, if I might Now that comes, Mr. President, from leading industry groups such as the respond, the Senator from Nevada one of our more conservative col- American Bankers Association, the Na- needs about 5 to 6 minutes, but if that leagues who serves in the other body. tional Association of Realtors, and the inconveniences the Senator from West I commend Chairman D’AMATO for National Association of Homebuilders. Virginia, I am happy to wait. Whatever his leadership in introducing this im- I urge my colleagues to move forward the Senator wishes. portant legislation that will affect mil- on this important piece of consumer Mr. BYRD. Mr. President, I ask unan- lions of homeowners. Let me indicate legislation and put the industry’s ob- imous consent I may speak for not to how important that is and how many jections below the overriding public in- exceed 20 minutes. people are affected. terest. We must lift this unfair burden The PRESIDING OFFICER. Without In 1996, of the 2.1 million home mort- from American homeowners. objection, it is so ordered. gages that were insured, more than 1 I thank the Chair. I thank my senior Mr. BYRD. Mr. President, I ask unan- million required private mortgage in- colleague from West Virginia for his imous consent I may yield to the Sen- surance. One industry group has esti- courtesy. I yield the floor. ator from Nevada for not to exceed 5 mated that at least 250,000 homeowners The PRESIDING OFFICER. The Sen- minutes, without losing my right to are either overpaying for this insur- ator from West Virginia. the floor. ance or paying when it is totally un- Mr. BRYAN. I appreciate that. That necessary. At an average monthly cost f would accommodate the Senator from of $30 to $100, unnecessary insurance Nevada. premiums are costing homeowners COMMISSION TO ELIMINATE THE The PRESIDING OFFICER. Without thousands of dollars every year. TRADE DEFICIT objection, it is so ordered. Now, clearly, private mortgage insur- Mr. BRYAN. Mr. President, let me ance serves a useful purpose in the ini- Mr. BYRD. Mr. President, I am preface my remarks by acknowledging tial mortgage lending process. It en- pleased to join with the distinguished the courtesy from the senior Senator ables many home buyers who cannot Senator from North Dakota, Senator from West Virginia. I appreciate his afford the standard 20-percent down- DORGAN, in introducing an ambitious courtesy in allowing me to make a payment on a home mortgage to new effort on the matter of our na- floor statement for a period not to ex- achieve a dream of home ownership. tion’s persistent and growing trade def- ceed 5 minutes. While private mortgage insurance pro- icit. This legislation would establish a f tects lenders against default on a loan, Commission to take a broad, thorough there comes a time when that protec- look at all important aspects of, and HOMEOWNERS’ PROTECTION ACT solutions to the growing U.S. trade def- OF 1997 tion afforded to the lender becomes un- necessary, and the point, it seems to icit, with particular attention to the Mr. BRYAN. Mr. President, yester- me, is reached when the homeowner’s manufacturing sector. day in the Senate Banking Committee equity investment in the residence The trade deficit, as my colleagues American consumers were dealt a gives the lender sufficient assurance know, is a relatively recent phe- major setback. The committee was ex- against default. nomenon, with large deficits only oc- pected to vote out legislation that The comfort level generally within curring within the last 15 years. In the would have ended a practice that costs the industry has been 20 percent. So it 1980’s, the U.S. merchandise trade bal- hundreds of thousands of homeowners stands to reason that PMI is not nec- ance ballooned from a deficit of $19 bil- millions of dollars per year. essary for risk management and pru- lion in 1980 to $53 billion in 1983, and The Banking Committee was sched- dent underwriting procedures once the then doubled in a year, to $106 billion uled to vote out S. 318, the Home- homeowner has reached the 20-percent in 1984. Last year it stood at $188 bil- owners’ Protection Act of 1997 which is equity mark. Therefore, borrowers who lion, setting a new high record for the sponsored by Senators D’AMATO, DODD, amass equity equal to 20 percent of third consecutive year. Projections by DOMENICI, and myself. This bill would their homes’ original value should be econometric forecasting firms indicate outlaw the practice of overcharging treated in the same way as borrowers long term trends which will bring this homeowners for private mortgage in- who are able to make a 20-percent figure to over $350 billion by 2007. No surance they no longer need. downpayment or more at the outset of one is predicting a decline in the near Unfortunately, Chairman D’AMATO the loan. future. If we do nothing, within 2 years was forced to cancel the markup be- The Homeowners’ Protection Act of the merchandise trade deficit will cause a number of Members put the in- 1997 would ensure that existing and fu- equal the annual budget for national terest of a small, yet highly profitable, ture homeowners would not continue defense. industry over the public’s interest. To to pay for private insurance when it is To reiterate, in 1996 the United make matters worse, this industry is no longer necessary. Specifically, this States had the largest negative mer- clearly taking advantage of millions of legislation would inform the borrower chandise trade balance in our history, Americans in an unconscionable man- at closing about private mortgage in- some $188 billion, and it is the third ner. surance and outline how the servicer of consecutive year in which the deficit The opponents of Chairman the loan will automatically cancel the has reached a new record high. D’AMATO’s legislation argue that the mortgage insurance, assuming the This legislation is committed to a bill places too heavy a burden on this transaction is not exempt from can- goal of reversing that trend of the next one industry. I do not share their opin- cellation when the loan balance decade. The goal of the commission is ion and believe the interests of mil- reaches 80 percent of the original to ‘‘develop a national economic plan lions of American homeowners should value. to systematically reduce the U.S. trade be put ahead of an industry that is Mr. President, there is no doubt that deficit and to achieve a merchandise clearly taking advantage of these same private mortgage insurance is an im- trade balance by the year 2007. homeowners. portant tool in the American system of While it is not clear what the par- Those protecting the industry need mortgage finance. However, retaining ticular reasons for this growing trade to heed the advice of one of their col- private mortgage insurance beyond its deficit may be, nor what the long term leagues, Congressman JAMES HANSEN. usefulness to the homeowner is a prac- impacts of a persistently growing def- Let me share from Congressman HAN- tice that should be ended. The Home- icit may be, the time is overdue for a SEN’s observations: owners’ Protection Act will prevent detailed examination of the factors As a small businessman for most of my life present and future homeowners from causing the deficit. We need to under- . . . I have learned that if an industry polices paying for private mortgage insurance stand the impacts of it on specific U.S. itself, the government should not interfere. I industrial and manufacturing sectors. firmly believe that the government should that is no longer needed. This proposal stay out of the private marketplace. How- will end the unfair practice and protect Furthermore, we need to identify the ever, when an industry does not follow even the consumer. gaps that exist in our data bases and its own guidelines, I believe it is our respon- This legislation is supported by al- economic measurements to adequately sibility to draw that line. most every consumer group, but also understand the specific nature of the

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2515 impacts of the deficit on such impor- ports. The same effect appears to have base, that the importance of insisting tant things as our manufacturing ca- resulted from our need for the Japa- on fair play in the matter of trade will pacity and the integrity of our indus- nese to participate in our treasury bill become clear. trial base, on productivity, jobs and auctions. This becomes a closed cycle— Finally, the legislation requires the wages in specific sectors. the need to finance the trade deficit Commission to examine alternative Throughout the 1980’s, my own State with foreign capital, resulting in reg- strategies which we can pursue to of West Virginia literally bled manu- ular involvement of the Japanese Gov- achieve the systematic reduction of the facturing jobs. We saw the jobs of hard- ernment in our treasury bill auctions, deficit, particularly how to retard the working, honest West Virginians in the seems to dampen our efforts to push migration of our manufacturing base glass, steel, pottery, shoe manufac- the Japanese on market-opening ar- abroad, and the changes that might be turing and leather goods industries— rangements. Naturally, without recip- needed to our basic trade agreements and other so-called smokestack indus- rocal open markets, the trade imbal- and practices. tries—hemorrhage across our borders ance remains exaggerated between the These are the purposes of the Com- and shipped overseas. While economic United States and Japan, prompting mission that Senator DORGAN and I development efforts in my State have further need for Japanese financial have proposed in this legislation. commendably encouraged our busi- support to fund the national debt. Of I commend the distinguished Senator nesses to refocus to help recover from course, this is a vicious circle. Thus, from North Dakota for his studious ap- those losses, the lack of knowledge some argue that the need for Japanese proach to this question. He is as knowl- about the causes and impact of our involvement in financing our national edgeable, if not more so, than certainly trade deficit leaves West Virginia, and debt hurt the ability of our trade nego- most other Senators, and perhaps any the nation as a whole, at a disadvan- tiators to get stronger provisions in other Senators, as far as I am con- tage in the arena of global competi- the dispute settled last year over the cerned, on this subject. I am pleased to tion. Japanese market for auto parts. join him in offering this proposal for We debate the trade deficit from time Similar considerations appear to pre- the consideration of the Senate. to time. We moan about it. We com- vail in negotiating market access with I hope that many of our colleagues plain about it. But, if we do not under- the Chinese in the area of intellectual will join us, and that we can secure stand the nature, of the long-term property. While our trade negotiator passage of the proposal in the near fu- vulnerabilities that such manufac- managed a laudable, very specific ture. turing imbalances create in our econ- agreement with the Chinese in 1995 in Mr. President, I yield the floor. omy and standard of living, we are this area, the Chinese were derelict in I suggest the absence of a quorum. surely in the dark. It appears to me implementing it, leading to another The PRESIDING OFFICER. The that debate over trade matters too high-wire negotiation last year to clerk will call the roll. often takes on the form of rhetorical avoid sanctions on the Chinese, and to The legislative clerk proceeded to bombast regarding so-called protec- get the Chinese to implement the ac- call the roll. tionists versus so-called free traders. cord as they had promised. Again, it is Mr. HATCH. Mr. President, I ask This is hardly a debate worthy of the unclear whether the Chinese will now unanimous consent that the order for name, given the problems we are fac- follow through in a consistent manner the quorum call be rescinded. ing. It is not an informed debate. We with the implementing mechanisms for The PRESIDING OFFICER (Ms. COL- are talking past each other, and in far the intellectual property agreement LINS). Without objection, it is so or- too general terms. It has been more of belatedly agreed to in the latest nego- dered. an ideological exchange than a real de- tiation. The highly trumpeted mantra f bate, primarily because we have not about how the U.S.-China relationship EXECUTIVE SESSION had sufficient analytical work done on will be one of, if not the most impor- the data bearing on this problem. Nei- tant, U.S. bilateral relationship for the ther side knows enough about what is next half century, has a chilling effect NOMINATION OF MERRICK B. GAR- really transpiring in our economy, on insisting on fair, reciprocal treat- LAND, OF MARYLAND, TO BE given the very recent nature of these ment, and good faith implementation U.S. CIRCUIT JUDGE FOR THE persistent deficits. of agreements signed with the Chinese DISTRICT OF COLUMBIA Certainly we know that the deficit government. The PRESIDING OFFICER. The Sen- reflects on the ability of American The Chinese government has again ate will proceed to executive session. business to compete abroad. We want recently reiterated its desire to become The clerk will report the nomination. to be competitive. Certainly we know a member of the World Trade Organiza- The assistant legislative clerk read that specific deficits with specific trad- tion and certainly her interest in join- the nomination of Merrick B. Garland, ing partners cause frictions between ing that organization is a commend- of Maryland, to be U.S. circuit judge the United States and our friends and able indication of her willingness to for the District of Columbia Circuit. allies. This is particularly the case submit to the rules of that organiza- The PRESIDING OFFICER. The Sen- with the Japanese, and is quickly be- tion regarding her trading practices. ator from Utah is recognized. coming the case with China. It is clear There is legitimate concern however, Mr. HATCH. Madam President, be- that the trade deficit has contributed that insufficient progress has been fore we get to the specific discussion of to the depreciation of the dollar and made by the Chinese on removing a the merits of Merrick B. Garland, let the ability of Americans to afford for- wide variety of non tariff discrimina- me make an important point. There eign products. Less clear, but of vital tory barriers to U.S. goods and serv- have been some suggestions made that importance, is the relationship of the ices, as she committed to do in the 1992 this Republican Congress is not moving trade deficit to other important policy bilateral Market Access Memorandum as rapidly or as well as it should on questions on the table between the of Understanding [MOU]. Indeed, in the judges, or at least last year did not United States and our foreign trading 1996 report by the United States Trade move as well or as rapidly as it should partners. Representative entitled foreign trade have on judges. Attempts by the United States to re- barriers, the amount of material de- With regard to judicial vacancies, the duce tariff and nontariff barriers in the voted to the range of such barriers on important point I would like to make Japan and China markets, which clear- the part of China is exceeded only by before getting into factual distortions ly restrict access of U.S. goods to those the material on Japan, indicating that that are being made about the judici- markets, have been crippled by the we have a continued persistent problem ary confirmation process is this. Fed- intervention of other, more important that needs serious attention along eral judges should not be confirmed policy goals. During the cold war, the these lines. simply as part of a numbers game to United States-Japan security relation- It will only be when we truly under- reduce the vacancy rate to a particular ship had a severe dampening effect on stand the specific impacts of these level. our efforts to reduce these myriad bar- large deficits on our economy, particu- While I plan to oversee a fair and riers in Japan to United States ex- larly our industrial and manufacturing principled confirmation process, as I

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2516 CONGRESSIONAL RECORD — SENATE March 19, 1997 always have, I want to emphasize that until mid-March or April and can- It is true, 28 nominees did not get the primary criteria in this process is didates were not reported to the floor confirmed last Congress. There is no not how many vacancies need to be until after these hearings. use kidding about it. We had 28 who did filled but whether President Clinton’s In the 100th Congress, the first hear- not make it through. But this was at a nominees are qualified to serve on the ing was not held until March 4, 1987. In point where there were only 65 vacan- bench and will not, upon receiving the 101st Congress, the first judges cies in the court, or, in other words, a their judicial commission, spend a life- hearing was not held until April 5, 1989. full Federal judiciary. There is some time career rendering politically moti- And in the 102d Congress, when there extra consideration here. Compare this vated, activist decisions. The Senate was a vacancy rate of 15 percent in the to the end of the 102d Congress when, has an obligation to the American peo- courts, the first hearing was not held notwithstanding 97 vacancies in the ple to thoroughly review the records of until March 13, 1991. Federal system, the Democratic Senate the nominees it receives to ensure that So I think some of the arguments left 55 Bush nominees unconfirmed. they are qualified and capable to serve made against what we have been doing Let us talk about the present vacan- as Federal judges. Frankly, the need to are just fallacious and I think done for cies. Due to an unprecedented number do that is imperative, and the record of partisan reasons. We ought to get rid of of retirements since Congress ad- activism demonstrated by so many of the partisanship when it comes to journed, there are currently 95 vacan- President Clinton’s nominees calls for judges and go ahead and do what is cies in our Federal system or a vacancy all the more vigilance in reviewing his right. I have tried to do that. rate of 11.25 percent as of March 1 of Now let us talk about the number of this year. That is the most recent re- nominees. So I have no problem with those who judges confirmed last year. Democrats port from the Administrative Office of want to review these nominees with have been critical of the fact that only the Courts. Notice that when the 105th great specificity. The recent allega- 17 judges were confirmed last year. The Congress convened on January 7, 1997, fact is that President Clinton had al- tions by my colleagues on the other there were 85 vacancies, or a 10.7 per- ready had so many judges confirmed side of the aisle and in the media that cent vacancy rate. But a little perspec- that he only nominated 21 judges last tive reveals that this is by no means a there is a Republican stall of judges is year. During President Clinton’s first high level for the beginning of the Con- nothing short of disingenuous. The fact is that last Congress under term, he had 202 judges confirmed— gress. In fact, it is lower than the va- Republican leadership the Federal more than President Bush, 194; Presi- cancy rates at the beginning of the courts had 65 vacancies—as you see, dent Reagan, 164 in his first term; Democratically controlled 102d and President Ford, 65 in his term. I might the Federal courts had 65 vacancies— 103d Congresses, where the vacancy say that as a result there were very few which is virtually identical to the rates were 126 vacancies in the 102d, at vacancies to fill at the end of the 104th a 14.89 percent vacancy rate, with 109 number of vacancies—63—there were at Congress, and the courts were virtually vacancies in the 103d, for a 12.88 va- the end of the previous Congress when at full capacity. cancy rate. the Democrat-controlled Congress was In fact, at the close of the last Con- So, there is little or no reason to be processing Clinton judges. gress, there were only 65 vacancies in this critical or this irritated with what Historically speaking, this is a very the entire system, which is a vacancy has gone on. I pledge to the Senate to low vacancy rate. In contrast, at the rate of 7.7 percent. In fact, the number do the very best that I can to try to end of the 102d Congress, when Senator of vacancies under my chairmanship at confirm President Clinton’s judges, if BIDEN chaired the Judiciary Com- the close of the 104th Congress, 65 va- they are not superlegislators, if they mittee and President Bush was at the cancies—when a Republican Senate are people who will uphold the law and White House, there were 97 vacancies— was processing Clinton’s nominees— interpret the law and the laws made by as you can see, back in the 102d Con- was virtually identical to the number those who are elected to make them. gress, 97 vacancies—in the Federal sys- of vacancies at the end of the 103d Con- Judges have no reason on Earth to be tem for an 11.46 percent vacancy rate, gress, 63, when a Democrat-controlled making laws from the bench or to act nearly twice the vacancy rate than at Senate was processing President Clin- as superlegislators from the bench and the adjournment of the 104th or last ton’s nominees. At that point the De- to overrule the will of the majority of Congress. That rate was, of course, 7.7 partment of Justice proclaimed that the people in this country when the percent at that time. they had nearly reached full employ- laws are very explicitly written—or at The vacancies have risen since the ment in the 837-member Federal judici- any other time, I might add. end of Congress so that there are now ary. That is in an October 12, 1994, De- Having said all that, we are bringing 95 vacancies, or a vacancy rate of just partment of Justice press release. our first two nominees this year to the over 11 percent. But a little perspective When the Democrats left open 7.44 floor, one of whom is in contention. I reveals that this is by no means a high percent of Federal judgeships after think unjustifiably so. level for the beginning of a Congress. President Clinton’s first 2 years, we Madam President, I rise to speak on In fact, it is far lower than the vacancy had approached ‘‘full employment’’ of behalf of the nomination of Merrick B. rates at the beginning of Democrat- the Federal judiciary. But, when Re- Garland for a seat on the U.S. Court of controlled Congresses, like the 102d publicans are in control, a virtually Appeals for the District of Columbia when the vacancy rate at the beginning identical vacancy level becomes an Circuit. On March 6, 1997, the Judiciary of that Congress was 14.89 percent, and ‘‘unprecedented situation,’’ the ‘‘worst Committee, including a majority of Re- the 103d Congress at 12.88 percent. In kind of politicizing of the Federal judi- publican members, by a vote of 14 to 4, the 104th, it was down to 8.27 and now ciary.’’ Those are comments that were favorably reported to the full Senate it is 10.07. made by my friend, Senator LEAHY. Mr. Clinton’s nomination of Merrick B. Moreover, we just reported two And ‘‘partisan tactics by Senate Re- Garland. Based solely on his qualifica- judges out of the committee this past publicans,’’ according to the New York tions, I support the nomination of Mr. Thursday—Merrick Garland for the DC Times. This is nothing short of dis- Garland and I encourage my colleagues circuit and Colleen Kollar-Kotelly for ingenuous. to do the same. the DC district court. We had a hearing In contrast, at the end of the 102d To my knowledge, no one, absolutely on four judicial nominees just yester- Congress when Senator BIDEN chaired no one disputes the following: Merrick day. I hope that will put to rest any of the Judiciary Committee and President B. Garland is highly qualified to sit on the partisan allegations that have been Bush was in the White House, there the D.C. circuit. His intelligence and seen deployed about delaying tactics to were 97 vacancies in the Federal sys- his scholarship cannot be questioned. hold up nominees. tem for an 11.46 percent vacancy rate— He is a magna cum laude graduate of In fact, this is the most prompt re- nearly twice the vacancy rate than at the Harvard Law School. Mr. Garland porting of judges to the floor in recent adjournment of the 104th Congress, was articles editor of the law review, Congresses. When the Senate was under which was 65 vacancies at a 7.7 percent one of the most important positions for the control of the other party, the first vacancy rate. any law student at any university, but hearing on judicial nominees in the What about the judges who were left in particular at Harvard; a very dif- new Congress was typically not held unconfirmed at the end of last August? ficult position to earn. And he has

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2517 written articles in the Harvard Law loads of the Federal judiciary and am have been complex administrative ap- Review and the Yale Law Journal, two fully prepared to work with Senator peals and only 7 percent easily disposed of the most prestigious journals in the GRASSLEY as chairman of that Sub- of prisoner petitions. country, on issues such as administra- committee on the Courts, on legisla- Moreover, most of the administrative tive law and antitrust policy. tion to authorize or deauthorize seats appeals heard in the D.C. circuit in- His legal experience is equally im- wherever such adjustments on the allo- volved the Federal Energy Regulatory pressive. Mr. Garland has been a Su- cation of Federal judges are warranted, Commission, the Federal Communica- preme Court law clerk, a Federal based upon court caseloads. tions Commission and the Environ- criminal prosecutor, a partner in one of With respect to the D.C. circuit, how- mental Protection Agency and are the most prestigious Washington firms, ever, the retirement of Judge James much more complex and time con- Arnold & Porter, Deputy Assistant At- Buckley, in August 1996, last year, now suming than even the immigration and torney General in the Justice Depart- leaves only 10 active judges on the 12- labor appeals, which comprise most of ment’s Criminal Division, and, since seat court. Accordingly, the Garland the administrative agency cases filed April of 1994, Principal Associate Dep- confirmation does not present the Sen- in other circuits. uty Attorney General to Jamie ate with a question whether the 12th In short, simply comparing the num- Gorelick, at the Justice Department, seat on the D.C. Circuit should be ber of cases filed in the D.C. circuit to where he has directed the Depart- filled, and I have made it clear to the the number filed in other circuits, and ment’s investigation and prosecution administration that I do not intend to even comparing the number of agency of the Oklahoma City bombing case. fill that seat unless and until they can appeals, is not a reliable indicator of And he has done a superb job there. show, and I believe it will take quite a the courts’ comparative workloads. Mr. Garland’s experience, legal bit of time before they could show it, As Senators, we have a responsibility skills, and handling of the Oklahoma that there is a need for the filling of to the public to ensure that candidates City bombing case have earned him the that seat. In fact, I would be, right for the Federal bench are scrutinized support of officials who served in the now, for doing away with that seat. If for political activists. A judge who does Justice Department during the Reagan at some future time we need that not appreciate the inherent limits on and Bush administrations, including extra, 12th seat, fine, we will pass a bill judicial authority under the Constitu- former Deputy Attorney General to grant it again. But right now it is tion and would seek to legislate from George Terwilliger, former Deputy At- not needed. the bench rather than interpret the law torney General Donald Ayer, former I would just say, rather, with the two is a judicial activist, and nominees who head of the Office of Legal Counsel, current vacancies, Garland will be fill- will be judicial activists are simply not Charles Cooper, and former U.S. attor- ing only the 11th seat. So the 12th seat qualified to sit on any Federal bench, neys Jay Stephens and Dan Webb—all is not in play anymore, which was the let alone the Federal circuit court of Republicans, I might add, who are critical seat. appeals or any Federal circuit court of strong supporters of Mr. Garland, as I The confirmation of Merrick B. Gar- appeals. believe they should be, as I believe we land to fill the court’s now vacant 11th As chairman of the Judiciary Com- all should be. seat is supported by D.C. Circuit Judge mittee, I will continue to carefully Oklahoma Governor Frank Keating, Laurence Silberman, a Reagan ap- scrutinize the records involved in cases who himself was denied one of those pointee who himself testified against of judicial nominees and to exercise judgeships by our friends on the other creating and/or preserving unneeded ju- the Senate’s advise-and-consent power side—even though I think most all of dicial seats on his circuit, meaning the to ensure we keep activists off the them admitted he would have made a 12th seat, and who has stated that, ‘‘it bench. In addition, I will continue to tremendous judge, but has since done would be a mistake, a serious mistake, speak out both in the Senate and in well for himself in becoming the Gov- for Congress to reduce’’—that is, the other forums to increase public aware- ernor of Oklahoma and has distin- Circuit Court of Appeals for the Dis- ness of harm to our society posed by guished himself. I might add his nomi- trict of Columbia—‘‘down below 11 such activists. Although we can never nation, back in 1992, for the 10th Cir- judges.’’ guarantee what the future actions of cuit Court of Appeals in the 102d Con- I am aware that there may be some any judicial nominee will be or any gress, was never voted on by the Judi- who take the position that the D.C. cir- judge, for that matter, and it may be ciary Committee. He languished in the cuit’s workload statistics do not even difficult to discern whether a par- committee for quite a length of time. warrant 11 judges. With all due respect, ticular candidate will be an activist, I But Governor Keating has endorsed Mr. I think these arguments completely do not believe there is anything in Mr. Garland’s nomination, praising in par- miss the mark, and caution my col- Garland’s record to indicate that, if ticular his leadership in the Oklahoma leagues to appreciate that certain sta- confirmed, he could amount to an ac- City bombing case. As he should be tistics can, if not properly understood, tivist judge or might ultimately be an praised. be misleading. activist judge. Mr. Garland was originally nomi- The position that the D.C. circuit Accordingly, I believe Mr. Garland is nated in September 1995. His nomina- should have fewer than 11 judges is a fine nominee. I know him personally, tion was favorably reported by the Ju- belied not just by the statements of I know of his integrity, I know of his diciary Committee but not acted on by Judge Silberman, who himself wanted legal ability, I know of his honesty, I the Senate during the 104th Congress, to get rid of the 12th seat, but also by know of his acumen, and he belongs on much to my chagrin, because I think the fact that comparing workloads in the court. I believe he is not only a fine he should have passed in that last Con- the D.C. circuit to that of other cir- nominee, but is as good as Republicans gress. But to my colleagues’ credit, and cuits is, to a large extent, a pointless can expect from this administration. In certainly to the leader’s credit, the exercise. fact, I would place him at the top of new majority leader, he has cooperated There is little dispute that the D.C. the list. There are some other very with the Judiciary Committee in bring- circuit’s docket is, by far, the most good people, so I don’t mean to put ing this nomination to the floor. complex and time consuming in the them down, but this man deserves to be At the time of Mr. Garland’s original Nation. Justice Department statistics at the top of the list. Opposition to this nomination to fill the seat vacated by show that whereas in a typical circuit, nomination will only serve to under- Judge Abner Mikva, who went on to be- 5.9 percent of all cases filed are admin- mine the credibility of our legitimate come White House Counsel, concerns istrative appeals, which are generally goal of keeping proven activists off the were raised by several, including sev- far more time consuming than other bench. eral distinguished judges here in Wash- appeals, and 26.7 percent are prisoner I fully support his nomination, and I ington, as to whether the D.C. circuit petitions which tend to be disposed of urge my colleagues to strongly con- needed its full complement of 12 judges far more quickly than other appeals. sider voting in favor of confirmation. due to a declining workload on the While that is true in other circuit I hope that we will also confirm the Court. I support Senator GRASSLEY’s courts, 45.3 percent of the cases filed in nominee Colleen Kollar-Kotelly, al- efforts to study the systemwide case- the D.C. circuit over the past 3 years though we will only be voting on

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2518 CONGRESSIONAL RECORD — SENATE March 19, 1997 Merrick Garland today, that is my un- court of appeals, has that person been I compliment the distinguished ma- derstanding. I hope we will put both held up? What fatal flaw in his char- jority leader and my good friend from these judges through. I do not know of acter has been uncovered? None, there Utah, the chairman of the Senate Judi- any opposition to the nominee Colleen is no fatal flaw. There was not a person ciary Committee, in scheduling this Kollar-Kotelly, and I know very lim- who spoke against, credibly spoke one nominee to the Federal Court of ited opposition at this point to Mr. against, his qualifications to be a Appeals, but there are still 24 current Garland. Like I say, I do not think judge, but he was one of the unlucky vacancies on the Federal courts of ap- there is a legitimate argument against victims of the Republican shutdown of peals. That number is rising. Mr. Garland’s nomination, and I hope the confirmation process last year. I We are way behind the pace of con- that our colleagues will vote to con- liken it to pulling the wings off a fly. firming the judges we have seen in our firm him today. This is what happened. past Congresses. In fact, let us take a I reserve the remainder of my time. The Judiciary Committee reported look at—I just happen to have a chart Mr. LEAHY addressed the Chair. his nomination to the Senate in 1995— on that, Madam President. I know Sen- The PRESIDING OFFICER. The Sen- in 1995. But here we are in 1997, and we ators were anxiously hoping I might. ator from Vermont is recognized. finally get to vote on it. Number of judges confirmed in past Mr. LEAHY. Madam President, I am Madam President, we have 100 vacan- Congresses: 102d Congress, 124; 103d delighted the Senate is finally consid- cies on the Federal bench. At this rate, Congress, 129; 104th Congress, 75. So far ering the nomination of Merrick Gar- by the end of this Congress, with nor- in the 105th Congress, none. I assume land to the U.S. Court of Appeals, the mal attrition, we will probably have that is going to change later this after- District of Columbia Circuit. I com- 130 or 140. We had an abysmal record noon when we finally do confirm one pliment my good friend, the senior last session dealing with Federal judi- judge. But look at this: 102d Congress, Senator from Utah, for his kind re- cial vacancies. 124; 103d Congress, 129 confirmed; 104th marks about Mr. Garland. We ought to show what we have here. Congress, 75 confirmed. The 105th Con- Like the distinguished chairman of Here, Madam President, are the num- gress, zippo. the Senate Judiciary Committee, I too ber of judges confirmed during the sec- I think we ought to take a look at believe that Merrick Garland is highly ond Senate session in Presidential elec- this next chart. We have 94 judicial va- qualified for this appointment and tion years: cancies. Just put the old magnifying would make an outstanding Federal In 1980, 9 appeals court judges, 55 dis- glass—I used to be in law enforcement, judge. trict court judges. Madam President. We actually used In 1984, 10 appeals court judges, 33 My concern that I have expressed be- these things. Of course, we were kind of district court judges. fore is that this is the first and only ju- In 1988, 7 Court of Appeals judges, 35 a small jurisdiction and I am just a dicial nomination scheduled for consid- district court judges. small-town lawyer from Vermont. We eration in these first 3 months of the In 1992—incidentally, 1992, Democrats do the best we can. But the magnifying 105th Congress. The Senate is about to were in charge with a Republican glass shows zero. I am pleased by the go on vacation for a couple of weeks. It President—11 appeals court judges, 55 end of this afternoon I can put a ‘‘1’’ in will be the only judgeship considered, district court judges. there, and let us hope that maybe we as I understand it. In the past, the Sen- So what happens when you switch it will get some more. Let us hope maybe ate has not had to wait the Ides of over, put in a Republican Senate and we will get some more. March for the first judicial confirma- Democratic President? Do you see the We can joke about it, but it is not a tion. The Federal judiciary has almost same sense of bipartisanship? Not on joking matter. We have people with 100 vacancies now and, with the Ides of your life. their lives on hold. When the President March, we are getting only one va- It is 11 appeals court judges, 55 dis- asks some man or woman to take a cancy filled. trict court judges with a Republican Federal courtship, their entire practice I, too, am sorry we have not pro- President and a Democratic Congress. is put on hold—it is kind of a good ceeded to confirm and schedule the Switch it to a Democratic President news/bad news situation. The President nomination of Judge Colleen Kollar- and a Republican Congress—zero, nada, calls up and says, ‘‘I’ve got good news Kotelly to the district court bench. zip, goose egg for the court of appeals for you. I’m going to nominate you for Here is one nominee we could go with, judges and only 17 for the district court the Federal bench. Now I have bad and we ought to be able to do that judges. Not too good. news for you. I’m going to nominate today, too. We have some other charts here. you for the Federal bench.’’ He or she The Senate first received Merrick Chief Justice Rehnquist spoke on this. finds their law practice basically stops Garland’s nomination from the Presi- A Chief Justice speaks only in a re- on the date of that nomination. They dent on September 5, 1995. We are now strained fashion, when he does. But cannot bring on new clients. Their way into March of 1997. So we have this look what he said. Look at what Chief partners give him or her a big party nomination that has been here since Justice William Rehnquist said about and say, ‘‘Please move out of your of- 1995. All but the most cynical say this the pace we have seen in this Senate: fice,’’ because they know it is going to man is highly qualified, a decent per- The number of judicial vacancies can have take a year or 2 or 3 to get through the son, a brilliant lawyer, a public servant a profound impact on a court’s ability to confirmation process. who will make an outstanding judge, manage its caseload effectively. Because the This is partisanship of an unprece- but his nomination sat here from 1995 number of judges confirmed in 1996 was low dented nature. I have spoken twice on until today. in comparison to the number confirmed in this floor today on what happens when This is a man who has broad bipar- preceding years, the vacancy rate is begin- we forget the normal traditions of the ning to climb . . . It is hoped that the ad- tisan support. Governor Keating of ministration and Congress will continue to Senate. Traditionally—certainly not in Oklahoma; Governor Branstad of Iowa; recognize that filling judicial vacancies is my lifetime—no Democratic majority William Coleman, Jr., a former mem- crucial to the fair and effective administra- leader or Republican majority leader of ber of a Republican President’s Cabi- tion of justice. the Senate would bring up a resolution net, former Reagan and Bush adminis- The administration is sending up for a vote directly attacking the Presi- tration officials, Robert Mueller, Jay judges, but it is like tossing them down dent of the United States—directly or Stephens, Dan Webb, Charles Cooper— into a black hole in space. Nothing indirectly attacking the President of all have supported Merrick Garland. So comes back out. the United States—on a day when the this is not a case of somebody out of In fact, 25 percent of the current va- President is heading off to a summit the pale. In fact, the Legal Times titled cancies have persisted for more than 18 with other world leaders, especially him, ‘‘Garland: A Centrist Choice.’’ I months. They are considered a judicial with the leader of the other nuclear su- will put those recommendation letters emergency jurisdiction. perpower, Russia. Yet, that tradition, in the RECORD later on. There are 69 current vacancies in our which, as I said, has existed my whole So why, when you have somebody Nation’s district courts. Almost one in lifetime, was broken today. who, in my 22 years here, is one of the six district court judgeships is or soon The other thing is that no matter most outstanding nominees for the will become vacant. which party controls the Senate, no

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2519 matter what party controls the Presi- Representative from Plymouth County that Clinton for appointment to the United dency, we have always worked together we served with in the Iowa Legislature. States Court of Appeals for the DC Circuit. so that the President, having been Recently, he has been overseeing the fed- Merrick is an outstanding lawyer with a very distinguished career both in private elected, can, subject to normal—nor- eral investigation and prosecution efforts in the Oklahoma City bombing, having been practice at Arnold & Porter and in govern- mal—advise and consent, can appoint sent there the second day after the blast oc- ment service, first as a special assistant to the judges he wants. And that tradition curred. He was serving in the position as me when I was Attorney General and then has been broken. principal Associate Deputy Attorney Gen- later as an Assistant United States Attorney If we are going to go against these eral. for the District and, most recently, as Chief basic tenets of bipartisanship, then the I am enclosing a number of news clippings Associate Deputy Attorney General to Jamie Senate will not be the conscience of about Merrick Garland. I would especially Gorelick. Additionally, his academic back- encourage you to review the Legal Times ground was outstanding, culminating in his the Nation that it should be. The Sen- clerkship to Supreme Court Justice Brennan. ate will suffer. And if the Senate suf- and article entitled: Garland, A Centrist Choice. In every way, he is a superb candidate for fers, the country suffers. As always, I appreciate all of your efforts. that bench, and I just wanted you to know of I withhold the balance of my time. Hope all is going well for you. my personal admiration for him. PRIVILEGE OF THE FLOOR Sincerely, Kindest regards. Madam President, if I might just for TERRY E. BRANSTAD, Sincerely, a moment, I ask unanimous consent Governor of Iowa. BENJAMIN R. CIVILETTI. that Tom Perez of Senator KENNEDY’s MCGUIRE WOODS, BATTLE & BOOTHE, III, staff be granted floor privileges. O’MELVENY & MYERS, Washington, DC, October 11, 1995. Washington, DC, October 16, 1995. The PRESIDING OFFICER. Without Re Nomination of Merrick B. Garland to the Hon. ORRIN G. HATCH, objection, it is so ordered. Chairman, Senate Committee on the Judiciary, U.S. Court of Appeals for the District of Mr. LEAHY. Madam President, I ask U.S. Senate, Russell Senate Office Building, Columbia Circuit. unanimous consent that a number of Washington, DC. Hon. ORIN G. HATCH, letters I referred to be printed in the DEAR ORRIN: As you know, President Clin- Chairman, United States Senate Committee on RECORD. ton has nominated Merrick B. Garland, Es- the Judiciary, Dirksen Senate Office Build- There being no objection, the mate- quire, to fill the judicial vacancy on the ing, Washington, DC. rial was ordered to be printed in the United States Court of Appeals for the Dis- DEAR SENATOR HATCH: I have been asked to express my views to you on Merrick Gar- RECORD, as follows: trict of Columbia Circuit caused by the re- tirement of Chief Judge Mikva. land’s nomination to sit on the Federal STATE OF OKLAHOMA, I write this letter to indicate my full sup- Court of appeals in the District of Columbia. OFFICE OF THE GOVERNOR, port and admiration of Mr. Garland and urge First, I believe Mr. Garland is an accom- Oklahoma City, OK, February 19, 1996. that you soon have a hearing of the Senate plished and learned lawyer and is most cer- Senator BOB DOLE, Committee on the Judiciary and thereafter tainly qualified for a seat on this important U.S. Senate, Washington, DC. support him to fill the vacancy. bench. Second, my experience with Mr. Gar- SENATOR DOLE: I endorse Merrick Garland Mr. Garland has a first-rate legal mind, land leads me to the conclusion that he for confirmation to the United States Court took magna cum laude and summa cum would decide cases on the law based on an of Appeals for the D.C. Circuit. Merrick will laude advantages of education at Harvard objective and fair analysis of the positions of be a solid addition to this esteemed court. College and Harvard Law School. In private the parties in any dispute. Third, I perceive A Harvard Law School graduate in 1977, a practice, he became and has the reputation Mr. Garland as a man who believes and fol- former Assistant United States Attorney and of being an outstanding courtroom lawyer. lows certain principles, but not one whose a former partner in Washington’s Arnold and In addition, on several occasions, he satisfied philosophical beliefs would overpower his ob- Porter Law Firm, Merrick will bring an his urge to be a public servant by two law jective analysis of legal issues. array of skills and experience to this judge- I know of no reason to suggest that the clerkships, one for Mr. Justice William J. ship. Merrick is further developing his tal- President’s choice for his vacancy on the Brennan and the other for the late Judge ents and enhancing his reputation as the Court of Appeals should not be confirmed. As Henry J. Friendly. He has also served in the Principle Associate Deputy Attorney Gen- you, of course, have demonstrated during Justice Department on several occasions. I eral. your tenure as Chairman, the President’s Last April, in Oklahoma City, Merrick was have known Merrick Garland as a lawyer and nominees are his choices and are entitled to at the helm of the Justice Department’s in- as a friend and greatly admire his personal be confirmed where it is clear that th4e vestigation following the bombing of the integrity, learning in the law and his desire nominee would be a capable and fair jurist. I Oklahoma City Federal Building, the blood- to be a great public servant. His legal, social believe Mr. Garland meets that criteria and iest and most tragic act of terrorism on and political views are those most Ameri- support favorable consideration of his nomi- American soil. During the investigation, cans admire and are well within the fine nation. Merrick distinguished himself in a situation hopes and principles of this country, which Sincerely yours, you have often expressed in conversations where he had to lead a highly complicated GEORGE J. TERWILLIGER, III. investigation and make quick decisions dur- with me as to the type of person you would like to see on the federal judiciary, particu- ing critical times. JONES, DAY, REAVIS & POGUE, Merrick Garland is an intelligent, experi- larly on the appellate courts. Washington, DC, October 10, 1995. enced and evenhanded individual. I hope you I first got to know Mr. Garland when he Re Merrick B. Garland. give him full consideration for confirmation was Special Assistant to Deputy and then Attorney General Civiletti, as my daughter, Senator ORRIN G. HATCH, to the United States Court of Appeals for the U.S. Senate, Senate Russell Office Building, D.C. Circuit. Lovida, Jr., was the other Special Assistant. I still see him and his wife from time to time Washington, DC. Sincerely, DEAR SENATOR HATCH: I first met Merrick and they are the type of Americans whom I FRANK KEATING, Garland in the mid–1970’s, when we over- greatly admire. Governor. lapped as students at the Harvard Law As is stated at the outset of this letter, I School. While I have not known him well, I hope you will see to it that Mr. Garland soon OFFICE OF THE GOVERNOR, have been well aware that his academic has his hearing and that you, at and after Des Moines, IA, October 10, 1995. background is impeccable, and that he is re- the hearing, will actively support him for Senator CHARLES E. GRASSLEY, puted to be a very bright, highly effective confirmation. If you have any questions, Hart Senate Office Building, Washington, DC. and understated lawyer. please give me a call and I will walk over to DEAR CHUCK: I am writing to ask your sup- During January of 1994, while he was serv- port and assistance in the confirmation proc- see you. ing in the Department of Justice, I had occa- ess for a second cousin, Merrick Garland, Take care. sion to deal with him directly on a matter of who has been nominated to be a judge on the Sincerely, some public moment and sensitivity. I was U.S. Court of Appeals for the District of Co- WILLIAM T. COLEMAN, Jr. struck by the thoroughness of his prepara- lumbia. tion, the depth of his understanding of the Merrick Garland has had a distinguished VENABLE, BAETJER AND HOWARD, LLP, matters in issue, both factural and legal, and legal career. He was a partner for many Baltimore, MD, September 7, 1995. his ability to express himself simply and years in the Washington law firm of Arnold Re Merrick B. Garland. convincingly. I was still more impressed and Porter. During the Bush Administration, Hon. BARBARA A. MIKULSKI, with his comments, from obvious personal Merrick was asked by Jay Stephens, the U.S. U.S. Senate, Hart Senate Office Bldg., Wash- conviction, on the essential role of honesty, Attorney for the District of Columbia, to ington, DC. integrity, and forthrightness in government. take on a three year stint as an Assistant DEAR SENATOR MIKULSKI: I just wanted to Our discussions at that time were followed U.S. Attorney. As I’m sure you know, Jay call your attention to the fact that Merrick by further conversations on several later oc- Stephens is the son of Lyle Stephens, the B. Garland has been nominated by President casions. I have also had an opportunity to

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observe from a distance his performance in If I can be of any further assistance, please WINSTON & STRAWN, the Department and to discuss that perform- do not hesitate to call me. Chicago, IL, October 10, 1995. ance with people closer to the scene. I am Sincerely, Hon. ORRIN G. HATCH, left with a distinct impression of him as a ROBERT S. MUELLER, III. Chairman of the Judiciary Committee, Russell person of great skill, diligence, and sound Senate Office Building, Washington, DC. judgment, who is driven more by a sense of PILLSBURY MADISON & SUTRO, DEAR SENATOR HATCH: It is my under- public service than of personal aggrandize- Washington, DC, November 28, 1995. standing that Merrick Garland’s name has ment. Hon. ORRIN G. HATCH, been submitted to the Senate Judiciary My own service in the Justice Department Chairman, Senate Judiciary Committee, Dirksen Committee to fill a vacancy on the D.C. Cir- during the last two Republican Administra- Senate Office Building, Washington, DC. cuit Court of Appeals. Merrick is a very tal- tions convinced me that government suffers Hon. CHARLES E. GRASSLEY, ented lawyer, who has had an outstanding greatly from a shortage of people combining Chairman, Senate Judiciary Subcommittee on career in both the private and public sectors. In particular, he has exhibited exceptional such exceptional abilities with a primary Administrative Oversight and the Courts, legal abilities during his recent term of of- drive to serve interests beyond their own. Hart Senate Office Building, Washington, fice in the U.S. Department of Justice. Merrick Garland’s nomination affords the DC. Throughout the United States, Merrick has Senate chance to place one such person in a DEAR SENATOR HATCH AND GRASSLEY: I am position where such impulses can be har- writing with respect to the nomination of been recognized as a person within the Clin- nessed to the maximum public good. I hope Merrick Garland to serve as a judge on the ton Department of Justice who is fair, that the Senate will seize that opportunity. United States Court of Appeals for the Dis- thoughtful and reasonable. He clearly pos- Very Truly Yours, trict of Columbia Circuit. I understand you sesses the ability to address legal issues and DONALD B. AYER. have significant reservations about filling resolve them in a fair and equitable manner. Accordingly, in my opinion, Merrick will the existing vacancy on the District of Co- be an outstanding addition to the D.C. Cir- lumbia Circuit at this time. In the event you SHAW, PITTMAN, POTTS & TROWBRIDGE, cuit Court of Appeals, and I strongly rec- consider filling the vacancy at this time, I Washington DC, November 9, 1995. ommend his confirmation by your com- commend Merrick Garland for your consider- Hon. ORRIN HATCH, mittee. If you have any further questions, ation. Chairman, Senate Judiciary Committee, U.S. please do not hesitate to contact me. I have known Mr. Garland for nearly ten Senate, Washington, DC. Very truly yours, years. We met initially during my service as DEAR SENATOR HATCH: I write to express DAN K. WEBB. my support for President Clinton’s nomina- Deputy Counsel to the President while Mr. Garland was assisting in an Independent tion of Merrick Garland to the position of AMERICAN BAR ASSOCIATION, STAND- Counsel investigation. During the course of circuit Judge of the United States Court of ING COMMITTEE ON FEDERAL JUDI- that contact, I was impressed with Mr. Gar- Appeals for the District of Columbia. I’ve CIARY, land’s professionalism and judgment. After I known Merrick since 1978, when we served as Washington, DC, September 21, 1995. was appointed United State Attorney for the law clerks to Supreme Court Justices—he for Re Merrick Brian Garland, United States District of Columbia, Mr. Garland expressed Justice Brennan and I for Justice (now Chief Court of Appeals for the District of Co- to me an interest in gaining additional pros- Justice) Rehnquist. Like our respective lumbia Circuit. bosses, Merrick and I disagreed on many ecutorial experience, and applied for a posi- Hon. ORRIN G. HATCH, legal issues. Still, I believe that Merrick pos- tion as an Assistant United States Attorney. Chairman, Committee on the Judiciary, sesses the qualities of a fine judge. I hired Mr. Garland for my staff, and ini- tially assigned him to a narcotics unit where Dirksen Senate Office Building, Washington, You are no doubt well aware of the details DC. of Merrick’s background as a practicing law- he had an opportunity to assist in inves- tigating a number of significant cases and to DEAR SENATOR HATCH: Thank you for af- yer, a federal prosecutor, a law teacher, and fording this Committee an opportunity to now a high-ranking official of the Depart- gain valuable trial experience. Mr. Garland quickly established himself as a dedicated express an opinion pertaining to the nomina- ment of Justice. This varied background has tion of Merrick Brian Garland for appoint- given Merrick a breadth and depth of legal prosecutor who was willing to handle the tough cases. He conducted thorough inves- ment as Judge of the United States Court of experience that few lawyers his age can Appeals for the District of Columbia Circuit. rival, and he has distinguished himself in all tigations, and became a skilled trial attor- ney. Our Committee is of the unanimous opin- of his professional pursuits. He is a man of ion that Mr. Garland is Well Qualified for great learning, not just in the law, but also Subsequently, after gaining significant trial experience, Mr. Garland was assigned to this appointment. in other disciplines. Not only is Merrick A copy of this letter has been sent to Mr. the Public Corruption section of the U.S. At- enormously gifted intellectually, but he is Garland for his information. torney’s Office. There he had an opportunity thoughtful as well, for he respects other Sincerely, to investigate and try a number of complex, points of view and fairly and honestly as- CAROLYN B. LAMM, sensitive cases. In the Public Corruption sec- sesses the merits of all sides of an issue. And Chair. he has a stable, even-tempered, and cour- tion, Mr. Garland demonstrated an excellent capacity to investigate complex trans- Mr. SESSIONS addressed the Chair. teous manner. He would comport himself on The PRESIDING OFFICER. The Sen- the bench with dignity and fairness. In short, actions, and approached these important I believe that Merrick Garland will be among cases with maturity and balanced judgment. ator from Alabama is recognized. President Clinton’s very best judicial ap- He was thorough and thoughtful in exer- Mr. SESSIONS. Thank you very pointments. cising his responsibility, and he always acted much. Sincerely, in accord with the highest ethical and pro- I am here today to speak on a subject fessional standards. CHARLES J. COOPER. that is most important to all of us in During his service as an Assistant United America, the Federal judiciary. State Attorney, Mr. Garland distinguished Washington, DC, November 25, 1995. himself as one of the most capable prosecu- I had the honor for 12 years to serve Hon. ORRIN G. HATCH, tors in the Office. He brought to bear a num- as a U.S. attorney, and during that Chairman, Senate Judiciary Committee, Senate ber of outstanding talents. He was bright. He time I practiced in Federal court be- Dirksen Building, Washington, DC. had the intellectual capacity to parse com- fore Federal judges. All of our cases DEAR MR. CHAIRMAN: I write with regard to plex transactions. He built sound working re- that were appealed were appealed to the nomination of Merrick Garland to the lationships with agents and staff based on Federal circuit courts of appeals. And Court of Appeals for the District of Colum- mutual respect. He was willing to work hard bia. that is where those final judgments of to get the job done. He was dedicated to his appeal were ruled on. I think an effi- I have known Mr. Garland since 1990 when job. He exercised sound judgment, and ap- he was an Assistant United States Attorney proached his work with professionalism and cient and effective and capable Federal and I was the Assistant Attorney General for thoughtfulness. He exhibited excellent inter- judiciary is a bulwark for freedom in the Criminal Division in the Department of personal skills, and was delightful to work America. It is a cornerstone of the rule Justice. Over the Years I have had occasion with. In sum, his service as an Assistant of law, and it is something that we to see his work in several cases. United States Attorney was market by dedi- must protect at all costs. We need to be Based both on my own observations and on cation, sound judgment, excellent legal abil- professional and expeditious in dealing his reputation in the legal community, I be- ity, a balanced temperament, and the high- with those problems. lieve him to be exceptionally qualified for a est ethical and professional standards. These I must say, however, I do not agree Circuit Court appointment. Throughout my are qualities which I believe he would bring that there has been a stall in the han- association with him I have always been im- to the bench as well. pressed by his judgment. Most importantly, I appreciate the opportunity to provide dling of judges. As Senator HATCH has Mr. Garland exemplifies the qualifies of fair- these comments for your consideration. so ably pointed out, there were 22 ness, integrity and scholarship which are so Sincerely, nominations last year, and 17 of those important for those who sit on the bench. JAY B. STEPHENS. were confirmed. We are moving rapidly

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2521 on the nominations that are now before circuit in America. They have 378 cases is why I continue to advocate the elimi- the Judiciary Committee. filed per judge in a year’s time. Both of nation of the 12th judgeship. There is one today I want to talk those judges talked to us and talked to So that is the former chief judge of about, Merrick Garland, because really our committee about their concerns for the D.C. circuit saying that to fill the I do not believe that that judgeship the Federal judiciary and gave some 12th judgeship would be frivolous, and should be filled based on the caseload observations they had learned. he noted that there is a continuing de- in that circuit, and for no other reason. First of all, Judge Tjoflat, former cline in the caseload in the circuit. But I think it is important to say chief judge of the eleventh circuit, tes- Madam President, let me point out that there is not a stall, that I or other tified how when the courts of appeals something that I think is significant. Senators could have delayed the vote get larger and those numbers of judges Judge Buckley, who is a distinguished on Merrick Garland for longer periods go up from 8, 10, 12, to 15, the member of that court has taken senior of time had we chosen to do so. We collegiality breaks down. It is harder status. But that does not mean that he want to have a vote on it. We want to to have a unified court. It takes more will not be working. At a minimum, he have a debate on it. We want this Sen- time to get a ruling on a case. It has would be required as a senior-status ate to consider whether or not this va- more panels of judges meeting, and judge to carry one-third of his normal cancy should be filled. And I think it they are more often in conflict with caseload. Many senior judges take should not. one another. It is difficult to have the much more than one-third of their Senator HATCH brilliantly led, re- kind of cohesiveness that he felt was caseload. They are relieved of adminis- cently, an effort to pass a balanced desirable in a court. Judge Wilkinson trative obligations, and they can han- budget amendment on the floor of this agreed with that. dle almost a full judicial caseload. It Senate. For days and hours he stood I think what is most important with does not indicate, because Judge Buck- here and battled for what would really regard to our decision today, however, ley announced he would be taking sen- be a global settlement of our financial is what they said about their need for ior status, that he would not be doing crisis in this United States. We failed more judges. Judge Tjoflat, of the elev- any work. He would still be handling a by one vote to accomplish that goal. enth circuit, said even though they significant portion of his former case- But it was a noble goal. have 575 filings per judge in the Elev- load. I think that is another argument That having slipped beyond us, I enth Circuit Court of Appeals, they do we ought to think about. think it is incumbent upon those of us not need another judge. Even Judge Finally, the numbers are very inter- who have been sent here by the tax- Harvey Wilkinson said even though esting with regard to the eleventh cir- payers of America to marshal our cour- they have 378 filings per judge in the cuit in terms of the declining caseload age and to look at every single expend- fourth circuit, they do not need an- mentioned by Judge Silberman in his iture this Nation expends and to decide other judge. He also noted, and the letter to Senator HATCH. We have ex- whether or not it is justified. And if it records will bear it out, that the amined the numbers of this circuit and is not justified, to say so. And if it is Fourth Circuit Court of Appeals has discovered that there has been a 15 per- not justified, to not spend it. the fastest disposition rate, the short- cent decline in filings in the D.C. cir- In this country today a circuit court est time between filing and decision, of cuit last year. That is the largest de- of appeals judge costs the taxpayers of any circuit in America, and they are cline of any circuit in America. It ap- America $1 million a year. That in- the third busiest circuit in America. parently will continue to decline. At cludes their library, their office space, That is good judging. That is good ad- least there is no indication that it will law clerks, secretaries, and all the ministration. That is fidelity to the not. If that is so, that is an additional other expenses that go with operating taxpayers’ money, and they ought to reason that this judgeship should not a major judicial office in America. be commended for that. be filled. That is a significant and important ex- When you look at that and compare I think Senator LEAHY, the most able penditure that we are asking the citi- it to the situation we are talking about advocate for Mr. Garland, indicated in zens of the United States to bear. And today with 11 judges in the D.C. cir- committee that it would be unwise to I think we ought to ask ourselves, is it cuit, they now have only 124 cases per use these kinds of numbers not to fill a needed? judge, less than one-fourth the number judgeship, but it seems to me we have I want to point out a number of of cases per judge as the eleventh cir- to recognize that, if you fill a judge- things at this time that make it clear cuit has. What that says to me, Madam ship, that is an appointment for life. If to me that this judgeship, more than President, is that we are spending that judgeship position needs to be any other judgeship in America, is not money on positions that are not nec- abolished, the first thing we ought to needed. Let me show this chart behind essary. do is not fill it. That is just good public me which I think fundamentally tells The former chief judge of the D.C. policy. That is common sense. That is the story. We have 11 circuit courts of circuit, with just 123 cases per judge, the way it has always been done in this appeal in America. Every trial that is back in 1995 said he did believe the 11th country, I think. We ought to look at tried in a Federal court that is ap- judgeship should be filled but he did that. pealed goes to one of these circuit not believe the 12th should be filled. As So what we have is the lowest case- courts of appeal. From there, the only recently as March of this year, just a load per judge in America, declining by other appeal is to the U.S. Supreme few weeks ago, he wrote another letter as much as 15 percent last year, and it Court. Most cases are not decided by discussing that situation. This is what may continue to decline this year. The the Supreme Court. The vast majority he said in a letter addressed to Senator numbers are clear. The taxpayer should of appeals are decided in one of these 11 HATCH: not be burdened with the responsibility circuit courts of appeal. You asked me yesterday for my view as to of paying for a Federal judge sitting in Senator GRASSLEY, who chairs the whether the court needs 11 active judges and a D.C. circuit without a full caseload of Subcommittee on Court Administra- whether I would be willing to communicate cases to manage. tion, earlier this year had hearings on that view to other Senators of your com- Let me say this about Mr. Garland. I mittee. As I told you, my opinion on this the caseloads of the circuit courts of matter has not changed since I testified be- have had occasion to talk with him on appeals. He had at that hearing the fore Senator GRASSLEY’s committee in 1995. I the phone. I told him I was not here to just recently former chief judge of the said then and still believe that we should delay his appointment, his hearing on Eleventh Circuit Court of Appeals, have 11 active judges. On the other hand, I his case. I think it is time for this Sen- which has the highest caseload per then testified and still believe that we do not ate to consider it. I think it is time for judge in America. Total appeals filed need and should not have 12 judges. Indeed, us to vote on it. Based on what I see, per judge for the year ending Sep- given the continued decline in our caseload that judgeship should not be filled. He tember 30, 1996, was 575 cases per judge. since I last testified, I believe the case for has a high position with the Depart- the 12th judge at any time in the foreseeable He also had testifying before that com- future is almost frivolous, and, as you know, ment of Justice and, by all accounts, mittee Chief Judge Harvey Wilkinson since I testified, Judge Buckley has taken does a good job there. There will be a from the Fourth Circuit Court of Ap- senior status and sits part time, and I will be number of judgeship vacancies in the peals. They are the third most busy eligible to take senior status in 3 years. That D.C. trial judges. He has been a trial

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2522 CONGRESSIONAL RECORD — SENATE March 19, 1997 lawyer. He would be a good person to only on those occasions when it was tune of about $1 million per year for fill one of those. I would feel com- down to 10 active judges. each seat. The total price tag for fund- fortable supporting him for another Additionally, according to the Ad- ing an article III judge over the life of judgeship. ministrative Office of the U.S. Courts, that judges is an average of $18 million. Based on my commitment to frugal it costs more than $800,000 a year to Madam President, $18 million is a management of the money of this Na- pay for a circuit judge and the ele- whole lot of money that we would be tion, I feel this position should not be ments associated with that judge’s wasting if we fill the vacancies on the filled at this time. I oppose it, and I work. In light of recent efforts to cur- D.C. circuit. urge my colleagues to do so. tail Federal spending, again, I agree In 1995, I chaired a hearing before the The PRESIDING OFFICER. The Sen- with my colleague from Alabama that Judiciary Subcommittee on Adminis- ator from Arizona is recognized. it is imprudent to spend such a sum of trative Oversight and the Courts on the Mr. KYL. Thank you, Madam Presi- money unless the need is very clear. D.C. circuit. At the hearing, Judge dent. First, let me associate myself Senators GRASSLEY and SESSIONS Lawrence Silberman—who sits on that with the remarks of my distinguished have made sound arguments that the court—testified that 12 judges were colleague from Alabama who has just D.C. circuit does not need to fill the just too many. According to Judge Sil- spoken. My position is quite the same 11th seat. Their arguments are reason- berman, when the D.C. circuit has too as his with respect to this nominee. able and not based upon partisan con- many judges there just isn’t enough Certainly, I must begin by saying that siderations. Similarly, my concerns work to go around. I believe Mr. Garland is well qualified with the Garland nomination are based In fact, as for the 12th seat, the main for the court of appeals. He earned de- strictly on the caseload requirements courtroom in the D.C. courthouse does grees from Harvard College and Har- of the circuit, not on partisanship or not even fit 12 judges. When there are vard Law School and clerked for Judge the qualifications of the nominee. 12 judges, special arrangements have to Friendly on the U.S. Court of Appeals I would not want the opposition to be made when the court sits in an en for the Second Circuit and for Justice the nomination, therefore, to be con- banc capacity. Brennan on the Supreme Court and, sidered partisan in any way. Thus, al- I would ask my colleagues to con- since 1993, he has worked for the De- though I do not believe that the admin- sider the steady decrease in new cases filed in the D.C. circuit. Since 1985, the partment of Justice. So there is no istration has met its burden of showing number of new case filings in the D.C. question, he is qualified to serve on the that the 11th seat needs to be filled, in circuit has declined precipitously. And court. the spirit of cooperation, and to get the it continues to decline, even those who Like my colleague from Alabama, nominee to the floor of the Senate, I support filling the vacancies have to my colleague from Iowa, and others, I voted to favorably report the nomina- admit this. At most, the D.C. circuit is believe that the 12th seat on this cir- tion of Merrick Garland from the Judi- only entitled to a maximum of 10 cuit does not need to be filled and am ciary Committee when we voted on judges under the judicial conference’s quite skeptical that the 11th seat, the that a couple of weeks ago. But, at the formula for determining how many seat to which Mr. Garland has been time, I reserved the right to oppose fill- judges should be allotted to each court. nominated, needs to be filled either. ing that 11th vacancy when the full Judge Silberman recently wrote to The case against filling the 12th seat is Senate considered the nomination. the entire Judiciary Committee to say very compelling, and it also makes me That time has now come, and being that filling the 12th seat would be—in question the need to fill the 11th seat. fully persuaded by the arguments made his words—‘‘frivolous.’’ According to In the fall of 1995, the Courts Sub- by Senator SESSIONS and Senator the latest statistics, complex cases in committee of the Judiciary Committee GRASSLEY, I reluctantly will vote the D.C. circuit declined by another 23 held a hearing on the caseloads of the against the confirmation of this nomi- percent, continuing the steady decline D.C. circuit. Judge Silberman, who has nee. in cases in the D.C. circuit. With fewer served on the D.C. circuit for the past Based on the hearing of the Courts and fewer cases per year, it doesn’t 11 years, testified that most members Subcommittee, caseload statistics, and make sense to put more and more of the D.C. circuit have come to think other information, as I said, I have judges on the D.C. circuit. That would of the D.C. circuit as a de facto court of concluded that the D.C. circuit does be throwing taxpayer dollars down a 11. In other words, even though there not need 12 judges and does not, at this rat hole. are 12 seats, theoretically, it is really point, need 11 judges. Therefore, I will So the case against filling the cur- being thought of as an 11-member court vote against the nomination of Merrick rent vacancies is compelling. I believe by its members. In fact, in response to Garland. that Congress has a unique opportunity written questions, Judge Silberman If Mr. Garland is confirmed and an- here. I believe that we should abolish pointed out that the courtroom, nor- other vacancy occurs, thereby opening the 12th seat and at least the 11th seat mally used for en banc hearings, seats up the 11th seat again, I plan to vote should not be filled at this time. I be- only 11 judges. In other words, that is against filling the seat—and, of course, lieve that a majority of the Juidicary what they can accommodate. the 12th seat—unless there is a signifi- Committee agrees the case has been When Congress created the 12th cant increase in the caseload or some made against filling the 12th seat and judgeship in 1984, Congress may have other extraordinary circumstance. Chairman HATCH has agreed not to fill thought that the D.C. circuit’s case- Madam President, I want to thank it. So, no matter what happens today, load would continue to rise, as it had Senator GRASSLEY for his leadership in at least we know that the totally un- for the previous decade. But, in fact, as this area, as chairman of the sub- necessary 12th seat will not be filled. my colleague from Alabama has point- committee, and for allowing me to At least the taxpayers can rest a little ed out, exactly the opposite has oc- speak prior to his comments, which I easier on that score. curred; the caseload has dropped. It is gather will be delivered next. Abolishing judicial seats is com- the only circuit in the Nation with I yield the floor. pletely nonpartisan. If a judicial seat is fewer new cases filed now than in 1985. The PRESIDING OFFICER. The Sen- abolished, no President— Democrat or During the entire period, the D.C. cir- ator from Iowa is recognized. Republican—could fill it. As long as cuit has had a full complement of 12 Mr. GRASSLEY. Madam President, I any judgeship exists, the temptation to judges for only 1 year. rise today to express my views of the nominate someone to fill the seat will In a letter to Senator GRASSLEY, pending nomination. As chairman of be overwhelming—even with the out- Judge Silberman wrote that the D.C. the Subcommittee on Administrative rageous cost to the American taxpayer. circuit can easily schedule its upcom- Oversight and the Courts, I have close- Again, according to the Federal ing arguments with 11 judges and re- ly studied the D.C. circuit for over a judges themselves, the total cost to the main quite current. Further, Judge Sil- year now. And I can confidently con- American taxpayer for a single article berman noted that while the D.C. cir- clude that the D.C. circuit does not III judge is about $18 million. That’s cuit, unlike most others, has not had need 12 judges or even 11 judges. Filling not chump change. That’s something any senior judges available to sit with either of these two seats would just be to look at. That’s real money we can it, the court has invited visiting judges a waste of taxpayer money—to the save.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2523 Here in Congress, we have downsized I would like to make a few comments be isolated problems, but there is no committees and eliminated important about the Judicial nomination process national crisis—period. support agencies like the Office of in general. Just about every day or so On February 5, I had the opportunity Technology Assessment. The same is we hear the political hue and cry about to chair a judiciary subcommittee true of the executive branch. Congress how slow the process has been. This is hearing on judicial resources, concen- has considered the elimination of even though we confirmed a record trating on the fourth circuit. My ef- whole Cabinet posts. It is against this number of 202 judges in President Clin- forts in regard to judgeship allocations backdrop that we need to consider ton’s first term—more than we did in are based upon need and whether the abolishing judgeships where appro- either President Reagan’s or President taxpayers should be paying for judge- priate—like in the D.C. circuit or else- Bush’s first term. ships that just are not needed. We where. I have heard the other side try to heard from the chief judge that filling While some may incorrectly question make the argument that not filling va- the current two vacancies would actu- Congress’ authority to look into these cancies is the same as delaying justice. ally make the court’s work more dif- matters, we are in fact on firm con- Well, when you have Clinton nominees ficult for a number of reasons. He ar- stitutional ground. Article III of the or judges who are lenient on murderers gued that justice can actually be de- Constitution gives Congress broad au- because their female victim did not layed with more judges because of the thority over the lower Federal courts. suffer enough, or you have a judge that added uncertainty in the law with the Also, the Constitution gives Congress tries to exclude bags of drug evidence increased number of differing panel de- the ‘‘power of the purse.’’ Throughout against drug dealers, or a judge that cisions. I am sorry that only three Sen- my career, I have taken this responsi- says a bomb is not really a bomb be- ators were there to hear this very en- bility very seriously. I, too, am a tax- cause it did not go off and kill some- lightening testimony. payer, and I want to make sure that body—then I think that’s when justice We in the majority have been criti- taxpayer funds aren’t wasted. is denied. cized for not moving fast enough on Some may say that Congress should The American people have caught on nominations. However, we know there simply let judges decide how many to this. And, I think the American peo- was a higher vacancy rate in the judici- judgeships should exist and how they ple would just as soon leave some of ary at the end of the 103d Democrat should be allocated. I agree that we these seats unfilled rather than filling Congress than there was at the end of should defer to the judicial conference them with judges who are soft on the 104th Republican Congress. Even to some degree. However, there have criminals or who want to create their though there were 65 vacancies at the been numerous occasions in the past own laws. end of last year, there were only 28 where Congress has added judgeships We have heard repeatedly from the nominees that were not confirmed. All without the approval of the Judicial other side that a number of judicial of them had some kind of problem or Conference in 1990, the last time we emergency vacancies exist. We are told concern attached to them. The big created judgeships, the Congress cre- that not filling these vacancies is caus- story here is how the administration ated judgeships in Delaware, the Dis- ing terrible strife across the country. sat on its rights and responsibilities trict of Columbia and Washington Now, to hear the term ‘‘judicial emer- and did not make nominations for State without the approval of the Judi- gency’’ sounds like we are in dire more than half of the vacancies. And cial Conference. In 1984, when the 12th straits. But, in fact, a judicial emer- some of the 28 nominations that were judgeship at issue in this hearing was gency not only means that the seat has not confirmed were only sent to us created—Congress created 10 judge- been open for 18 months. It does not near the end of the Congress. Yet, the ships without the prior approval of the mean anything more than that, despite administration has the gall to blame Judicial Conference. It is clear that if the rhetoric we hear. others for their failings. Congress can create judgeships without In fact, it is more than interesting to I think it is also important to re- judicial approval, then Congress can note that out of the 24 so-called judi- member the great deal of deference we leave existing judgeships vacant or cial emergencies, the administration on this side gave to the President in abolish judgeships without judicial ap- has not even bothered to make a nomi- his first term. As I said, we have con- proval. It would be illogical for the nation to half them. That is right, Mr. firmed over 200 nominees. All but four, Constitution to give Congress broad President. After all we have heard including two Supreme Court nomi- authority over the lower Federal about Republicans not filling these so- nees, were approved by voice vote. courts and yet constrain Congress from called judicial emergencies which are That is a great deal of cooperation. acting unless the lower Federal courts not really emergencies, we find that Some would say too much cooperation. first gave prior approval. the administration has not even sent But now, after 4 years of a checkered Madam President, I ask my col- up nominees for half of them after hav- track record, it is clear to me that we leagues to vote ‘‘no’’ on the current ing over a year and a half to do so. need to start paying a lot more atten- nomination and strike a blow for fiscal But, we continue to hear about this tion to whom we’re confirming. Be- responsibility. Spending $18 million on so-called caseload crisis. My office even cause like it or not, we are being held an unnecessary judge is wrong. I have got a timely fax from the judicial con- responsible for them. nothing against the nominee. Mr. Gar- ference yesterday bemoaning the in- I cannot help but remember last year land seems to be well qualified and crease in caseload. Well, Mr. President, when some of us criticized a ridiculous would probably make a good judge—in I sent out the first time ever national decision by a Federal judge in New some other court. Now, I’ve been survey to article III judges last year. I York who tried to exclude over- around here long enough to know learned many things from the re- whelming evidence in a drug case. where the votes are. I assume Mr. Gar- sponses. Among them, I learned that What was one of the first things we land will be confirmed. But, I hope that while caseloads are rising in many ju- heard from the administration? After by having this vote—and we’ve only risdictions, the majority of judges be- they also attacked the decision, they had four judicial votes in the last 4 lieved the caseloads were manageable turned around and attacked the Repub- years—a clear message will be sent with the current number of judges. A lican Members who criticized the deci- that these nominations will no longer number of judges would even like to sion. They said, you Republicans voted be taken for granted. see a reduction in their ranks. for the nominee, so you share any of Let’s be honest—filling the current We know that much of the increased the blame. vacancies in the D.C. circuit is about caseload is due to prisoner petitions, Well, the vote on Judge Baer was a political patronage and not about im- which are dealt with very quickly and voice vote. But, I think many of us proving the quality of judicial decision easily, despite the hue and cry we hear. woke up to the fact that the American making. And who gets stuck with the As a matter of fact the judicial con- people are going to hold us accountable tab for this? The American taxpayer. I ference even admits some of the in- for some of these judges and their bad think it’s time that we stand up for crease is due to prisoners filing in decisions. So, there is no question the hardworking Americans and say no to order to beat the deadline for the new scrutiny is going to increase, thanks to this nomination. filing fees we imposed. So, there may this administration, and more time and

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2524 CONGRESSIONAL RECORD — SENATE March 19, 1997 effort is going to be put into these However, qualifications and char- Senator GRASSLEY for the fine leader- nominees. And, yes, we will continue to acter are not the only factors we must ship he is providing in this important criticize bad decisions. If a judge that consider in deciding whether to con- area. Through Senator GRASSLEY’s has life tenure cannot withstand criti- firm someone for a Federal judgeship. hard work, we have learned and con- cism, then maybe he or she should not A more fundamental question is wheth- tinue to learn much about the needs of be on the bench. er we should fill the position itself. Mr. the Federal courts. Now, having said all of this, we have Garland was nominated for the 11th During one such subcommittee hear- before us a nominee who we’re ready to seat on the D.C. circuit. I do not feel ing this year, the Chief Judge of the vote on. I had been one of those holding that this vacancy needs to be filled. Court of Appeals for the Fourth Cir- up the nominee for the D.C. circuit, the Thus, I cannot vote in favor of this cuit, J. Harvie Wilkinson III, explained nomination before us. I believe I have nomination. that having more judges on the circuit made the case that the 12th seat should The caseload of the D.C. circuit is court does not always mean fewer cases not be filled because there is not considerably lower than any other cir- and a faster disposition of existing enough work for 12 judges, or even 11 cuit court in the Nation. In 1996, the ones. He indicated it may mean just judges for that matter. My argument eleventh circuit had almost five times the opposite. More judges can mean has always been with filling the seat— the number of cases per judge as the less collegial decisionmaking and more not the nominee. Now that we have two D.C. circuit. The fourth circuit had intracircuit conflicts. As a result of open seats—even though the caseload over three times as many cases filed. such differences, more en banc hearings continues to decline—I’m willing to Specifically, about 378 appeals were are necessary to resolve the disputes. make a good faith effort in allowing filed per judge in the fourth circuit in More fundamentally, a large Federal the Garland nomination to move for- 1996, compared to only about 123 in the judiciary is an invitation for the Con- ward. D.C. circuit. gress to expand Federal jurisdiction But, given the continued caseload de- Moreover, the caseload of the D.C. and further interfere in areas that have cline, and the judicial conference’s own circuit is falling, not rising. Statistics been traditionally reserved for the formula giving the circuit only 9.5 from the Administrative Office show a States. judges, I cannot support filling even decline in filings in the D.C. circuit In summary, I oppose this nomina- the 11th seat. So, I will vote ‘‘no.’’ I as- over the past year. sume I will be in the minority here and tion only because I do not believe that I am well aware of the argument that the caseload of the D.C. circuit war- the nominee will be confirmed, but I the cases in the D.C. circuit are more think the point has to be made. I very rants an additional judge. Mr. Garland complex and take more time to handle, is a fine man, but I believe that my much appreciate Chairman HATCH’s ef- and therefore we should not expect the first obligation must be to the tax- forts in regard to my concerns, and his D.C. circuit to have the same caseload decision to not fill the unnecessary payers of this Nation. per judge as other circuits. However, Mr. President, I yield the floor. 12th seat. this fact cannot justify the great dis- The PRESIDING OFFICER. The dis- So, there have been a lot of personal parity in the caseload that exists today tinguished Senator from Vermont. attacks lately. Motives are questioned between the D.C. circuit and any other Mr. LEAHY. Mr. President, how and misrepresented. This is really be- circuit. This is especially true since much time is remaining to the distin- neath the Senate. And I hope it will the D.C. circuit caseload is declining. guished senior Senator from Utah and not continue. In short, it is my view that the existing Despite the attacks that have been myself? membership of the D.C. circuit is capa- launched against those of us who want ble of handling that court’s caseload. The PRESIDING OFFICER. The Sen- to be responsible, all we are saying is Mr. President, one of the core duties ators have 54 minutes. send us qualified nominees who will in- of a Member of this great Body is to de- Mr. LEAHY. I thank the Chair. terpret the law and not try to create it. termine how to spend, and whether to Mr. President, I am concerned when I Send us nominees who will not favor spend, the hard-earned money of the hear attempts to tie Mr. Garland’s defendants over victims, and who will taxpayers of this Nation. We must ex- nomination to the number of judges in be tough on crime. Send us nominees ercise our duty prudently and conserv- the D.C. circuit. Let us remember that who will uphold the Constitution and atively because it is not our money or Mr. Garland is there to fill the 11th not try to change it. As long as the the Government’s money we are spend- seat on the D.C. circuit, not the 12th judgeships are actually needed, if the ing; it is the taxpayers’ money. Today, seat. Even Judge Silberman, who has administration sends us these kinds of argued for abolishing the 12th seat for nominees, they will be confirmed. the Republican Congress is working diligently to find spending cuts that this court, has testified that ‘‘it would I thank the Chair. be a mistake, a serious mistake, for The PRESIDING OFFICER (Mr. will permit us to finally achieve a bal- Congress to reduce down below 11 FAIRCLOTH). The Chair recognizes the anced budget. In making these hard judges.’’ That is a verbatim quote from Senator from South Carolina. choices, no area should be overlooked, Mr. THURMOND. Mr. President, I including the judicial branch. Under Judge Silberman. rise today in opposition to the nomina- the Constitution, the Congress has the But we should also remember that tion of Merrick B. Garland to be a power of the purse, and it has broad au- when we just put numbers here, num- judge on the U.S. Court of Appeals for thority over the lower Federal courts. bers do not tell the whole story. The the District of Columbia Circuit. I This body has the power to eliminate D.C. circuit’s docket is by far the most commend Senators SESSIONS, KYL, and or decide not to fund vacant lower Fed- complex and difficult in the Nation. GRASSLEY for taking this course. eral judgeships, just as it had the You can have a dozen routine matters Let me state from the outset that my power to create them in the first place. in another circuit and one highly com- opposition has nothing to do with the The cost of funding a Federal judge- plex issue involving the U.S. Govern- nominee himself. I have no reserva- ship has been estimated at about $1 ment in the D.C. circuit, brought be- tions about Mr. Garland’s qualifica- million per year. This is a substantial cause it is the D.C. circuit, that one tions or character to serve in this ca- sum of money, and a vastly greater would go on and equal the dozen or pacity. He had an excellent academic sum if we consider the lifetime service more anywhere else. record at both Harvard College and of a judge. We must take a close look We can debate later on the size of the Harvard Law School before serving as a at vacant judgeships to determine D.C. circuit, whether it should be 11 or law clerk on the U.S. Court of Appeals whether they are needed. 12. But we are talking about the 11th for the Second Circuit and the U.S. Su- In this regard, Senator GRASSLEY, seat. And what Senators ought to be preme Court. Also, he has served in dis- the chairman of the Judiciary Sub- talking about is the fact that Merrick tinguished positions in private law committee on the Courts and Adminis- Garland is a superb nominee. He has practice and with the Department of trative Oversight, has been holding been seen as a superb nominee by Re- Justice. Moreover, I have no doubt that hearings regarding the proper alloca- publicans and Democrats alike, by all Mr. Garland is a man of character and tion of Federal judgeships. I would like writers in this field. At a time when integrity. to take this opportunity to commend some seem to want people who are not

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2525 qualified, here is a person with quali- will ask them to read the Constitution. be laughable. At that time, the call to fications that are among the best I Article II, section 4, of the Constitu- impeach was popular within a narrow have ever seen. tion states: and intolerant group which did not un- So, let us not get too carried away The President, Vice President and all civil derstand how our democracy works or with the debate on what size the court Officers of the United States, shall be re- what was its strength. Apparently, it is should be. We can have legislation on moved from Office on Impeachment for, and fashionable in some quarters to slo- that. The fact is, we have a judge who Conviction of, Treason, Bribery, or other ganeer about impeaching Federal is needed, a judge who was nominated, high Crimes and Misdemeanors. judges again. and whose nomination was accepted The Founders of this country did not It was wrong in the 1950’s to have and voted on by the Senate Judiciary consider disagreement with a Member somebody who wanted to protect the Committee in 1995. It is now 1997. Let of the House of Representatives as an sin and stain of segregation to call for us stop the dillydallying. I suppose, as impeachable offense. In fact, the the impeachment of Earl Warren. It is we are not doing anything else—we do Founders of this country would have wrong for some today to call for the not have any votes on budgets or chem- laughed that one right out. Can you impeachment of a Federal judge be- ical weapons treaties or any of these imagine? I suggested some read the cause of a disagreement with a single other things we can do—I suppose we Constitution and, I must admit, in a decision. can spend time on this. We ought to moment of exasperation, I suggested So I hope all of us—all of us—stop just vote this through, because at the perhaps some who were making these acting as though we can go to some- rate we are currently going we are fall- claims had never read a book at all. thing way beyond our Constitution be- ing further and further behind, and But, of course, they have. There is one cause a judge comes out with a deci- more and more vacancies are con- by Lewis Carroll. It is called Alice in sion that we may disagree with. That tinuing to mount over longer and Wonderland. The queen had a couple is not a high crime or misdemeanor; it longer times, to the detriment of great- different points she made. One, of is not an impeachable offense. Maybe it er numbers of Americans and the na- course, if all else failed was, ‘‘Off with is an appealable question, but not an tional cause of prompt justice. their heads.’’ The other is, ‘‘The law is impeachable offense. We in the Congress cannot act as Frankly, I fear these delays are going what I say the law is.’’ some super court of appeals. Good to persist. In fact, the debate on what We all lift our hands at the beginning Lord, we even had a suggestion over should be in the courts took an espe- of our term in office and swear alle- the weekend that maybe even the Con- cially ugly turn over the last 2 weeks. giance to that Constitution, but all of gress should have the power to vote to Some Republicans have started calling a sudden there is something found in override any decision. In fact, it would for the impeachment of Federal judges there that none of us knew about. Im- be a super court of appeals. Good Lord, who decide a case in a way they do not peach a judge because you disagree Mr. President, look at the pace of this like. A Member of the House Repub- with a judge’s decision? I tried an Congress. We have almost 100 vacancies lican leadership called for the impeach- awful lot of cases before I came here. I on the Federal court and certainly by ment of a Federal judge in Texas be- was fortunate in that, a chance to try the end of business yesterday, we had cause he disagreed with his decision in cases at the trial level and the appel- not filled a single one of them. We have the voting rights case, a decision that, late level. Sometimes I won, some- not had a minute of debate on the whichever way he went, was going to times I lost, but there was always an budget. We have done nothing about be appealed by the other side. If he appeal. In fact, I found in the cases I bringing up campaign finance reform. ruled for the plaintiffs, the defendants won as a prosecutor, the person on the Cooler heads are prevailing. I com- were going to appeal; if he ruled for the way to jail would invariably file an ap- mend the distinguished majority lead- defendants, the plaintiffs would have peal. I just knew the appeal would be er, Senator LOTT, for his remarks on appealed. But this Member of the other made. That is the way the courts go. these impeachment threats. He is body decided, forget the appeals, he You do not suddenly say because I quoted as saying that impeachment disagrees, so impeach the judge. He is won the case, the judge was to be im- should be based on improper conduct of quoted in the Associated Press as say- peached. a judge, not on his or her decisions or ing, ‘‘I am instituting the checks and I think back to about 40 years ago appeals. I think that is the way it balances. For too long we have let the and those who wanted to impeach the should be. I think perhaps we should judiciary branch act on its own, U.S. Supreme Court. Why? Because step back before we go down this dark unimpeded and unchallenged, and Con- they refused to uphold segregation— road. gress’ duty is to challenge the judicial let’s impeach the Court. In fact, I made I understand, Mr. President, that the branch.’’ my first trip here to the U.S. Capitol in distinguished senior Senator from The suggestion of using impeachment Washington, DC, when I was in my late Maryland wishes 5 minutes; is that cor- as a way to challenge the independence teens. At that time, for the first time, rect? of the Federal judiciary, an independ- I saw the billboards and demonstra- Mr. SARBANES. If the Senator can ence of the judiciary that is admired tions against the Chief Justice after yield me 5 minutes, I would appreciate throughout the world, the independ- the landmark Brown versus Board of it. ence of a judiciary that has been the Education decision. I wondered what Mr. LEAHY. Mr. President, I yield 5 hallmark of our Constitution and our was going on. minutes to the distinguished senior democracy, the independence of a Fed- In the 1950’s, it was not uncommon to Senator from Maryland. The PRESIDING OFFICER. The eral judiciary that has made it possible see billboards and bumper stickers say- Chair recognizes the distinguished Sen- for this country to become the wealthi- ing, ‘‘Impeach Earl Warren.’’ These ator from Maryland. est, most powerful democracy known signs were so prevalent, Mr. President, Mr. SARBANES. I thank the Chair. in history and still remain a democ- that a young man from Georgia at that I would like to ask the distinguished racy—to talk of using impeachment to time once remarked that his most Senator from Vermont a couple of challenge that independence demeans vivid childhood memory of the Su- questions, if I can, about the charts he our Constitution, and it certainly de- preme Court was the ‘‘Impeach Earl was referring to earlier. I want to means the Congress when Members of Warren’’ signs that lined Highway 17 make sure I understand them fully. Congress speak that way. It is also the near Savannah. He said: ‘‘I didn’t un- This one, as I understand, shows the height of arrogance. It ignores the derstand who this Earl Warren fellow number of judges that have been con- basic principle of a free and inde- was, but I knew he was in some kind of firmed in the last three Congresses—we pendent judicial branch of Govern- trouble.’’ are now in the 105th Congress. There ment. We would not have the democ- That young man from Georgia is now are currently 94 vacancies in the Fed- racy we have today without that inde- a Supreme Court Justice himself, Jus- eral court system? pendence. tice Clarence Thomas. Mr. LEAHY. There are. There will I wonder if some have taken time to In hindsight, it seems laughable, as very soon be 100. reread the Constitution. Maybe I give in hindsight the current calls of im- Mr. SARBANES. As yet, no judges them too much benefit of the doubt. I peachment of current judges will also have been confirmed in this Congress?

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2526 CONGRESSIONAL RECORD — SENATE March 19, 1997 Mr. LEAHY. That’s right. prepared: The number of judges con- years, you had a Republican President Mr. SARBANES. This is the first firmed during the second Senate ses- and a Democratic Senate, is that not judge that has come before us? sion in the Presidential election years. correct? Mr. LEAHY. That is right. Now, what has happened? What hap- Mr. LEAHY. Right. Mr. SARBANES. Although I gather pened in 1996 is dramatic. No appeals Mr. SARBANES. It is in both these there are some 25 judges pending in the court judges were confirmed and only years, not just the contrast of the last Judiciary Committee. 17 district court judges. year of the Bush Presidency. But in the Mr. LEAHY. Between 23 and 25, Mr. LEAHY. If my friend from Mary- last year of the second Reagan admin- enough to fill a quarter of the vacan- land will yield on that, I will point out istration, we confirmed 7 appeals cies that are pending. Of course, on Mr. the contrast. In 1992 we had a Repub- judges, then 11 for the last year of the Garland, he came before the committee lican President and a Democratic Sen- Bush administration, and last year the in 1995 and was approved by the com- ate; we confirmed 11 appellate court number was zero. For district court mittee the first time in 1995. We are judges and 55 district court judges. judges in those years it was 35, 55 and now in 1997. It is not moving with alac- Four years later you have a Demo- 17. That is a dramatic difference. An rity. cratic President and a Republican Sen- element has intruded itself in this con- Mr. SARBANES. It is not even mov- ate and look at the vast difference: firmation process that was not here- ing with the speed of a glacier, one zero appellate court judges and only 17 tofore present. might observe. district court judges, notwithstanding Mr. LEAHY. If the Senator would Mr. LEAHY. I was going to say, there an enormous vacancy rate. yield a moment. is a certain glacier connotation to the I think what it shows is that, if you In 1984, there was a Republican Sen- speed of confirming judges. want something to demonstrate par- ate and Republican President, and you see 10 and 33. In 1992, there is a Repub- Mr. SARBANES. In the previous Con- tisanship, when the Democrats con- lican President and Democratic Sen- gress, the 104th Congress, 75 judges trolled the Senate with a Republican ate, and the Democratic Senate actu- were confirmed? President, they still cooperated to give ally did better for the Republican Mr. LEAHY. That’s right. that Republican President a significant President than the Republican Senate Mr. SARBANES. The previous Con- number of judges in the second session, for the Republican President. gress, the 103d, 129, and the one before in a Presidential election year, the that, the 102d, 124; is that correct? Mr. SARBANES. Exactly. time it normally slows down, as con- Let me say I am very deeply con- Mr. LEAHY. The Senator is correct. trasted to the absolute opposite, the cerned about this development. I want Mr. SARBANES. There is a signifi- unprecedented opposite, of what hap- to commend the Senator from Vermont cant falloff in the number of judges pened when you have a Democratic because he has been speaking out on being confirmed. President and a Republican Senate. this very important matter for some Mr. LEAHY. In the 104th Congress, I Mr. SARBANES. Let me take the time now. tell my friend from Maryland, there Senator’s—— Moving to the pending nomination, I was an unprecedented slowdown in the Mr. CHAFEE. Could I ask a question want to speak first to Merrick Gar- confirmation of judges to the extent in here at the proper time? I do not land’s merits, although let me say that that I think the only year that we want to interrupt the flow. I had a I do not understand any of my col- could find, certainly in recent memory, question of the manager? leagues to be questioning his capabili- where no court of appeals judges were Mr. LEAHY. The Senator from Mary- ties and qualifications to serve on the confirmed at all was in the second ses- land has the floor. bench. In fact, Members on both sides sion of the 104th Congress. The slow- Mr. SARBANES. I yield for the in- have spoken very highly of Merrick down was so dramatic in the second quiry. Garland and noted his outstanding session of the 104th Congress that it Mr. CHAFEE. My question is this. As character. dropped the number down to certainly I understand it, there are 3 hours on I was privileged, since he is a resi- an unprecedented low, considering the this bill, so presumably that would dent of my State, to have the honor to vacancies. take us up to around 6 o’clock, as I un- introduce him at his confirmation Mr. SARBANES. I am quite con- derstand. hearing before the Senate Judiciary cerned with these developments. The Mr. LEAHY. Unless time is yielded Committee. That was on November 30, Congress has become much more polit- back. 1995, almost 18 months ago. I believed ical and partisan by any judgment. I Mr. CHAFEE. I wonder if there ap- then and continue to believe now that think that is regrettable, but it has peared to be much of a chance that he will make an outstanding addition happened, and we have to try to con- some time might be yielded back? It to the D.C. circuit. tend with it here as best we can. But I would be very helpful to me, but I do His career exemplifies his strong think it is a dire mistake if this atti- not want to stop any pearls of wisdom. commitment to the law and to public tude carries over into our decisions re- Mr. LEAHY. I have a member of the service. garding the judiciary, the third, inde- Leahy family to whom I have had the He is a magna cum laude graduate pendent branch of our Government and privilege of being married nearly 35 from Harvard Law School. He clerked the one that, in order to maintain pub- years who hopes time will be yielded for Judge Henry Friendly on the second lic confidence in our justice system, back. As her husband, I hope time will circuit and for Justice William Bren- ought to have politics removed from it be yielded back. I am about to just give nan at the Supreme Court. as much as is humanly possible. the floor back to the Senator from He has had a long association with Would the Senator from Vermont Maryland. I do not know how much the Justice Department, first as a spe- agree with that observation? more time is going to be taken in oppo- cial assistant to then Att. Gen. Ben- Mr. LEAHY. I absolutely agree. It sition to Mr. Garland. I know of very jamin Civiletti. He then became a part- has been my experience in the past little time that is going to be taken ner at Arnold & Porter when he left the that Republicans and Democrats have further here. Justice Department to go into private worked closely together with both Re- So the long way around, to answer practice. publican and Democratic Presidents to my good friend from Rhode Island, I Upon returning to public service, he keep the judiciary out of politics, hope time will be yielded back fairly has served as an assistant U.S. attor- knowing that all Americans would go soon. ney for the District of Columbia, deal- to court not asking whether a judge is Mr. CHAFEE. Put me down as a firm ing with public corruption and Govern- Republican or Democrat, but asking supporter of Mrs. Leahy. ment fraud cases. He has also served as whether this is a place they will get Mr. LEAHY. I am sure she would be Deputy Assistant Attorney General in justice. If we politicize it, they may delighted to know that. the Justice Department’s Criminal Di- not be able to answer that question the Mr. SARBANES. If the Senator vision and as Principal Associate Dep- way they have in the past. would yield for one further question, uty Attorney General, both very high Mr. SARBANES. Therefore, I am just to take your analysis a step fur- ranking positions within the Depart- very interested in this chart you have ther, in 1992 and 1988, in each of those ment.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2527 In all of these positions he has served court and yet Members have come for- that statement to my colleagues. I will our country with great distinction. ward opposing the Garland nomination, not go through it in detail here, given He has published extensively in sev- a fact which I very much regret. the fact that this debate is coming to a eral areas of the law and has remained Now I want to address just very brief- close. active in bar association activities. ly the fact that the fourth circuit was I do encourage my colleagues to con- In every respect, in his intellect, his raised earlier by one of my colleagues sider carefully the political cloud with character, and his experience, he would in this debate. He cited the view of which we are now surrounding the make an outstanding addition to the Fourth Circuit Chief Judge Wilkinson, judgeships. bench. presented at a February 1997 Judiciary I say to my colleagues on the other Let me now just briefly talk about Subcommittee hearing, that the Presi- side, we did not behave this way at a this new line of attack, so to speak, dent and Senate do not need to fill the time when the Senate Democrats were that has arisen about whether vacan- two vacancies that exist on that court. in control of the Senate and we were cies on the D.C. circuit should be filled. It is interesting that at that same dealing with the nominations of Repub- First of all, I think any analysis of hearing, testimony that I do not think lican Presidents. I will be very frank. I the courts’ need to fill vacancies can- has been cited, by Judge Sam Ervin, think the judiciary deserves better not be based simply on caseload statis- the very able and distinguished circuit than that from us. I hope that game tics—this is a benchmark that one judge of the Court of Appeals for the will come to an end and we will be able needs to analyze carefully in order to Fourth Circuit, and the son of our to move ahead with the confirmation determine what lies behind the cases. former distinguished colleague, was of judges in an orderly fashion. In fact, the D.C. circuit’s situation in presented before the panel in support of In closing, let me again state that I particular makes clear that mere case filling the vacancies. am very supportive of the judicial filing numbers do not tell the whole Mr. President, I ask unanimous con- nominee who is before the Senate story with respect to the burdens that sent that the very thoughtful state- today. I think he is a person of out- the court faces. The D.C. circuit re- ment by Judge Ervin be printed in the standing merit who will make an out- ceives, in complexity and importance, RECORD at the conclusion of my re- standing judge, and I urge his con- cases that do not come as a general marks. firmation. rule before the other circuits across The PRESIDING OFFICER. Without EXHIBIT 1 the country. It has had major, major objection, it is so ordered. STATEMENT OF THE HONORABLE SAM J. ERVIN cases that it has had to deal with as a (See exhibit 1.) III routine matter, cases of great weight Mr. SARBANES. It is very important Mr. Chairman and members of the Sub- and importance to the nation. to note that with respect to the fourth committee, my name is Sam J. Ervin, III, of The D.C. circuit also handles numer- circuit, there is a nominee pending be- Morganton, North Carolina. I am an active ous appeals from administrative agen- fore the Judiciary Committee, whose United States Circuit Judge for the Fourth cy decisions that are characterized by nomination was submitted in the last Circuit, having been appointed in May, 1980. voluminous records and complex fact Congress—two nominations, as a mat- I had the honor of serving as the Chief Judge of that Circuit from February, 1989 until patterns. In fact, almost half of the ter of fact, were submitted to the Com- February, 1996. I appreciate the Subcommit- D.C. circuit’s cases are these kinds of mittee last year—and one has been re- tee’s willingness to hear my views. administrative appeals—46 percent. submitted by the administration right I support the actions of the Judicial Con- The next highest circuit in this respect at the beginning of this session. ference of the United States in its efforts to is the ninth circuit with 9.6 percent of The PRESIDING OFFICER. The Sen- address the important issue of judgeship their cases being of this kind. ator from Maryland has spoken for needs. I commend Chief Judge Julia Gibbons The D.C. circuit also handles fewer of considerably more than 5 minutes. and the other members of the Judicial Re- the least complex and time-consuming Mr. SARBANES. Would the Senator sources Committee for establishing a prin- cipled method for evaluating these needs. cases, criminal and diversity cases, give me 2 minutes to close up? I am in agreement with my good friend and than any of its sister circuits. Only 11 Mr. LEAHY. I yield 2 additional min- colleague, Chief Judge J. Harvie Wilkinson, percent of its cases are diversity cases. utes. III, that the federal judiciary should remain No other circuit has less than 24 per- Mr. SARBANES. There is no way of limited size and jurisdiction. Should any- cent. with a nominee having been sent to the one present doubt my commitment to those In testimony before the Judiciary Senate by the President, that an argu- principles, I quote from a resolution that I Committee’s Courts Subcommittee, ment for not approving the nominee introduced on June 24, 1993: (which was D.C. Circuit Judge Harry Edwards—the based on not needing the judgeship can unanimously adopted by the Article III Judges of the Fourth Circuit) Chief Judge of the circuit—gave one be made without it carrying with it an ‘‘Chief Judge ERVIN. If I may, I would like example of the kind of complex admin- ad hominem argument against the to submit for consideration a resolution istrative cases that are a routine part nominee. reading as follows: of the D.C. circuit’s caseload. He talked If people are really serious about re- ‘‘ ‘Resolved that the future role of the fed- about a case to review a FERC order, ducing vacancies on the courts, they eral courts should remain complementary to an order of the Federal Energy Regu- need to scrub down the number of the role of the state courts in our society. latory Commission. This order pro- places before the nominees are sub- They should not usurp the role of state courts. duced, at the time of appeal, 287 sepa- mitted, by legislation. Once the nomi- ‘‘ ‘To achieve that goal, it is the consensus rate petitions for review by 163 sepa- nees come here, you cannot divorce the of the Conference that the Congress might rate parties, and a briefing schedule attack on the individual from the at- consider such issues as the federal courts re- that provided for the filing of 27 briefs, tack on the need for the seat on the maining an institution of limited size and ju- totaling over 900 pages. bench. We have the chief judge of the risdiction. The ability of the federal courts I am simply making the point that fourth circuit coming in against filling to fulfill their historical limited and special- they get very complex matters to deal spots when nominees are pending. ized role is dependent on the willingness of with in the D.C. circuit, and that the Now, how can that position be taken Congress to maintain jurisdictional balance case filing numbers relied on by other and considered separate from opposi- and curtail the federalization of traditional state crimes and causes of action.’ ’’ side do not tell the whole story. tion to the nominee? They say, ‘‘Well, My appearance here today, however, is ne- Recall also that the vacancy we are I am not against this nominee, but I cessitated by Chief Judge Wilkinson’s pro- talking about filling here is the 11th just do not think this spot ought to be posal that we do not need to fill the two judi- out of 12 slots on the D.C. circuit. filled.’’ Of course, that is small comfort cial vacancies that presently exist in our cir- Originally, Merrick Garland was being to the nominee whose nomination is cuit. It is my conviction that our failure to opposed on the basis that the 12th spot pending and has been put forward in do so would be a serious mistake. on the circuit court ought not to be order to fill the vacancy. First, a brief history leading up to the sub- ject of whether these two existing vacancies filled. Now, with the taking of senior Now, Judge Ervin, in his testimony, should or should not be filled; status by one of the D.C. circuit’s sets forth, I think, a very persuasive On October 9, 1985, when the late Harrison judges, we are talking about filling the case why the fourth circuit needs to Winter was our Chief Judge, the circuit 11th spot, not the 12th spot, on that have those vacancies filled. I commend judges, with a single dissent, voted to ask for

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2528 CONGRESSIONAL RECORD — SENATE March 19, 1997 four additional active judges for the Fourth made—actually this is a matter for the exec- normally follow in addressing judge- Circuit. utive and legislative branches to deter- ship needs, jeopardizes the impartiality On October 4, 1989, we again indicated by mine—but it seems to be the fair thing to do and independence of the judiciary. another formal action that while we did not for the following reasons: Merrick Garland’s nomination was a. North Carolina is the most populous desire a court of more than 15 active judges, first delivered to the Senate on Sep- we unanimously reaffirmed our earlier re- state in the circuit. quest for four additional judges. b. North Carolina has one of the highest tember 6, 1995—more than 18 months Legislation was passed in 1990 authorizing numbers of filings in the district courts in ago. The Judiciary Committee held a a number of additional judgeships, including the circuit. confirmation hearing on the nomina- four new circuit court judges for the Fourth c. North Carolina, like West Virginia, has tion on November 30, 1995, and for- Circuit. Thereafter, three of these so-called had only two seats, while both Virginia and warded the nomination for consider- Omnibus Bill judges were nominated and Maryland have three each, and South Caro- ation by the full Senate 2 weeks later. subsequently confirmed: Judge Hamilton lina has four. Filling the two existing vacan- The full Senate failed to act on Gar- (S.C.) in July, 1991; Judge Luttig (V.A.) in cies from North Carolina would do no more land’s nomination for 91⁄2 more months, August, 1991; and Judge Motz (M.D.) in June, than to restore that state to parity with our 1994. sister states. I point out that should I decide however, returning it to the President The fourth (and final) Omnibus Bill judge- to take senior status—as I am eligible to at the close of the 104th Congress. ship has remained unfilled since it was cre- do—North Carolina would have no active In fact, the Senate refused to confirm ated in December, 1990. As of this date, there judge. That situation would create some in- a single circuit court judge during the is no pending nomination for this vacancy, surmountable problems for both the bar and entire second session of the last Con- and I believe that this is the only 1990 circuit litigants of that state. gress. This was the first time in more judgeship that remains unfilled. d. While it has been suggested to me that than 20 years that an entire session of The second Fourth Circuit vacancy was this imbalance could be remedied by assign- Congress had passed without a single ing seats now held by judges from other created when Judge J. Dickson Phillips, Jr., circuit court confirmation. Nonethe- of North Carolina, took senior status, effec- states to North Carolina as they are opened tive July 31, 1994. More than two and one- by death or retirement, that seems an unpre- less, some argued that shutting down half years later, the Honorable James M. dictable solution—especially in the present the confirmation process is par for the Beaty, Jr., a District Court Judge in the political climate. course in an election year. They are Middle District of North Carolina, was nomi- Above all else, I seek to be as sure as it is wrong. And let me set the record nated to succeed Judge Phillips, but no ac- humanly possible to be that our circuit has straight. tion has been taken on that nomination by a sufficient number of judges to enable us to George Bush made nearly one-third the Senate Judiciary Committee. render swift and certain justice in all of the of his 253 judicial nominations in 1992, To my knowledge, the judges of the Fourth cases that come before us. Some recent legis- a Presidential election year. As chair- lation and our adoption of new internal oper- Circuit have never taken any formal action man of the Judiciary Committee, I held to indicate an unwillingness to stand by our ating procedures may well reduce our case- requests that these two vacancies be filled. load to some degree but countervailing cir- 15 nomination hearings that year, in- In order to evaluate the Circuit’s needs for cumstances, including the continuation of cluding 3 in July, 2 in August, and 1 in these two judgeships, I suggest that we must the federalization of numerous state crimes, September. In 1992—the last Presi- realistically assess our present situation: the creation of new private rights of action, dential election year—the Senate con- Present Active Judges: At this time, the the rapid population growth of the region, tinued to confirm judges through the Fourth Circuit has 13 active judges. Five of and the increased complexity of both the waning days of the 102d Congress. We these judges are 70 years of age or older. criminal and civil cases now coming to the even confirmed 7 judges on October 8— Their present ages are: 90, 78, 76, 73, and 70. federal courts (to mention only a few of the Is it realistic to expect that all of these relevant factors) will, I fear, more than off- the last day of the second session. As a judges will be able to continue to serve in- set any decreases in our workloads. I do be- result, the Senate confirmed all 66 definitely? lieve that we would have sufficient personnel nominees the Judiciary Committee re- Present Senior Judges: The last printed re- to enable us to do the work that is assigned ported out that year—55 for the dis- port from the Administrative Office is out- to us in a fashion acceptable to all if these trict courts and 11 for the circuit dated in reflecting that we have 4 senior two vacancies are filled—at least for the courts. Let me repeat: last session, judges. One of the four retired on July 31, foreseeable future. only 17 district judges were confirmed 1995, and is no longer eligible to sit. Mr. Chairman, in the Questionnaire which and no circuit judges were confirmed. Another has indicated that he does not you sent to the members of the judiciary Now that the election is over and plan to sit any more. The remaining two, some time ago, you raised the legitimate whose current ages are 79 and 74, have each question of whether we as judges were being Merrick Garland has been renomi- been sitting 2 days per court week, thereby required by our respective workloads to dele- nated, Republicans argue that we constituting 4/5 of one judge. gate more of our judicial functions than was should not vote to confirm him because Necessary Panels: For the past several ideal—or even healthy—to elbow law clerks, the District of Columbia circuit needs years, we have been averaging 5 panels of staff law clerks or other non-judicial em- only 10 judges. They are wrong. And let judges each court week. With our present ployees. I was not privy to the answers my me set the record straight. complement of active and senior judges, we colleagues returned to those questions, but I Congress has previously recognized lack a sufficient number of judges to fill 5 strongly suspect that many of us would the need for 12 judges. Twelve years panels without bringing in district judges admit that the degree of delegation required ago, based on the recommendation of from our own circuit or senior judges from in the courts of appeals is greater than is the Judicial Conference of the United other circuits. ideal. Speaking only for myself, I would like Current Statistics: Rather than burden you to be able to devote greater personal atten- States, Congress concluded that the with more numbers, I will simply refer to the tion to every matter that comes before me D.C. circuit’s caseload warranted 12 latest figures published by the Administra- than I am now able to do. judgeships. The Senate report to the tive Office. I am confident that those statis- I sincerely believe that our present ability 1984 legislation creating an additional tics fully justify the filling of the two exist- to carry out our duties in a manner pleasing judgeship states: ing vacancies. In fact, as I understand it, if to this Subcommittee, to the public, and to Located at the seat of the Federal govern- the numerical portion of the existing for- ourselves would be enhanced by the filling of ment, the Court of Appeals for the District mula were applied (the 500 filings per panel these two long vacant positions. of Columbia inevitably receives a significant with pro se appeals weighted as one-third of Mr. BIDEN. Mr. President, 2 of the 12 amount of its caseload from federal adminis- the cases) the Fourth Circuit would be eligi- seats on the District of Columbia Court trative agencies headquartered in that area. ble to receive 20 judgeships. We have never Administrative appeals filed in this court requested more than 15. of Appeals are currently vacant. Some have argued that the vacancy to which numbered 504 in 1982 and represented 34.8 North Carolina: I note that Judge Gibbon’s percent of the incoming caseload. Due to the Judicial Resource Committee has listed as a Merrick Garland has been nominated nature of the caseload which includes many factor to be considered in allocating judge- should not be filled because the D.C. unique cases involving complex legal, eco- ships, geographical considerations within a circuit is overstaffed. But the reasons nomic and social issues of national impor- circuit. At the risk of being thought provin- Congress gave for approving 12 seats tance and a large backlog of pending appeals, cial, I emphasize the special impact that a for the D.C. circuit remain compelling this court requires one additional judgeship. failure to fill the two presently unfilled seats on the Fourth Circuit will have on North today and justify filling this vacancy. The D.C. circuit needs 12 judges to Carolina. The expectation has been that Further, to propose eliminating a cir- handle its complex caseload. A large these seats would be assigned to that state. cuit court judgeship within the context portion of the D.C. Circuit caseload I, of course, recognize that there is no law of a particular nomination, rather than consists of complex administrative ap- which requires that this allocation be through the deliberative process we peals which generally consume a larger

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2529 amount of judicial resources than this nomination. If ad hoc analysis be- cial temperament; whether the nomi- other appellate cases. Therefore, com- comes our mode of operation, we will nee possesses the highest personal and parison of raw caseload data between give the appearance of a politicized ju- professional integrity, and whether the the D.C. circuit, with its high percent- diciary. nominee will protect our core constitu- age of complex administrative cases, I congratulate Merrick Garland for tional values. and the other circuits is misleading. his distinguished career and commend I believe that Mr. Garland possesses According to the statistics provided by President Clinton for making this nom- all of these qualifications. His legal the Administrative Office of U.S. ination. I hope that the Senate will act and academic record are exemplary. I Courts for the period from September to confirm him as expeditiously as pos- am impressed that he has devoted part 30, 1995 to September 30, 1996, 1,347 sible. of his career to public service. He cases were filed in the D.C. circuit, 474 Mr. BURNS. Mr. President, I rise served as the Principal Associate Dep- of which—or 35.2 percent—were admin- today to express my opposition to the uty Attorney General in the Depart- istrative appeals. In contrast, in the re- confirmation of Merrick Garland to the ment of Justice. And he clerked after maining 11 circuits, of the 51,991 cases D.C. circuit. law school for one of the most distin- filed, only 2,827—or 5.4 percent—were Even though the nominee has the guished Supreme Court Justices, Jus- administrative appeals. character and is highly qualified for tice William J. Brennan, Jr. The D.C. circuit has a long time in- the position, there is a larger question He’s also done extensive pro-bono terval between filing a notice of appeal that must be examined. Does this seat legal work on behalf of disadvantaged and final disposition. Because the D.C. really need to be filled? Especially individuals. He has represented an Afri- circuit has this incredibly high per- since it has remained empty for 11⁄2 can-American employee in a claim of centage of administrative appeals rel- years? racial discrimination, a mother in a ative to the other circuits and because The answer is that the D.C. circuit custody dispute, and court-requested these types of cases require tremen- does not need another seat, especially representation of a prisoner. dous amounts of judicial resources, when there are many other problems in I urge my colleagues to support Mr. Garland’s nomination to the U.S. Court litigants in the D.C. circuit must wait the other district circuits that have of Appeals D.C. Circuit. I hope that an average of 12 months between the not been focused on yet. I base my once Mr. Garland is confirmed, we can filing of the notice of appeal and final opinion on the fact that the D.C. cir- move forward to a vote on the other disposition. Only 3 of the 12 circuits cuit had 4,359 cases as of October 1996. The ninth circuit, the circuit in which pending Federal judicial nominees. have a longer average for this time Mr. FAIRCLOTH. Mr. President, I Montana is housed, had 71,462 cases. frame. rise today to vote ‘‘no’’ on the nomina- The fact that the D.C. circuit has a That is almost 20 times the number of tion of Merrick Garland to the U.S. long time interval between filing and cases. The D.C. circuit ranked last in Court of Appeals for the District of Co- disposition is indicative of the complex the total number of cases as compared lumbia Circuit. cases that the circuit handles. Other to each of the other district circuits in In so voting, I take no position on circuits have more criminal appeals the Nation. If we examine these num- the personal qualifications of Mr. Gar- and garden-variety diversity cases that bers, it does not seem as if the D.C. land to be a Federal appeals court often are amenable to summary dis- judges are handling any cases at all. judge. What I do take a position on is position without oral argument. This is also a very expensive seat. It that the vacant 12th seat on the U.S. The D.C. circuit has fewer pro se ap- will cost the American taxpayers an Court of Appeals for the District of Co- peals than other circuits. In addition extra $1 million to fill this seat. This lumbia Circuit does not need to be to having fewer criminal appeals and will not be money well spent. filled. Senator CHUCK GRASSLEY, Chair- diversity cases, the D.C. circuit has a There are adequate numbers of man of the Senate Judiciary Commit- lower percentage of pro se mandamus judges on the circuit, why are we con- tee’s Subcommittee on Administrative cases than all other circuits. Chief firming this seat? I urge my colleagues Oversight and the Courts, has exam- Judge Edwards has noted that pro se to examine the numbers and vote ined this issue thoroughly, and has de- appeals are often frivolous, easily iden- against the filling of this unneeded termined that the court’s workload tified as lacking merit, or otherwise seat. does not justify the existence of the amenable to disposition without sig- Ms. MIKULSKI. Mr. President, I rise 12th seat. Last Congress, Senator nificant expenditure of judicial re- today in support of the nomination of GRASSLEY introduced legislation to sources. Merrick Garland to the U.S. Court of abolish this unneeded seat. By pro- The D.C. circuit has more cases of Appeals for the D.C. circuit. Mr. Gar- ceeding to renominate Mr. Garland, national importance than other cir- land is a resident of my State of Mary- President Clinton has flatly ignored cuits. Not only are complex adminis- land. this uncontradicted factual record. trative appeals commonly heard in the I am pleased that his nomination is I commend Senator GRASSLEY for his D.C. circuit, but as a result of its loca- finally on the Senate floor for a vote. important work on this matter, as well tion at the seat of the Federal Govern- It is critical that vacancies on the Fed- as Senator JEFF SESSIONS, who has also ment, the D.C. circuit also hears a dis- eral bench are filled, especially at the emphasized the importance of this proportionate number of the high-pro- appellate level. matter. With the Federal deficit at an file cases of national importance that Mr. Garland has a distinguished legal all time high, we should always be vigi- reach the U.S. Courts of Appeals. The record in the public and private sec- lant in looking for all opportunities to D.C. circuit decided in 1996 alone Na- tors. He has specialized in criminal, cut wasteful Government spending; tional Treasury Employees Union civil, and appellate litigation, as well this is one such opportunity. After all, versus United States of America, a as administrative and antitrust law. I each unnecessary circuit judge and his challenge to the constitutionality of believe his experience will serve him or her staff cost the taxpayer at least the Line-Item Veto Act, as well as well on the Federal bench once he is $1 million a year. Perot versus Federal Election Commis- confirmed. Lastly, our vote today is an impor- sion, an appeal from a district court’s Mr. Garland is a magna cum laude tant precedent, since it marks the be- rejection of Ross Perot’s attempt to graduate of Harvard Law School and a ginning of the Senate’s new commit- participate in last year’s Presidential summa cum laude graduate of Harvard ment to hold rollcall votes on all judi- debates. College. While at Harvard Law School, cial nominees. This is a policy change The same reasons that supported the he was the articles editor of the Har- which I had urged on my Republican creation of a 12 judgeship for the D.C. vard Law Review and a member of the colleagues by letter of January 8, 1997, circuit in 1984 justify its existence now. prestigious Phi Beta Kappa, while he to the Republican Conference. Voting If reasoned deliberation and study of attended Harvard College. on Federal judges, who serve for life this circuit leads to the conclusion When I decide whether to support a and who exert dramatic—mostly un- that a future vacancy should not be judicial nominee, I look at whether the checked—influence over society, filled, then we should address that nominee is competent; whether the should be one of the most important issue, but not within the context of nominee possesses the appropriate judi- aspects of serving as a U.S. Senator.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2530 CONGRESSIONAL RECORD — SENATE March 19, 1997 Rollcall votes will, I believe, impress on the Harvard Law Review and was the kind of record that Merrick Gar- upon the individual judge, the indi- the Articles Editor there. He has an ex- land has. Those writings are just ex- vidual Senator, and the public the im- traordinary record of publications, on traordinary. It takes long hours and portance of just what we are voting on. the issue of Antitrust, in the Yale Law extraordinary study to turn one of I hope that my colleagues will regard Journal. And I might say, Mr. Presi- those articles out, and there is a wide this vote, and every vote they take on dent, that this nominee exhibited per- array of issues that he has written on. a Federal judge, as being among the haps his best judgment in associating He could be making a lot of money. He most important votes they will ever himself with Yale Law School on the is currently in public service and he is take. article, then going on into FTC inves- prepared to go to the court of appeals The PRESIDING OFFICER. The tigations, the controversial veto issue, at the age of 45. We need judges in Chair recognizes the distinguished Sen- professional responsibility and com- America with real intellectual abili- ator from Utah. mercial speech. It is really an extraor- ties. We need judges like Holmes and Mr. HATCH. Mr. President, we should dinary, extraordinary record. This Brandeis and Cardozo on the courts of inform the Senate that our intent is to man, at the age of 45, coming into the the United States. We need them on yield back the time if we can by 5:15 so court of appeals, may well be a distin- the Supreme Court of the United people can vote at that time. It could guished prospect for the Supreme States. This is a real prospect. We be just a wee bit longer than that. That Court of the United States. ought to get him up and out. is our intention. Those who want to Beyond his record in school and his I yield the floor. come over and use the time need to writings, he was law clerk to a very Mr. KENNEDY addressed the Chair. come now. distinguished circuit judge, Judge The PRESIDING OFFICER. The I yield 10 minutes to the distin- Harry Jay Friendly, and he served as Chair recognizes the distinguished Sen- guished Senator from Pennsylvania, law clerk to Supreme Court Justice ator from Massachusetts. who is a distinguished member of the William Brennan, Jr., and was a part- Mr. KENNEDY. Will the Senator Judiciary Committee. ner of distinguished law firms, and yield me 5 minutes? Mr. LEAHY. Yes. Mr. LEAHY. Will the Senator yield worked as a prosecuting attorney. He for a moment? Mr. KENNEDY. Mr. President, I sup- now serves as Deputy Assistant Attor- port the nomination of Merrick Gar- Mr. HATCH. I yield. ney General of the United States in the PRIVILEGE OF THE FLOOR land for the vacancy on the D.C. cir- U.S. Department of Justice, in the cuit, and I am concerned that it has Mr. LEAHY. Mr. President, I ask Criminal Law Division, where I have taken more than 18 months for the unanimous consent that Victoria had occasion to work with him on a nomination to reach the Senate floor. Bassetti of Senator DURBIN’s staff be professional basis. He just is an ex- No one can question Mr. Garland’s allowed the privilege of the floor dur- traordinary prospect for the court of qualifications and fitness to serve on ing this debate. appeals. the D.C. circuit. He is a respected law- The PRESIDING OFFICER. Without He has not been treated very gently yer, a former Supreme Court law clerk, objection, it is so ordered. in the confirmation process, having a partner at a prestigious law firm, and The Senator from Pennsylvania. been nominated in September 1995. He since 1989, has served with distinction Mr. SPECTER. Mr. President, I passed through the Judiciary Com- in the Department of Justice under thank my colleague, the distinguished mittee in the 104th Congress and was both Republican and Democratic ad- chairman of the Judiciary Committee, kept off the agenda by a single hold. ministrations. for yielding me time. That is when a Senator voices an objec- Support for him is bipartisan. We I have sought recognition to voice tion without stating a reason, or per- have received letters of support from my very strong support for the nomi- haps multiple holds, but I know a sin- numerous Reagan and Bush Justice De- nation of Merrick Garland for the gle hold stood in his way. partment officials, including former Court of Appeals for the District of Co- I compliment the majority leader, Deputy Attorneys General George lumbia. Mr. President, a great deal has Senator LOTT, for bringing his nomina- Terwilliger and Donald Ayers, former been said today on this floor which is tion to the floor at this time so that he Office of Legal Counsel Chief Charles of great importance but not really tre- may be acted upon, yes or no. He really Cooper and former U.S. Attorneys Jay mendously related to Merrick Gar- is extraordinary, and I think he has a Stephens, Joe Whitley, and Dan Webb. land’s nomination. I hope we have a remarkable career ahead. I am de- Jay Stephens, who was U.S. attorney chance to analyze the entire process of lighted to offer my voice of strong sup- when Garland served at that office in confirmation of judges and the respec- port for his confirmation. the District of Columbia, called Gar- tive roles of the President and the Sen- I thank the Chair. I thank my col- land a person of ‘‘dedication, sound ate, because the President has the league from Utah. I yield the floor. judgment, excellent legal ability, a bal- nominating authority and the Senate The PRESIDING OFFICER. The Sen- anced temperament, and the highest has the constitutional authority for ator from Vermont. ethical and professional standards.’’ confirmation. There are a great many Mr. LEAHY. I also want to thank the The National District Attorney’s Office things that ought to be done on both distinguished senior Senator from supports his nomination, calling Gar- sides to expedite the nomination and Pennsylvania because he was also the land an excellent lawyer, brilliant confirmation of judges. decisive Senator who came in and scholar, and a man of high integrity.’’ In my own State, Pennsylvania has made the quorum at the time we voted There can be no serious doubt about quite a number of vacancies now, and I Mr. Garland out of committee. Some- his ability to serve as a fair and impar- have been in discussions with the times we forget those little procedural tial judge on the D.C. circuit. President’s representatives at the things we have to do just to get here on Why then, has it taken 18 months to White House about trying to get these the floor. bring this nomination before the U.S. nominations filled. There is something Mr. SPECTER. I thank my colleague Senate? And why is it that no other ju- to be said on many sides of this issue. from Vermont for making that com- dicial nominees have been brought be- The matter confronting the Senate ment. I had presided over Merrick Gar- fore the Senate? now is, what are we going to do with land’s confirmation proceedings in the In fact, only 17 judges—all for dis- Merrick Garland? His record is extraor- 104th Congress. It was hard to find a trict court appointments—were con- dinary. I have been on the Judiciary Senator when I came in that afternoon. firmed during all of 1996. Obviously, Committee going into my 17th year I found out Merrick Garland was there that was a Presidential election year. and I do not believe I have seen a nomi- and five other people. It was an inter- But the slow-down in acting on judicial nee with the qualifications that this esting afternoon. We had a great many nominations was unprecedented. In man has. responsibilities. 1992, when President Bush was seeking He graduated from Harvard College, I went to law school not too long ago reelection, the Senate, under control of summa cum laude, was Phi Beta and I know what it is like to be on the the Democratic Party, still confirmed Kappa, and graduated from Harvard law review. They call it the Law Jour- 66 district court and appellate court Law School, magna cum laude. He was nal at Yale. It is remarkable to have judges.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2531 Justice delayed is justice denied. The court’s backlog is also growing. D.C. Circuit Court of Appeals. It is in- Thousands of Americans with legiti- In 1984, when the 12th seat was added, teresting today in this debate that mate grievances cannot get their day the court had a backlog of 1,200 cases. many people have spoken and no one in court, because judicial vacancies are Today, that backlog exceeds 2,000 has questioned his integrity nor his not being filled and current Federal cases, despite a bench that is highly re- ability. He was born in Chicago, grad- judges don’t have the time to hear spected for its intellect and dedication. uated from Harvard College magna their cases. It’s hard to crack down on As former Republican Senator Charles cum laude, Harvard Law School and, as crime when there are not enough Mathias stated on behalf of the non- has been said by other speakers, had a judges to enforce the laws that Con- partisan Council for Court Excellence, distinguished career both as a lecturer gress passes. ‘‘It is in the public interest for the D.C. at Harvard Law School and partner in Many of us are concerned about the Circuit to have its full complement of a prestigious firm, and then pros- harsh partisanship that is being ap- twelve active judges.’’ ecuting cases in the District of Colum- plied to the judicial nomination proc- It is time to end the excessive par- bia during the past few years, served as ess. Republicans in the Senate have or- tisanship over judicial nominations. I well in the Department of Justice. ganized an ad hoc Republican task hope very much that our action on Despite Mr. Garland’s obvious and force to develop procedures for screen- Merrick Garland is a sign that the un- many qualifications for this job, we ing judges. They have rejected a formal acceptable log jam is breaking and must vote on whether he will serve on role for the American Bar Association that the Senate is now returning to its the D.C. Circuit Court of Appeals. in assessing candidates. Republicans proper role of advise and consent, not Frankly, we should leap at the oppor- are seeking to force the President to partisan obstruction, in the consider- tunity to have him on that court. But conduct the real debate with them be- ation of judicial nominations. we are not here today to consider the significant contribution Mr. Garland’s hind closed doors—nominee by nomi- So, again, Mr. President, I join with appointment could have to the D.C. cir- nee—to make sure each person the those that are urging the Senate’s fa- cuit. Rather, we are focusing on wheth- President names meets an ideological vorable consideration of this extraor- er the D.C. circuit needs 11 judges rath- litmus test. In fact, some have sug- dinary nominee. This is an individual er than 10 judges. gested a quota system, in which half of who has been willing to be put forward I submit that this debate is not just all judicial nominations come from Re- now for over some 18 months. He has about numbers. It is about the admin- publicans in Congress and half from appeared before the committee and, as istration of justice; the fair, prompt, President Clinton. has been pointed out, his record is one equitable, and thorough administration If the Federal courts were a business, of special recognition, a brilliant aca- of justice is at stake. In all fairness, I they would be in bankruptcy. There are demic record, a strong commitment to must confess that I would rather err on over 90 vacancies in judgeships today. public service. He has served under the side of too many judges than too In his 1996 annual report, Chief Justice both Democrats and Republicans. He few. I would rather have too many Rehnquist criticized Congress failure has been an extraordinary success in judges doing too thorough and too last year to create additional Federal the private sector, as well. thoughtful a job than too few judges judgeships and called it a shortcoming. I don’t think I have seen, in recent rushed and careless in frantic efforts to The Administrative Office of the U.S. times, the range of different support handle their caseload. No one but the Courts has requested an additional 20 that this nominee has for this position. most shortsighted argues that the D.C. temporary positions on the courts of It is breathtaking in its scope. And the circuit does not need this 11th judge. appeals and 21 permanent and 12 tem- background of this individual has Indeed, last year when the debate porary positions in the district courts urged us to move forward with this turned on whether a 12th judge was to address the heavy backlogs that are nomination. We are extremely fortu- needed, the Reagan-appointed Judge piling up. nate in the district circuit court to be Silberman was often cited in support of In the case of Merrick Garland, some able to have someone of this quality. the effort to cut that 12th seat. How- Republicans argue that we do not need As has been pointed out, it is a special ever, he recently wrote to the Judici- to fill either of the two current vacan- court, really second in special recogni- ary Committee and said, ‘‘I still be- cies in the D.C. circuit, because the tion to the Supreme Court of the lieve we should have 11 active judges.’’ caseload is too light. Many nonpartisan United States, in terms of the com- So why are we arguing about this 11th observers regard the D.C. circuit as the plexity of the cases that we require seat today? second most important court in the this court to resolve. Some argue that D.C. circuit judges United States, after the Supreme So, Mr. President, I join with all of handle fewer cases per judge than any Court. There currently is only one sen- those and urge a positive vote in favor other circuit. I won’t make an analogy ior judge to assist the other 10 mem- of this extraordinary nominee. Merrick to the Supreme Court in the number of bers of the Court. Garland will be an outstanding jurist, cases that they handle. We know they In terms of both quantity and quality as everything in his life has reflected. are cases of great moment, and they of its caseload, the D.C. circuit ranks He has been an outstanding individual. should have the time to deliberate among the Nation’s busiest. It handles I remember very clearly the quote of them in an appropriate manner. But a disproportionately high proportion of Senator Mathias, who was a very the smaller number of cases per judge cases of national significance involving prominent, significant member of the is an inaccurate way of measuring the intricate legal issues. Complex admin- Judiciary Committee, who took great work of the D.C. circuit judges. Let me istrative appeals were 38 percent of the interest in the quality of justice in this say, at the outset, that we cannot over- caseload of the D.C. circuit during fis- country and the quality of individuals. look the fact that this circuit, more cal year 1995, as compared with only 5.5 He has joined in urging that we move than most—probably more than any— percent in other circuits. forward with this nominee and put him has many administrative appeals to By contrast, pro se appeals, which on the court, where he will serve this consider. As the Federal appeals court are generally the easiest to resolve, country with great distinction. I join sitting in the Capital, the D.C. circuit constituted only 11.8 percent of the my other colleagues in hoping that the handles the lion’s share of administra- D.C. circuit’s caseload in 1995, by far vote for him will be overwhelming. It tive appeals. the lowest percentage of any circuit in deserves to be. I think we will all be This chart that was prepared gives an the country. well served with his continued dedica- idea of the administrative agency ap- Diversity cases, which less often tion of public service on the court. peals filed per judge in all the Federal raise complex and time-consuming I yield the floor. circuits across the United States. If issues, constituted only 13.6 percent of Mr. LEAHY. Mr. President, I yield 10 you will note, D.C. circuit has 56 ap- the D.C. circuit’s caseload in 1995, com- minutes to the distinguished Senator peals filed per judge. Most other cir- pared with 30 percent in the other cir- from Illinois. cuits are in the teens—the eighth cir- cuits. So the charts and graphs that Mr. DURBIN. Mr. President, I rise cuit, only 8; the ninth circuit is 37. But some of our Republican colleagues are today to support the nomination of it is a significantly different caseload using do not tell the whole story. Merrick Garland to be judge on the that faces the judges in these circuits.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2532 CONGRESSIONAL RECORD — SENATE March 19, 1997 For those who are not familiar with treated fairly. If those vacancies are Garland’s current boss also lauds him. ‘‘He these administrative cases, I suggest not filled with honest and competent has enormous personal and intellectual in- that you not dismiss them because of individuals in a timely manner, it is a tegrity, impeccable legal credentials, a great disservice to this country. breadth of experience in both public and pri- the word ‘‘administrative.’’ Let me vate sectors, and the personality and de- show you what I mean. This is a file for I think we should move and move meanor that you’d expect in a judge,’’ says one administrative law case that a quickly to approve this nomination of Gorelick, who acknowledges that she is a judge must pore through to come to a Merrick Garland. I hope that his pa- strong backer of Garland’s but declines to good conclusion. tience will be rewarded today, as it discuss whether he is definitely the adminis- Let me show you another thing. This should be. I am certain, based on his tration’s nominee. ‘‘He is very thoughtful, is is a pro se petition from a prisoner in background and all that I have come to good at listening to all points of view, and jail. There are many of these that are know of him and my personal meeting makes decisions on the merits.’’ Attorney filed across the country. But consider with him, that he will make an ex- General Janet Reno also thinks highly of Garland, Gorelick says. the gravity and the challenge of this traordinary contribution. The widespread praise Garland garnered administrative appeal, as opposed to We need the 11th judge in the D.C. for his thorough and evenhanded leadership this rather smaller appeal in terms of circuit to handle this mountain of ad- during the critical initial investigation into volume. So these judges who serve in ministrative appeals. How many people the Oklahoma City bombing also hasn’t hurt this circuit really bear an unusually will come to us and complain, ‘‘Oh, the his chances for a nomination to the federal large responsibility in extremely tech- case is in court, and it is going to take bench. A Republican staffer on the Senate Judici- nical cases. Over the last 3 years, for forever. What is going on, Senator? What is going on, Congressman? Why ary Committee declines to discuss Garland’s which data is available, 45.3 percent of chances for confirmation, other than to say the cases filed in the D.C. circuit were aren’t the courts more responsive?’’ that the committee has received no opposi- administrative appeals of the size and Part of the problem is that the bench is tion in anticipation of a Garland nomina- complexity that I have just noted, vacant, the judges aren’t appointed, tion. compared with an average of 5.9 per- and the caseload that has been imposed Garland, a 1977 magna cum laude graduate cent outside the D.C. circuit. on these judges is overwhelming. of Harvard Law School who clerked for Let me also add here that I could go We can take care of one circuit today famed 2nd Circuit Judge Henry Friendly in addition to Brennan, declines comment. into detail, but I will not because I by the appointment of this fine man to fill this seat. Mikva was out of town and could not be know it is the intent of the Chair to reached for comment. move this matter to a vote very quick- Thank you, Mr. President. Garland’s reputation as a nonideological ly. I also want to comment for a mo- Mr. LEAHY addressed the Chair. thinker may have helped him win the nomi- ment on the period of time that this The PRESIDING OFFICER. The Sen- nation over Peter Edelman, who last fall was very able nominee has waited for con- ator from Vermont. reportedly the White House’s top pick for the Mr. LEAHY. Mr. President, I ask firmation. It is unfortunate. In fact, it D.C. Circuit vacancy. Edelman, who is cur- unanimous consent that an article is sad, and it borders on tragic, that rently counselor to Health and Human Serv- from the Legal Times of August 1995 ices Secretary Donna Shalala, was a favorite men and women who are prepared to regarding Mr. Garland be printed in the of the more liberal ranks in the Democratic give their lives to public service, who RECORD. Party, but he immediately drew opposition have gone through a withering process There being no objection, the mate- from conservatives—including Sen. Orrin of investigation, by the FBI, by the Ju- rial was ordered to be printed in the Hatch (R–Utah), chairman of the Senate Ju- diciary Committee, by the White diciary Committee, who believed Edelman to RECORD, as follows: House, by the American Bar Associa- be too radical and too activist in his ap- [From the Legal Times, Aug. 7, 1995] tion, and so many others, still must proach to the law. Opposition to Edelman GARLAND: A CENTRIST CHOICE wait over a year, in many cases, for only intensified after the GOP’s sweeping (By Eva M. Rodriquez) victory in last fall’s midterm election. their nominations to be considered by He was schooled at Harvard in administra- Edelman, according to two lawyers in- the Judiciary Committee and by this tive law by moderate professor-turned-Jus- volved in the judicial-selections process, is Chamber. tice Stephen Breyer, and took his antitrust likely to be nominated for one of the two va- I will tell you, a few days ago it was training from conservative Philip Areeda. cancies on the U.S. District Court here. But my good fortune to speak to a group of He earned his prosecutorial stripes under D.C. Del. Eleanor Holmes Norton, whose ju- judges at the Supreme Court Building. Jay Stephens, the hard-charging Republican dicial nominating commission has forwarded As I walked through that building and U.S. attorney in the District and former dep- names to Clinton for previous D.C. federal saw the busts of great jurists who have uty counsel to President Ronald Reagan. court vacancies, may have candidates of her own. The commission will accept applica- served this country, I wondered how And he cut his teeth in the private sector as a partner at Arnold & Porter, one of the tions for the two vacancies until August 11. many of them could pass the test that city’s wealthiest and most influential firms. The two sources say Clinton is likely to we now impose on nominees today, how At first blush, Merrick Garland may seem nominate Garland before Congress breaks for many of them would be willing to en- like a solid-judicial pick for a Republican the August recess. The two sources also say dure that test and to say that their president. But according to two administra- that the president may decide to submit a family, friends, colleagues, and others tion sources, the 42-year-old top aide to Dep- package of D.C. nominees, including one for that their lives will be on hold waiting uty Attorney General Jamie Gorelick is al- the appeals court vacancy and another for most certain to be President Bill Clinton’s one of the two open seats on the District for some decision from Capitol Hill. It Court. One trial court vacancy was created does a great disservice to this country third nominee to be the prestigious U.S. Court of Appeals for the D.C. Circuit. in June when Judge Joyce Hens Green took and to the judiciary for us to create a Although Garland has his share of liberal senior status; the other came open when process that is so demanding that ordi- credentials—including a coveted clerkship Judge Harold Greene followed suit earlier nary people would be discouraged from with retired Supreme Court Justice William this month. trying. Brennan Jr.—he is almost sure to be a much Others mentioned as possible contenders We have, in this case, an extraor- more middle-of-the-road jurist than the man for a District Court seat include Brooksley dinary individual, Merrick Garland, he would replace, former Chief Judge Abner Born, a partner at D.C.’s Arnold & Porter who is said to have very strong support who has waited patiently now for over Mikva, who retired from the D.C. Circuit last fall to take the job of White House counsel. among women’s groups, and U.S. Attorney a year to be considered by this Judici- News of Garland’s near-lock on the nomi- Eric Holder, Jr., who is a former D.C. Supe- ary Committee and by this U.S. Sen- nation has left a smattering of liberals pri- rior Court judge and at one time was men- ate. vately grumbling that he is too conservative. tioned as a possible appeals court nominee. I hope those on the other side will But his nonideological approach and his easy Mr. LEAHY. Mr. President, I thank make an effort to overcome the prob- rapport with both liberals and conservatives the distinguished Senator from Illinois. lems that we have seen over the past has earned Garland high praise from people His dramatic showing of the difference year. We really have to address the fact on both sides of the aisle. between the pro se appeals that many that there are so many vacancies on ‘‘I think he is a very talented lawyer,’’ courts handle and the complexity of says Garland’s former boss Stephens, now a Federal benches across this country— partner at the D.C. office of San Francisco’s the administrative issues that the Dis- not just in the District of Columbia but Pillsbury, Madison & Sutro. ‘‘He’s bright, en- trict of Columbia Circuit Court of Ap- almost 100 nationwide—vacancies that ergetic, and he has a very balanced de- peals handles is very instructive for us. need to be filled so that people will be meanor.’’ Everybody talks about caseloads. Some

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2533 cases are handled in a matter of min- the circuit is a little different. I grant Court of Appeals. He said that they utes. Others take months. They each that. have 575 cases per judge, and that they count for one case. He has dem- I agree with the point made in a cannot handle any more cases. I was onstrated that in the District of Co- hearing I held on the District of Co- involved in a 7-week trial of a criminal lumbia circuit, because of its unique lumbia circuit in my subcommittee. case that I personally prosecuted. In nature, many of them count for a The point is that other circuits—the the course of that trial 18,000 pages of month. second circuit in particular—have a transcript were generated, and when Mr. President, I withhold the remain- large percentage of complicated cases. the case was heard on appeal, there der of my time. In the second circuit, those cases are were 20 or more issues involving 5 or Mr. GRASSLEY addressed the Chair. complex, commercial litigations com- more defendants. Many of these crimi- The PRESIDING OFFICER. The Sen- ing out of New York City. But you do nal cases are extremely difficult. ator from Iowa. not hear people complaining that the I will also point out that the elev- Mr. GRASSLEY. Mr. President, my total staffing level of the second cir- enth circuit includes the southern dis- good friend from Illinois, the distin- cuit should not be determined accord- trict of Florida which probably has, guished Senator, has just spoken. I ing to those statistics. outside of New York and California, would just observe that more govern- So I believe that complexity of cases the largest number of complex crimi- ment isn’t necessarily better govern- in the D.C. circuit is overstated. It nal cases, in particular international ment, and, also, in the sense of justice really is a nonargument when the num- drug smuggling cases, of any circuit in more judges do not automatically ber of agency cases has declined by 23 America. Those cases are sent to the guarantee better justice. I can remember from my service, percent in the last year. Moreover, now eleventh circuit and yet they can man- being appointed by the Chief Justice in the District of Columbia circuit has a age their caseload in this fashion. I 1989, I believe it was, to a 2-year study, senior judge. That happens to be a think it is a remarkable accomplish- the only study we have ever had, of the former member of this body, Judge ment. The fourth circuit, with 378 cases per Federal judiciary that we were looking Buckley. Since senior judges must and projecting what number of cases carry at least a one-third caseload, and judge, has the fastest turnaround of were going to have to be filed over the they typically carry a one-half case- any circuit in America. We talk about the need to move cases next couple of decades. The only con- load, it is fair to consider the District 1 rapidly, and it is argued that we need clusion you could come to, if those fig- of Columbia circuit as having 10 ⁄2 more judges to move cases rapidly. ures were accurate—and, so far, they judges right now when the ratio says 1 How is it that the fourth circuit, with have been proven to be accurate—is 9 ⁄2 judges. 378 cases per judge, has the fastest dis- that you could never appoint enough So let’s see if what we have works be- judges to take care of the problems cause what we have right now won’t position rate of any circuit in Amer- that we are having with the explosion cost the taxpayers any more money. ica? It is because they are managing of cases; that you have to look at a lot I yield the floor. their caseload well and because they do of other ways. How do you dispense jus- The PRESIDING OFFICER. Who not have more judges than are nec- tice in the less-adversarial environ- yields time? essary. As Judge Tjoflat testified be- ment of a courtroom and in the less- Mr. SESSIONS addressed the Chair. fore our committee, too many judges costly environment of the courtroom? The PRESIDING OFFICER. The Sen- actually slows down the process and For instance, what can you do for al- ator from Alabama. makes good judging more difficult. I ternate dispute resolutions? There are Mr. SESSIONS. Thank you, Mr. think that is a matter that we should a lot of other ways that I as a non- President. address. lawyer am not qualified to speak to. I am pleased to be able to comment I would like to note that we have not But I can tell you that more judges is on this judicial vacancy. I certainly re- delayed this matter. We are prepared never going to solve the problem of spect Senator GRASSLEY and his com- to have this matter come to a vote. more cases. ments. I agree with him very, very More delays would have been possible Another area we have to do some- much. if we had wanted simply to delay this thing about is tort reform, as an exam- I think it is an important point to process. I feel it is time to vote on this ple of something that we have to do note that people say that administra- issue. I respect the legal ability of Mr. about the number of cases piling up. tive cases are difficult to administer, Garland. He was on the Harvard Law So I just ask my good friend from Il- and that they may have a file that is Review. It does not bother me if he was linois to think about those things as fairly thick. Well, judges have law editor in chief of the Harvard Law Re- well. clerks. They go through the files. Even view. It would not bother me if he had I want to respond to some of the if the file is thick, the issue coming up been editor in chief of the law review comments raised by those who feel on an administrative appeal may be at the University of Alabama School of that the caseload statistics indicate very simple and may involve nothing Law. The fact remains that the tax- that filling the 11th seat is necessary. more than a simple interpretation of payers should not be required to pay In my view, this is not a fair reading of law. Many of those can be disposed of for a judge we do not need. The tax- the caseload numbers. very easily. payers should not have to pay $1 mil- I point my colleagues’ attention to a Based on my 12 years of experience as lion per year for a judge that is not Washington Times editorial which ap- a U.S. attorney practicing in Federal needed. peared on October 30, 1995. That edi- court in cases involving all kinds of Mischief sometimes gets started. I torial considered the question of Federal litigation, I don’t at all con- recall the old saying my mother used whether or not the administrative type cede the point that every administra- to use: an idle mind is the devil’s work- of cases in the D.C. circuit are really as tive law case is substantially more dif- shop. We need judges with full case- complicated and so complicated that ficult than others. As a matter of fact, loads, with plenty of work to do, im- caseload statistics can be misleading. I Judge Silberman testified in 1995 that portant work to do. would like to quote from that editorial. it is true that the administrative law This circuit is showing a serious de- Per panel the District of Columbia circuit cases are generally more complicated, cline in caseload. In fact, caseload in averages at best half the dispositions of and other judges in other circuits, like this circuit declined 15 percent last other circuits. To make a perfectly reason- the second circuit, will tell you that year. That decline continues. I think it able comparison that takes account of the some of their commercial litigation would be very unwise for us to fill a va- greater complexity of the cases in the D.C. circuit, then we should be asking, Is each coming out of the Federal district cancy if there is any possibility that case in the D.C. circuit on average twice as court is terribly complicated, too. I am the caseload will continue to decline. complicated as the average case in the other not in a position to compare the two. We do not need to fill it now, and we circuits? That seems unlikely in the ex- Let me just say this from personal certainly do not need to fill it in the treme. experience. I talked earlier today face of this declining caseload, because It seems to me that this point is ex- about the testimony of Chief Judge once it is filled, the judge holds that actly correct. Granted, the caseload of Tjoflat from the Eleventh Circuit position for life and the taxpayers are

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2534 CONGRESSIONAL RECORD — SENATE March 19, 1997 obligated to pay that judge’s salary for Merrick Garland. The workload for the D.C. opposition to Mr. Garland himself. I life. That is an unjust burden on the Circuit does not warrant filling either the think he is qualified. I think he has ex- taxpayers of America. 11th or 12th seats on the D.C. Circuit. When perience that would be helpful. And I Fundamentally, this is a question of one considers that approximately 1 million think his disposition is acceptable, too. efficiency and productivity. There are dollars worth of taxpayer dollars is involved for each judgeship, it is important for the In fact, based on all the reports that courts in this Nation that are over- Senate to eliminate unnecessary seats when- I have heard about him, I think he worked, particularly many of the trial ever possible. Please vote against confirming more than likely would be a much courts. We may not have enough Merrick Garland. Thank you for your consid- more acceptable nominee to this court money to fill those vacancies. Let us eration of our views. as compared to many of the other take the money from this Washington, Sincerely, nominees we have considered or may be DC circuit court and use it to fund BRIAN LOPINA, considering in the future. judges and prosecutors and public de- Director, Governmental Affairs Office. It is my belief that this court of ap- fenders in circuits and district courts The PRESIDING OFFICER. Who peals is more than adequately staffed all over America that are overcrowded yields time? based on the number of cases pending and are overworked. Mr. LEAHY addressed the Chair. on the court’s docket, the filings per Those are my comments. We have The PRESIDING OFFICER. The Sen- judge at this court as it is currently studied the numbers carefully. We are ator from Vermont. staffed for the year ending September, not here to delay. We are not here in Mr. LEAHY. Mr. President, I am glad 1996, with the trend of such filings over any way to impugn the integrity of Mr. to hear that nobody wants to delay the last several years, and in compari- Garland. By all accounts, he is a fine Merrick Garland. I would only point son to other workloads of circuit person and an able lawyer. He does out that his nomination first came be- courts of appeal around the country. It have a very good job with the U.S. De- fore us in 1995, and he was voted out of is very small. I think as compared to partment of Justice. We probably need committee, I believe unanimously, by others certainly they have more judges some trial judges here in Washington, Republicans and Democrats alike, in than they need. DC, and if the President nominated 1995. We are going to vote, I hope, very I am looking at this chart over here. him to be one of those trial judges, I soon to confirm him. But if that is not The District of Columbia Court of Ap- would be pleased to support him for delay, I would hate like heck to see peals is at the bottom end of the case- that. what delay would be around here. He load, and yet you have other circuit That will conclude my remarks at was nominated in 1995, got through the courts across the country—my own cir- this time. committee in 1995 and will finally get cuit, the fifth, is about in the middle. I ask unanimous consent to have confirmed in 1997. The eleventh circuit obviously has a printed in the RECORD a letter from I understand other members say they high caseload as compared to this par- Judge Silberman dated March 4, 1997, would be perfectly willing to help out ticular court. in which he said that the filling of the on the district court; we need help. We So I really do not think this con- 12th seat would be frivolous and in have Judge Colleen Killar-Kotelly who firmation is needed. Even if it does get which he noted the continuing decline is still waiting, nominated very early through, I want to say right now that in caseload. in 1996, has yet to come through, even regardless of the next nominee, unless I also ask unanimous consent to have though in 1996 alone the criminal case this caseload is dramatically turned printed in the RECORD a letter from the backlog increased by 37 percent. We around, I hope it would never even be Director of Governmental Affairs for talk about getting tough on criminals. considered regardless of how qualified the Christian Coalition written in op- We certainly will not send the judges the nominee may be, he or she, in a position to the filling of this vacancy, that might do it. Democratic administration. noting that it is not warranted. I withhold the remainder of my time. I recognize that some circuits do There being no objection, the mate- The PRESIDING OFFICER. Who have tremendous caseloads, but this is rial was ordered to be printed in the yields time? certainly not the case in this circuit, RECORD, as follows: Mr. LOTT addressed the Chair. and therefore I will vote against the U.S. COURT OF APPEALS, The PRESIDING OFFICER. The ma- nomination based on that. In fact, I DISTRICT OF COLUMBIA CIRCUIT, jority leader. just do not think an additional judge is Washington, DC, March 4, 1997. Mr. LOTT. Mr. President, I would needed in this district court of appeals. Hon. ORRIN G. HATCH, like to make a brief statement to ex- I ask unanimous consent to print in Dirksen Senate Office Building, plain my vote that I will cast later on Washington, DC the RECORD a list of the filings per DEAR CHAIRMAN HATCH: Your asked me today. I know we are having inter- judge in 1996 and the total appeals yesterday for my view as to whether this esting discussion, and this is one that docket in 1995 per judge that shows as court needs 11 active judges and whether I has been a long time coming, getting compared to other circuits this judge is would be willing to communicate that view this judgeship to the floor of the Sen- not needed. to other senators of your committee. As I ate for a vote. There being no objection, the mate- told you, my opinion on this matter has not Obviously, there has been support for rial was ordered to be printed in the changed since I testified before Senator this nominee by Senator HATCH and by Grassley’s subcommittee in 1995. I said then, RECORD, as follows: Senator SPECTER and others. Senator and I still believe, that we should have 11 ac- Appeals filed per judge in 1996: tive judges. LEAHY has been pushing to get these judges voted on. This is the first one of D.C. Cir., 123 6th Cir., 341 On the other hand, I then testified and still 10th Cir., 216 9th Cir., 360 believe we do not need and should not have the year. I presume this is a 1st Cir., 227 2nd Cir., 372 12 judges. Indeed, given the continued de- celebratory event. 3rd Cir., 280 4th Cir., 378 cline in our caseload since I testified, I be- Mr. LEAHY. It is showing, if my 7th Cir., 295 5th Cir., 443 lieve that the case for a 12th judge at any friend from Mississippi will yield, re- 8th Cir., 307 11th Cir., 575 time in the foreseeable future is almost friv- markable speed. As I said, he was nom- olous. As you know, since I testified, Judge inated in 1995, first got through the Total appeals on docket for year ending Buckley has taken senior status and sits 1995/per judge: committee unanimously, Republicans part-time, and I will be eligible to take sen- 1st Cir., 1339 (4 judges=335) ior status in only three years. That is why I and Democrats, in 1995. We are now 2nd Cir., 3987 (12 judges=332) continue to advocate the elimination of the just before our second vacation of the 3rd Cir., 3485 (13 judges=268) 12th judgeship. year in 1997. I am glad, whenever it is, 4th Cir., 3542 (12 judges=295) Sincerely, to get him through. 5th Cir., 5696 (15 judges=380) LAURENCE H. SILBERMAN, Mr. LOTT. But now maybe I can 6th Cir., 3343 (13 judges=257) U.S. Circuit Judge. comment just briefly on why it has 7th Cir., 2200 (8 judges=275) taken so long. There were a lot of fac- 8th Cir., 3176 (10 judges=318) CHRISTIAN COALITION, 9th Cir., ? Washington, DC, March 19, 1997. tors involved. I will vote not to con- 10th Cir., 2104 (8 judges=263) DEAR SENATOR: I am writing to urge you to firm Merrick Garland to be a D.C. Cir- 11th Cir., 6057 (10 judges=606) vote against confirming judicial candidate cuit Court of Appeals judge. I have no D.C. Cir., 2065 (10 judges=206)

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2535 Mr. LOTT. I yield the floor. ditional capacity of that court to han- complicated. But if you look at the second The PRESIDING OFFICER. Who dle work for which it is already circuit, the caseload of which is more than yields time? The Senator from Mis- overstaffed. twice as much as the D.C. circuit, in the sec- souri. While appeals filings for all of the ond circuit their caseload is complicated as Mr. ASHCROFT. I yield myself such Nation’s U.S. courts of appeals in- well. time from the opposition time as is creased to an all-time high of 4 per- The fact of the matter is, it is time necessary for me to make a statement. cent, the number of filings filed in the for the U.S. Senate, which called the Mr. President, I rise today to speak, D.C. circuit actually dropped last year; circuit courts into creation, which not in opposition to Merrick Garland it dropped 15 percent. So you have an called district courts into creation, to for filling the seat on the U.S. court of increase of appeals in the system gen- begin to exercise a responsible ap- appeals, but in opposition to filling the erally of 4 percent, you have a decline proach toward staffing those courts seat at all. The U.S. Court of Appeals in the D.C. circuit of 15 percent, of the and not to staff them when the work- for the District of Columbia Circuit is 12 additional circuits, the District of load does not justify it. Even if the na- a judicial circuit which has the lowest Colombia had the largest decline in ap- ture of the cases coming before the caseload of any of the judicial circuits peals last year. D.C. circuit is unique, those cases are in the country, and I think this is a Mr. President, ending the era of big not so difficult, or different from the time when we ought to ask ourselves Government includes all three other cases which have their own some serious questions about whether branches of government. But if we can- uniqueness and have their own dif- or not we intend to staff circuits in not end big government where we have ficulty, whether they be commercial spite of the fact that there are ade- had declining demand for services, and instead of administrative, so as to quate judges in the circuits to handle where we are already overstaffed, mean that we should populate the the caseload which is currently re- where can we end big government? To court with staffing which is not re- quired of the circuit. believe that the judicial branch should quired by the caseload. First, the amount of judicial work in be excluded from the exercise of re- Mr. President, I plan to vote against the circuit raises questions about the sponsibility or should be overstaffed or Mr. Garland, not for any reason to im- necessity of confirming another appel- should ignore the trends in terms of pair his standing or his credentials. I late judge for the D.C. circuit. It ap- case filings and should be over- do not think this is a question about pears that filling this vacancy would be populated with individuals because the qualifications of the judge. But it an inefficient use of judicial resources. there are slots available, in spite of the is a question about the deployment of Before filling any vacancy for an appel- fact that the work or the caseload is the public’s resource and about the late judgeship, the U.S. Senate should not there to justify those slots, would staffing level for courts which do not look at the filings per judgeship com- be for us to deny a responsible position have caseload to justify it. pared with other jurisdictions. Of the in this matter. Mr. President, I yield the floor. 12 courts of appeals, the D.C. circuit Let me just indicate that there are The PRESIDING OFFICER. Who has the lowest filings per judge of any two vacancies and virtually everyone yields time? The Senator from of the 12 courts of appeals. While the will confess that at least one of them Vermont. D.C. circuit has had only 123 cases filed should not be filled. This is not a mat- Mr. LEAHY. Mr. President, there has per judge, the eighth circuit, the cir- ter of saying some people think all the been a lot of discussion, just now cuit in which I live, handled nearly vacancies ought to be filled; others again, quoting Judge Silberman. What three times the D.C. circuit’s total of think that neither of the two should be is needed—I would note, he wrote to appeal filings, with 307 appeals filed per filled. There is a general consensus the distinguished chairman, Senator judge. The eleventh circuit court of ap- that filling the second of the two would HATCH, and said that we should have 11 peals, in comparison, had 575 appeals certainly be a waste and surplus. I active judges. We talk about this as filed per judge. think if you look carefully and you though the nominee was going to be The D.C. Circuit Court of Appeals measure the caseload by what the Judi- the 12th judge. In fact, the nominee is now has two open seats. But Judge cial Conference had previously stated the 11th judge. James Buckley, who took senior status was an appropriate caseload, and you I ask unanimous consent that a let- last year, which means he is still obli- look at the potential for work by the ter dated March 4, 1997, by Judge Sil- gated to handle a caseload equivalent senior active judges who have taken berman, in which he said, ‘‘. . . I still to that of an average judge in active senior status, you can come but to one believe that we should have 11 active service who would handle a 3-month conclusion, that it is not an appro- judges,’’ be printed in the RECORD at caseload, is still there. So you have a priate deployment of the tax dollars of this point. senior status judge who is handling the the citizens of this great Nation to add There being no objection, the letter equivalent of a quarter of the load that a judge to a court where the workload was ordered to be printed in the a normal judge in the circuit would does not justify it. RECORD, as follows: handle. So you do not have the loss Good government is not to fill a va- U.S. COURT OF APPEALS, completely of the second judge in those cancy simply because it exists. To fill DISTRICT OF COLUMBIA CIRCUIT, two vacancies; you have the loss of one this vacancy without taking into ac- Washington, DC, March 4, 1997. count the lack of caseload is fiscally ir- Hon. ORRIN G. HATCH, judge, and then you have one-quarter Dirksen Senate Office Building, judge in the senior status making up responsible. Before I yield the floor, I would like Washington DC. for any slack. DEAR CHAIRMAN HATCH: You asked me yes- Still, the D.C. circuit is the least to address the argument that the D.C. terday for my view as to whether this court populated with work. And it is the cir- court of appeals might be considered to needs 11 active judges and whether I would cuit that does not merit additional be a different court, unique, one of a be willing to communicate that view to judges to conduct the work which sim- kind, because it has a lot of cases that other senators of your committee. As I told ply is not there. If we were to use the are administrative in nature and they you, my opinion on this matter has not changed since I testified before Senator formula expressed by the Judicial Con- have a certain level of complexity. I think in this regard it is important to Grassley’s subcommittee in 1995. I said then, ference, between 1986 and 1994 the D.C. and I still believe, that we should have 11 ac- circuit court would rate just in the cite Judge Silberman, who sits on the tive judges. order of nine judges to handle its cur- D.C. court of appeals. On this point, in On the other hand, I then testified and still rent caseload. So, in terms of the Judi- 1995, he testified as follows: believe we do not need and should not have cial Conference’s own assessment of It is true that the administrative law cases 12 judges. Indeed, given the continued de- how many judges would be needed, the are generally more complicated. But other cline in our caseload since I testified, I be- caseload of the D.C. circuit would rate judges in other circuits, like the second cir- lieve that the case for a 12th judge at any cuit, will tell you that some of their com- time in the foreseeable future is almost friv- nine judges. It has 10 judges now, and if mercial litigation coming out of the Federal olous. As you know, since I testified, Judge you start to add the additional case- District Court is terribly complicated, too. Buckley has taken senior status and sits load that can be handled by senior The truth of the matter is, some of the ad- part-time, and I will be eligible to take sen- judges, it seems to me that adds an ad- ministrative law cases in the D.C. circuit are ior status in only three years. That is why I

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2536 CONGRESSIONAL RECORD — SENATE March 19, 1997 continue to advocate the elimination of the Edwards and Judge Silberman, a re- The yeas and nays were ordered. 12th judgeship. spected conservative, agree that, in The PRESIDING OFFICER. The Sincerely, Judge Silberman’s words ‘‘it would be a question is, Will the Senate advise and LAURENCE H. SILBERMAN, mistake, a serious mistake for Con- consent to the nomination of Merrick U.S. Circuit Judge. gress to reduce the D.C. circuit down B. Garland, of Maryland, to be U.S. cir- Mr. HATCH. Mr. President, I have below 11 judges.’’ cuit judge for the District of Columbia been sitting here listening to this. In If I did not believe that, I would not circuit? On this question, the yeas and all honesty, I would like to see one per- have brought this judgeship nomina- nays have been ordered. The clerk will son come to this floor and say one rea- tion to the floor. I have to tell you, if call the roll. son why Merrick Garland does not de- anybody doubts my integrity, I want to The assistant legislative clerk called serve this position. It has been almost see them afterwards. the roll. a year. In the last Congress, I must As for the statistics that have been Mr. FORD. I announce that the Sen- have gone on this issue, trying to get cited, with all due respect, they are not ator from Ohio [Mr. GLENN] is nec- him up, for most of that time. a fair or accurate characterization of essarily absent. First, there was the 12th seat, he was the D.C. circuit’s caseload relative to The PRESIDING OFFICER (Ms. COL- going to get that. Then, when Buckley the other circuits’ caseloads. I made LINS). Are there any other Senators in retired, everybody that I know of, who that case earlier. the Chamber desiring to vote? The result was announced—yeas 76, knows anything about it, other than I am prepared to yield back the time nays 23, as follows: some of our outside groups who do not if the other side is prepared to yield seem to want any judges, said that we back their time. Is there anybody [Rollcall Vote No. 34 Ex.] need the 11th seat. going to want to speak on the other YEAS—76 As I suspected, nobody in this body is side? Abraham Feingold Mikulski Akaka willing to challenge the merit of The PRESIDING OFFICER. Who Feinstein Moseley-Braun Merrick Garland’s nomination. I have Baucus Ford Moynihan yields time? Bennett Gorton Murkowski not heard one challenge to him yet. In Mr. HATCH. I am prepared to yield Biden Graham Murray fact, they openly concede that Mr. Gar- back time. Bingaman Harkin Reed land is highly qualified to be an appel- Bond Hatch Reid The PRESIDING OFFICER. The Sen- Boxer Hollings late judge. Rather, they use arguments Robb ator from Utah has no time to yield Breaux Hutchison Roberts that the D.C. circuit does not need 12 back at this point. The Senator from Bryan Inhofe Rockefeller Bumpers Inouye judges in order to oppose the confirma- Roth Iowa has approximately 17 minutes re- Byrd Jeffords Santorum tion of Mr. Garland for the 11th seat on maining on the opposition side. Campbell Johnson Sarbanes this court. Mr. SESSIONS. I would like to be Chafee Kempthorne Cleland Kennedy Smith, Bob There is not a harder-nosed conserv- recognized. Smith, Gordon ative or more decent conservative that Coats Kerrey The PRESIDING OFFICER. The Sen- Cochran Kerry H. I know than Larry Silberman. I talked ator from Alabama is recognized. Collins Kohl Snowe to him personally. If he said to me they Mr. SESSIONS. Mr. President, there Conrad Landrieu Specter Stevens did not need the 10th seat, I could un- is nobody in this body who has fought D’Amato Lautenberg Daschle Leahy Thomas derstand this argument, and I could harder for a balanced budget amend- DeWine Levin Thompson understand this minirebellion that is ment and for controlling Federal Dodd Lieberman Torricelli occurring. But he said they needed the spending than the distinguished Sen- Domenici Lugar Warner 11th seat. If he had said, ‘‘All we need Dorgan Mack Wellstone ator from Utah, Senator HATCH. His Durbin McCain Wyden are 10 seats, we don’t need the 11th or leadership has been terrific on that. I 12th,’’ I would have been on his side, respect that. I guess we just have a dis- NAYS—23 and it would not be because of partisan agreement. Allard Frist Kyl politics, it would be because I trust Ashcroft Gramm Lott I think it is really unusual that a Brownback Grams McConnell him and I believe in his integrity. But judge would cite a 12th seat as frivo- Burns Grassley Nickles I called him personally and he said, lous and note in his own letter that it Coverdell Gregg Sessions ‘‘Yes, we do need the 11th seat.’’ was frivolous because of a declining Craig Hagel Shelby Enzi Helms Thurmond My colleague from Alabama cir- caseload. Even though Judge Silber- Faircloth Hutchinson culated a letter saying confirming man himself said he felt they ought to NOT VOTING—1 Merrick Garland would be a ‘‘ripoff’’ of go ahead and fill the 11th seat, we, the taxpayers. Having just led the fight after full study of it and in the course Glenn for the balanced budget amendment, I of careful deliberations, had the oppor- The nomination was confirmed. do not think that is quite fair. I am tunity to hear from two other chief Mr. LEAHY. Madam President, I never going to rip off the taxpayers. judges from two other circuits that in- move to reconsider the vote. Mr. HATCH. I move to lay it on the But I will tell you one thing, playing dicated, even though they have much table. politics with judges is unfair, and I am higher caseloads, 575 to 378 cases per The motion to lay on the table was sick of it, and, frankly, we are going to judge, that they did not need a new cir- agreed to. see what happens around here. A ‘‘rip- cuit judgeship. The PRESIDING OFFICER. The Sen- off?’’ Let’s be serious about this, folks. So, therefore, I concluded that a cir- ator from Vermont. This is a serious matter. cuit with 124 cases per judgeship did Mr. LEAHY. Madam President, this My colleague referred to the testi- not need to be filled, and that the $1 is the first judge confirmed in this Con- mony of Chief Judge Wilkinson of the million per year, if it is not justified, gress. I hope it will be the first of fourth circuit. That is a different mat- would be a ripoff of the taxpayers. I many, many. ter. I have challenged the distinguished feel that we can spend that money I remind my colleagues we have close chairman of the Subcommittee on more efficiently on trial judges in cir- to 100 vacancies in the Federal court. Courts to look into that, and I am cuits and districts that are already We have begun with one of the most going to be heavily guided by what overwhelmed with heavy caseloads and outstanding nominations any Presi- Senator GRASSLEY comes up with. not on the D.C. circuit that is dent has sent. The statements of Judge Tjoflat from overstaffed already. I yield the floor, That is the nomination of Merrick the eleventh circuit has also been men- Mr. President. Garland—now Judge Garland. I com- tioned. But what do the judges on the Mr. GRASSLEY. We yield back the pliment him on that. He was nomi- D.C. circuit court say? It is one thing time on our side, and I ask for the yeas nated in 1995; it first passed through for Wilkinson to get up and make a and nays. the Judiciary Committee unanimously comment, it is another thing for The PRESIDING OFFICER. The yeas in 1995, and it is now 1997. We need to Tjoflat, who has problems in that cir- and nays have been requested. Is there move—— cuit, but what do the judges on the a sufficient second? Mrs. BOXER. Madam President, the D.C. circuit say? Both Chief Judge There is a sufficient second. Senate is not in order.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2537 The PRESIDING OFFICER. The Sen- trict of Columbia Circuit. Let us en- up here who will abide by the rule of ate will be in order. The Senator is en- sure that our Federal bench has a full judging and the rule of law and quit titled to be heard. complement of such qualified judges so substituting their own policy pref- The Senator from Vermont. that the business of justice can go for- erences and finding excuses for every Mr. LEAHY. Madam President, I ward. criminal that comes before them, they thank the Chair. I wish also to com- Mr. HATCH addressed the Chair. are going to have support from me. I pliment my friend, the distinguished The PRESIDING OFFICER. The Sen- hope they will have more support from senior Senator from Utah for his help ator from Utah is recognized. the Judiciary Committee in the future. in doing this. I also wish to com- Mr. HATCH. Madam President, I But if they are going to send up more pliment Senators who paid attention to want to thank my colleagues who activists, there is going to be war. his very, very strong statement at the voted for Judge Merrick Garland. I be- I don’t think the judiciary has ever end of this debate on behalf of Judge lieve they did what was right. had a better friend than ORRIN HATCH; Garland. I think that the Senator from With regard to Federal judgeships, I know they haven’t. I will fight for Utah and I are committed to trying to we ought to do what is right. I take them. I think they ought to be getting move, in a bipartisan fashion, to get this job as seriously as anything I have more pay. I think we ought to support these judges here. I hope all Senators ever done in the Senate. I want to them in every way we possibly can. will join us in doing that. The Federal thank my colleagues who voted with us They are tough jobs, they are clois- judiciary should not be held hostage to for supporting the nominee. tered jobs. They are difficult jobs. They partisan, petty, or ideological con- Having said that, there have been a take great intellectual acumen and straints that really reflect only a mi- serious number of nominees whom we ability. nority of views. have confirmed in the past who have Madam President, I am telling you, The Federal judiciary is really a proven to be activist judges once they we have far too many judges on both blessing in our democracy in the fact got on the bench and who told us when the left and the right who disregard that it is so independent. Our Federal they were before the committee they what the rule of judging is and who leg- judiciary is the envy of all the rest of would not be activist and they would islate from the bench as superlegisla- the world. The distinguished Senator not undermine the role of the judiciary tors in black robes who disregard the from Utah and I are committed to by legislating from the bench. Then democratic processes in this country keeping it that way. We will work to- they get to the bench and they start and who do whatever they feel like gether to keep it that way. I thank him legislating from the bench. doing. They are undermining the judi- for his help on this nomination. I want them to know, and I want to ciary, and they are putting the judici- Mr. DASCHLE. Mr. President, I send a warning to the judiciary right ary in this country in jeopardy. I am would like to reiterate what PAT now, if they are going to continue to darn sick of it. My colleagues on our LEAHY has said about how glad we are disregard the law, if they are going to side are sick of it. I don’t care whether that Merrick Garland has finally been continue, in many respects, to bypass it is activism from the right or from considered by the Senate for appoint- the democratic processes of this coun- the left; it is wrong. We ought to stop ment to the U.S. Court of Appeals for try, if they are going to start sub- it, and the judiciary is the only place the District of Columbia Circuit. We stituting their own policy preferences where it can be stopped. wholeheartedly believe that Mr. Gar- for what the law really says, then it is I once had one of the most eminent land is highly qualified for this posi- going to be a tough time around here. legal thinkers in the country say that tion and deserves the strong vote we This vote proves it. he has never seen anybody on the Su- just gave him. I don’t feel good about all those who preme Court move to the right; they Mr. Garland has been awaiting this voted against this nomination, but the have always moved to the left as they day since being nominated by the fact of the matter is that there is some have grown. I would like to not worry President on September 5, 1995—11⁄2 reason for their doing so. Republicans about whether they are moving right years ago. His qualifications are clear. are fed up with these judges who dis- or left, but whether they are doing the The ABA’s standing committee on the regard the role of judging once they get job that judges should do. Federal judiciary found him well quali- to the courts, after having told us and I am serving notice to the Senate, fied to serve on the Federal bench, and promised that they will abide by the too. I am chairman of the Senate Judi- he has received the support of a bipar- role of judging. Now, I am upset—there ciary Committee, and I take this re- tisan and ideologically diverse group of is no question about that—because I sponsibility seriously. I want every- individuals. think the finest nominee that I have body in this body to know I take it se- His credentials cannot be challenged. seen from this administration is riously. It means a lot to me. I have He has worked at the Department of Merrick Garland, and I think he de- tried a lot of cases in Federal courts. I Justice as the Principal Associate Dep- served better. But I also understand have tried a lot of cases in State uty Attorney General, in private prac- my colleagues. courts. I have a lot of respect for the tice and served as a law clerk to Jus- I am sending a warning out right now judiciary. So I take this seriously, and tice Brennan on the Supreme Court that these judges who are sitting on I don’t want politics ever to be played and a law clerk to Judge Friendly on the bench better start thinking about with it. I get a little tired of the other the U.S. Court of Appeals for the Sec- the role of judging and quit trying to side bleating about politics, after the ond Circuit. do our jobs. We have to stand for re- years and years of their mistreatment I am happy that today, after his long election. That is why the buck should of Reagan and Bush judges and the wait, Merrick Garland finally knows stop here—not with some Federal judge glaring, inexcusable examples where that he will serve as a Federal judge. who is doing what he or she thinks is they treated Republican nominees in a It is unfortunate, however, that we better for humanity and mankind. shamefully unfair way. Nobody could have not yet voted on any other judges We have judges on the Ninth Circuit ever forget the Rehnquist nomination, during this session of Congress—at a Court of Appeals who could care less the Bork nomination, and even the time when we have almost 100 vacan- about what the Congress says, or what Souter nomination, where he wasn’t cies on the Federal bench. That is a va- the President says, or what the legisla- treated quite as well as he should have cancy rate of over 10 percent. tive and executive branches say. That been—and above all, the Clarence I hope that voting on Merrick Gar- is why they are reversed so routinely Thomas nomination; it was abysmal. land’s confirmation today signals that by the Supreme Court. It is pathetic. I Those were low points in Senate his- we are going to address this serious don’t mean to single them out, but it is tory. So I don’t think either side has a problem and begin to fill those long the most glaring example of activist right to start bleating about who is empty seats on the Federal bench. judges in this country. righteous on judges. Mr. President, I am extremely Let me just say this. I am sending a I intend to do the best I can here. I pleased that the Senate has confirmed message right now that I intend to want my colleagues to know that. I the nomination of Merrick Garland to move forward with judges, and, if this certainly want to place my colleagues the U.S. Court of Appeals for the Dis- administration will send decent people on my side, and I certainly want to do

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2538 CONGRESSIONAL RECORD — SENATE March 19, 1997 the right thing for all concerned. This Part of what is going on here is, and I might point out that all the talk is an important nomination. I believe in the Republican caucus there are last election that started off—it all fiz- Merrick Garland will go on to distinc- some who say, No. We want to change zled because it did not go anywhere— tion. Nobody will be more disappointed the rules. We want to make sure, of all about how there is going to be an issue than I if he turns out to be an activist the people nominated for the Federal about activism on the courts, we point- judge in the end. If he does, I think he bench, that the Republican Senators ed out that of all the judges that came will be one of the principal undermin- should be able to nominate half of up in Clinton’s first term, almost all of ers in the Federal judiciary in the his- them, or 40 percent of them, or 30 per- them were voted unanimously out of tory of this country. But he told me he cent of them. That is malarkey. That this body by Democrats and Repub- will not do that, and I trust that he is flat-out malarkey. That is black- licans, including the former majority will not. That doesn’t mean we have to mail. That has nothing to do with ac- leader. He only voted against three of agree on every case that comes before tivist judges. all the nominees, then he argued, by any of these courts; we are going to I do not doubt the sincerity of my the way, that Clinton nominated too have disagreements. And just because friend from Utah. We have worked to- many activist judges. And then it kind you disagree with one judge doesn’t gether for 22 years. But here is my of fizzled when I held a little press con- mean that judge should be impeached challenge. Any judge nominated by the ference, and said, ‘‘By the way. You either. To throw around the issue of President of the United States, if you voted for all of them.’’ It kind of made impeachment because you disagree have a problem with his or her activ- it hard to make this case that they with a judge here and there is wrong. ism, name it. Tell us what it is. Define were so activist. There are some lame-brained deci- it like we did. You disagreed. You dis- So look. Let me say that I will not sions out there, we all know that. agreed with the definition. But we said take any more time, but I will come Some of them are occurring primarily straight up, ‘‘Bang. I do not want Bork back to the floor with all of the num- in California. Frankly, we have to get for the following reasons.’’ People un- bers and the details. But here is the rid of the politics with regard to judges derstand that. But do not try to change deal. and start doing what’s right. With 200 years of precedent and tell us that If the Republican majority in the every fiber of my body, I am going to we are not letting judges up because we Senate says, ‘‘Look, the following 2, 5, try to do right with respect to judges want the Republican Senator to be able 10, 12, 20 judges are activist for the fol- because I respect that branch so much. to name the judge. Don’t do that, or lowing reasons, and we are against To me, our freedoms would not have else do it and do it in the open. Let’s them,’’ we understand that. We will been preserved without that branch. have a little bit of legislating in the fight it. If we disagree, we will fight it. But the way some of these judges are sunshine here. Do it flat in the open. But if they come along and say, ‘‘We acting, our freedoms are being eroded I see my colleagues nodding and are just not letting these judges come by some in that branch. It is time for smiling. I am sort of breaching the up because really what is happening is them to wake up and realize that that unspoken rule here not to talk about they are coming to guys like me and has to end. what is really happening. But that is saying, ‘Hey, I will make you a deal. I yield the floor. what is really happening. I will not You give me 50 percent of judges, and I f name certain Senators. But I have had will let these other judges go SETTING THE RECORD STRAIGHT Senators come up to me and say, JOE, through.’ ’’ Then that isn’t part of the ON JUDICIAL NOMINATIONS here is the deal. We will let the fol- deal. lowing judges through in my State if Mr. BIDEN. Madam President, I have Look, I have a message to the Court. you agree to get the President to say not spoken on judges this year, but I know the Court never reads the CON- that I get to name three of them. Now having worked on it for so many years GRESSIONAL RECORD, and Justice Scalia with my friend from Utah, having ei- folks, that is a change of a deal. That said that we should not consider the ther been the ranking member or is changing precedent. That isn’t how RECORD for legislative history because chairman of that committee. But let it works. The President nominates. We everybody knows that all the CONGRES- me make one point. dispose one way or another of that SIONAL RECORD is is what Senators’ It is one thing to say that we are nomination. And the historical prac- staff say and not what Senators know. going to disagree on judges. We did tice has been—and while I was chair- He is wrong. But that is what he said. that when we were in control. We did man we never once did that—that Maybe they don’t read it. But I want to that. And we said that all the judges never once that I am aware of did we send a message. that have been nominated here by two ever say, ‘‘By the way, we are not let- Madam President, when I was chair- successive Republican Presidents—we ting Judge A through unless you give man of the committee and there was a picked seven out of a total of over 500— me Judges B and C.’’ Republican President named Reagan we said we disagree with these judges. Now, let me set the record totally and a Republican President named The most celebrated case was Judge straight here. There are States where Bush, the Judicial Conference on a Bork, and less celebrated cases were precedents were set years ago. The Re- monthly basis would write to me and people who have gone beyond being publican and Democratic Senator, say, ‘‘Why aren’t you passing more judges. Some are Senators. But the when it was a split delegation, have judges?’’ They have been strangely si- bottom line was that we understand made a deal up front in the open. In lent about the vacancies that exist. that. New York, Senator Javits and Senator Now, I agree that the administration But what I do not understand is this MOYNIHAN said: Look. In the State of has been slow in pulling the trigger notion and all of the talk about activ- New York, the way we are going to do here. They have not sent enough nomi- ist judges without any identification of this is that whomever is the Senator nees up in a timely fashion. And I have who the activist judges are. It is one representing the party of the Presi- been critical of them for the last 2 thing for the Republicans to say that dent—I believe they broke it down to years, Madam President. But that is we are not going to vote for or allow 60—for every two people that Senator not the case now. All I am saying to activist judges. We understand that. gets to name, the Senator in the party you is, as they say in parts of my We are big folks. We understand base- other than the President gets to name State, ‘‘I smell a rat here.’’ What I ball, hardball. We got that part. No one. OK, fine. Jacob Javits did not go think is happening—and I hope I am problem. to PAT MOYNIHAN and demand that he wrong—is that this is not about activ- But what I do not understand is say- was going to do that. MOYNIHAN made ism. ing we are not going to allow activist the offer, as I understand it, to Jacob This is about trying to keep the judges and then not identifying who Javits. That is not a bad way to pro- President of the United States of those activist judges are. This is kind ceed. America from being able to appoint of what is going on here, and no one But now to come along and say, ‘‘By judges, particularly as it relates to the wants to say it. But since I have the the way, in the name of activist judges, courts of appeals. reputation of saying what no one wants we are not going to move judges’’ is Now, what is happening is what hap- to say, I am going to say it. not what this is about. pened today. Merrick Garland was

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2539 around for years. Now, what is going to they only confirmed 33 judges. In any pendent branch of our Government. happen is they are going to say we re- event, clearly this performance in What is happening here is extremely ported out a circuit court of appeals these years is in marked contrast to serious. And of course, the Senator, judge. Aren’t we doing something. The what happened in 1996 and what appar- with his candor, came to the floor and truth of the matter is the proof will be ently is continuing now in 1997. sort of stripped away the veneer and in the pudding several months from Merrick Garland was the first judge ap- laid out what is going on behind the now when we find out whether or not proved this year. scenes, which is a complete departure we are really going to move on these Mr. BIDEN. If I may respond to the from past practices. When there were judges. Senator, obviously the facts are cor- Republican Presidents, I did not play a Let me point out one other thing. rect, but I think it worth elaborating a role in whom the Presidents sent up to And I see my friend from Maryland in little bit more on the facts. I saw my the Senate to be nominated and con- the Chamber, and I will yield particu- very able colleague, the present chair- firmed in the job—— larly since I had not intended speaking man of the Judiciary Committee, on Mr. BIDEN. If the Senator will yield, at this moment. television the other day, and he was I was chairman or ranking member of Mr. SARBANES. I want to ask the talking about the number of judges that committee for 14 years. My distin- Senator a couple questions when he that were ‘‘left hanging,’’ who were not guished colleague from Delaware is finishes his statement. confirmed and sent back to the admin- Senator ROTH, who is my close friend. Mr. BIDEN. The point I wish to make istration at the end of 1992, the Bush Every single Federal judge in the last is this. When I was chairman of the administration. And he cited an accu- 24 years who has been appointed in the committee and a Republican was Presi- rate number. But as my very distin- district of Delaware or the third circuit dent, we held, on average, a hearing for guished friend, who is, as well, a schol- has been appointed by Senator ROTH. I judges once every 2 weeks and had usu- ar, knows, there is an old expression did not expect, did not ask, and not ally five judges, circuit court and dis- attributed to Benjamin Disraeli, who once was ever consulted about who he trict court, who we heard. said there are three kinds of lies: lies, would appoint, and I supported every Last year we essentially had one damn lies, and statistics. one that he sent up. Not one single hearing every other month and we had What my able friend from Utah did time was I made aware of anything to fight to get three to four on the not mention is that just like President other than after the fact, which is OK. agenda to be heard. Carter—Carter’s judges is a separate I am not complaining about that. Mr. SARBANES. Will the Senator charge we can go back to, but just like Mr. SARBANES. That was the sys- yield for a question. President Clinton, President Bush did tem. Mr. BIDEN. I will be happy to. not get his nominees up here until the Mr. BIDEN. That was the system. Not one single time. And I was chair- Mr. SARBANES. This is a chart that end of the process. Senator LEAHY, now the ranking mem- In other words, they were late get- man of the committee. Now, I would point out one other ber on the Judiciary Committee, used ting here. Notwithstanding the fact thing to my friend. I want to have com- today in the course of the Merrick Gar- that he was late in getting his nomi- plete candor. If one considers taking land debate which I think is enor- nees up, the Senator may remember in judges based on their ideology and call mously instructive. It is the number of the caucus over the objection of some that political, yes, we Democrats were judges confirmed during second Senate Democrats who said the Republicans political, as well. I am not complaining sessions in Presidential election years. would never do this, I insisted we con- about that. I am not complaining Mr. BIDEN. I got it. firm judges up to the day we adjourned about anybody who stands up and says Mr. SARBANES. Now, in 1996, with a the Senate. During the last week the I do not want Judge Smith, the Presi- Democratic President, President Clin- Senate was in that year, we confirmed dent’s nominee, because I think he will ton, and a Republican Senate, the Sen- seven judges. I could have easily just be bad on the court for the following ate confirmed no judges for the court sneezed and they would not have been reasons and comes to the floor and of appeals, none whatsoever, and 17 confirmed. And the fact is the reason makes the case. I do not quarrel with judges for the district court. Now, in why we did not confirm more is be- that because I think that is the prerog- 1992, the previous election year—that cause we did not have time to hold the ative of the Senate and any Senator. was when Mr. Bush was President—— hearings and we were holding hearings What I am quarreling with is a dif- Mr. BIDEN. And I was chairman. on 20 or more a month. ferent kind of politicizing, and that is Mr. SARBANES. And if I am not mis- Mr. SARBANES. If the Senator will drawing the conclusion that because I taken, the distinguished Senator from yield, I can recall the Senator was now control the Senate, I am not going Delaware was the very able chairman holding hearings right up into the fall to let the President of the United of the Judiciary Committee. of the election year and judges were States have nominees whether or not I Mr. BIDEN. I did not say ‘‘able.’’ I being brought to the floor of the Sen- have an ideological problem with them. was chairman. ate and being confirmed. And he is ab- Mr. SARBANES. Will the Senator Mr. SARBANES. I am suggesting the solutely correct; there were some—— yield. It is worse than that. It is not Senator is able. I am prepared to make Mr. BIDEN. Republican judges. whether you let the President have his that statement. We confirmed 11 court Mr. SARBANES. Yes, Republican nominees confirmed. You will not even of appeals judges and 55—I repeat, 55— judges. And there were some Members let them be considered by the Senate district judges in an election year. on the Democratic side who said, why for an up-or-down vote. That is the Now, that gives you some sense of how are you doing this? We are about to problem today. In other words, the the Democratic majority in the Senate, have an election and the result may other side will not let the process work led at the time by the able Judiciary give us control of the White House. so these nominees can come before the Committee chairman, was dealing with And the Senator from Delaware said, Senate for judgment. Some may come this matter, essentially in a non- look, we ought not to have politics before the Senate for judgment and be political way. play a heavy hand in the judicial con- rejected by the Senate. That is OK. In 1988, when I think, again, the Sen- firmation process. Mr. BIDEN. Fair enough. ator from Delaware was still the chair- One of the worst things that is hap- Mr. SARBANES. But at least let the man of the Committee—— pening in the Senate is what amounts process work so the nominees have an Mr. BIDEN. That is correct. to a heavy politicizing of the judicial opportunity and the judiciary has an Mr. SARBANES. With President confirmation process that is taking opportunity to have these vacant posi- Reagan, a Republican President— place in this body, and that was re- tions filled so the court system does again, in an election year—we con- flected in the performance in 1996 as not begin to break down because of the firmed 7 court of appeals judges and 35 compared with the performance in 1992 failure to confirm new judges. district court judges. Actually, the 35 when the Senator from Delaware did Mr. BIDEN. If the Senator will yield, that we confirmed in that election year his very best to keep politics out of the let me give an example of what you was better than the Republican Senate process, to fill judicial posts and to let just said. I know you know, but it is did for President Reagan in 1984 when the judiciary function as an inde- important for the RECORD.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2540 CONGRESSIONAL RECORD — SENATE March 19, 1997 I meet every year—I will not now be- The distinguished Senator from qualifications of a nominee, the other cause I am not the top Democrat on Idaho is shaking his head. He agrees. side says, ‘‘We don’t really need the po- the committee. But every year for, I He is in that circuit. It is painful to sition.’’ don’t know, 14 or 15 years, I meet with point this out, but the reason why Mr. BIDEN. That is right. what is called the Judicial Conference there is a Federal court is so there is Mr. SARBANES. And that is what we —a legislatively organized body where not Illinois, Indiana, Idaho, California heard on Merrick Garland. In fact, the Congress says the court can have justice. There is one uniform interpre- when he first came up here, he was such a function, where we look for rec- tation of the Constitution. That is the nominated for the 12th position on the ommendations. reason we have a Federal circuit court D.C. circuit. They said, ‘‘We don’t need I might add, by the way, you may re- of appeals. that position. We have nothing against member when there was a Republican Now, this is quite unusual. We have— Merrick. He is a wonderful fellow, of President named Reagan, the Senator and I was not referring to the distin- course. We just don’t think we need from Delaware introduced a bill to in- guished Senator from Idaho, who is on that 12th position.’’ Of course, that crease the number of Federal judge- the floor, when I said, ‘‘there was a does a lot for Merrick Garland. He’s ships by 84. Why did I do that? I did Senator.’’ That is not to whom I am re- sitting, waiting to join the court. Then that because the Federal court came to ferring. But another one of our col- someone already on the court took sen- us, the Judicial Conference, and said, leagues said he is not going to let any- ior status, and then they had two va- ‘‘Here is our problem. We don’t have body go through until there is a split, cant positions, the 11th and 12th. enough judges to administer justice in because he does not like the idea that Merrick Garland is nominated. He’s a timely fashion in this country. And decisions relating to his State are now up for the 11th position; not the there is a backlog on all these criminal being made by judges who are not from 12th position, the 11th position. The cases.’’ his State or are not from States of majority is right back here on the floor I must admit to the Senator, when similar size. That is, interestingly, an and it says, ‘‘We don’t need this posi- they came to me with that request, I effectively rewrite of the Constitution tion.’’ This is the 11th position. They knew the problem I was going to have. of the United States of America. I do never made that argument last year I was going to go into a Democratic not think the Senator thought it in when he was going for the 12th posi- caucus and say, by the way, a Repub- those terms, but that is literally what tion. Then they said we need the 11th, lican President, who is a fine man but it is. we don’t need the 12th. Now they are the most ideological guy we had in a Now I am being told, OK, unless we, back, some, today—fortunately, they long time, who announced he was going in fact, split the circuit—and by the did not prevail—saying we do not need to appoint only very conservative way, I am not opposed to splitting the either the 11th or the 12th position. judges, I was now going to give him 84 circuit. We split the fifth circuit be- Mr. BIDEN. If the Senator will yield more than he had. cause when we got to the point where on that point, it is probably going to I realized that was not a politically Florida grew so big—Florida and Mis- get him in trouble, but I want to com- wise thing for me to do. But, listening sissippi and Alabama and Louisiana, pliment the chairman of the com- to the court, I did just that. My recol- they are all in the same circuit—but mittee. The chairman of the com- lection is the Senator from Maryland they got so big, because of population mittee did not buy into that argument. stood with me and said, ‘‘I don’t like it. The chairman of the committee took I admit, I am not crazy about 84 more growth, we said—the court rec- the position on this that we should act, judges being appointed by Ronald ommended, we agreed—that it should and he had been pushing this for some Reagan. But the court needs to be be split into two circuits. We under- time. filled.’’ stand that. I am not opposed to that. I Again, I see my distinguished friend, Now we have the strange happening, am not arguing about that. But the the courts come back to us and say— idea that someone says, ‘‘Until you do who now I work with in another capac- and they do this in a very scientific it my way, until you can assure me I ity, as the minority—the euphemism way—we not only need the vacancies am not going to be associated with we use is ranking member—of the For- filled, we need more judges than we that State of California, I am not going eign Relations Committee. We have have. They cite, as the Senator is very to let any vacancies be filled’’—— much less disagreement than we have familiar with, they cite the backlog, Mr. SARBANES. If the Senator will on some issues relating to judges. But, they give the rationale that cases are yield, in effect what is happening is the with him here, I can remember that being backed up. Guess what? The idea court system is being held hostage, so during the last days when the Senator that we will even get a chance to dis- it is not able to function properly as a from Delaware was trying to push cuss a judgeship bill, I predict to my court system should. I submit that is through judges—on October 8, 1992, the friend from Maryland, on this floor is an irresponsible tactic to use. As Mem- last day of the session, with President zero—zero. Not only that, to further bers of the Congress, the first branch of Bush as President of the United States, make the point, this is the first time in Government, we have a responsibility the Senator from Delaware pushed the 24 years that I have been a Senator, to see that the court system can func- through seven Republican judges—the in 24 years, the first time I have ever tion in a proper fashion. last day. heard anybody come to the floor and The Senator from Delaware, when he I will bet you that has not happened say: You know, we should basically de- was chairman of the committee, al- very often in this place with Demo- commission judgeships. ways measured up to that responsi- crats or Republicans: The last day, The ninth circuit is the busiest cir- bility, I think often taking a lot of po- seven. cuit in America, out in California. One litical heat for doing it. But he was out The reason I mention that is one of of our colleagues, a very wonderful to make sure the system could func- my distinguished colleagues—we have guy, a nice guy, says, ‘‘I am not going tion. He had Republican Presidents very different views, but I like him a to let any other judge be in the ninth nominating judges. He processed their lot—walked up to me and he was from circuit’’—notwithstanding they have nominations. He brought them to the a State where there were two Repub- five vacancies, if I am not mistaken, floor of the Senate. He gave the Senate lican Senators, and two of those judges and they are up to their ears in work. a chance to vote on them up or down were his. He walked up and shook my This started last year when I was in for those people to get confirmed. That hand. This will not go in the RECORD— charge of the Democratic side. He said, process is breaking down. it will go in the RECORD, but his name ‘‘I am not going to let anybody go Mr. BIDEN. I voted for all of them won’t, but my colleagues will know through until the ninth circuit splits but seven, I might add. There were who he is. He shook my hand and said, into two circuits.’’ only seven times that I voted against ‘‘Joe, you’re a nice guy. I really appre- I said, ‘‘Why do you want it to split?’’ any of those nominees. ciated it.’’ He says, ‘‘Of course, you He said, ‘‘The reason I want it to Mr. SARBANES. That process, I re- know I would never do this for you.’’ split is I don’t like the fact that Cali- peat, is now breaking down. I like him because he is straight- fornia judges are making decisions that The other thing that is happening, as forward and honest. He meant it, and affect my State.’’ he says, instead of disagreeing with the that’s why we get along so well. I am

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2541 not referring to the Senator from We had a tie vote in the committee, I am sure there will be ample coverage North Carolina. He said, ‘‘I’d never do Madam President, on one of the Su- given to the various statements made this for you.’’ The point being, not that preme Court nominees. I was urged by by several Senators earlier in the day BIDEN is a good guy or BIDEN is a stupid those who opposed him—and I opposed about how they are having trouble get- guy, the point being that the court is this particular nominee—to not report ting a treaty through the U.S. Senate. in desperate trouble in a number of ju- it to the floor. My reading of the Con- And certain comments were made that risdictions. In southern California and stitution, though, is the Judiciary just had no basis in fact whatsoever. south Florida, and in a number of Committee is not mentioned in the So this is a speech that I am going to places where there are drug cases that Constitution. The Judiciary Com- make to set the record straight so that are backed up, a number of places mittee is not mentioned. The Senate is. it will be in the CONGRESSIONAL RECORD where there are significant civil case We only in the Judiciary Committee tomorrow morning in the hopes that backlogs, a number of places where have the right to give advice to the some soul somewhere may decide to population growth is straining the Senate, but it is the Senate that gives look to see what the facts really are. court, they need these vacancies filled. its advice and consent on judicial In any case, I listened with great in- I respectfully suggest that it is a nominations. terest to the—what do we call it—the rare—it is a rare—district court nomi- I sincerely hope, and I have urged the colloquy this morning regarding the nee by a Republican President or a administration to confer with Repub- Chemical Weapons Convention, and I Democratic President who, if you first lican Senators before they nominate think it is important to remind the believe they are honest and have integ- anyone from that Senator’s State. I Senate of some facts about the debate rity, have any reason to vote against think that is totally appropriate. I surrounding this controversy and, I be- them. I voted for Judge Bork, for ex- think it is appropriate, as well, that lieve, this dangerous treaty, which is ample, on the circuit court, because Republican Senators, with a Demo- perilously flawed. Judge Bork I believed to be an honest cratic President, have some input, First of all, I am puzzled at the in- and decent man, a brilliant constitu- which Democrats never had with the sistence of some of my Democratic col- tional scholar with whom I disagreed, last two Republican Presidents. I think leagues on a date certain for a vote on but who stood there and had to, as a that is appropriate. this treaty. It appears that the sup- circuit court judge, swear to uphold But I do not think it is appropriate, porters of the treaty want only a date the law of the land, which also meant if this is the case—and I do not know certain when it suits their needs, their follow Supreme Court decisions. A cir- for certain, it just appears to be—if the desires. I remember last year, they cuit court cannot overrule the Su- real hangup here is wanting to reach wanted a date certain for hearings on preme Court. this very same subject, the Chemical So any member who is nominated for an informal agreement that for every Weapons Convention Treaty. They the district or circuit court who, in one person the President of the United wanted a date certain for committee fact, any Senator believes will be a per- States gets to nominate, the Repub- action on the treaty; they insisted on son of their word and follow stare deci- lican Party will get to nominate some- it. sis, it does not matter to me what their one, the Republican Party in the Sen- The committee took action on the ideology is, as long as they are in a po- ate. Or for every two persons that the treaty. Then they wanted a date cer- sition where they are in the general President nominates, the Republicans tain for floor debate and consideration mainstream of American political life get to nominate one. of the treaty —this was last year—and and they have not committed crimes of It is totally appropriate for Repub- we obliged them in every instance. But moral turpitude, and have not, in fact, licans to reject every single nominee if hours before the vote on the Chemical acted in a way that would shed a nega- they want to. That is within their Weapons Convention, on their date cer- tive light on the court. right. But it is not, I will respectfully So what I want to say, and I will request, Madam President, appropriate tain, that was supposed to happen, it yield because I see my friend from not to have hearings on them, not to was announced by the majority leader South Carolina—North Carolina, I beg bring them to the floor and not to the night before, but what happened? your pardon. I am used to dealing with allow a vote, and it is not appropriate The White House called up and said, our close friend in the Judiciary Com- to insist that we, the Senators—we, the ‘‘Please withdraw the treaty.’’ mittee who is from South Carolina. I Senators—get to tell the President who Now, it was not this Senator from seem to have the luck of getting Caro- he must nominate if it is not in line North Carolina or any other Senator linians to deal with, and I enjoy them. with the last 200 years of tradition. who asked it be withdrawn. It was not I will yield the floor by saying, I will Again, I did not intend speaking at TRENT LOTT, the majority leader. It come back to the floor at an appro- all on this, other than the fact I was the Clinton administration who priate time in the near term, imme- walked through and it was brought up, asked the Senate not to vote on the diately when we get back from the re- and since I was in that other capacity Chemical Weapons Convention. Do you cess, and I will, as they say, Madam for so long, I felt obliged to speak up. know why? Because they didn’t have President, fill in the blanks in terms of I see my friend from North Carolina enough votes to ratify the treaty. And what the absolute detail and each of is here. I do not know if he wishes to why did they not have the votes to rat- the numbers are, because I have tried speak on judges or foreign policy mat- ify the treaty? Because in their zeal to to recall some of them off the top of ters, but whichever he wishes to speak force this treaty down the throats of my head, not having intended to speak on, I am sure it will be informative. I Senators, they refused flat out to ad- to this issue when I walked across the yield the floor. dress any of the serious concerns that I floor earlier. Mr. HELMS addressed the Chair. had and a growing number of other Let it suffice to say at the moment, The PRESIDING OFFICER (Mr. Senators had about this treaty. at least for me, that it is totally appro- BROWNBACK). The Senator from North I remember thinking last year, and I priate for any U.S. Senator to voice his Carolina is recognized. am thinking now, about what Sam or her opposition to any nominee for Mr. HELMS. Mr. President, let me Ervin said so many times. He said, the Court, and they have a full right to say that I always enjoy my friend, Sen- ‘‘The United States had never lost a do that. In my study of and teaching of ator BIDEN—all of it. You have to wait war or won a treaty.’’ And you think constitutional law and separation of awhile sometimes, but the enjoyment about the treaties that we have gotten powers issues, there is nothing in the is nonetheless sincere. into, and Sam Ervin—I think he got Constitution that sets the standard f that from Will Rogers—but wherever it any Senator has to apply, whether they came from, it is true, and particularly vote for or against a judge. CHEMICAL WEAPONS CONVENTION in a document such as the Chemical But I also respectfully suggest that Mr. HELMS. Mr. President, the re- Weapons Convention. everyone who is nominated is entitled marks I am about to make will prob- So the suggestion, whether stated or to have a shot, to have a hearing and to ably be the best kept secret in Wash- implied, that we are somehow holding have a shot to be heard on the floor ington, DC, tomorrow morning in the this treaty hostage is not only fraudu- and have a vote on the floor. Washington Post or whatever. Instead, lent, it is simply untrue. You will not

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But the fact is that I March 5, the staff of the Foreign Rela- that pose a chemical weapons threat to met for 4 hours yesterday evening with tions Committee has participated in us—such as Iraq, Syria, Libya, North the distinguished Senator, JOE BIDEN, more than 50 hours of negotiations Korea—are signatories to the treaty. and we went down a list of many issues with the administration and other pro- They are free to pursue their chemical in that proposed treaty. And we re- ponents of this treaty. And I must add weapons programs unimpeded by this solved most of them. that the distinguished majority leader, treaty. And the intelligence commu- Let me talk a little bit about the to his credit, has already devoted an nity has made clear—I do know wheth- suggestion that the committee, the extraordinary amount of time and en- er it has been reported in the news or Foreign Relations Committee, of which ergy to this issue. not—but the intelligence community I am chairman, is failing to fulfill its Last night, the distinguished ranking says it is not possible to monitor the responsibilities to address the Clinton member of the Foreign Relations Com- compliance of signatory nations with a administration priorities. That simply mittee and I, as I said earlier, spent 4 high level of confidence. This is a mat- is not so. hours in my office negotiating specific ter of record. This is a matter of testi- The Foreign Relations Committee provisions with some success. So, in mony before the Senate. was the first to convene a confirmation light of all those efforts, I am per- By the way, Russia is already vio- hearing for a Cabinet-rank official this plexed as to how anyone could conclude lating its existing bilateral chemical year. In fact, the Foreign Relations that we are not working in good faith weapons treaty with the United States. Committee expeditiously considered to resolve this matter. And the Russian military is reportedly and reported both of the President’s Having said that, I think the time working to circumvent the CWC with a Cabinet-rank nominations by the end has come for the administration to ad- new generation of chemical agents that of January. Indeed, we have cleared the dress several key concerns. Thus far, I are specifically crafted to evade the calendar of nearly all of the adminis- regret to report we have not had as treaty’s verification regime. tration’s appointees, including one As- much success as I would have hoped. So if the chemical weapons treaty sistant Secretary of State and several Indeed, it is becoming clear that the will not do anything to reduce the dan- Ambassadors. administration is treating these nego- gers of chemical weapons, what will it Let us set the record straight with tiations as an empty exercise, a per- do? Good question. respect to negotiations concerning the functory hurdle over which they must Well, for one thing, it will, in fact, Chemical Weapons Convention. jump so that they can argue that they increase access to dangerous chemical I personally met with the National ‘‘tried to negotiate’’ with me and with agents to those terrorist states that do Security Adviser in my office on Feb- the Foreign Relations Committee. sign the treaty. Now, Douglas Feith, a ruary 5 of this year. In that meeting, I As a result of this unfortunate atti- chemical arms control negotiator in told him that my staff was prepared to tude on the part of the White House, the Reagan administration, pointed begin discussions with his staff imme- very little progress is being made to out last week in the New Republic that diately. Well, day after day after day bridge the wide gap between us on a the CWC will give the terrorist regimes passed, and I received not one syllable number of important provisions of the in Iran and Cuba the right to demand of reply whatsoever to that offer. chemical weapons treaty. access to the chemical markets of the In an effort to get around the im- Our staffs have been able to reach de- United States and all other signatory passe, I wrote a seven-page letter to finitive agreement with the adminis- nations and will create a treaty obliga- Mr. Berger, dated February 13, reit- tration on only 8 of 30 provisions. Of tion for signatory nations to sell or erating my request to begin staff-level those, three are simple reporting re- give them chemical defensive gear, negotiations and proposing concrete quirements and one is a nonbinding which is essential for any offensive pro- solutions for addressing the concerns sense-of-the-Senate declaration. Not gram. that I and other Senators have about one of the issues that can be regarded Well, the treaty will also endanger this treaty. as critical has yet been resolved. American troops by its forbidding com- Another 2 weeks elapsed before I fi- But, Mr. President, having said all manders in the field from using tear nally received a response from Mr. that, I am still determined to work gas and other ground control agents. Berger—four paragraphs long—in with the administration and others to Worst of all, on top of all of these which he did not respond to one single see if we can resolve our differences on other deficiencies, it will impose doz- proposal contained in my letter. In- a chemical weapons treaty. But if we ens of new regulations and unprece- deed, he reiterated his refusal to send are going to do that, the administra- dented and unconstitutional inspec- any of his staff to meet directly with tion needs to return to the bargaining tions on between 3,000 to 8,000 Amer- the staff of the Foreign Relations Com- table and negotiate with my staff and ican businesses. Under the chemical mittee. with me in good faith. The way they weapons treaty, foreign inspectors will Then, on February 27, the chief of have been acting, they said, ‘‘Well, be authorized to swoop down on Amer- staff of the Foreign Relations Com- we’ll work it out.’’ ‘‘I’ll do what I think ican businesses—without a criminal mittee, Adm. Bud Nance—who, by the is right,’’ they say. ‘‘And you do what search warrant or even probable way, is recovering nicely from a near- we think is right.’’ So that does not cause—and they can rifle through the fatal automobile accident that oc- make it a 50–50 proposition, which I am records of these businesses, interrogate curred last December, just before not going to accept. the employees, and even remove chem- Christmas—came from his home in The administration needs to realize, ical samples. That is not only an in- McLean to the Senate for the sole pur- in no uncertain terms, that unless and fringement on the constitutional rights pose of attempting to bridge this im- until they satisfy the number of con- of Americans, it is an invitation to in- passe. On that day, Admiral Nance met cerns that various Senators, including dustrial espionage. Any treaty that with the heads of legislative affairs of this Senator, have relating to the trea- gives foreign inspectors greater powers both the State Department and the ty’s universality, verifiability, con- of search and seizure than those grant- NSC. stitutionality, and crushing impact on ed American law enforcement officials Well, then, we move forward to business, I am not going, personally, to under the U.S. Constitution is a treaty March 5. Mr. Berger finally allowed the move on the CWC, period. in need of serious modifications. NSC staff to begin discussion with the The chemical weapons treaty, as it Last, this treaty has already begun staffs of interested Senators. So those now stands, is not global, as it is to lull the United States and our allies Senators who are counting every day claimed to be. It is not verifiable. And into a false sense of security by cre- from now until April 29 should ask Mr. it imposes costly and potentially un- ating the false impression that some- Berger why he dillied and dallied away constitutional regulatory burdens on thing is being done about the problem the month of February and refused to American business. of chemical weapons when, in fact,

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This is particularly 29 letter of this year to the majority defense plan, or why the Chairman of true,’’ this is what they wrote in the leader, that once we have succeeded in the Joint Chiefs of Staff, General op-ed piece, ‘‘This is particularly true having comprehensive reform of U.S. Shalikashvilli, would recommend that since the United States would then be foreign affairs agencies, reform of the $1.5 billion be taken out of our defense asked to bear 25 percent of the total United Nations, and once the modifica- spending. cost of the implementing organiza- tion of the ABM and CFE treaties are Do not take my word for it. Listen to tion’s budget.’’ submitted to the Senate for advice and constitutional scholars such as Robert Now, Mr. President, it will be a con- consent, I will be more than willing to Bork, Ed Meese. Listen to foreign pol- cession of diplomatic incompetence to turn my attention to the matter of the icy experts such as Jeanne Kirk- try to argue that the U.S. Government CWC. I might be persuaded to turn to it patrick, and Alexander Haig, and is incapable of negotiating a seat on earlier than that. Even so, any resolu- former Secretaries of Defense Dick the Executive Council and the U.S. par- tion of ratification for the CWC must Cheney, Caspar Weinberger, Donald ticipation in the inspection regime of a provide key protections relating to the Rumsfeld, and James Schlesinger, or treaty for which the American tax- treaty’s verification, lack of applica- ask Henry Kissinger about it. Defense payers are footing 25 percent of the bility to rogue states, constitu- Secretaries of every Republican admin- bill. In fact, U.S. inspectors will be tionality, and its impact on business. istration since Nixon have come out hired if and when the Congress agrees Now, I am very sincere when I say against this treaty, along with lit- to fork over millions upon millions of that I hope we can work out our dif- erally dozens of generals, admirals and American taxpayers’ dollars to finance ferences. I am certainly willing to try. senior officials from the Reagan, Bush, this new organization. I hope I demonstrated that last evening Nixon, FORD, and even the Carter ad- As for the effects on industry, Secre- and on occasions earlier than that. ministrations. If the Clinton adminis- taries Schlesinger, Weinberger, and But, in the end, whether or not we tration chooses not to address the con- Rumsfeld made very clear there will be reach agreement is a decision that only cerns that these distinguished experts very few, if any. ‘‘The preponderance of the Clinton administration can make. I and a number of Senators have enu- trade in chemicals would be unaffected think they ought to get about it and merated, that is their decision, but by the CWC’s limitations, making the let us see what we can work out to- they will not get the CWC unless they impact of staying out of the treaty re- gether on a fair and just basis. sit down and talk about the problems gime, if any, fairly modest on Amer- I yield the floor. that some of us have. ican manufacturers.’’ Mr. BIDEN. Mr. President, again, I Now, we have already sat down. We It turns out that the Chemical Manu- did not anticipate that I would be have begged to sit down before. We facturers Association has acknowl- speaking to this issue. Fortunately, or have scheduled. We have written let- edged that it will not lose, as it had unfortunately, I am on the floor, and I ters, all to no avail. previously claimed, $600 million in ex- understand why the Senator from One other myth about the treaty, the port sales. The Chemical Manufactur- North Carolina came over to speak in myth of this April 29 deadline. We hear ers Association now admits that less light of things that were said earlier over and over again, ‘‘If we miss this than one-half of 1 percent of U.S. chem- today when he was not here and I was deadline, it will be terrible.’’ Now, let ical exports will be affected by this not here. I would like to respond, at me say, Mr. President, there has to be treaty, and even that number, even least in part, to what my distinguished an end to the administration’s Chicken that number is highly suspect. colleague has said. Little pretense that the sky is going to Mr. President, it is time that the Let me begin by parcelling this out fall if an agreement is not reached by contrived myth of cataclysmic con- into three pieces. First, is the issue of April 29. This artificial deadline is a sequences of April 29 be put to rest whether or not the administration has fraud created by the administration once and for all. More important than acted in good faith; second, is not when they gave the Hungarian Govern- any artificial deadline is the need to whether or not the substantive issues ment the green light to drop its instru- resolve the substantive issues that di- raised by the distinguished Senator ment of ratification. The Hungarians vide us. Without significant changes from North Carolina are accurate, but had sought U.S. guidance on how to governing U.S. participation, agreed to whether or not there is a response to proceed, and the administration ex- in a resolution of ratification, there is them; I think his concerns are not ac- pressly told the Hungarians to go right no point in ratifying the CWC. In that curate; and third, whether or not the ahead. case, what happens, if anything, after ultimate condition being laid down by The administration has one purpose, April 29, is academic. the Senator from North Carolina, as I and that was to manufacture, to con- On the other hand, if the administra- understand it—and I could be wrong—is trive, to pretend, to have a drop-dead tion does come to agreement with us appropriate. date to blackmail the Senate into on these and other matters after April Let me begin, first, by talking about rubberstamping this dangerously defec- 29, or even before, I am confident that the administration. It is true that the tive treaty. Now, I for one am not the distinguished Secretary of State distinguished Senator from North going to be blackmailed into permit- Madeleine Albright can and will ensure Carolina and I spent almost 41⁄2 hours ting a flawed treaty to be approved by the United States’ interests are pro- last night addressing, in very specific such tactics. Further, the administra- tected. Madeleine Albright is a tough detail—apparently without sufficient tion is disingenuous in arguing that lady and a capable negotiator. success—the concerns the Senator from the United States will be ‘‘shut out’’ of Mr. President, if the administration North Carolina has about this treaty. I the Executive Council that implements really wants this treaty by the artifi- note—and I will come back to this— this chemical weapons treaty, and that cial deadline that they deliberately that the universe of concerns expressed the U.S. personnel will be barred from created, they will have to return to the by the Senator from North Carolina the inspection regime if the United negotiating table and begin working in were submitted to me in writing some States does not ratify by April 29. good faith with the staff of the Foreign time ago. Although they have expanded Horse feathers. Relations Committee and with me. Let slightly, they total 30, possibly 31, con- As former Defense Secretaries James me reiterate that I spent 4 hours last cerns. Schlesinger, Caspar Weinberger, and evening with the distinguished Senator When I became the ranking member Donald Rumsfeld noted recently in an from Delaware, [Mr. BIDEN]. He oper- of this committee, I approached the Op-ed in the Washington Post, ‘‘In the ated in good faith and so did I. That is distinguished chairman and said I event that the United States does de- what it is going to take. But there is would very much like to work with

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2544 CONGRESSIONAL RECORD — SENATE March 19, 1997 him, I would very much like to cooper- appropriate forum. I can understand by the Republican task force named by ate, and I would very much like to that. Those of us who have been chair- the majority leader, and instructed by work out a forum in which we could men do not like the fact that a major- the majority leader to deal with that settle our differences relating to what ity leader will sometimes come along group. Simultaneously, I sat for hours is sound foreign policy. and say, ‘‘By the way, even though this and hours with Senator HELMS’ staff, The agreement made by the Senator is within your jurisdiction, we are and then last night, at the end of the from North Carolina with regard to the going to appoint a task force beyond process, with Senator HELMS himself Senator from Delaware was this: I said your jurisdiction.’’ for 4 hours. I will estimate that I sat I am willing to meet with your staff— But the truth of the matter is, pic- with the staff and my staff sat with you need not be there, Mr. Chairman— ture the quandary of the President of HELMS’ staff 20 hours or more. and discuss in detail every single con- the United States after a discussion Again, Senator HELMS was very cern you have. I am even willing to go with the majority leader of the U.S. straightforward with us. He gave us a out to Admiral Nance’s home, because Senate, and the majority leader said, document listing his 30 concerns, some he was seriously injured. I am willing ‘‘Here are the folks you are supposed to of which were the same and some of to go to his home and conduct these deal with.’’ I challenge anyone on Sen- which were different. This is the docu- discussions. And to the credit of the ator LOTT’s staff who are the main ment presented to me. Over a period of chairman, he dispatched his staff to do players in this to suggest that the ad- hours and hours and hours of negotia- that with me, my staff included, and I ministration didn’t deal in good faith tion, I agreed on 21 of the 30 issues do not know, I will submit for the with them. There were hours and hours raised by Senator HELMS, disagreed on RECORD, the total number of hours we and hours of detailed negotiations with 9, 3 of which I indicated I would not did this. But I know that I, personally, this group. take opposition to but I didn’t support. in addition to meeting with the Sen- I say to my friend from North Caro- So with all due respect to my distin- ator from North Carolina, have met lina, put the shoe on the other foot. He guished chairman, he may not have with the staff for hours and hours. And is the President of the United States. been aware and his staff may not have our staffs have met for a considerably Here is a Democratic majority leader. informed him of the hours and hours longer period of time—not in a generic He wants a treaty passed. The Demo- and hours and hours of detailed nego- discussion of this treaty, but on spe- cratic majority leader goes to him and tiation between the Lott task force, in- cific word-by-word analyses, negotia- says, ‘‘I have appointed a committee of cluding his staff and the administra- tions, and agreement on the detail of Democrats interested in this subject. I tion. But had he been informed, he proposals made by the distinguished would like you to negotiate with them, would know that those negotiations Senator from North Carolina about not with BIDEN, the chairman of the began at the instruction of Senator how he feels the treaty has to be rem- committee. He is part of this group.’’ LOTT on the 29th of January. edied. So, beginning on January 29, Sandy So I am sure when the Senator reads So what has the administration been Berger, Bob Bell, his chief negotiator, this in the RECORD or is informed by doing? I think, to use an expression my and the administration met for scores his staff, he will realize that the fact grandmom used to use, ‘‘Sometimes of hours. I don’t mean 2. I don’t mean he didn’t meet with Sandy Berger until there is something missed between the 10. I don’t mean 20. I mean 30 or 40 February 15 should not be a surprise. cup and the lip.’’ The administration— hours worth of negotiations with the Sandy Berger thought he was meeting as I tried to explain to my friend from principals, with the Republican Sen- with Senator Helms when he met with North Carolina last night, and his staff ators, as well as without them. Guess Senator Lott’s task force. on other occasions—was giving con- what. They reached an agreement. Let me tell you what was the agreed flicting marching orders. The adminis- There is a universe of 30-some amend- objective of the task force and of my tration, after direct discussions with ments. I hold it up now. This is what negotiations. It was this, that we Majority Leader LOTT prior to January was presented to the administration by would put all of the universe of objec- 29, agreed to meet and discuss this in this coalition of Republican Senators tions—and I hope those who follow this detail with a task force that Senator concerned about the treaty. It, in fact, in the press, watching this now or read- LOTT named. Senator LOTT named a lists every known objection, every ob- ing it later, will understand precisely task force of interested Republicans. jection raised by any Republican that what I am about to say. The objective They included the distinguished we are aware of or that the administra- was—I think the Presiding Officer, who chairman of the Foreign Relations tion is aware of about the treaty. The has been involved in and interested in Committee; the distinguished senior number is 30. this issue, may be aware of this as well. Senator from Alaska, Senator STE- This document I have here listing It was agreed that the Republican ob- VENS; Senator SMITH of New Hamp- those 30 concerns—not only concerns, jections—legitimate—would be put in shire; Senator KYL of Arizona; Senator 30 specific conditions—which the Re- writing, which they did. All of them WARNER of Virginia, and others, who publican task force, staffed by Senator would be laid down, which they were. were to sit down and discuss with the LOTT’s staff and all other members’ They said they totaled 30. They would administration their concerns about staff, listed. And they are listed. The be talked about, fought over, nego- this treaty and how they felt the trea- specific proposals are listed that were tiated, to see if there could be a com- ty had to be changed. The first meeting made by the Republican task force. promise reached, and, at the end of the of that task force, of which Senator No. 1, enhancement to robust chem- day, there would be two lists. Every HELMS was a part, appointed by Sen- ical and biological defenses. And they one of those 30 amendments would fall ator LOTT, occurred on January 29. propose then two pages of language, in either column A, where there was Now, my friend from North Caro- three pages that relate to the condi- agreement between the Lott task force lina—I can understand why there may tions they would like attached to the and the administration, and hopefully be confusion here. He said that Sandy treaty. That was repeated 30 times as BIDEN and HELMS. Those things which Berger, the National Security Adviser, is appropriate. The administration could not be agreed to in column B. dallied away the month of February. spent 30 or more hours sitting with They got this picture. He was dallying with Senator LOTT; he these members and/or their staff and Thirty written conditions seeking to was dallying with Senator WARNER; he coming to an agreement on 17 of them, alter the interpretation of the treaty, was dallying with Senator SHELBY; he disagreeing on 13. or defend the intent of the treaty, put was dallying with Senator BOB SMITH; So, simultaneously, later Senator on paper, negotiated between the ad- he was dallying with Senator KYL; he HELMS and I began a process that was ministration and the Lott group, and was dallying with a task force ap- tracking the same process. I was not at the end of the day, they would be, to pointed by the Republican leader. part of the Republican group, obvi- use the jargon of the Senate, ‘‘fenced.’’ I can understand why the distin- ously, and I did not represent the ad- That would be the universe of con- guished Senator from North Carolina, ministration in this group. But the ad- cerns, because, obviously, you can’t ad- the chairman of the Foreign Relations ministration sat down and in detail re- dress a concern unless you know what Committee, might not feel that is an sponded to every single concern raised it is. They are the universe of concerns

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2545 raised about the treaty. And there How is that a negotiation? That is an That was the product of hours and would be either conditions 1 through 30 ultimatum. That is not a negotiation. hours and hours and hours of detailed placed in column A, where there is So I hope he does not mean it. negotiation. I say to the Presiding Offi- agreement to alter the treaty, or to I cannot believe, I do not believe Sen- cer and anyone who is listening to this, add a condition to the treaty, I should ator HELMS means that if the adminis- I am not talking about general agree- say to be precise, or column B, where tration does not come up now and sepa- ment. I am talking word-by-word spe- there is no agreement. rately negotiate with him after having cific agreement on every comma, Then what was envisioned was at the settled the negotiation with the group whether it should say ‘‘shall’’ or end of that process, within time, suffi- called the Lott group, unless the ad- ‘‘should,’’ every single word of their cient time to consider this in this ministration agrees to Senator HELMS’ conditions, the majority of which were Chamber, there would be the following version of universality, Senator HELMS’ agreed to, compromise was reached on; process. The treaty would be brought version of verifiability, and Senator the minority of which there was no up from the desk, stripped of any con- HELMS’ version of constitutional re- compromise. ditions that were reported out of the quirements, et cetera, he will not let I then was informed by the adminis- Foreign Relations Committee last the treaty be voted on, because when tration in the person of Bob Bell and time—this was the hope—and we would you cut through everything, that is Sandy Berger that to their surprise ei- have the following procedure. Senator what it sounded like. ther Senator HELMS’ staff or someone HELMS and Senator BIDEN, as envi- I said at the outset I divided this into purporting to represent Senator HELMS sioned by the Lott group, would offer three pieces. One, whether or not there at last Thursday’s meeting, which was on behalf of the Lott group, Democrats was negotiation by the administration supposed to tie this in a knot, define and Republicans and the administra- in good faith. I will just let the record the universe of conditions, place them tion, a package in column A. stand. And I repeat again, Senator all in one of two categories, and get about the business of proceeding on the That package with the administra- LOTT—and I do not know the exact cir- tion would number 17, and if I were cumstances under which it came about, treaty, at the last minute—literally willing to add to that package with but I assume it was after discussion the last minute—as I understand it. I mean, the meeting was over—the ad- Senator HELMS over the objection of with the President of the United States ministration walked in the meeting, as the administration, that could be of America, President Clinton—set up a brought up to 21 out of the 30 concerns I understand the Lott group thought task force that included Senator STE- that everyone agreed on or 17 of the 21 they were walking in the meeting, to VENS, Senator HELMS, Senator KYL, the administration agreed on and tie this knot, everything in column A Senator WARNER, Senator SHELBY, Sen- BIDEN would support HELMS on 4 addi- or column B. Someone suggested that ator NICKLES, Senator Bob SMITH, and tional ones whether the administration the chairman of the full committee did Senator MCCAIN. The President of the liked it or not, leaving maximum 13, not find that appropriate. So I met United States was told by the distin- minimum 9, conditions that could not with the Democratic leader and the ad- guished majority leader, Senator LOTT, be agreed upon. ministration. I went in the leader’s of- these are the people I want you to sit That was done. They are the numbers fice. I said I believe Senator HELMS is that we were left with. Then it was en- down with and try to work out their still operating in good faith, as I be- visioned that after passing the agreed- concerns. lieve he still is. I don’t want to confuse That first meeting took place on Jan- to conditions, we would then move to this negotiation, but why don’t you au- uary 29. I began my meetings with Sen- the conditions upon which we did not thorize me, Democratic leader, to ator HELMS on February 11. Again Sen- agree, and the Republicans under the speak for the Democrats? Why don’t ator HELMS and his staff were part of leadership of Senator HELMS would you let me go sit down with Senator the Lott task force. offer those conditions as we do on HELMS and try to get to the bottom of So although I understand that Sen- other treaties. I would be given the what appears to be a misunderstanding ator HELMS might not have liked that right to offer an alternative or to here? Because the understanding by arrangement, I ask him to consider the amend them, and we would vote ad se- the Lott group and the administration dilemma that the administration was riatim. Then at the end of the day, was that this was supposed to be all placed in when being told by the major- after having disposed of all 30 of the tied up with a unanimous-consent ity leader: negotiate with this group. I concerns, we would then vote up or agreement last Thursday. assure you, I promise you, I commit to down on the treaty. So I sought a meeting with Senator you, to every Member of the Senate in Now, I call that a negotiation. I have HELMS and he graciously agreed. And I been here for 24 years. I have been in- my discussions with the President, kept him very late. He had a very busy volved in a lot of serious negotiations. with the Secretary of State and with day. I sat with him in his office last I have never been involved in negotia- the National Security Adviser, they all night until 8:30. The meeting began tions where more people who were ap- believed they were negotiating with around 4 o’clock in the afternoon, pointed to participate have acted in the appropriate parties in the Senate without any break, without any inter- good faith. Think about this now. because that is what the majority lead- ruption. I took out a document that his Name me a circumstance where a trea- er told them to do. staff had prepared. It is dated March 13, The second point. They conducted a ty has been presented by a Democrat or ‘‘To the Honorable TRENT LOTT, major- Republican President where there have negotiation which culminated in an ity leader, from JESSE HELMS, Chair- been 19 conditions agreed to on that agreement that ended last Thursday man of the Foreign Relations Com- treaty, or 21 conditions in my case, 17 when Bob Bell, representing the admin- mittee, subject: Status of negotiation in the case of the administration, and istration, sat down with the principals over key concerns relating to the then we vote on another either 13 or 9 as well as all the staffers of those eight CWC.’’ additional changes. Senators, including Senator LOTT’s And then Senator HELMS, in that What I think my friend is saying— staff, and produced the document I memo to Senator LOTT, listed—and maybe he does not mean to say it— have in my hand listing all 30 condi- they are numbered—listed 30, ‘‘con- what I read him to say is, unless you tions raised by the Republican task cerns relating to CWC.’’ Each of those agree with us on the other nine, we are force, including Chairman HELMS, and concerns had, and it was very helpful not going to let you vote. placing every condition either in col- the way it was organized, listed, No. 1 Now, look, I doubt whether my friend umn A or column B—column A mean- through 30, and then at the top of each from North Carolina would find it ap- ing those conditions where they have of the numbers it said, ‘‘status,’’ status propriate if the American textile work- been worked out and agreed to, where relative to the administration: No ers sat down with Burlington Mills or the Lott task force, representing the agreement with the administration or any other textile owner and said, we Republicans in the Senate, and the ad- agreement with the administration. are going to negotiate a new collective ministration reached an agreement on So I sat down with Senator HELMS, bargaining agreement and we are going a condition they could both accept; and because I am very jealous of the pre- to go on strike unless you agree on column B, where they could not accept, rogatives of the Senate versus any ad- every one of our conditions. they could not reach an agreement. ministration, and feel very strongly

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2546 CONGRESSIONAL RECORD — SENATE March 19, 1997 about the role of the Senate in trea- is appointment powers, second is trea- From the nuclear nonproliferation ties. I sat down with Senator HELMS ty powers, and the other is war powers. treaty, to the missile technology con- with the understanding and knowledge Then there is the so-called vertical trol regime, to the comprehensive test on the part of the administration, who question of the separation of powers: ban treaty, and to the chemical weap- knew I might not agree with them on State government versus Federal Gov- ons convention itself, we have fought everything, and my Democratic leader, ernment; individuals versus State or for establishing accepted norms of be- and for 41⁄2 hours went through all 30 Federal Government. On the issue of havior. issues, point by point. I reached agree- the treaty power, I would observe what I happen to believe that inter- ment with Senator HELMS, not on eight I observed earlier about the appoint- national norms count. or 13 or 17, depending on whose number ment power. Nowhere in the Constitu- In a recent article that I coauthored you take as to whether the Lott group tion does it say that the Judiciary with my distinguished colleague, Sen- and the administration agreed. The ad- Committee shall decide who should or ator RICHARD LUGAR, we noted that ministration thinks they agreed on 17. should not be a judge. It says, the Sen- such norms provide standards of ac- Senator HELMS said they only agreed ate. Nowhere in the Constitution does ceptable behavior against which the ac- on eight. I don’t want to get into that it mention the Foreign Relations Com- tions of states can be judged. They also fight. But I can tell you what I did. I mittee. It mentions the Senate. So, I provide a basis for action—harsh ac- agreed on 21 of the 30. I disagreed with do think it is inappropriate, from a tion—when rogue states violate the the administration on several points constitutional perspective, to deny the norm. Senator HELMS raised because I think Senate, if that were anyone’s inten- Suggesting that we should now take he was right. They relate to the prerog- tion, and I am not convinced it is yet, a back seat to the likes of North Korea atives of the Senate. the right to vote ‘‘yea’’ or ‘‘nay’’ on and Libya does a grave injustice to our Let me give an example. Under the ratifying a treaty or any conditions record of international leadership and Constitution, the U.S. Senate has a thereto. leaves such nations free to act as free right to reserve on any treaty. We So now let me leave the item I men- operators without fear of penalty or re- wanted to restate that right. The ad- tioned I would speak to first, whether taliation by the nations whose armies ministration didn’t want that right re- or not there were good-faith negotia- and citizens they threaten. stated in the treaty as a condition. I tions on the part of the administration. The fact that there is now no inter- agreed with Senator HELMS, it should I hope I have amply demonstrated that national legal prohibition against the be restated; notwithstanding the fact there were. They thought they were development of chemical weapons we are not reserving on this treaty, we supposed to deal with the task force should not be lost here. had a right to reserve if we wanted to. the majority leader of the Senate said The suspected programs that treaty That is called preserving the preroga- deal with, and they did it in good faith. opponents are so concerned about are tives of the Senate delegated to the I would be very surprised if any mem- right now entirely legitimate accord- Senate in the Constitution of the ber of that group—I have not spoken to ing to international law, and we have United States of America. That is an any of them because I am not part of already had a telling example of what example of one of the areas where the that group, from Senator WARNER to can result from this perverse situation. administration was unwilling to agree Senator STEVENS to Senator MCCAIN to The Japanese police were aware, be- Senator KYL—would come to the floor with Senator HELMS and I was willing fore a cult attacked the Tokyo subway to agree. and say the administration did not ne- with sarin nerve gas in 1995, that the So at the end of the day we agreed to gotiate in good faith to us, tirelessly, cult was manufacturing the gas—but 21 items, and I was willing to make the hour after hour after hour. they had no basis in Japanese law to do case to my Democratic leadership, to (Mr. SESSIONS assumed the chair.) anything about it. Mr. BIDEN. Mr. President, let me put into column A. So that we would That will change, both internation- move to the next point that relates to have one vote on 21 conditions to the ally and domestically, once the CWC the merits of this treaty. That is a le- treaty when it was brought up, leaving enters into force. gitimate area of disagreement. I will be only 9 areas where we disagree. Of The convention will establish an brief because I am keeping the staff those nine, we were perilously close to international norm against the devel- and the pages, who have to go to school opment of chemical weapons. It will agreement on several. I call that, in tomorrow morning, very late. the universe of negotiations, good-faith provide the legal, political, and moral UNIVERSALITY negotiations. basis for firm action against those that But, if by negotiating one means that Critics charge that the CWC will be choose to violate the rules. If the goal ineffective because rogue states such as the President or those who support the of treaty opponents truly is to target Syria, Iraq, North Korea, and Libya— treaty, like Senator LUGAR, a Repub- the chemical weapons programs of sus- all of whom are suspected of or con- lican, or Senator BIDEN a Democrat, pect states, then joining the conven- firmed to have chemical weapons— have to agree to a condition that would tion is the best way to achieve this ob- have not joined the convention. jective—and refusing to join is the sur- kill the treaty, then that is not a nego- Therefore, the argument goes, the est way to protect the world’s bad ac- tiation. That is an ultimatum. Now, I United States should withhold its rati- tions. am confident the Senator from North fication until these states join. Carolina cannot mean that, and I am I could not disagree more. VERIFIABILITY hopeful that we will continue to talk Just think of it. The logic of this ar- A great benefit of the chemical weap- about the nine that remain unresolved. gument would lead us to a world where ons convention is that it increases our But at the end of the day, with all due rogue actors—not good international ability to detect production of poison respect, the Senate has a right to work citizens—determine the rules of inter- gas. its will. national conduct. Regardless of whether we ratify this I am a professor of constitutional law Such a policy would amount, effec- convention, regardless of whether an- at Widener University law school. I tively, to a surrender of U.S. national other country has ratified this conven- have taught, now, for a half a dozen se- sovereignty to the actions of a few. tion, our intelligence agencies will be mesters, a seminar to advanced stu- Instead of the United States actively monitoring the capabilities of other dents in constitutional law on separa- leading international coalitions and countries to produce and deploy chem- tion of powers. One of the things I ex- setting tough standards on non- ical weapons. The CWC will not change pressly teach is the treaty power in the proliferation matters, the convention that responsibility. Constitution. That is, for lack of a bet- opponents would have us do nothing What this convention does, however, ter shorthand, those powers separated until every two-bit rogue regime would is give our intelligence agencies some between the executive, the legislative, decide for us when we should act. additional tools to carry out this task. and judiciary. And among those things, This reasoning is contrary to the In short, it will make their job easier. in terms of that horizontal separation, record of the past 40 years, during In addition to onsite inspections, the there are areas that have been in dis- which the United States has led the CWC provides a mechanism to track pute for the last 200 years. One of them way in nonproliferation initiatives. the movement of sensitive chemicals

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2547 around the world, increasing the likeli- am hard pressed to understand how that will harm American exports and hood of detection. This mechanism anyone can seriously contend that the jobs. consists of data declarations that re- convention conflicts with the Constitu- I know that my friend says a lot of quire chemical companies to report tion. chemical companies do not like this. I production of those precursor chemi- There is nothing in the convention come from a State that has a little bit cals needed to produce chemical weap- that would require the United States of an interest in chemicals, the single ons. This information will make it to permit a warrantless search or to most significant State in America that easier for the intelligence community issue a warrant without probable deals with chemicals. A little company to monitor these chemicals and to cause. Nor does the convention give called Du Pont; a little company called learn when a country has chemical any international body the power to Hercules; a little company called ICI weapons capability. compel the United States to permit an Americas; a little company called Du In testimony before the Senate For- inspection or issue a warrant. Pont Merck—little pharmaceutical eign Relations Committee in 1994, R. This is the overwhelming consensus outfits who are among the giants in James Woolsey, then Director of Cen- among international law scholars that the world. They are not what you call tral Intelligence, stated: ‘‘In sum, what have studied the convention, two of liberal Democratic establishments. the chemical weapons convention pro- whom have written to me expressing They are ardently—I can testify—they vides the intelligence community is a their opinion that the convention is are ardently in favor of this treaty. new tool to add to our collection tool constitutional. I ask unanimous con- They believe it is desperately in the in- kit.’’ sent that the letters of Harvard law terest of the United States of America Recently, Acting Director of Central professor, Abram Chayes, and Colum- and their interest. This is not a bunch Intelligence, George Tenet, reempha- bia law professor, Louis Henkin, be in- of lib labs out there who are arms con- sized this point before the Senate Se- cluded in the RECORD following my trollers running around saying, ‘‘Dis- lect Committee on Intelligence. Mr. statement. arm, ban the bomb.’’ These are For- Tenet stated: ‘‘There are tools in this The PRESIDING OFFICER. Without tune, not 500, not 100, 10, Fortune 10 treaty that as intelligence profes- objection, it is so ordered. companies that are saying, ‘‘We want sionals we believe we need to monitor (See exhibit 1.) this treaty.’’ And further, ‘‘We will be the proliferation of chemical weapons Mr. BIDEN. So let me make this harmed if we do not enter this treaty.’’ around the world. * * * I think as intel- point absolutely clear, despite what op- This overall governing body, known ligence professionals we can only ponents of the convention have said, as the Conference of State Partners, is gain.’’ there will be no involuntary going to meet soon after April 29 to No one has ever asserted that this warrantless searches of U.S. facilities draw up the rules governing the imple- convention is 100 percent verifiable. It by foreign inspectors under this con- mentation of this treaty. If we, to use simply is not possible with this or any vention. the vernacular, ‘‘ain’t’’ in by the 29th, other treaty to detect every case of In light of this, I hope that the con- if we are not on by the 29th, we do not cheating. But I would respectfully sub- stitutionality of this convention will get to draw up those rules. mit that this is not the standard by not become an issue in this debate. There used to be a distinguished Sen- which we should judge the convention. Let me conclude that portion by sug- ator from Louisiana I served with for a Instead, we should recognize that the gesting to my distinguished colleague long time. My friend, the Presiding Of- CWC will enhance our ability to detect from Alabama, who is presiding, that I ficer, knew him from his days up here. clandestine chemical weapons pro- believe, on the merits, this is a good His name was Russell Long. He used to grams. The intelligence community treaty. It is not merely me. The Sen- say kiddingly, ‘‘I ain’t for no deal I has said that we are better off with the ator from North Carolina listed people ain’t in on.’’ But the chemical indus- CWC than without it—that is the who do not think it is a good treaty. I try, which is our largest exporter—hear standard by which to judge the CWC. will submit for the RECORD everyone, what I just said—the biggest fish in the CONSTITUTIONALITY from General Schwarzkopf to the Joint pond are saying, ‘‘We want to be in on One of the issues that should not be Chiefs of Staff to Senator LUGAR, peo- the deal.’’ contentious, and I hope will not con- ple who believe very, very fervently, as That is why the 29th is important. If tinue to be a focus of attention, is I do, this is clearly in the over- we are not a party to the CWC, we will whether the convention, and particu- whelming national interest of the not be a member of that conference. larly its inspection regime, is constitu- United States of America. I ask unani- And this body, with no American input, tional. mous consent that a list of supporters Every scholar that has published on could make rules that have a serious of the CWC be printed in the RECORD at the subject, and virtually every scholar impact upon the United States. the conclusion of my remarks. Third, there will be a body called the that has considered the issue, has con- The PRESIDING OFFICER. Without executive council with 41 members on cluded that nothing in the convention objection, it is so ordered. which we are assured of a permanent conflicts in any way with the fourth (See exhibit 2.) amendment or any other provision of seat from the start because of the size Mr. BIDEN. Now let me move to the the U.S. Constitution. of our chemical industry, that is, if we Indeed, to accommodate our special third issue. The notion of, as my friend have ratified by the 29th. If we ratify constitutional concerns, the United from North Carolina stated, that there after the council is already con- States insisted that when parties to is an artificial date of April 29 made up stituted, then a decision on whether to the convention provide access to inter- by the administration to put undue order a required surprise inspection on national inspection teams, the govern- pressure on the Senate to act. Let me an American facility may be taken ment may ‘‘[take] into account any point out for the Senate that there is without an American representative constitutional obligations it may have nothing artificial about that date. It is evaluating the validity of the request with regard to proprietary rights or real. and looking out for a facility’s interest searches and seizures.’’ What does that mean? It means that because we will not be on the standing In plain English, this means that in- our failure to ratify before the 29th will executive council that makes that de- spectors enforcing the Chemical Weap- have consequences. First, the chemical cision. ons Convention must comply with our weapons treaty mandates trade restric- Fourth, there will be a technical sec- constitution when conducting inspec- tions that could have a deleterious im- retariat with about 150 inspectors, tions on U.S. soil. pact upon the American chemical in- many of whom would be Americans be- It also means that the United States dustry. If the United States has not cause of the size and sophistication of will not be in violation of its treaty ob- ratified, as long as they have not rati- our chemical industry. If we fail to rat- ligations if it refuses to provide inspec- fied, American companies will have to ify the convention by the 29th, there tors access to a particular site for le- supply end user certificates to pur- will be no American inspectors. gitimate constitutional reasons. chase certain classes of chemicals from And finally, and most importantly, In light of this specific text, inserted the CWC signatories. After 3 years, in the long term, by failing to ratify, at the insistence of U.S. negotiators, I they will be subject to trade sanctions we would align ourselves with those

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2548 CONGRESSIONAL RECORD — SENATE March 19, 1997 rogue actors, those rogue states who America, after having already decided obligations of the United States under the have chosen to defy the Chemical in the Bush administration that we Convention and the mandate of the Fourth Weapons Convention. There would be would do away with the use of chem- Amendment. The Convention in its final form is thus fully consistent with U.S. con- irreparable harm to our global leader- ical weapons regardless of what any- stitutional requirements. ship on critical arms control and non- body else did, that we would not now Inspections required by the Convention proliferation issues. lose our place of leadership in the will be conducted pursuant to implementing I will not take the time now to ad- world and our ability to engage in the legislation to be adopted by Congress that dress other concerns that have been moral suasion that relates to non- will define the terms, conditions and scope of raised, because I said I would limit my- proliferation and the diminution of the inspections to be conducted in the United States by the Technical Staff of the self to these three points. weapons of mass destruction, that we Concluding, Mr. President, first, Organization for the Prohibition of Chemical would not now forgo that position Weapons (OPCW) established by the Conven- there has been good-faith, long and se- merely because 1, 2 or 5 or 10 Senators tion. I understand that draft implementing rious negotiations resulting in signifi- said we should not even bring it on the legislation entitled the Chemical Weapons cant movement by the administration floor to debate. Convention Implementation Act, now before on conditions to the Chemical Weapons I do not believe that will happen. But the Congress, specifies the procedures that Convention. then again, my wife thinks I am a will be followed in the case of both routine Second, this treaty is in the over- and challenge inspections carried out pursu- cockeyed optimist. But I do not think ant to the Convention. The Act requires, at whelming national interest of the I am being unduly optimistic or a cock- United States of America, a topic I am a minimum, an administrative search war- eyed optimist. I think having been here rant before an inspection can be conducted, ready, willing, and anxious to debate this long, that the Senate will get a and has elaborate provisions for notice and with my distinguished colleague from chance to work its will. That is all I other protections to the owner of the prem- North Carolina and others who think it am asking. All I am asking is the Sen- ises to be searched. These provisions of the is not. But at a minimum, Mr. Presi- ate get a chance between now and the Act are modeled on similar administrative dent, the Senate should get a chance to inspection regimes already authorized by 29th of April to decide whether it likes Acts of Congress such as the Toxic Sub- hear that debate and vote on whether this treaty or not. I believe every Mem- or not the distinguished Senator from stances Control Act and upheld by the ber of this Senate has the national in- courts. However, if Congress is concerned North Carolina is correct or the Sen- terests of the United States of America that these provisions are constitutionally in- ator from Delaware is correct. in mind when they act and when they sufficient, it is free under the Convention to Third, Mr. President, April 29 is not vote. revise the Act to include more stringent re- an artificial date. Because the trig- Let each of them vote their con- quirements that conform to constitutional gering mechanism was when we got to limitations. Finally, a person subject to in- science on this treaty. If it turns out 65 signatories, and that 6 months after spection may challenge the inspection in a that 66 do not agree with me, then we that date the treaty would enter into U.S. court, which in turn will be bound to in- have spoken, as we did in the League of force. validate any inspection that fails to comply Well, 65 have signed on. And 6 Nations. The consequences of that vote with constitutional requirements. In view of I think were disastrous. I think the the provisions of the Verification Annex months after they got to the No. 65, quoted above, the United States would not happens to be April 29. This is not arti- consequence of failure to ratify this treaty would be disastrous. But I think be in violation of any international obliga- ficial. We did not make up the date. tion in such an eventuality. That is what the treaty says. the consequence of not even letting the For these reasons I conclude that there is So, Mr. President, I sincerely hope Senate vote will be catastrophic. no constitutional objection to the Conven- that my friend from North Carolina, I yield the floor, Mr. President. tion, and that the rights of individuals under having reflected on the quandary the EXHIBIT 1 the Fourth Amendment will be fully pro- administration was placed in, which HARVARD LAW SCHOOL, tected under the Convention and imple- Cambridge, MA, September 9, 1996. menting legislation of the character pres- was to negotiate with the Lott group— ently contemplated. they thought they were negotiating Hon. JOSEPH R. BIDEN, Jr., Ranking Member, Senate Judiciary Committee, In addition, I have been involved in the with Senator HELMS; they thought Washington, DC. field of arms control as a scholar and practi- tioner for many years, going back to the they were negotiating with every Re- DEAR SENATOR BIDEN, You have asked me publican who had an objection, under to comment on the suggestion that the Limited Test Ban Treaty in 1963, in connec- the auspices of Senator LOTT—if they Chemical Weapons Convention (the Conven- tion with which I appeared before the Senate had known that Senator HELMS did not tion), now before the Senate for its advice Foreign Relations Committee as Legal Ad- view that as the appropriate forum for and consent, conflicts with the provisions of viser of the State Department. I have also the Fourth Amendment of the Constitution closely followed the negotiations for the this negotiation, they would have si- Chemical Weapons Convention. The United prohibiting unreasonable searches and sei- multaneously met with him. States has been a prime mover in the devel- zures. In my view, the suggestion is com- But now at the end of the process, opment of the Convention under both Repub- when we are about to go out on recess, pletely without merit. The Convention expressly provides that: lican and Democratic administrations. I am to say that we are not ready to bring ‘‘In meeting the requirement to provide ac- convinced that the prompt ratification of the Chemical Weapons Convention is overwhelm- this treaty up when we get back unless cess * * * the inspected State Party shall be ingly in the security interest of the United there is a new negotiation, I find un- under the obligation to allow the greatest States and should not be derailed by con- usual, particularly since I have agreed degree of access taking into account any con- stitutional objections that are so plainly stitutional obligations it may have with regard with the Senator from North Carolina without substance. to proprietary rights or searches and sei- that I will sign on to additional condi- Sincerely, zures,’’ (Verification Annex, Part X, par. tions with him. ABRAM CHAYES, 41)(emphasis supplied).1 Let us vote on the only nine out- Felix Frankfurter, Professor of Law Emeritus. standing issues that I am aware of that As you know, this provision of the Conven- tion was inserted at the insistence of the COLUMBIA UNIVERSITY IN THE have been raised. None other has been United States after earlier drafts, which pro- CITY OF NEW YORK, raised that I am aware of, that the ad- vided insufficient protection in regard to un- New York, NY, September 11, 1996. ministration is aware of, anyone in the reasonable searches and seizures, had been Senator JOSEPH R. BIDEN, Jr., Lott group is aware of, to the best of criticized by a number of U.S. scholars. The U.S. Senate, Washington, DC. plain meaning of these words, which seems my knowledge. DEAR SENATOR BIDEN: As requested, I have So, Mr. President, let me conclude by too clear for argument, is that the United considered whether, if the United States ad- saying, the Senator from North Caro- States would have no obligation under the hered to the Convention on Chemical Weap- lina has dealt with me in good faith. Convention to permit access to facilities ons, the inspection provisions of the Conven- We have negotiated in great detail. He subject to its jurisdiction in violation of the tion would raise serious issues under the provisions of the Fourth Amendment. It was United States Constitution. I have concluded has listed his 30 objections. We have the clear understanding of the negotiators agreed on 21 of the 30. We disagree on that those provisions would not present im- that the purpose of the provision was to ob- portant obstacles to U.S. adherence to the nine. We agree on a method to vote on viate any possibility of conflict between the Convention. those nine. Like domestic laws, treaties of the United I sincerely hope—I sincerely hope— 1 The Verification Annex is, of course, an integral States are subject to constitutional re- for the interest of the United States of part of the Convention. straints. The Fourth Amendment to the

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2549 United States constitution provides: ‘‘The Janet Reno, Attorney General. Mallinckrodt Group, Inc. right of the people to be secure in their per- Gen. Norman Schwartzkopf, U.S.A. (Ret.). Monsanto Chemical. sons, houses, papers, and effects, against un- Gen. Brent Scowcroft. Morton International, Inc. reasonable searches and seizures, shall not Gen. John Shalikashvili. Nalco Chemical Company. be violated * * *’’ Constitutional jurispru- Walter B. Slocombe, Deputy Under Sec- National Starch & Chemical Company. dence has established that the right to be se- retary for Policy, Department of Defense. NOVA Corporation. cure applies also to industrial and commer- George Tenet, Acting Director of Central Occidental Chemical Corporation. cial facilities and to business records, papers Intelligence. Olin Corporation. and effects. R. James Woolsey, former Director of Cen- Oxford Venture Corporation. The Constitution, however, protects the tral Intelligence. Perstorp Polyols, Inc. rights of private persons; it does not protect Adm. E.R. Zumwalt, former Chief of Naval PPG Industries, Inc. governmental bodies, public officials, public Operations. Quantum Chemical Company. facilities or public papers. As to private per- Kenneth Adelman, Columnist, The Wash- The R & J Ferst Foundation. sons, the Fourth Amendment protects only ington Times. RCM Capital Management. against searches and seizures that are ‘‘un- INDUSTRY ORGANIZATIONS Reichhold Chemicals, Inc. Reilly Industries, Inc. reasonable.’’ Inspection arrangements, nego- The Chemical Manufacturers Association tiated and approved by the President and Rhone-Poulenc, Inc. (CMA)—(approximately 200 member compa- Rohm and Haas Company. consented to by the Senate, designed to give nies). effect to a treaty of major importance to the Rosewood Stone Group. The Synthetic Organic Chemical Manufac- R.T. Vanderbilt Company, Inc. United States, carry a strong presumption turers Associations (SOCMA)—(over 260 that they are not unreasonable. The Sagner Companies, Inc. member companies). Sargent Management. The Chemical Convention itself antici- The Pharmaceutical and Research Manu- pated the constitutional needs of the United Sartomer Company. facturers of America (PhRMA)—(over 100 Scott Foresman/Addison Wesley. States. Part X of the Convention, ‘‘Challenge member companies). Inspection pursuant to Article IX,’’ provides: Sonesta International. The Biotechnology Industry Organization Stepan Company. ‘‘41. In meeting the requirement to provide (BIO)—(over 650 member companies and or- access as specified in paragraph 38, the in- Sterling Chemicals, Inc. ganizations). Tennant Company. spected State party shall be under the obli- The American Chemical Society (ACS)— gation to allow the greatest degree of access Texas Brine Corporation. (over 150,000 members). Tica Industries, Inc. taking into account any constitutional obli- The American Physical Society (APS)— gation it may have with regard to propri- Union Carbide Corporation. (over 40,000 members). Uniroyal Chemical Company, Inc. etary rights of searches and seizures.’’ The Council for Chemical Research As applied to the United States, that pro- United Retail Group, Inc. (CCR)—(approximately 200 University, busi- Velsicol Chemical Corporation. vision is properly interpreted to mean that ness & governmental laboratories). the United States must provide access as re- Vulcan Chemical: John Wilkinson. The American Institute of Chemical Engi- W.R. Grace & Company: Albert J. Costello. quired by the Convention, but if the Con- neers (AIChE)—(approximately 60,000 mem- VETERANS ORGANIZATIONS stitution precludes some access in some cir- bers). cumstances, the United States must provide The Business Executives for National Se- American Ex-Prisoners of War. access to the extent the Constitution per- curity (BENS)—(approximately 750 mem- American GI Forum of the United States. mits. And if, because of constitutional limi- bers). AMVETS. tations, the United States cannot provide Jewish War Veterans of the U.S.A. LEADERS OF THE FOLLOWING U.S. BUSINESSES full access required by the Convention, the Korean War Veterans Association. United States is required ‘‘to make every AEA Investors. National Gulf War Resource Center. reasonable effort to provide alternative Air Products and Chemicals, Inc. Reserve Officers Association. means to clarify the possible noncompliance Akzo Nobel Chemicals, Inc. Veterans for Peace. concern that generated the challenge inspec- ARCO Chemical Company. Veterans of Foreign Wars. tion.’’ (Art. 42.) Ashland Chemical Company. Vietnam Veterans of America, Inc. Automatic Data Processing. The United States would be required also U.S. NOBEL LAUREATES to adopt measures to overcome any constitu- BASF. Julius Adler. tional obstacles to any inspection or interro- Bayer Corporation. Bear Stearns & Company, Inc. Sidney Altman. gation required by the Convention. If it were Philip W. Anderson. determined to be necessary, the United Betz Dearborn, Inc. The BF Goodrich Co. Kenneth J. Arrow. States could satisfy the requirements of the Julius Axelrod. Fourth and Fifth Amendments by arranging Borden Chemicals and Plastic, LP. BP Chemicals, Inc. David Baltimore. for administrative search warrants, by en- Helmut Beinert. acting statutes granting immunity from Capricorn Management. Carus Chemical Company. Konrad Bloch. prosecution for crimes revealed by compelled Baruch S. Blumberg. testimony, by providing just compensation C.H.O. Enterprises, Inc. The CIT Group, Inc. Herbert C. Brown. for any ‘‘taking’’ involved. Thomas R. Cech. Sincerely yours, Compton Development. Crompton & Knowles Corporation. Stanley Cohen. LOUIS HENKIN, Dow Chemical Company. Leon N. Cooper. University Professor Emeritus. Dow Corning Corporation. Johann Deisenhofer. Eastman Chemical Company. Renato Dulbecco. EXHIBIT 2 E.I. duPont de Nemours. Gertrude B. Elion. DISTINGUISHED INDIVIDUALS AND Elf Atochem North America. Edmond H. Fischer. ORGANIZATIONS SUPPORTING THE CWC Enthone-OMI Inc. Val L. Fitch. William Jefferson Clinton. Ethyl Corporation. Walter Gilbert. George Bush. Eugene M. Grant and Company. Dudley Herschbach. Madeleine Albright. Exxon Chemical Company. David Hubel. James A. Baker III. FINA, Inc. Jerome Karl. Warren Christopher. FMC Corporation. Arthur Kornberg. William Cohen. General Investment & Development Co. Edwin G. Krebs. John M. Deutch. Givaudan-Roure Corporation. Joshua Lederberg. Lawrence Eagleburger. Great Lakes Chemical Corporation. Wassily W. Leontiel. John Holum. Harman International. Edward B. Lewis. Nancy Kassebaum. Harris Chemical Group. William N. Lipscomb. Stephen Ledogar, U.S. Representative to HASBRO Inc. Mario J. Molina. the Conference on Disarmament. The Hauser Foundation. Joseph E. Murray. Ronald Lehman, former Director of the Hechinger Company. Daniel Nathans. Arms Control and Disarmament Agency. Hercules, Inc. Marshall Nirenberg. Vil Mirzayanov, whistleblower on the So- Hoechst Celanese Corporation. Arno A. Penzias. viet/Russian novichok program. International Financial Group. Norman F. Ramsey. Sam Nunn. International Maritime Systems. Burton Richter. William Perry. Kansas City Southern Industries. Richard J. Roberts. Gen. Colin Powell. Lippincott Foundation. Martin Rodbell. William A. Reinsch, Under Secretary of Lonza Inc. F. Sherwood Rowland. Commerce for Export Administration. McFarland Dewey & Company. Glenn T. Seaborg.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2550 CONGRESSIONAL RECORD — SENATE March 19, 1997 Herbert A. Simon. The PRESIDING OFFICER. Without tire U.S. Army. It was the kind of Phillip A. Sharp. objection, it is so ordered. short-sighted bureaucratic decision R. E. Smalley. Robert M. Solow. Mr. HELMS. I thank the Chair. that Don Edwards could not tolerate, Jack Steinberger. Mr. President, I was able to hear part and he made a strong case to me. I Henry Taube. of the brief address by my friend from helped save that battalion, although I James Tobin. Delaware. What he apparently does not had to hold up a defense bill to do it. Charles H. Townes. Eric Wieschaus. know is that I was a part of the Lott Don never wavered in his devotion to Robert R. Wilson. group to which he referred. I attended do what was right for the men and RELIGIOUS GROUPS the meetings. I participated. That women of the Vermont National Guard. American Friends Service Committee. group did accomplish a few things of Recently, the Vermont Air Guard re- The American Jewish Committee. minor significance, but they could not ceived four first-place awards at the American-Jewish Congress. do anything of importance, not in the Air Force’s premier air combat com- Anti-Defamation League. really serious issues. B’nai B’rith. petition, known as William Tell. Don Church of the Brethren, Washington Office. So then they fell back, and there always stressed to the soldiers and air- Church Women United. have been no more meetings of the men under his command the impor- Commission on Social Action of Reform Lott group. My suggestion has been tance of training hard and as realisti- Judaism. followed about trying to do it on the cally as possible. The Episcopal Church. staff level. But if the Senator from Episcopal Peace Fellowship. During Desert Storm, his philosophy Evangelical Lutheran Church of America. Delaware, or anyone else, thinks they paid off, as several Vermont Guard Friends Committee on National Legisla- can drive a stake between the majority units deployed to Southwest Asia and tion. leader and me, they will have to think performed flawlessly during that con- Maryknoll Justice and Peace Office. again. flict. Those were anxious times, and Mennonite Central Committee. I am not going to try to answer the Methodists United for Peace with Justice. Vermonters saw a side of Don Edwards National Council of Churches. many erroneous statements he has that they had never seen before. He National Jewish Community Relations Ad- made. And I know he was ad-libbing was a tireless advocate for our de- visory Council. and he was not hearing his staff whis- ployed soldiers, and he acted with NETWORK: A National Catholic Social per to him, and so forth. So he was op- great compassion to do whatever he Justice Lobby. erating under difficult circumstances. Presbyterian Church (USA). could to help the families of those who Union of American Hebrew Congregations. But I say, again, I want this treaty to were deployed overseas. Unitarian Universalist Association. be made into an instrument that will I am sure that some of that attitude United Church of Christ, Office for Church be beneficial to the American people was shaped by his own experiences in in Society. and to this country. It is my intent to Vietnam. I know that his tireless devo- United Methodist Board of Church and So- continue to insist upon that. It is my ciety. tion to Vermont veterans of all wars United States Catholic Conference. intent, along with the approval of the has helped Vermonters appreciate the The United Synagogue of Conservative Ju- distinguished majority leader, inas- extraordinary sacrifices that were daism. much as we have so many new Sen- made by ordinary citizens. It seemed PUBLIC INTEREST GROUPS ators who were not here last year, the like whenever two or three veterans American Association for the Advance- distinguished occupant of the Chair gathered together, Don Edwards was ment of Science. being one of them, and did not have the there to lend weight to their cause. American Bar Association. benefit of the testimony of witnesses, As Don Edwards hangs up his uni- Americans for Democratic Action. American Public Health Association. pro and con, who are highly respected form for the last time, I want to give Arms Control Association. in the foreign relations community. him my personal thanks for all he has Association of the Bar of the City of New f done for Vermont, and to wish him York. MORNING BUSINESS good luck and Godspeed in his future Center for Defense Information. endeavors. Chemical Weapons Working Group. (During today’s session of the Sen- Council for a Livable World. ate, the following morning business f CTA/Bellona Foundation USA. Demilitarization for Democracy. was transacted.) Economists Allied for Arms Reductions. f THE VERY BAD DEBT BOXSCORE Federation of American Scientists. TRIBUTE TO MAJ. GEN. DONALD Mr. HELMS. Mr. President, at the Friends of the Earth. Fund for New Priorities in America. EDWARDS close of business yesterday, Tuesday, Greenpeace. Mr. LEAHY. Mr. President, I rise March 18, 1997, the Federal debt stood Henry L. Stimson Center. today to pay tribute to Maj. Gen. Don- at $5,367,674,335,377.56. Human Rights Watch. One year ago, March 18, 1996, the Fed- ald Edwards, who has served for the International Center. eral debt stood at $5,055,610,000,000. last 16 years as the Adjutant General of Lawyer’s Alliance for World Security. Five years ago, March 18, 1992, the League of Women Voters. the Vermont National Guard. Ever Federal debt stood at $3,859,480,000,000. National Resources Defense Council. since Ethan Allen and his famous Peace Action. Ten years ago, March 18, 1987, the Physicians for Social Responsibility. Green Mountain Boys took the British Federal debt stood at $2,246,620,000,000. Plutonium Challenge. fort at Ticonderoga, Vermonters have Fifteen years ago, March 18, 1982, the Public Education Center. had a propensity to serve their nation Federal debt stood at $1,050,784,000,000 Saferworld. as citizen-soldiers. That tradition is Sierra Club. which reflects a debt increase of more Taxpayers for Common Sense. alive and well today, and thanks to than $4 trillion ($4,316,890,335,377.56) 20/20 Vision National Project. Don Edwards, the Vermont National during the past 15 years. Union of Concerned Scientists. Guard is stronger today than ever be- Women’s Action for New Directions. fore. Don was instrumental in starting f Women’s International League for Peace the Army National Guard Mountain and Freedom. U.S. FOREIGN OIL CONSUMPTION Women Strike for Peace. and Winter Warfare School, which World Federalist Association. trains soldiers from around the Nation FOR WEEK ENDING MARCH 14 Mr. BIDEN. Mr. President, I suggest in the rigors of winter warfare. He also Mr. HELMS. Mr. President, the the absence of a quorum. excelled at being an advocate of American Petroleum Institute reports The PRESIDING OFFICER. The Vermont’s interests within the Pen- that for the week ending March 14, the clerk will call the roll. tagon. U.S. imported 7,849,000 barrels of oil The legislative clerk proceeded to I remember the case of the 1–86th ar- each day, 704,000 barrels more than the call the roll. tillery battalion, which in 1992 was 7,145,000 imported during the same Mr. HELMS. Mr. President, I ask abruptly threatened with elimination, week a year ago. unanimous consent that the order for even though it had one of the highest Americans relied on foreign oil for 55 the quorum call be rescinded. readiness and retention rates in the en- percent of their needs last week, and

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2551 there are no signs that the upward spi- bunk structure. Since 1995, CPSC has 7. Organize local Recall Roundups using ral will abate. Before the Persian Gulf obtained the recall of approximately list of recalled products. war, the United States obtained ap- half a million hazardous bunk beds. 8. Monitor flea markets and secondhand proximately 45 percent of its oil supply Mini-hammocks that can strangle stores for recalled products and provide re- call information. from foreign countries. During the children. CPSC has received reports of 12 children, ages 5 to 17 years, who be- 9. Provide recall lists to community and Arab oil embargo in the 1970’s, foreign homeowner associations that sponsor yard oil accounted for only 35 percent of came entangled and died when using sales or that issue local news letters. America s oil supply. mini-hammocks without spreader bars. 10. Work with school systems and PTA Anybody else interested in restoring Last year, CPSC obtained the recall of groups to promote community service/com- domestic production of oil—by U.S. over three million minihammocks. munity awareness activities. producers using American workers? Old cribs that can choke or suffocate Safety poster campaign Politicians had better ponder the eco- a small child. Cribs having more than Neighborhood roundups nomic calamity sure to occur in Amer- 23⁄8 inches between crib slats, corner Display information at schools ica if and when foreign producers shut posts, or cut outs on the headboard or 11. Distribute recall information to family off our supply—or double the already footboard present suffocation and day care/group day care agencies. enormous cost of imported oil flowing strangulation hazard to babies. Each 12. Seek involvement of youth clubs, YM into the U.S.—now 7,849,000 barrels a year, 50 babies die when they become and WCA, Scouts, etc. day. trapped between broken crib parts or in 13. Provide recall information packages to the public upon request. f cribs with older, unsafe designs. CPSC is enlisting the help of State CPSC LAUNCHES ‘‘RECALL ROUND- and local officials, as well as national f UP DAY’’ and State health and safety organiza- Mr. BRYAN. Mr. President, uninten- tions, in connection with State and COMMENDING NATIONAL GUARD tional injuries are the leading cause of local governments throughout the Na- FLOOD RELIEF EFFORT death to persons under 35, and the fifth tion, to publicize a safety campaign, leading cause of death in the Nation Mr. BYRD. Mr. President, I would distribute information about these and like to take a moment to comment on overall. Unintentional injuries kill other hazardous products in the home. more children over age one than any the outstanding job performed by the In some States, recalled products will West Virginia National Guard in re- disease. be rounded up and brought to a central It is astounding that there are an av- sponse to the recent catastrophic location for disposal. floods that devastated sixteen West erage 21,400 deaths and 29.4 million in- I commend Chairman Ann Brown and Virginia counties. juries each year related to consumer the CPSC for taking this bold action. Aviation, engineer, and troop com- products under the jurisdiction of a My State Office in Las Vegas is work- mand personnel have worked diligently small, but effective, Federal agency— ing with the State chapter of the Na- and wholeheartedly to deliver potable the U.S. Consumer Product Safety tional SafeKids Campaign, Sunrise water, fuel, cleaning supplies, and Commission [CPSC]. The CPSC finds Children’s Hospital, and the Clark medicines to their fellow citizens who that deaths, injuries, and property County Health Dept. to organize local have been trapped by the flood waters. damage associated with consumer events throughout the State for Recall They have also provided transpor- products cost the Nation $200 billion Roundup. We will publicize the cam- tation, cleanup assistance, and debris annually. paign through the media to reach the removal in all sixteen counties in the In 1996, the CPSC negotiated 375 re- general public. Special efforts will be emergency zone. calls involving over 85 million products directed to reach child care providers that presented a significant risk of in- and especially new parents. The sellers The approximately five-hundred men jury to the public. However, despite re- of used articles that could include re- and women mobilized in these Guard call notices and public warnings, many called products will also be alerted to units carry the double burden of civil- old hazardous products such as bean the hazards that used cribs, bunk beds, ian jobs in addition to their military bag chairs, wooden bunk beds, mini- minihammocks and bean bag chairs roles. Despite these burdens, they are hammocks and cribs—with the poten- could present to prevent the resale of capable of responding to an emergency tial to seriously injure or kill a child— these items. at a moment’s notice. Thanks to the remain in homes, flea markets, garage I encourage my colleagues to join National Guard’s efforts, families in sales or in second hand stores. with me in this effort and to encourage many of the affected counties have To rid consumers’ homes of haz- organizations in your State to take an been able to return to their homes and ardous products, the Consumer Product active role in this lifesaving effort on begin the repair and rebuilding process. Safety Commission under the leader- April 16. For this reason, I ask unani- West Virginians in Wayne and Cabell ship of Chairman Ann Brown, on April mous consent to have printed in the counties are still faced with removing 16 of this year, will launch ‘‘Recall RECORD a ‘‘Suggested List of Local Ac- large amounts of debris, but again, Round-Up Day’’ by broadcasting a tivities’’ recommended by the CPSC for thanks to the National Guard’s efforts, video to television stations across the this important Recall Round-Up Day the cleanup is on the right track. country. The video will have examples on April 16. I would also like to thank all of the of hazardous products that might be in There being no objection, the mate- employers throughout West Virginia consumers homes, such as the fol- rial was ordered to be printed in the who have supported the National lowing: RECORD, as follows: Guard. Their willingness to continue to Bean bag chairs that can present a RECALL ROUNDUP SUGGESTED STATE AND accommodate the National Guard choking or suffocation hazard to chil- LOCAL ACTIVITIES through all of the flood emergencies dren. Some bean bag chairs can be un- 1. Organize a news conference. Contact suffered by West Virginia communities zipped and children can then inhale the medical professionals in pediatrics, chil- in recent years is remarkable and is ap- small pellets of foam filling. The CPSC dren’s hospitals, injury and disease preven- preciated by every West Virginian who is aware of at least five deaths and at tion, medical examiners offices, etc., for par- has benefitted from Guard efforts. ticipation in news conference. I offer my sincere thanks to all of the least 23 other incidents in which chil- 2. Issue state and local news release in con- dren inhaled or ingested bean bag fill- junction with CPSC video news release. National Guard personnel involved in ing. In the past 2 years, CPSC obtained 3. Distribute printed news release informa- helping in West Virginia’s recovery the recall of more than 10 million bean tion through established networks. from this and every natural disaster. bag chairs. 4. Have State Governor, Secretary of May their efforts to aid West Virginia’s Wooden bunk beds that can strangle Health, or other prominent figures issue a flood victims continue, and may they young children. Since 1990, CPSC has Proclamation to kick off the event. receive the recognition and praise that 5. Offer to participate in TV/radio inter- received reports of 32 children who died views. are so merited. They are, indeed, fa- after becoming caught in bunk beds 6. Prepare media outlets in advance for re- mous men and women to their fellow with improper openings in the top lease and use of the CPSC video news release. citizens.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2552 CONGRESSIONAL RECORD — SENATE March 19, 1997 MESSAGES FROM THE PRESIDENT lenge. As we look forward to the next applicability of that Act to agreements re- 25 years of environmental progress, we lating to voluntary guidelines governing do so with a renewed determination. telecast material and to revise the agree- REPORT OF A PROPOSED RESCIS- Maintaining and enhancing our envi- ments on guidelines covered by that Act; to SION OF BUDGETARY RE- the Committee on Commerce, Science, and ronment, passing on a clean world to SOURCES—MESSAGE FROM THE Transportation. future generations, is a sacred obliga- PRESIDENT—PM 23 By Mr. CRAIG (for himself, Mr. GRA- tion of citizenship. We all have an in- HAM, Mr. D’AMATO, Mr. TORRICELLI, The PRESIDING OFFICER laid be- terest in clean air, pure water, safe Mr. AKAKA, Mr. MACK, Mr. ALLARD, fore the Senate the following message food, and protected national treasures. Mr. THOMAS, Mr. REID, Mr. BREAUX, from the President of the United Our environment is, literally, our com- and Mr. WARNER): States, together with an accompanying mon ground. S. 472. A bill to provide for referenda in report; referred jointly, pursuant to which the residents of Puerto Rico may ex- WILLIAM J. CLINTON. press democratically their preferences re- the order of January 30, 1975, as modi- THE WHITE HOUSE, March 19, 1997. fied by the order of April 11, 1986, to the garding the political status of the territory, f Committee on Appropriations, to the and for other purposes; to the Committee on Committee on the Budget, and to the MESSAGES FROM THE HOUSE Energy and Natural Resources. By Mr. BOND (for himself and Mr. At 12:00 p.m., a message from the Committee on Energy and Natural Re- NICKLES): sources. House of Representatives, delivered by S. 473. A bill to amend the Internal Rev- Mr. Hays, one of its reading clerks, an- To the Congress of the United States: enue Code of 1986 to clarify the standards In accordance with the Congressional nounced that the House has passed the used for determining that certain individuals Budget and Impoundment Control Act following bills, in which it requests the are not employees, and for other purposes; to the Committee on Finance. of 1974, I herewith report one proposed concurrence of the Senate: By Mr. KYL (for himself, Mrs. FEIN- rescission of budgetary resources, to- H.R. 412. An act to approve a settlement agreement between the Bureau of Reclama- STEIN, Mr. GRAHAM, Mr. HUTCHINSON, taling $10 million. Mr. GRASSLEY, and Mr. JOHNSON): The proposed rescission affects the tion and the Oroville-Tonasket Irrigation District. S. 474. A bill to amend sections 1081 and Department of Energy. H.R. 514. An act to permit the waiver of 1084 of title 18, United States Code; to the WILLIAM J. CLINTON. District of Columbia residency requirements Committee on the Judiciary. THE WHITE HOUSE, March 19, 1997. for certain employees of the Office of the In- By Mr. JEFFORDS (for himself, Mr. spector General of the District of Columbia. LEAHY, Mr. D’AMATO, and Mr. MOY- REPORT ON ENVIRONMENTAL H.R. 672. An act to make technical amend- NIHAN): QUALITY—MESSAGE FROM THE ments to certain provisions of title 17, S. 475. A bill to amend the Internal Rev- PRESIDENT—PM 24 United States Code. enue Code of 1986 to clarify the excise tax treatment of draft cider; to the Committee The PRESIDING OFFICER laid be- H.R. 927. An act to amend title 28, United States Code, to provide for appointment of on Finance. fore the Senate the following message United States marshals by the Attorney By Mr. HATCH (for himself, Mr. BIDEN, from the President of the United General. Mr. STEVENS, Mr. GREGG, and Mr. States, together with an accompanying The message also announced that the KOHL): report; which was referred to the Com- House has passed the following bill, S. 476. A bill to provide for the establish- mittee on Environment and Public without amendment: ment of not less than 2,500 Boys and Girls Works. S. 410. A bill to extend the effective date of Clubs of America facilities by the year 2000; the Investment Advisers Supervision Coordi- to the Committee on the Judiciary. To the Congress of the United States: nation Act. By Mr. HATCH (for himself and Mr. I am pleased to transmit to the Con- BENNETT): gress the Twenty-fifth Annual Report f S. 477. A bill to amend the Antiquities Act on Environmental Quality. ENROLLED BILLS SIGNED to require an Act of Congress and the con- As a nation, the most important At 3:46 p.m., a message from the sultation with the Governor and State legis- lature prior to the establishment by the thing we can do as we move into the House of Representatives, delivered by 21st century is to give all our children President on national monuments in excess Mr. Hays, one of its reading clerks, an- of 5,00 acres; to the Committee on Energy the chance to live up to their God- nounced that the Speaker has signed and Natural Resources. given potential and live out their the following enrolled bill: By Mr. COVERDELL (for himself and dreams. In order to do that, we must H.R. 924. An act to amend title 18, United Mr. CLELAND): offer more opportunity and demand States Code, to give further assurance to the S. 478. A bill to designate the Federal more responsibility from all our citi- right of the victims to attend and observe building and United States courthouse lo- zens. We must help young people get the trials of those accused of the crime. cated at 475 Mulberry Street in Macon, Geor- the education and training they need, The enrolled bill was signed subse- gia, as the ‘‘William Augustus Bootle Fed- make our streets safer from crime, help quently by the President pro tempore eral Building and United States Court- house’’; to the Committee on Environment Americans succeed at home and at [Mr. THURMOND]. f and Public Works. work, protect our environment for gen- By Mr. GRASSLEY (for himself, Mr. erations to come, and ensure that MEASURES REFERRED BAUCUS, Mr. LOTT, Mr. BREAUX, Mr. America remains the strongest force The following bills were read the first NICKLES, Mr. MURKOWSKI, Mr. for peace and freedom in the world. and second times by unanimous con- TORRICELLI, Ms. LANDRIEU, Mr. Most of all, we must come together as sent and referred as indicated: CRAIG, Mr. KERREY, Mr. HAGEL, and Mr. HUTCHINSON): one community to meet our challenges. H.R. 672. An act to make technical amend- Our Nation’s leaders understood this S. 479. A bill to amend the Internal Rev- ments to certain provisions of title 17, enue Code of 1986 to provide estate tax relief, a quarter-century ago when they United States Code; to the Committee on the launched the modern era of environ- and for other purposes; to the Committee on Judiciary. Finance. mental protection with the National H.R. 927. An act to amend title 28, United By Mr. WELLSTONE: Environmental Policy Act. NEPA’s au- States Code, to provide for appointment of S. 480. A bill to repeal the restrictions on thors understood that environmental United States marshals by the Attorney welfare and public benefits for aliens; to the protection, economic opportunity, and General; to the Committee on the Judiciary. Committee on Finance. social responsibility are interrelated. f By Mrs. FEINSTEIN (for herself, Mrs. NEPA determined that the Federal INTRODUCTION OF BILLS AND BOXER, and Ms. MOSELEY-BRAUN): Government should work in concert JOINT RESOLUTIONS S. 481. A bill to prohibit certain abortions; to the Committee on the Judiciary. with State and local governments and The following bills and joint resolu- citizens ‘‘to create and maintain condi- tions were introduced, read the first f tions under which man and nature can and second time by unanimous con- exist in productive harmony, and fulfill sent, and referred as indicated: SUBMISSION OF CONCURRENT AND the social, economic, and other re- By Mr. BROWNBACK (for himself, Mr. SENATE RESOLUTIONS quirements of present and future gen- LIEBERMAN, Mr. DEWINE, and Mr. erations of Americans.’’ KOHL): The following concurrent resolutions We’ve made great progress in 25 years S. 471. A bill to amend the Television Pro- and Senate resolutions were read, and as we’ve sought to live up to that chal- gram Improvement Act of 1990 to restore the referred (or acted upon), as indicated:

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2553 By Mr. SESSIONS (for himself and Mr. The Television Improvement Act of Most would liken it to a stovepipe of SHELBY): 1997 is intended to encourage the black soot going into the mind and S. Con. Res. 13. Concurrent resolution ex- broadcasting industry to make raising into the soul. Why don’t we change pressing the sense of Congress regarding the display of the Ten Commandments by Judge children easier. What it intends to do is that back to the way it used to be, and Roy S. Moore, a judge on the circuit court of to allow the broadcast industry—the have it as a well of fresh spring water the State of Alabama; to the Committee on television, cable, and motion picture going into the mind and into the soul? Governmental Affairs. industries to enter into, again, a code The industry is fully capable of doing f of conduct comparable to the one they this. Witness some of the current used until 1983. They would once again shows, especially ‘‘Touched by an STATEMENTS ON INTRODUCED be able to say that there is a standard BILLS AND JOINT RESOLUTIONS Angel,’’ which is a leading show by below which they will not go, and they CBS today. It is a good, positive, and By Mr. BROWNBACK (for him- can collaborate to establish that stand- uplifting show. But, sadly, there are far self, Mr. LIEBERMAN, Mr. ard without running afoul of Federal more that are far more degrading that DEWINE, and Mr. KOHL): antitrust laws. would lead one more to the stovepipe S. 471. A bill to amend the Television Previously, the NAB had a self-im- Program Improvement Act of 1990 to analogy rather than the fresh spring posed code of conduct that governed well water. restore the applicability of that Act to television content. The code recognized agreements relating to voluntary the impact of television on our chil- We are pleading with the industry guidelines governing telecast material dren as well as the responsibility that with this bill. This bill provides no ad- and to revise the agreements on guide- broadcasters shared in providing pro- ditional authority to the Federal Gov- lines covered by that Act; to the Com- gramming that used television’s influ- ernment; not an ounce of additional mittee on Commerce, Science, and ence carefully. However, in 1983, a Fed- authority to the FCC. It is a plea to the Transportation. eral district court determined that industry to help us. We are having some of the advertising provisions of trouble. The American family has been THE TELEVISION IMPROVEMENT the code violated Federal antitrust under attack. In many places it has ACT OF 1997 laws. disintegrated. In our inner cities we Mr. BROWNBACK. Mr. President, I Although the court did not rule that have 70 percent of our children born to would like to address the body today any of the code’s programming stand- single moms. In many places we no on legislation that I am introducing, ards violated antitrust laws, the NAB longer have families, one of the basic along with Senator LIEBERMAN, Sen- decided to stop using the entire code. tenets of culture. ator DEWINE, and Senator KOHL, an act The past 15 years have demonstrated We are asking by this very simple act called the Television Improvement Act that the code of conduct is sorely and pleading with the industry. ‘‘Let’s of 1997. It is my sincere hope that this missed. Television has declined over go back to the time when television did bill will help solve one of our nation’s the past 15 years, in no small part due not hurt our lives.’’ And we are not most troubling problems. to the absence of the code. I don’t suggesting censorship. If we have a bet- I am fresh off the campaign trail, as think anybody in this body could ter product coming out of this indus- the Senator from Georgia is fresh off argue—or in this country who would try, we will have a better American the campaign trail. Throughout the disagree—that the nature of American culture. We will have a better world 1996 campaign, I traveled across the television has declined over the past 15 culture because Hollywood is the cen- State of Kansas and talked with thou- years. ter of gravity for not only this culture sands of people. I came away from that Let me read for the body a statement but increasingly the world’s culture. It experience convinced that the most im- that is from the old code of conduct is coming up time and time again. portant task that we as a Nation face that the National Association of So we are introducing this bill today, today is renewing the American cul- Broadcasters used until 1983. It sounds a bipartisan bill, requesting that the ture. almost quaint today. But listen to the industry negotiate and work together I can recall countless meetings where content of what the industry itself had on a code of conduct the like of which individuals, particularly parents, before. It says: would come up to me worried about the it had before. Above and beyond the requirements of the future of the American culture, par- law, broadcasters must consider the family We will be holding hearings in the ticularly as it affects their children, atmosphere in which many of their programs Governmental Affairs Committee. We and they constantly felt they were hav- are viewed. There shall be no graphic por- have been joined by the chairman and ing to fight the culture to raise their trayal of sexual acts by sight or sound. The the ranking member of the appropriate kids. They hearken back to a time portrayal of implied sexual acts must be es- Judiciary subcommittee who are co- when they didn’t feel like they were so sential to the plot and presented in a respon- sponsoring this bill. We anticipate that sible and tasteful manner. opposed by the nature of the American they will have hearings on it as well. It culture. They recall a time when the I do not think there would be many is a follow-on to Senator Simon’s work culture was supportive of what they people today who would say that this in this area in 1990. We hope that it were doing and helped them in raising reflects the nature of television today. will be much more successful. If it is a good and solid family. They were just But I think many Americans today not, there will be further action com- pleading for help. ‘‘Help us be able to would say, ‘‘That is what I want tele- ing to try to address this corrosive ef- come to a point where we can effec- vision to be today so I don’t have to al- fect that, unfortunately, television has tively raise our children. Don’t make ways fight the TV to raise my kids.’’ on our society and, indeed, on the us have to constantly fight our cul- It is not enough for everybody to say, world. ture.’’ ‘‘Just turn it off.’’ My wife and I are Hollywood is the center of gravity for raising three children. It is a little So, Mr. President, we are introducing the American culture and, increas- tougher than just saying, ‘‘Turn it off.’’ this bill today asking the industry for ingly, the world’s culture. Hollywood It is about being there all the time. We help to lead our culture back to a has changed the culture in this coun- are trying. One of us is there all the brighter and a better time. They can do try, and, unfortunately, it has led to a time. It is also not enough to say, it. They are capable of doing it. decline in our culture. Over the past 15 ‘‘Well, we have a rating code so you Mr. President, again, let me say that years, television has made our children know what is on television.’’ I am pleased to introduce today with think that violence is OK, that sexu- We are pleading with the industry, Senators LIEBERMAN, DEWINE, and ality out of wedlock is expected and en- saying, ‘‘Let’s go back to that time KOHL, the Television Improvement Act couraged, and that criminal activity is when you used a code because tele- of 1997, a bill that I believe will help OK. Well, these things are not OK, and vision was better then and it so di- solve one of our Nation’s most trou- it’s time the industry changed tele- rectly impacts the culture and the soul bling problems. Throughout the 1996 vision to make it easier for parents to of America.’’ The average American campaign, I traveled across the State raise children. spends 5 hours a day watching TV. of Kansas and talked with thousands of

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2554 CONGRESSIONAL RECORD — SENATE March 19, 1997 people. I came away from that experi- committee, which I chair and on which iterate that message and to urge the ence with the conclusion that the most Senator LIEBERMAN serves as the rank- industry to focus on what’s at the important task that we as a nation ing Democrat. The hearings will ex- heart of this debate over the TV rating face today is renewing the American plore the impact that the Federal Gov- system—a very real, broadly-felt con- culture. ernment has had on the ability of the cern that television has become a de- People are desperately worried about television industry to broadcast more structive force in our society and it is the decline of our culture and about inspirational and less harmful pro- doing substantial damage to the the decline of the American family. gramming. We will examine whether hearts, minds, and souls of our chil- Many of the parents that I spoke with the application of Federal antitrust dren. during the summer and fall believe laws to a collaboration by the broad- This bill really amounts to a plea on that they increasingly have to fight casters to promote better programming our part to the industry for their help. their culture to raise their children. hinders the industry’s ability to police Moreover, it is an attempt to move this These parents feel that American cul- itself and has resulted in a decline in debate beyond the question of rights, ture in the 1990’s actually makes it television broadcasting. The Federal which we all accept, acknowledge and more difficult to raise children. Government should not be impeding support, and begin talking more about Hollywood is the center of gravity for any voluntary effort by the industry to responsibilities. Specifically, the kind of responsi- the American culture and increasingly improve the quality of programming; bility that broadcasters once embraced the world’s culture. Hollywood has the Government should be encouraging through a comprehensive code of con- changed the culture in this country, such an effort. duct, in which they acknowledged the and, unfortunately, it has led to a de- Let me just reiterate that we are not enormous power they commanded and cline in our culture. Over the past 15 calling for a government mandate to be the need to wield it carefully, and in years, television has made our children imposed upon the industry, nor are we which they recognized that they had an think that violence is OK, that sexu- providing the FCC with an ounce of ad- obligation under the law to serve the ality out of wedlock is expected and en- ditional authority with respect to public interest. I would urge my col- couraged, and that criminal activity is broadcasting. What we are doing is try- leagues to take a look at some of the OK. Well, these things are not OK, and ing to encourage the industry to do standards the Nation’s broadcasters set it’s time the industry changed tele- what it did prior to 1983—broadcast less for themselves in the old NAB TV vision to make it easier for parents to programming that harms our kids and Code, which we’ve excerpted in the raise children. more programming that helps us raise findings of our legislation, and you’ll Previously, the National Association our kids. We want Hollywood to start see that they are quite remarkable of Broadcasters had a self-imposed code producing, and we want the broad- statements of responsibility. of conduct that governed television casters to start airing, better program- After reading these principles, I content. The code recognized the im- ming. would urge my colleagues to compare pact of television on our children as I ask that the bill be appropriately them to some of the comments made well as the responsibility that broad- referred. recently by industry leaders, such as casters shared in providing program- Mr. LIEBERMAN. Mr. President, I the network official who proclaimed ming that used television’s influence am proud today to join with my col- ‘‘it is not the responsibility of network carefully. However, in 1983, a Federal leagues Senator BROWNBACK, DEWINE, television to program for the children district court determined that some of and KOHL in introducing the Television of America,’’ or the MTV executive the advertising provisions included in Program Improvement Act of 1997, a who said his network ‘‘is not safe for the code violated Federal antitrust bill we believe will help directly ad- kids’’ but markets it directly to them laws. dress the public’s concerns about the anyway. Although the court did not rule that declining standards of television and Watch what these programmers are any of the code’s programming stand- that will hopefully lead the television bringing into our homes today, and it ards violated antitrust laws, the NAB industry to exercise more responsi- is clear that the face of television has decided to stop using the entire code. bility for the programming it puts on changed dramatically since the indus- The past 15 years have demonstrated the air. try abandoned the old NAB Code in 1983 that the code of conduct is sorely The industry has tried in part to re- and abandoned the ethic undergirding missed. Television has declined over spond to the concerns of parents about it. It is also clear that while the net- the past 15 years, in no small part due the negative influence television is works have profited from the resulting to the absence of the code. having on children by creating a rating competition downward, it is the Amer- For this reason, Senators LIEBERMAN, system for sex, violence, and vulgar ican family who is paying the price—in DEWINE, KOHL, and I are introducing content. This system is a good start, the form of the awful daytime talk this bill to make perfectly clear that but there is a general consensus it does shows that parade the most perverse the broadcast industry is not violating not go far enough in providing parents forms of behavior into our living rooms Federal antitrust laws if its members with the information they need to and teach our children the worst ways collaborate on a code of conduct that make wise choices for their children. to settle conflicts, and the excesses of includes voluntary guidelines intended When I recently testified before the prime-time comedies that amount to to alleviate the negative impact that Senate Commerce Committee on this little more than what we used to call television content has had on our chil- issue, I tried to get this point across by dirty jokes. dren and to promote educational and comparing the industry’s system to The rise of these programs leave lit- otherwise beneficial programming. putting up a sign in front of shark-in- tle doubt that this debate is about In drafting this legislation, we have fested waters that said ‘‘Be careful much more than the threat of vio- built upon Senator Simon’s Television when swimming.’’ That is to say that, lence—which was the reason for the Program Improvement Act of 1990. Un- while these ratings provide a warning original Television Program Improve- like that law, however, the Television to the viewer, they don’t tell us why we ment Act sponsored by Senator Simon Improvement Act of 1997 would not in- need to be warned. in 1990—although this threat remains a clude a sunset provision, and we have But I also used this metaphor to serious problem. What is driving so expanded the scope of the antitrust ex- make a larger point, which is regard- much of the public’s concern is the del- emption to enable the industry to less of how informative the ratings are, uge of casual sex and vulgarities that tackle such issues as the proliferation what parents really want is to get the characterizes so much of television of programming that contains sexual sharks out of the water, to improve the today. The collective force of these content and condones criminal behav- quality of programming on the air, and messages leaves parents feeling as if ior. make it safe for their kids to go swim- they are in a losing struggle to raise Senator LIEBERMAN and I plan to ming again. their own children, to give them strong hold hearings in the Governmental Af- The intent of the legislation we are values, to teach them right from wrong fairs Committee’s Government Man- introducing today, the Television Pro- and guide them to acceptable forms of agement and Restructuring Sub- gram Improvement Act of 1997, is to re- behavior.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2555 With the bill we’re introducing television more family-friendly for 1997 viewing policy to its TV code. This policy today, we are asking the television in- America. said that entertainment programming inap- dustry to do no more than what it did WHAT THE BILL WOULD DO propriate for a general family audience as recently as the early 1980’s, and that This proposal builds on the original Tele- should not be aired between the hours of 7 p.m. and 9 p.m. EST. is to draw some lines that they will not vision Program Improvement Act of 1990, which created an antitrust exemption for the In October of 1975, the Writers Guild of go below, to declare, as author and America (led by Norman Lear) filed a law- noted commentator Alan Ehrenhalt broadcast and cable industries that allowed them to collaborate on a set of ‘‘voluntary suit challenging the family viewing policy has said, ‘‘that some things are too guidelines’’ aimed at reducing the threat of on First Amendment grounds, alleging that lurid, too violent, or too profane for a violence on television. The TPIA of 1997 the NAB had been coerced by the govern- mass audience to see.’’ would permanently reinstate that antitrust ment into adopting the policy. The District Court struck down the family If the industry is not willing to refill exemption (which expired at the end of 1993) viewing provision in the code in 1976, con- that responsible role, there will be in- and then broaden it. The new exemption cluding that FCC Chairman Wiley had en- would permit the television industry to col- creasing pressure on the Government gaged in a ‘‘successful attempt . . . to pres- laborate on an expanded set of guidelines de- to do it for them. One of the most tell- sure the networks and the NAB into adopt- signed to address the public’s concerns about ing polls I’ve seen recently appeared in ing a programming policy they did not wish the broad range of programming—not only the Wall Street Journal, which showed to adopt.’’ violence but also sexual content, vulgar lan- However, the court decision did not rule that 46 percent of Americans favor guage, and the lack of quality educational that a voluntary family viewing policy more Government controls on tele- programs for children. vision to protect children. It’s not a co- would be unconstitutional, and said that net- WHAT THE BILL WOULD NOT DO works were free to implement a family hour incidence that there are bills being pre- This proposal would not give the govern- policy on their own. pared in Congress that would in fact ment any authority to censor or control in In the end, the District Court’s decision censor what is on the air. any way what is seen on television. Any was vacated and remanded on appeal in 1979, Our legislation is designed to help us guidelines or programming standards the in- on the grounds that the District Court was avoid reaching that point. It will ideal- dustry chose to adopt would be purely vol- not the proper forum for the initial resolu- ly remind the industry of its obliga- untary and could not be enforced by the gov- tion of a case relating to broadcast regula- tions to the public we both serve, and ernment in any way or result in any form of tion. The case was returned to the FCC for that changing the subject, as some in economic boycott. Nor would the TPIA re- judgement, and in 1983 the FCC concluded sult in the ‘‘whitewashing’’ of television or the industry prefer to do, won’t change that the family viewing policy did not vio- prevent networks from showcasing sophisti- late the First Amendment, ruling that the minds of the millions of American cated, mature-themed works such as Chairman Wiley’s actions amounted to per- families who want programming that ‘‘Schindler’s List’’ and ‘‘NYPD Blue.’’ Last, missible jawboning and not coercion. reflects rather than rejects their val- the television industry could not use the No court has ever ruled that a voluntary ues. Again, to return to my metaphor, antitrust exemption to fix advertising prices family hour violates the First Amendment we are simply making a plea to the in- or engage in any form of anticompetitive be- rights of broadcasters or of producers. dustry to take the sharks out of the havior. THE ORIGINAL ‘‘TELEVISION PROGRAM water, and make it safe for our kids to IMPROVEMENT ACT’’ TELEVISION CODE OF CONDUCT BACKGROUND Senator Paul Simon (D–IL) sponsored leg- go swimming, or perhaps more aptly, SHEET to go channel-surfing again. islation in 1989 to create a temporary anti- THE NAB TELEVISION CODE Mr. President, in closing, I ask unan- trust exemption that would allow the tele- imous consent that the full text of my The first broadcaster TV code was imple- vision industry to collaborate on a set of mented in 1952, to provide broadcasters with guidelines designed to ‘‘alleviate the nega- remarks be included in the appropriate guidelines for meeting their statutory obli- tive impact’’ of television violence. The ex- place in the RECORD to accompany this gation to serve the public interest. emption had a life of three years. legislation. I also ask unanimous con- The NAB required all members to follow This legislation was passed by Congress in sent that a summary of the Television the code, which was enforced by a committee the waning days of the 1990 session as part of Program Improvement Act of 1997 be called the NAB Code Authority. Stations the Judicial Improvements Act (a federal printed in the RECORD. And to provide that adhered to the code were permitted to judgeships bill). my colleagues with some additional display a seal of approval on screen known as When the Simon bill first moved through the ‘‘NAB Television Seal of Good Practice.’’ the Senate in 1989, the Judiciary Committee background on the old NAB Television Those members that were found to have vio- approved an amendment that would broaden Code and what has happened to tele- lated the code could be suspended and denied the bill’s scope to cover guidelines relating vision since it was abandoned, I ask the ability to display the seal. to the glamorization of drug use. unanimous consent that a factsheet my The NAB Code was abandoned in 1983 fol- The version passed by the Senate also was staff has prepared be included in the lowing an antitrust challenge brought by the broadened to cover sexual content. Senator RECORD. This factsheet helps summa- Reagan Justice Department. Jesse Helms (R–NC) succeeded in passing an rize the bill’s findings and put them In that case, Justice filed a motion for amendment relating to sexually explicit ma- into some historical context. summary judgement in the D.C. Federal Dis- terial by a vote of 91–0. trict Court in 1982 challenging three provi- The language relating to sexual content There being no objection, the items sions restricting the sale of advertising. and the depiction of drug use was stripped were ordered to be printed in the These provisions limited: 1) the number of from the bill that came out of conference RECORD, as follows: minutes per hour a network or station may after House Democrats objected to broad- SUMMARY OF THE TELEVISION PROGRAM allocate to commercials; 2) the number of ening the scope of the exemption beyond vio- IMPROVEMENT ACT OF 1997—TPIA commercials which could be broadcast in an lence. WHAT IS THE PURPOSE hour; and 3) the number of products that THE INDUSTRY RESPONSE TO THE SIMON BILL The TPIA is an attempt to persuade the could be advertised in a commercial. The A few months prior to the passage of the television industry to directly address the court ruled that one of the provisions—the Simon bill, the NAB issued new ‘‘voluntary public’s growing concerns about the negative multiple product standard—constituted a per programming principles’’ in four areas: chil- influence television is having on our children se violation of the antitrust laws, and grant- dren’s television, indecency and obscenity, and our country today. Rather than calling ed Justice’s motion for summary judgement drugs, and violence. These principles were for any form of censorship or government re- on those grounds. general statements resembling several provi- In November 1982, the NAB entered into a strictions on content, this legislation would sions in the old NAB Code, but they were consent decree with Justice and agreed to encourage industry leaders to act more re- strictly voluntary and unenforceable. sponsibly in choosing what kinds of pro- throw out the advertising guidelines being After the Simon bill passed, the broadcast gramming they produce and when it is aired. challenged. Then, claiming that the TV Code and cable industries held a few meetings in The nation’s broadcasters once embraced in general left it vulnerable to antitrust law- 1991, but with no discernible results. this kind of responsibility in the form of a suits, the NAB threw out the entire code in As concern about television violence comprehensive code of conduct, which fea- January of 1983. mounted, the networks felt increasing pres- tured a widely-followed set of baseline pro- The programming standards contained in sure to produce some results. In December of gramming standards and which showed a the code were never found to violate any 1992, the major broadcast networks agreed to special sensitivity to the impact television antitrust laws during the code’s 31-year ex- adopt a new set of joint standards on the de- has on children. This code was abandoned in istence. piction of violence. 1983, and the TPIA would ideally open the THE FAMILY HOUR CASE Although billed as being ‘‘new,’’ the net- door to the reintroduction of a similar set of In 1975, after being prodded by FCC Chair- works made clear that these guidelines standards, one that is geared toward making man Dick Wiley, the NAB added a family tracked closely with their own individual

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2556 CONGRESSIONAL RECORD — SENATE March 19, 1997 programming standards. The joint guidelines TORRICELLI, Mr. AKAKA, Mr. gress to be in the national interest. Ac- were broadly-worded and did not make any MACK, Mr. ALLARD, Mr. THOM- ceptance of such a congressionally ap- specific statements regarding the time shows AS, Mr. REID, Mr. BREAUX and proved transition plan by the qualified with graphic violence should be aired, noting only that the composition of the audience Mr. WARNER): voters of Puerto Rico in a free and in- should be taken into consideration. S. 472. A bill to provide for referenda formed act of self-determination will In June of 1993, the networks took the ad- in which the residents of Puerto Rico be required before the process leading ditional step of agreeing on a set of ‘‘paren- may express democratically their pref- to change of the present status will tal advisories’’ that would be applied to pro- erences regarding the political status commence. grams with violent content. of the territory, and for other purposes; The bill that I am introducing today, With criticism from the public and Con- gress continuing to grow, the four major net- to the Committee on Energy and Nat- joined in by nine other colleagues, and works and the cable industry announced in ural Resources. my colleague from Florida, creates an February of 1994 that they would conduct THE PUERTO RICO SELF-DETERMINATION ACT OF evenhanded process that can lead to ei- separate monitoring studies to measure the 1997 ther separate sovereignty or statehood, level of violence in their programming. The Mr. CRAIG. Mr. President, I am depending on whether Congress and the first of these studies was done in 1995. proud to join with my colleague from residents of Puerto Rico approve the THE SIMON LEGACY ON VIOLENCE Florida today in the introduction of terms of the implementation of either The results of the Simon legislation could the Puerto Rico Self-Determination of the two options of full self-govern- accurately be described as mixed. Act. ment. Preservation of the current sta- On the one hand, the 1996 UCLA violence In the 104th Congress, I joined as a study suggested that the amount of violence tus also will be an option on the plebi- on broadcast television had declined some- cosponsor of S. 2019, with a bipartisan scite ballot. However, the existing un- what since it peaked a few years earlier, and effort in the Senate to deal with this incorporated territory status, includ- industry observers generally acknowledge issue. I know that some of my col- ing the commonwealth structure of that primetime series television has become leagues will question the need for Con- local government, is not a constitu- less violent. The UCLA study also found that gress to take up this issue. The most tionally guaranteed form of self-gov- the networks had taken some steps to reduce common reaction is that we should let ernment. Thus, until full self-govern- the violence in on-air promotions. ‘‘The Puerto Ricans decide the issue for overall message is one of progress and im- ment is achieved for Puerto Rico, there provement,’’ the UCLA study concluded. themselves. The problem with that ap- will be a need for periodic self-deter- ‘‘The overall picture is not one of excessive proach is that there are two parties in mination procedures as provided in this violence.’’ that relationship: Congress, due to its legislation. On the other hand, the UCLA study still constitutional plenary power expressly Whichever new status proves accept- found that there is still a serious problem vested in it by the territorial clause of able to Congress and the people of with violence on broadcast television. It sin- article IV, section 3, clause 2, on the Puerto Rico, final implementation of gled out the high number of violent theat- rical movies, five primetime series that one hand and the people of Puerto Rico the new status could be subject to ap- ‘‘raised frequent concerns,’’ and the dis- who have U.S. citizenship but are not proval by Congress and the people of turbing rise of ‘‘reality’’ shows (such as yet fully self-governing on the other. Puerto Rico, at such time in the first Fox’s ‘‘When Animals Attack″) that often When Congress failed to approve leg- or second decade of the next century as feature graphic violence. islation to provide a status resolution a transition process is completed. In addition, the National Television Vio- process in 1991, the Puerto Ricans con- This explanation of the bill should lence Study, the comprehensive review spon- ducted a status vote, and the common- dispel any concern in this body or the sored by the cable industry, is scheduled to release its 1996 report later this month, and wealth option was defined on the ballot House that empowerment of the people it is generally expected to show that the in the terms most favorable to its ap- of Puerto Rico to exercise the right of kinds of violence depicted on both broadcast proval, to the point that it promised a self-determination will impair the abil- and cable television still presents a real lot more than Congress could ever ap- ity of Congress to work its will regard- threat to viewers. prove. Even with the ballot definition ing the status of Puerto Rico. THE CURRENT SITUATION that would significantly enhance the Mr. President, in 1956, 4 years after When asked about reviving a code of con- current status, the existing common- Congress and the people of Puerto Rico duct, some television industry leaders have wealth relationship received less than approved the Constitution of the Com- expressed concern about potential antitrust a majority of the vote. So there is a se- monwealth of Puerto Rico, the U.S. Su- lawsuits that might arise. The Justice Department, however, has rious issue of the legitimacy of the cur- preme Court considered the constitu- issued rulings since the Simon exemption ex- rent less-than-equal or less-than-full tional nature and status of unincor- pired that strongly suggest that a voluntary self-governing status, especially given porated territories such as Puerto code of conduct would not run afoul of any the U.S. assertion to the United Na- Rico. In its opinion in the case of Reid antitrust laws. tions in 1953 that Puerto Rico was on a v. Covert (354 U.S. 1), the Supreme In a ‘‘business review’’ letter released in Court confirmed that the territorial November 1993, the Justice Department told path toward decolonization. Simon that additional steps the industry That is why the legislature of Puerto clause of the U.S. Constitution—article took to reduce the threat of violence ‘‘may Rico passed Concurrent Resolution 2, IV, section 3, clause 2—confers on Con- be likened to traditional standard setting ef- on January 23, 1997, requesting Con- gress the power, in the court’s words, forts that do not necessarily restrain com- gress to sponsor a vote based on defini- ‘‘. . . to provide rules and regulations petition and may have significant procom- tions it would be willing to consider, if to govern temporarily territories with petitive benefits.’’ approved by voters. With timely ap- wholly dissimilar traditions and insti- Justice repeated this finding in another business review letter sent to Senator LIE- proval of this legislation, 1997 will be tutions . . .’’ BERMAN in January 1994 regarding the video the year Congress provides the frame- While the Reid case was not a terri- game industry’s efforts to develop a rating work for the resolution of the Puerto torial status decision, it is significant system for violent and sexual content. Rican status question, through a three- that the Supreme Court’s opinion in Some in the television industry also con- phase decisionmaking process that will this case recognizes the temporary na- tend that a code of conduct is unnecessary culminate during the second decade of ture of the unincorporated territory because the major broadcast networks and status defined by the high court in an most local stations and cable networks all the next century. It will be a process have individual programming standards to with respect to the right of residents of earlier line of status decisions known which they adhere. Puerto Rico to become fully self-gov- as the Insular Cases. For even though The reality, however, is that few people erning, based on local self-determina- Puerto Ricans have had statutory U.S. know that these standards even exist. That’s tion, and, at the same time, recognizes citizenship since 1917, and local con- largely because they are often hidden from that the United States also has a right stitutional self-government similar to public view. Of the big four networks, only of self-determination in its relation- that of the States since 1952, it has be- CBS will release its programming standards to the public. ABC, NBC, and Fox have re- ship to Puerto Rico. come quite clear that U.S. citizens re- fused to do so. Consequently, resolution of the sta- siding in an unincorporated territory tus of Puerto Rico should take place in cannot become fully self-governing in By Mr. CRAIG (for himself, Mr. accordance with the terms of a transi- the Federal constitutional system on GRAHAM, Mr. D’AMATO, Mr. tion plan that is determined by Con- the basis of equality with their fellow

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2557 citizens residing in the States of the outside the territorial clause only S9559, August 2, 1996. Like a similar lo- Union. when Congress and the voters deter- cally managed vote in 1967, the 1993 Specifically, unincorporated terri- mine to pursue a recognized form of vote did not resolve the question of torial status with the commonwealth separate nationhood or full incorpora- Puerto Rico’s future status, in large structure for local self-government tion into the Federal political process part because of pervasive confusion and cannot be converted into a permanent leading to statehood. misinformation about the legal nature form of union with constitutionally Thus, the question becomes one of of Puerto Rico’s current status. guaranteed U.S. citizenship, or equal how long can a less-than-equal and The problem of chronic nonproduc- legal and political rights with citizens non-self-governing status continue now tive debate in Puerto Rico and in Con- in the States including voting rights in that Puerto Rico has constitutional gress with respect to definition of the national elections and representation self-government at the local level and current status of Puerto Rico, as well in Congress. At the same time, Con- has established institutions and tradi- as the options for change, is examined gress cannot abdicate, divest or dispose tions which are based upon, modeled carefully in House Report 104–713, part of its constitutional authority and re- after, and highly compatible with those 1, July 26, 1996, pp. 8–23, 29–36. In addi- sponsibility under the territorial of the United States? How long is tem- tion to responding to Resolution 62 by clause or be bound by a statutory con- porary when we consider that Puerto introducing legislation addressing the ferral of special rights intended to Rico has been within U.S. sovereignty subject matter of that request by the make the citizens of a territory whole and the U.S. customs territory for a elected representatives of the residents for the lack of equal rights under the century? of Puerto Rico, S. 2019 was intended to Federal constitution. The proposals in the past that the complement and support the efforts of The concept of an unalterable bilat- self-determination process be self-exe- a bipartisan group of knowledgeable eral pact between Congress and the ter- cuting may have had the appearance of Members in the House to address the ritories is politically implausible and empowering the people to determine troubling issues raised in House Report constitutionally impermissible. A mu- their destiny. However, any attempt to 104–713, part 1. tual consent based relationship would bind Congress and the people to a S. 2019 was a companion measure to amount to a local veto power over acts choice the full effect and implications H.R. 3024, the United States-Puerto of Congress and would give the terri- of which cannot be known at the time Rico Political Status Act, which was tories rights and powers superior to the initial choice is made is actually a the subject of House Report 104–713, those of the States. Indeed, I am not form of disempowerment. For self-de- part 1. Although H.R. 3024 was sched- certain what the results would be if the termination to be legitimate it must be uled for a vote by the House in the last States were given the option of trading informed, and a one-stage binding and days of the 104th Congress, and over- in representation in Congress and the self-executing process prevent both whelming approval was expected, a vote in Presidential elections for the parties to the process—Congress and vote was delayed due to ancillary power to veto Federal law, but it is a the people—from knowing what it is issues. However, important amend- prospect inconsistent with American they are approving. ments to H.R. 3024 were agreed upon by federalism. Any process which does not enable participants in the House delibera- Thus, altering our constitutional sys- Congress and the voters to define the tions, and some of these should be in- tem to attempt to accommodate the options and approve the terms for im- corporated in any measure to be con- unincorporated territories in this way plementation through a democratic sidered in the 105th Congress. would be a disproportionate, inequi- process which involves a response by For example, because the debate in table, and politically perverse remedy each party to the freely expressed the 104th Congress and in the 1996 elec- for the problems the territories are ex- wishes of the other as part of an or- tions in Puerto Rico clarified certain periencing due to the lack of voting in derly self-determination procedure is a fundamental issues regarding defini- Federal elections or representation in formula for stagnation under the sta- tion of status options, it may now be Congress. tus quo. appropriate to include a three-way Moreover, the concept of enhancing a That is why the legislation defining a array of ballot options in any future less-than-equal status so that the dis- self-determination process for Puerto status referendum. Thus, common- enfranchisement of U.S. citizens in the Rico must be based on the successful wealth, independence, and statehood Federal political proces becomes per- process Congress prescribed in 1950 should appear side-by-side on the ballot manent would arrest the process of through which the current constitution the next time there is a status vote in self-determination and decolonization was approved by Congress and the vot- Puerto Rico. that began when the local constitution ers in 1952. That process empowered the In the 104th Congress I concurred in was established by Congress and the people and Congress to approve the the bipartisan position that developed voters in the territory in 1952. process itself, then approve the new re- in the House deliberations in support of It would reverse the progress that lationship defined through the process. a two-part ballot, separating the ques- has been made toward full self-govern- As explained below, this is the most tion of preserving the current unincor- ment to attempt to transform a tem- democratic procedure possible given porated territory status from the two porary territorial status into a perma- the complicated dilemma faced by the options for change to a permanent nent one, although that is precisely United States and Puerto Rico. For form of full self-government—separate what has been attempted by some in only when the people express their sovereignty or statehood. However, the Puerto Rico for the last 40 years. Some preference between status options de- agreed upon House bill amendments in Congress have facilitated and pro- fined in a manner acceptable to Con- and this new Senate bill make it clear moted the fatally flawed notion that gress can the United States inform the that separate nationality or statehood Puerto Rico could become a nation people of the terms under which the remain the two paths to full self-gov- within a nation—if only at the level of preferred option could be accepted by ernment, and that commonwealth is a partisan politics while being careful Congress. This would empower the peo- territorial clause status. I believe this never to formally accept or commit ple to then engage in an informed act approach will result in a free and in- that it could be constitutionally sus- of self-determination, and it would em- formed act of self-determination by the tained. power Congress to define the national residents based on accurate definitions. In reality, Puerto Rico is capable of interest throughout the process. This will simplify the structure of becoming a State or a separate nation, In the 104th Congress, S. 2019, was a the ballot, and make it all the more or of remaining under the territorial response to Concurrent Resolution 62, imperative that the definitions of sta- clause if that is what the people and adopted by the Legislature of Puerto tus options also remain as simple and Congress prefer. But a decision to re- Rico on December 14, 1994, and directed straightforward as possible. All the op- tain territorial status must be based on to the U.S. Congress, requesting a re- tions presented on the ballot in a fu- acceptance that this is a temporary sponse to the results of a 1993 plebiscite ture status referendum must be based status under the territorial clause, conducted in Puerto Rico under local on the objective elements of each sta- which can lead to full self-government law. See, CONGRESSIONAL RECORD S9555– tus option under applicable provisions

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2558 CONGRESSIONAL RECORD — SENATE March 19, 1997 of the U.S. Constitution and inter- upon which Congress would be willing tion to consider any status definition— national law as recognized by the to implement the new status. no matter who might propose it—which United States. Third, both Congress and the voters is deemed unconstitutional or unac- In this connection, it must be noted must act affirmatively to approve final ceptable to Congress. That would be that in the last four decades every at- implementation once the terms of the misleading and dishonest, and no clev- tempt by Congress and territorial lead- transition plan have been fulfilled. er caveat could redeem such a breach ers to define the status options and es- This would track the successful of the institutional integrity and con- tablish a procedure to resolve the sta- model of Public Law 600, except that it stitutional duty of the Congress. tus question has failed. The last proc- improves upon it by requiring Congress In 1997, Congress must take responsi- ess which produced a tangible result and the voters to approve final imple- bility for informing the people of Puer- and advanced Puerto Rico’s progress mentation. This is more democratic to Rico of what the real options are toward self-government was that which than the procedure followed in 1952, in based on congressional definition of the Congress established in 1950 to allow which Congress amended the Constitu- status formulations which Congress de- the residents of Puerto Rico to orga- tion and the revisions were accepted by termines to be consistent with the na- nize local constitutional government. the constitutional convention and put tional interest and the right of self-de- Thus, instead of trying to revisit bat- into effect by proclamation of the Gov- termination of both the United States tles of the past over any of the bills ernor. and the people of Puerto Rico. This considered by Congress in 1990 and 1991, To ensure that there is no ambiguity represents an opportunity and chal- a better model for taking the next step about the new relationship as there lenge as we seek to define our Nation in the self-determination process for was after the current local constitu- in the next century, and there is an ob- Puerto Rico is the one employed by tion was implemented in 1952, the Con- ligation for all concerned to ensure Congress to authorize and establish the gress and the voters themselves, again, that the voters in Puerto Rico are current commonwealth structure for should have the last word on imple- given an opportunity for a free and in- local self-government based on consent mentation. This prevents the local po- formed act of self-determination. of the voters. The process established litical parties from attempting to ex- If we accomplish that, then whatever under Federal law in 1950 was based on ploit ambiguity and convert it into a the outcome may be will vindicate 100 a three-stage process through which political platform, as has been the case years of democratization and develop- the proposed new form of self-govern- with the current commonwealth struc- ment for Puerto Rico through its ment was defined, approved and imple- ture for local self-government. evolving relationship with the United mented with consent of both the In this regard, I note that there are States and the self-determination of its United States and the residents of the those who continue to suggest that people. territory at each stage. definitions of status options for a polit- Mr. GRAHAM. Mr. President, I rise In the successful 1950 process, Con- ical status referendum should be based today to introduce the Puerto Rico gress set forth in U.S. Public Law 600 upon the formulations adopted by the Self Determination Act of 1997. I am an essentially three-phase procedure as political parties in Puerto Rico. This proud to cosponsor this important leg- follows: approach is urged in the name of con- islation with Senator LARRY CRAIG and Congress acted first, defining a sensus building. However, the history a bipartisan coalition of eight other framework under Federal law for insti- of attempts to address this problem— distinguished colleagues. tuting constitutional self-government including the approval of H.R. 4765 by Mr. President, on December 10, 1898, over local affairs. An initial ref- the House in 1990—makes it clear that through the Treaty of Paris that ended erendum was conducted in which the the illusion of consensus has been the Spanish-American War, Puerto voters approved the terms for insti- achieved on status definitions in the Rico became part of the United States. tuting constitutional self-government past only by sacrificing the constitu- Next year marks the 100th anniversary as defined by Congress. tional, legal, and political integrity of of this union. A second referendum was conducted the process. Mr. President, there is no better way on the proposed constitution and the Recognizing the principle of consent for us to commemorate this special oc- President of the United States was re- by the qualified voters through an act casion than to give the U.S. citizens of quired under Public Law 600 to trans- of self-determination to retain the cur- Puerto Rico the same right that their mit the draft constitution approved in rent status or seek change under defi- counterparts in all 50 States and the that second referendum to Congress nitions acceptable to Congress is very District of Columbia enjoy—the right with his findings as to its conformity different from the idea that legislation to choose their political destiny. with the criteria defined by Congress. to make self-determination possible In 1917, the Jones Act gave the people Congress approved final implementa- cannot be enacted unless there is con- of Puerto Rico U.S. citizenship, but it tion of the new local constitution with sent by local political parties to both was less than complete. Though they amendments which were accepted by the form and content of what is pro- are citizens, Puerto Ricans can only the locally elected constitutional con- posed. The qualified voters of Puerto vote in Presidential elections if they vention and implemented on that basis Rico, not the local political parties, are are registered in a State or the District by proclamation of the Governor. Puerto Rico for purposes of the self-de- of Columbia. They have a delegate in We should adopt a similar procedure termination process. Congress—a position currently held by for taking the next step to complete No sleight-of-hand gimmicks or dis- Congressman CARLOS ROMERO- the process leading to full self-govern- claimers disguised as good-faith com- BARCELO´ —who does not have voting ment which began with enactment of mitments will substitute for intellec- privileges. Public Law 600 in 1950. Such a three- tually honest status definitions. We But this lack of political rights is not stage process would be one through must approve legislation that makes it due to a lack of communication. which: clear that Congress will propose a tran- Throughout their history as part of the First, Congress defines the proce- sition plan on terms it deems to be in United States, Puerto Ricans have ex- dures and options it will accept as a the best interests of the United States, pressed their desire to achieve full po- basis for resolving the status question. and when it does the people qualified to litical rights. They have on various oc- In an initial referendum the voters vote in Puerto Rico will have to decide casions let Congress know of their de- then approve a status option they pre- if the terms prescribed by Congress are sire to be full participants in our de- fer. acceptable. mocracy. And their actions speak even Second, the President transmits a If the terms for a change of status de- louder than their words. proposal with recommended terms for fined by Congress are not acceptable to Puerto Ricans have contributed in all implementing the choice of the voters the voters, then the right of self-deter- aspects of American life,—in the arts, consistent with the criteria defined by mination can be exercised thereafter in in sciences, in sports, and especially in Congress, and upon approval by Con- an informed manner based on that out- service to the Nation. Their record of gress a second referendum is held to de- come. There should be no stated or im- service to this country speaks for termine if the voters accept the terms plied commitment to a moral obliga- itself. In World War II alone, more than

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2559 65,000 Puerto Rican men and women have done to enrich our culture and de- ‘‘(1) has the ability to realize a profit or served in the Armed Forces. In Viet- fend our Nation from external threats, loss, nam, over 60,000 served. The first they have earned the right to decide ‘‘(2) incurs unreimbursed expenses which United States soldier killed in Somalia their own political destiny. are ordinary and necessary to the service provider’s industry and which represent an was Puerto Rican. One of the airmen Mr. President, since the early 1900’s, amount at least equal to 2 percent of the shot down over Libya in 1986 was Puer- self-determination has been a corner- service provider’s adjusted gross income at- to Rican. And it was a soldier from stone principle of our Nation’s foreign tributable to services performed pursuant to Puerto Rico who sounded the alarm— policy. 1 or more contracts described in subsection and saved lives—in the 1983 bombing of As we approach the century mark of (d), and the Marine barracks in Beirut. the union between Puerto Rico and the ‘‘(3) agrees to perform services for a par- I recently received a letter from re- United States, this bill will serve as a ticular amount of time or to complete a spe- tired U.S. Army Lt. Col. Dennis model of American democracy at its cific result or task. ‘‘(c) ADDITIONAL SERVICE PROVIDER RE- Freytes, a Puerto Rican who resides in best—providing citizens with their QUIREMENTS WITH REGARD TO OTHERS.—For Orlando. He states in his letter: right to decide their own futures. the purposes of subsection (a), the require- As an American Puerto Rican, who has ments of this subsection are met if the serv- proudly served our country, I think that By Mr. BOND (for himself and ice provider— Puerto Rico’s political status should be Mr. NICKLES): ‘‘(1) has a principal place of business, promptly resolved, so we don’t have second S. 473. A bill to amend the Internal ‘‘(2) does not primarily provide the service class citizens in our democratic form of gov- Revenue Code of 1986 to clarify the at a single service recipient’s facilities, ernment. standards used for determining that ‘‘(3) pays a fair market rent for use of the Puerto Ricans voluntarily joined our certain individuals are not employees, service recipient’s facilities, or Armed Forces and have given their and for other purposes; to the Com- ‘‘(4) operates primarily with equipment not supplied by the service recipient. lives in defense of our country and mittee on Finance. ‘‘(d) WRITTEN DOCUMENT REQUIREMENTS.— democratic way of life. I emphasize THE INDEPENDENT CONTRACTOR TAX REFORM For purposes of subsection (a), the require- ‘‘our’’ because U.S. citizens must have ACT OF 1997 ments of this subsection are met if the serv- the same rights no matter where they Mr. BOND. Mr. President, I ask unan- ices performed by the service provider are were born or where they choose to live. imous consent that the text of the bill performed pursuant to a written contract be- In 1996 and 1997, the Legislature of be printed in the RECORD. tween such service provider and the service Puerto Rico, the democratically elect- There being no objection, the bill was recipient, or the payor, and such contract provides that the service provider will not be ed representatives of 3.7 million U.S. ordered to be printed in the RECORD, as citizens, overwhelmingly approved res- treated as an employee with respect to such follows: services for Federal tax purposes. olutions requesting that the Congress S. 473 ‘‘(e) BUSINESS STRUCTURE AND BENEFITS and the President of the United States Be it enacted by the Senate and House of Rep- REQUIREMENT.—For purposes of subsection respond to their legitimate democratic resentatives of the United States of America in (a), the requirements of this subsection are aspirations. They requested that a Congress assembled, met if the service provider— plebiscite be held not later than De- SECTION 1. SHORT TITLE. ‘‘(1) conducts business as a properly con- cember 31, 1998, almost exactly 100 This Act may be cited as the ‘‘Independent stituted corporation or limited liability years after Puerto Rico gained terri- Contractor Tax Reform Act of 1997’’. company under applicable State laws, and ‘‘(2) does not receive from the service re- torial status. There have been similar SEC. 2. SAFE HARBOR FOR DETERMINING THAT CERTAIN INDIVIDUALS ARE NOT EM- cipient or payor benefits that are provided to referendums in the past, but those were employees of the service recipient. locally mandated—Congress gave no di- PLOYEES. (a) IN GENERAL.—Chapter 25 of the Internal ‘‘(f) SPECIAL RULES.—For purposes of this rection as to how, if at all, the results Revenue Code of 1986 (relating to general section— might affect Puerto Rico’s political provisions relating to employment taxes) is ‘‘(1) FAILURE TO MEET REPORTING REQUIRE- status. amended by adding after section 3510 the fol- MENTS.—If for any taxable year any service It is time for the people of Puerto lowing new section: recipient or payor fails to meet the applica- ble reporting requirements of section 6041(a) Rico to have a referendum process ‘‘SEC. 3511. SAFE HARBOR FOR DETERMINING which defines the choices in a manner THAT CERTAIN INDIVIDUALS ARE or 6041A(a) with respect to a service pro- vider, then, unless the failure is due to rea- which are constitutionally valid, and NOT EMPLOYEES. ‘‘(a) SAFE HARBOR.— sonable cause and not willful neglect, the that Congress is willing to uphold. safe harbor provided by this section for de- Mr. President, I want to particularly ‘‘(1) IN GENERAL.—For purposes of this title, if the requirements of subsections (b), termining whether individuals are not em- stress this latter point. Congress needs (c), and (d), or the requirements of sub- ployees shall not apply to such service re- to understand that if it passes this sections (d) and (e), are met with respect to cipient or payor with respect to that service bill—and I share the hope of my friend any service performed by any individual, provider. and colleague, Senator CRAIG that we then with respect to such service— ‘‘(2) BURDEN OF PROOF.—For purposes of will and that we will do so expedi- ‘‘(A) the service provider shall not be subsection (a), if— ‘‘(A) a service provider, service recipient, tiously—it is assuming an important treated as an employee, ‘‘(B) the service recipient shall not be or payor establishes a prima facie case that political, and moral obligation to the it was reasonable not to treat a service pro- American citizens of Puerto Rico. treated as an employer, ‘‘(C) the payor shall not be treated as an vider as an employee for purposes of this sec- This is not a bill without significant employer, and tion, and consequences. If Puerto Ricans ask to ‘‘(D) compensation paid or received for ‘‘(B) the service provider, service recipient, remain a Commonwealth, we need to such service shall not be treated as paid or or payor has fully cooperated with reason- respect their wishes. If they want to received with respect to employment. able requests from the Secretary or his dele- become a State, we must begin the ‘‘(2) AVAILABILITY OF SAFE HARBOR NOT TO gate, process of incorporation. And if they LIMIT APPLICATION OF OTHER LAWS.—Nothing then the burden of proof with respect to such desire independence, we must take in this section shall be construed— treatment shall be on the Secretary. steps to meet that request. To do oth- ‘‘(A) as limiting the ability of a service ‘‘(3) RELATED ENTITIES.—If the service pro- provider, service recipient, or payor to apply vider is performing services through an enti- erwise would be to seriously undermine other applicable provisions of this title, sec- ty owned in whole or in part by such service our credibility with the 3.7 million citi- tion 530 of the Revenue Act of 1978, or the provider, the references to ‘service provider’ zens of Puerto Rico and the nearly 300 common law in determining whether an indi- in subsections (b) through (e) may include million residents of Latin America. vidual is not an employee, or such entity, provided that the written con- Mr. President, for the last 100 years, ‘‘(B) as a prerequisite for the application of tract referred to in subsection (d) is with the United States had given Puerto any provision of law described in subpara- such entity. Ricans status as citizens but withheld graph (A). ‘‘(g) DETERMINATIONS BY THE SECRETARY.— some of the rights, privileges, and re- ‘‘(b) SERVICE PROVIDER REQUIREMENTS For purposes of this title— WITH REGARD TO THE SERVICE RECIPIENT.— ‘‘(1) IN GENERAL.— sponsibilities that come with that For purposes of subsection (a), the require- ‘‘(A) DETERMINATIONS WITH RESPECT TO A privilege. It is time for that to end. ments of this subsection are met if the serv- SERVICE RECIPIENT OR A PAYOR.—A deter- Puerto Ricans do not deserve second- ice provider, in connection with performing mination by the Secretary that a service re- class political status. For all that they the service— cipient or a payor should have treated a

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2560 CONGRESSIONAL RECORD — SENATE March 19, 1997 service provider as an employee shall be ef- ‘‘(A) the office is the location where the necessary to go to a casino or store fective no earlier than the notice date if— service provider’s essential administrative or where lottery tickets are sold. Anyone ‘‘(i) the service recipient or the payor en- management activities are conducted on a with a computer and a modem will tered into a written contract satisfying the regular and systematic (and not incidental) have access to a casino: Internet users requirements of subsection (d), basis by the service provider, and ‘‘(ii) the service recipient or the payor sat- ‘‘(B) the office is necessary because the can access hundreds of sites for black- isfied the applicable reporting requirements service provider has no other location for the jack, craps, roulette, and sports bet- of section 6041(a) or 6041A(a) for all taxable performance of the essential administrative ting. Gambling addiction is already on years covered by the agreement described in or management activities of the business. the rise. Online gambling will only in- clause (i), and ‘‘(7) FAIR MARKET RENT.—The term ‘fair crease the problem. ‘‘(iii) the service recipient or the payor market rent’ means a periodic, fixed min- Why is this bill necessary? It dispels demonstrates a reasonable basis for deter- imum rental fee which is based on the fair any ambiguity by making clear that mining that the service provider is not an rental value of the facilities and is estab- all betting, including sports betting, is employee and that such determination was lished pursuant to a written agreement with illegal. Currently, nonsports betting is made in good faith. terms similar to those offered to unrelated ‘‘(B) DETERMINATIONS WITH RESPECT TO A persons for facilities of similar type and interpreted as legal. The bill also clari- SERVICE PROVIDER.—A determination by the quality.’’ fies the definition of bets and wagers. Secretary that a service provider should (b) CLARIFICATION OF RULES REGARDING This ensures that those who are gam- have been treated as an employee shall be ef- EVIDENCE OF CONTROL.—For purposes of de- bling cannot circumvent the law. For fective no earlier than the notice date if— termining whether an individual is an em- example, virtual gaming businesses ‘‘(i) the service provider entered into a con- ployee under the Internal Revenue Code of have been known to offer prizes instead tract satisfying the requirements of sub- 1986 (26 U.S.C. 1 et seq.), compliance with of money, in an attempt to evade the statutory or regulatory standards shall not section (d), law. ‘‘(ii) the service provider satisfied the ap- be treated as evidence of control. plicable reporting requirements of sections (c) REPEAL OF SECTION 530(d) OF THE REV- Additionally, my bill clarifies that 6012(a) and 6017 for all taxable years covered ENUE ACT OF 1978.—Section 530(d) of the Rev- Internet access providers are covered by the agreement described in clause (i), and enue Act of 1978 (as added by section 1706 of by the law. As the National Associa- ‘‘(iii) the service provider demonstrates a the Tax Reform Act of 1986) is repealed. tion of Attorneys General [NAAG] task reasonable basis for determining that the (d) CLERICAL AMENDMENT.—The table of force on Internet Gambling reported, service provider is not an employee and that sections for chapter 25 of such Code is ‘‘this is currently the most important such determination was made in good faith. amended by adding at the end the following new item: section to State and local law enforce- ‘‘(C) REASONABLE CAUSE EXCEPTION.—The ment agencies, because it provides a requirements of subparagraph (A)(ii) or ‘‘Sec. 3511. Safe harbor for determining that (B)(ii) shall be treated as being met if the civil enforcement mechanism.’’ FCC- certain individuals are not em- regulated carriers notified by any failure to satisfy the applicable reporting re- ployees.’’ quirements is due to reasonable cause and State or local law enforcement agency (e) EFFECTIVE DATES.— not willful neglect. of the illegal nature of a site are re- (1) IN GENERAL.—The amendments made ONSTRUCTION.—Nothing in this sub- ‘‘(2) C by, and the provisions of, this section shall quired to discontinue services to the section shall be construed as limiting any apply to services performed after the date of malfeasor. NAAG believes that this can provision of law that provides an oppor- enactment of this Act. be a very effective deterrent. The bill tunity for administrative or judicial review (2) DETERMINATIONS BY SECRETARY.—Sec- includes interactive computer-service of a determination by the Secretary. tion 3511(g) of the Internal Revenue Code of providers among those entities re- OTICE DATE.—For purposes of this ‘‘(3) N 1986 (as added by subsection (a)) shall apply subsection, the notice date is the 30th day quired to discontinue such service upon to determinations after the date of enact- after the earlier of— notice. Federal, State, and local law ment of this Act. ‘‘(A) the date on which the first letter of enforcement entities are explicitly au- (3) SECTION 530(d).—The amendment made proposed deficiency that allows the service by subsection (c) shall apply to periods end- thorized to seek prospective injunctive provider, the service recipient, or the payor ing after the date of enactment of this Act. relief against continued use of a com- an opportunity for administrative review in munications facility for purposes of the Internal Revenue Service Office of Ap- By Mr. KYL (for himself, Mrs. gambling. peals is sent, or FEINSTEIN, Mr. GRAHAM, Mr. The Internet Gambling Prohibition ‘‘(B) the date on which the deficiency no- tice under section 6212 is sent. HUTCHINSON, Mr. GRASSLEY, and Act makes explicit the intent of Con- Mr. JOHNSON): gress to create extraterritorial juris- ‘‘(h) DEFINITIONS.—For the purposes of this section— S. 474. A bill to amend sections 1081 diction regarding Internet gambling ‘‘(1) SERVICE PROVIDER.—The term ‘service and 1084 of title 18, United States Code; activities. Too often, illicit operators provider’ means any individual who performs to the Committee on the Judiciary. of virtual casinos set up shop in friend- a service for another person. THE INTERNET GAMBLING PROHIBITION ACT OF ly jurisdictions beyond the direct ap- ‘‘(2) SERVICE RECIPIENT.—Except as pro- 1997 plication of U.S. law. It will also re- vided in paragraph (4), the term ‘service re- Mr. KYL. Mr. President, I rise to in- quire the DOJ to report on the difficul- cipient’ means the person for whom the serv- troduce the Internet Gambling Prohibi- ties associated with enforcing the stat- ice provider performs such service. tion Act of 1997. It will outlaw gam- ute. Finally, it places some burden on ‘‘(3) PAYOR.—Except as provided in para- bling on the Internet. I believe it will graph (4), the term ‘payor’ means the person the bettor. who pays the service provider for the per- protect children from logging on to the The Internet has great potential to formance of such service in the event that Internet and being exposed to activi- promote both educational opportuni- the service recipient does not pay the service ties that are normally prohibited to ties and business expansion in this provider. them. And for those people with a gam- country. At the same time, the Inter- ‘‘(4) EXCEPTIONS.—The terms ‘service re- bling problem, my bill will make it net is fast becoming a place where in- cipient’ and ‘payor’ do not include any enti- harder to gamble away the family pay- appropriate activities such as gam- ty in which the service provider owns in ex- check. bling, pornography, and consumer cess of 5 percent of— Gambling erodes values of hard work, fraud thrive. Recently, many busi- ‘‘(A) in the case of a corporation, the total combined voting power of stock in the cor- sacrifice, and personal responsibility. nesses have welcomed law enforce- poration, or Although the social costs of gambling ment’s involvement in cracking down ‘‘(B) in the case of an entity other than a are difficult to quantify, research indi- on consumer fraud. We must find a con- corporation, the profits or beneficial inter- cates they are potentially staggering. stitutional way to deal with the other ests in the entity. Gambling is a growing industry in the problems raised by this revolution in ‘‘(5) IN CONNECTION WITH PERFORMING THE United States, with revenues approach- communications. I believe that it is SERVICE.—The term ‘in connection with per- ing $550 billion last year—three times possible to impose some conditions, as forming the service’ means in connection or the revenues of General Motors Corp. we have in other areas, without vio- related to the operation of the service pro- vider’s trade or business. In 1993, more Americans visited casinos lating free speech rights. ‘‘(6) PRINCIPAL PLACE OF BUSINESS.—For than attended a major league baseball There is growing support for changes purposes of subsection (c), a home office game. to current law. As I mentioned, the shall in any case qualify as the principal The problem can only grow worse NAAG has a task force on Internet place of business if— with online casinos. Now it is no longer gambling, and the report of the task

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2561 force—authored by Attorneys General as well as informational how-to sites I believe this small tax change would Dan Lungren and Hubert Humphrey— on the Internet. In short, the Internet’s allow draft cider producers to compete called for a legislative remedy to stem ability to serve as an information con- more fairly in the market with com- the tide of gambling electronically. duit for the gambling industry has parable beverages. As draft cider be- NAAG has endorsed my bill. been recognized. comes more competitive the market Mr. President, the Internet Gambling Second, States have historically been will likely grow. This will greatly ben- Prohibition Act of 1997 ensures that the primary regulator of gambling ac- efit the apple growers throughout this the law will keep pace with technology tivities. However, the widespread use of Nation, by expanding the use and need and keep gambling off the Internet. I the Internet and its potential to serve for their product. urge my colleagues to pass the bill. as a conduit of gambling activities ∑ Mr. GRAHAM. Mr. President, I join across national and State borders, The production of draft hard cider my friend and colleague from Arizona, serves to undermine States’ regulatory comes from apples that are culls, proc- Senator KYL, in cosponsoring the control. Our legislation is not intended essing apples or apples that are not us- Internet Gambling Prohibition Act in- to disrupt this prerogative, but rather able in the fresh market. The conver- troduced today, which is intended to to assist States’ ability to enforce its sion of culled apples into high value address a growing problem in the own gambling laws. processed products such as draft cider United States as our technology con- Finally, the legislation would not is important to growers as well as to tinues to modernize our modes of com- hold Internet access providers—such as processors. munication. America Online—liable for gambling Cider and other apple byproducts are This legislation is an attempt to take activities that occur on the Internet. important to Vermont’s economy, pro- a step forward in meeting the needs of However, the Internet access providers viding a market for otherwise unmar- State law enforcement organizations are required, once notified by a State ketable fruit. Of Vermont’s average an- and officials. or law enforcement agency of the ille- With the development of the Internet gal activity, to discontinue Internet nual crop of 1.1 million bushels, ap- World Wide Web, the ability of Ameri- services to the malfeasor. proximately 20 percent, or 220,000 bush- cans to access information for their Mr. President, there is growing els, are graded out as culls, or proc- personal and professional use has taken awareness of the importance of this essing apples. Apple production has a a quantum leap. It is safe to say that issue in my State of Florida. The attor- long history in Vermont, and is an in- the Internet is one of the more impor- ney general of the State of Florida tegral part of agriculture in our State tant technological advances of the late wrote me on February 17, 1997, urging as it is in many States. 20th century with respect to the influ- strong support of this legislation. I am Many States have recognized the po- ence that the technology can have on committed to providing strong support tential benefits to their apple farmers the lives of so many Americans. in the Congress for Florida law enforce- by lowering the tax on draft cider to The number of American Internet ment concerns. equal the beer tax rate. State Depart- It is timely and necessary for the users has grown from 1 million in 1992 ments of Agriculture, farm bureaus, Congress to assist States on this grow- to over 50 million today. This number and representatives from the apple in- is expected to grow to several hundred ing problem which undermines States’ dustry across this Nation have voiced million users by the year 2000. As we jurisdiction and control. We should their support for lowering the cider tax bring Internet technology into our support the efforts of our State and rate. schools, we will see greater use of the local law enforcement officials so that Internet particularly among our youth, they can prevent the growth of activi- This bill that I introduce today is many who are already adept at using ties which are illegal in that State. similar to legislation that I introduced their home computers and surfing the I thank my colleague from Arizona along with my friend from Vermont, Internet for educational and rec- for his work in drafting this important Senator LEAHY, and my colleagues reational purposes. legislation. I look forward to working from New York in the last Congress. With this convenience and easy ac- with him this year in support of pas- The same bill was successful in the cess to a variety of information sage of this bill. Senate last Congress as part of the Mr. President, I ask my colleagues in sources, many of which are of great Small Business Job Protection Act of the Senate to join us in supporting this educational, cultural and professional 1996, H.R. 3448. Unfortunately, the lan- measure.∑ value, come certain expected problems. guage was not included in the con- The one that I want to speak to briefly By Mr. JEFFORDS (for himself, ference report of H.R. 3448. is that of the increasing use of the Mr. LEAHY, Mr. D’AMATO, and Mr. President, it is my hope that this Internet for the purposes of gambling. Mr. MOYNIHAN): The National Association of Attor- legislation will again pass in the Sen- S. 475. A bill to amend the Internal ate and be signed by the President. I ney Generals has recently studied the Revenue Code of 1986 to clarify the ex- problem of Internet gambling. In a 1996 ask my colleagues to support this leg- cise tax treatment of draft cider; to the islation.∑ report, ‘‘Gambling on the Internet,’’ Committee on Finance. ∑ the Association cited the following: TAX TREATMENT OF HARD APPLE CIDER Mr. LEAHY. Mr. President, I am The availability of gambling on the Inter- LEGISLATION pleased to join my friend from net * * * threatens to disrupt each State’s ∑ Mr. JEFFORDS. Mr. President, I am Vermont, Senator JEFFORDS, in intro- careful balancing of its own public welfare introducing tax legislation designed to ducing tax legislation designed to and fiscal concerns, by making gambling stimulate the apple industry in the available across State and national bound- increase opportunities for the apple in- aries, with little or no regulatory control. dustry in the United States. I am United States. I am pleased that Sen- There are literally hundreds of gambling- pleased that Senators LEAHY, D’AMATO, ators D’AMATO and MOYNIHAN are join- related sites on the Internet. Dozens more and MOYNIHAN are joining me as origi- ing me as original cosponsors of the are being added monthly. nal cosponsors of the bill. bill. Our bill clarifies the excise tax treat- Let me make several key distinc- Our bill revises the Federal excise ment of fermented apple cider. Current tions that must be understood with re- tax on fermented apple cider, more Federal tax law unfairly taxes fer- spect to this legislation. commonly known as draft cider, to First, it is important to note that the mented apple cider at a much higher beer tax rates. As one of the senior number of actual online gambling oper- rate than beer despite the two bev- ations are few at this time due to elec- erages similar alcohol levels. Cur- members of the Senate Agriculture tronic commerce and technical limita- rently, fermented apple cider, com- Committee, I believe this small tax tions. Advancements in technology, monly known as draft cider, is subject change will be of great benefit to cider however, make such shortcomings tem- to a tax of $1.07 per wine gallon, despite makers and apple growers across the porary. Only 6 months ago, there were its alcohol level. This bill lowers the country. only 17 active Internet gambling sites excise tax on draft cider containing not Draft cider is one of the oldest cat- on the World Wide Web. Today, there more than 7 percent alcohol to equal egories of alcoholic beverages in North are over 200. And, today, there are hun- the beer tax rate of 22.6 cents per gal- America. Back in colonial times, near- dreds of advertisements for gambling lon. ly every innkeeper served draft cider to

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2562 CONGRESSIONAL RECORD — SENATE March 19, 1997 his or her patrons during the long win- BOYS AND GIRLS CLUBS OF AMERICA sity found that public housing develop- ter. In fact, through the 19th Century, LEGISLATION ments in which there was an active beer and draft cider sold equally in the Mr. HATCH. Mr. President, I rise Boys and Girls Club had a 25 percent United States. today to introduce a measure to fur- reduction in the presence of crack co- Recently, draft cider has made a ther the commitment of the Repub- caine, a 22 percent reduction in overall comeback in the United States and lican Congress to support the expan- drug activity, and a 13 percent reduc- around the world. Our tax law, how- sion of the Boys and Girls Clubs of tion in juvenile crime. Members of ever, unfairly taxes draft cider at a America, one of the best examples of Boys and Girls Clubs also do better in much higher rate than beer despite the proven youth crime prevention. I am school, are less attracted to gangs, and two beverages sharing the same alcohol pleased to be joined in introducing this feel better about themselves. level and consumer market. This tax bill by a bipartisan group of Senators, Distinguished alumni of Boys and treatment, I believe, creates an artifi- including Senator BIDEN, the ranking Girls Clubs include role models such as cial barrier to the growth of draft Democrat on the Youth Violence Sub- actor Denzel Washington, basketball cider. Our legislation will correct this committee, Senator STEVENS, the superstar Michael Jordan, and San inequity. chairman of the Senate Appropriations Francisco 49ers quarterback Steve Present law taxes fermented cider, Committee, Senator GREGG, the chair- Young. regardless of its alcohol level, as a wine man of the Commerce, Justice, State More important, however, are the at a rate of $1.07 per gallon. Our bill Appropriations Subcommittee, and uncelebrated success stories—the mir- would clarify that draft cider con- Senator KOHL, who serves on the Judi- acles performed by Boys and Girls taining not more than 7 percent alco- ciary Committee. Clubs every day. At a Judiciary Com- hol and marketed in various size con- Our legislation addresses our con- mittee hearing today, we have some of tainers would be taxed at the beer rate tinuing initiative to ensure that, with these miracles with us. Amador of 22.6 cents per gallon. I believe this Federal seed money, the Boys and Girls Guzman, from my State of Utah, told Clubs of America are able to expand to tax change would allow draft cider pro- us how he believes the club in his serve an additional 1 million young ducers to compete fairly with com- neighborhood saved his life, by keeping people through at least 2,500 clubs by parable beverage makers. As draft him from gangs, drugs, and violence. the year 2000. The dedication of all of cider grows in popularity, apple grow- The reason Boys and Girls Clubs these Members demonstrates our com- ers around the nation should prosper work, and the Republican Congress mitment to both authorize and fund because draft cider is made from culled wants to do more for them is because this effort. they are locally run, and depend most- apples, the least marketable apples. Last year, in a bipartisan effort, the ly on community involvement for their The growth of draft cider should con- Republican Congress enacted legisla- success. vert these least marketable apples, tion I authored to authorize $100 mil- which account for about 20 percent of Never have our youth had a greater lion in Federal seed money over 5 years need for the positive influence of Boys the entire U.S. apple production, into a to establish and expand Boys and Girls and Girls Clubs, and never has the high value product, helping our strug- Clubs in public housing and distressed work of the clubs been more critical. gling apple growers. Indeed, I have re- areas throughout our country. With Our young people are being assaulted ceived letters from officials at state the help of the Appropriations Com- from all sides with destructive mes- agriculture departments from across mittee, we have fully funded this ini- sages. For instance, drug use is on the the nation—Arizona, Connecticut, tiative. Georgia, Maine, Massachusetts, New The bill we are introducing today rise. Recent statistics reconfirm that Hampshire, New York, Pennsylvania, streamlines the application process for drugs are ensnaring young people as Vermont and Virginia—supporting the these funds, and permits a small never before. Overall drug use by youth taxing of draft cider at the beer rate amount of the funds to be used to es- ages 12 to 17 rose 105 percent between because this change would allow apple tablish a role model speakers’ program 1992 and 1995, and 33 percent between farmers in their States to reap the ben- to encourage and motivate young peo- 1994 and 1995; 10.9 percent of our young efits of an expanded culled apple mar- ple nationwide. people now use drugs on a monthly ket. It is important to note that what we basis, and monthly use of marijuana is I have also heard from the Northeast are providing is seed money for the up 37 percent, monthly use of LSD is up McIntosh Apple Growers Association, construction and expansion of clubs to 54 percent, and monthly cocaine use by the New York Apple Association, the serve our young people. This is bricks youth is up 166 percent between 1994 New England Apple Council and many and mortar money to open clubs, and and 1995. apple farmers, processors and cider pro- after they are opened they will operate Our young people are also being as- ducers that support revising the excise without any significant Federal funds. saulted by gangs. By some estimates, tax on draft cider. In my view, this is a model for the there are more than 3,875 youth gangs, This bill is identical to legislation I proper role of the Federal Government with 200,000 members, in the Nation’s introduced with Senators JEFFORDS, in crime prevention. The days are over 79 largest cities, and the numbers are D’AMATO and MOYNIHAN in the last when we can afford vast never-ending going up. Even my State of Utah has Congress. That bill passed the Senate federally run programs. According to a not been immune from this scourge. In as part of the Small Business Job Pro- GAO report last year, over the past 30 Salt Lake City, since 1992, the number tection Act of 1996, H. R. 3448, but was years, Congress has created 131 sepa- of identified gangs has increased 55 per- not included in the conference report rate Federal programs, administered cent, from 185 to 288. The number of on H.R. 3448. I am hopeful that with the by 16 different agencies, to serve delin- gang members has increased 146 per- leadership of Senators JEFFORDS, quent and at-risk youth. These pro- cent, from 1,438 to 3545; and the number D’AMATO and MOYNIHAN, we can enact grams cost $4 billion in fiscal year 1995. of gang-related crimes has increased a into law this small tax change that Yet we have not made significant staggering 279 percent, from 1741 in 1992 will have a large positive impact on the progress in keeping our young people to 6611 in 1996. Shockingly, 208 of these Nation’s apple industry. away from crime and drugs. involved drive-by shootings. I urge my colleagues to support this What we can and must afford is Every day, our young people are legislation.∑ short-term, solid support for proven being bombarded with cultural mes- private sector programs like the Boys sages in music, movies, and television By Mr. HATCH (for himself, Mr. and Girls Clubs that really do make a that undermine the development of BIDEN, Mr. STEVENS, Mr. GREGG difference. Boys and Girls Clubs are core values of citizenship. Popular cul- and Mr. KOHL): among the most effective nationwide ture and the media glorify drug use, S. 476. A bill to provide for the estab- programs to assist youth to grow into meaningless violence, and sex without lishment of not less than 2,500 Boys and honest, caring, involved, and law-abid- commitment. Girls Clubs of America facilities by the ing adults. The importance of Boys and Girls year 2000; to the Committee on the Ju- We know that Boys and Girls Clubs Clubs in fighting drug abuse, gang re- diciary. work. Researchers at Columbia Univer- cruitment, and moral poverty cannot

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2563 be overstated. The clubs across the Governor or State officials in Utah, the First, the act makes a distinction be- country are a bulwark for our young President set aside this acreage as a tween national monument proclama- people and deserve all the support we national monument by the stroke of tions greater in size than 5,000 acres, can give. his pen. Let me emphasize this point. and those 5,000 acres and less. The Indeed, Federal efforts are already There was no consultation, no hear- President retains his almost unfettered paying off. Using over $15 million in ings, no town meetings, no TV or radio authority under the Antiquities Act seed money appropriated for fiscal year discussion shows, no nothing. No input over monument designations 5,000 1996, the Boys and Girls Clubs of Amer- from Federal managers who work in acres and less. Specifically, the Antiq- ica opened 208 new clubs in 1996. These Utah and manage our public lands. As uities Act delegates to the President clubs are providing positive places of I Stated last September, in all my 20 discretion to declare as a national hope, safety, learning, and encourage- years in the U.S. Senate, I have never monument that part of Federal land ment for about 180,000 more kids today seen a clearer example of the arrogance that contains historic landmarks, his- than in 1995. In my state of Utah, these of Federal power than the proclama- toric and prehistoric structures, and funds have helped keep an additional tion creating this monument. It con- other objects of historic or scientific 6,573 kids away from gangs, drugs, and tinues to be the mother of all land interest—but only as long as the de- crime. grabs. clared area is confined to the ‘‘smallest The $20 million appropriated for fis- We in Utah continue to work with area compatible with proper care and cal year 1997 is expected to result in the hand President Clinton has dealt management of the objects to be pro- another 200 clubs and 200,000 more kids us. That is, we are attempting to rec- tected.’’ The 5,000 acre limitation will involved in clubs. We need now to re- ognize and understand the constraints give effect to this ‘‘smallest area com- double our efforts. The legislation we placed upon the future use of the land patible’’ clause, which both the courts and resources contained within the introduce today demonstrates our com- and past Presidents have often ignored. mitment to do that. I urge my col- monument’s boundaries. We are trying For areas larger than 5,000 acres, the leagues to support it. to identify the various adverse effects President must consult, through the this action will have on the sur- Secretary of Interior, with the Gov- By Mr. HATCH (for himself and rounding communities. ernor of the State or States affected by Mr. BENNETT): Personally, while I would have pre- the proposed proclamation. This con- S. 477. A bill to amend the Antiq- ferred a monument designation consid- sultation will prevent executive agen- uities Act to require an Act of Con- erably smaller in scope, I could have cies from rolling over local concerns— gress and the consultation with the enthusiastically supported a monu- local concerns that, under the dictates Governor and State legislature prior to ment designation for the area covered of modern land policy laws such as the the establishment by the President of by the proclamation had I been con- national monuments in excess of 5,000 sulted prior to last September and in- Federal Land Policy and Management acres; to the Committee on Energy and vited to work with the President on a Act of 1976 [FLPMA] and the National Natural Resources. designation that was tailored to ad- Environmental Policy Act, certainly dress the many concerns we have heard deserve to be aired. f The National Monument Fairness over the years on this acreage. Two of THE NATIONAL MONUMENT Act also provides time constraints on these concerns involve the 200,000 acres FAIRNESS ACT OF 1997 the consultation requirement. From of school trust lands captured within the date the Secretary of Interior sub- Mr. HATCH. Mr. President, along the monument boundary and the lock- mits the President’s proposal to the ap- with my colleague, Senator BENNETT, I ing up of 16 billion tons of recoverable, propriate State Governor, the Gov- am pleased to introduce the National low-sulfur, clean-burning coal. Monument Fairness Act of 1997. This Remember, our wilderness bill con- ernor will have 90 days to respond with act will promote procedural fairness in sidered last year proposed designation written comments. Ninety days after the creation of national monuments on of approximately one-quarter of this receiving the Governor’s comments, Federal and State lands under the An- land as wilderness. I wanted to protect the Secretary will then submit appro- tiquities Act of 1906 and further con- most of it; the people of Utah wanted priate documentation, along with the gressional efforts in the area of envi- to protect most of it. But, we were not Governor’s written comments, to the ronmental protection. Identical legis- consulted; we were not asked; our opin- Congress. If the Governor fails to com- lation is being introduced today in the ion was not sought. Rather, in an effort ment on the proposal, the Secretary House of Representatives by Congress- to score political points with a power- will submit it to the Congress after 180 man JIM HANSEN with the support of ful interest group 48 days before a na- days from the date of the President’s Congressmen MERRILL COOK and CHRIS- tional election, President Clinton uni- proposal. These time constraints as- TOPHER CANNON. laterally acted. sure that the process will be fair. It As my colleagues know, on Sep- In taking this action in this way, the will prevent State officials from unnec- tember 18, 1996, President Clinton in- President did it all backwards. Instead essarily delaying proposed proclama- voked the Antiquities Act of 1906 to of knowing how the decision would be tions, but will allow appropriate time create the Grand Staircase/Escalante carried out—and knowing the all rami- for State and localities to voice their Canyons National Monument. The 1.7 fications of this implementation and concerns through the Governor’s com- million acre monument, larger in size the best ways to accommodate them— ments on the President’s actions. than the States of Rhode Island and the President has designated the monu- Consequently, the consultation re- Delaware combined, locks up more ment and now expects over the next 3 quirement ensures that large monu- than 200,000 acres of State lands, along years to make the designation work. ment designations will be made fairly, with vast energy reserves located be- The formal designation ought to come and in a manner that allows the par- neath the surface. after the discussion period. It is how ticipation, through their Governor, of Like the attack on Pearl Harbor, this we do things in this country. Unfortu- the people most directly affected by massive proclamation came completely nately, however, the decision is now the proclamation. without notice to the public. Although fait accompli, and we will deal with it Second, the National Monument State officials and members of the as best we can. I hope the President Fairness Act allows all citizens of the Utah congressional delegation were will be there to help our people in rural United States to voice their concerns told that the Administration would Utah and our school system as the im- on large designations through Con- consult us prior to making any change plementation of the designation order gress. The act provides that after the in the status of these lands, the Presi- takes place. Secretary has presented the proposal, dent’s announcement came as a com- The legislation we are introducing Congress must pass it into law and plete surprise. The biggest Presidential today, the National Monument Fair- send it to the President for his signa- land set-aside in almost 20 years was a ness Act, is designed to correct the ture before the proposal becomes final sneak attack. problems highlighted by the Clinton and effective. Thus, the Nation, Without any notification, let alone Antiquities Act proclamation in Utah. through its elected representatives, consultation or negotiation, with our It will do this in two significant ways. will make the decision whether certain

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2564 CONGRESSIONAL RECORD — SENATE March 19, 1997 lands will become national monu- need to pay particular attention, if the ignated. Certainly, any monument pro- ments. This is the way our democracy long arm of the Federal Government posal consisting of more than 5,000 ought to operate. Indeed, it furthers can do this to Utah without so much as acres that is proposed by the President the intent of the Framers in the Con- a day’s notice, it can do it to your where a consensus exists within Con- stitution who anticipated that laws State as well. gress that such a designation is war- and actions affecting one or more indi- It is time we incorporate some com- ranted would be favorably received and vidual States would be placed before mon sense protections for all States acted upon by Congress. And, at least the legislature and debated, with a into the Antiquities Act. I continue to home State senators and representa- State’s representatives and senators believe that last September’s act was a tives have a voice. In many cases, it is able to defend the interests of their Federal land grab, and I unwilling to likely that they would pursue a des- State. stand by and let it happen again in my ignation of these areas prior to the Mr. President, the purpose of our leg- State or any other State without a fair President exercising his authority islation is to ensure that a fair and and proper airing in the court of public under the Antiquities Act. thorough process is followed on any fu- opinion. But, let’s not lose focus of the pur- ture large-scale monument designa- Some may ask why this legislation poses of this bill. We simply want to tions under the authority granted in focuses only on proposed areas over ensure that a public process is under- the Antiquities Act. Since Utah is 5,000 acres. First, it is not our desire to taken prior to any large monument home to many other areas of signifi- completely withdraw the authority designation under the Antiquities Act. cant beauty and grandeur, I am con- granted the President in the 1906 act. As I stated earlier, we conduct such a cerned that this President or those But, the original act is clear when it process whenever a similar proposal is within his administration, or a future States that this authority should be introduced in Congress; why can’t Con- President or administration, might limited to ‘‘the smallest area’’ pos- gress insist that it be done when the consider using this authority in the sible. In my mind, this authority President desires to achieve the same same manner as last September. In should be available for those areas that purpose? other words, it will be ‘‘deja vu all over are small in nature that may require I mentioned that we are in the proc- again.’’ We cannot afford to have the quick or emergency protection for ess of recognizing and understanding entire land area of our state subject to which a monument designation is war- the constraints this proclamation will the whims of any President. Many have ranted. That is how I envision this au- place on the economic and social as- proposed plans, including myself, for thority being used. pects of the surrounding communities. these areas, that have been the subject Second, there is already precedence When an area the size of the Grand of considerable public scrutiny and in Federal law for 5,000 acres as the Staircase-Escalante Canyons National comment. The consensus building proc- threshold amount for determining cer- Monument is withdrawn from public ess must be allowed to continue with- tain pending or future Federal action use and given a special designation, out the threat that a Presidential pen or consequence. For example, the Wil- there are many ramifications that need will intervene to destroy any progress derness Act of 1964 defines wilderness to be addressed, the burden of which and goodwill that has been established as having ‘‘at least 5,000 acres of land.’’ falls primarily on the shoulders of the or that may be underway among the Also, FLPMA authorizes the Secretary local community. These include the citizens of our State. to withdraw 5,000 acres or more for up following items: I am aware that Interior Secretary to 20 years ‘‘on his own motion or upon First, county land-use plans will Babbitt stated publicly last month request by a department or agency have to be studied and amended to ad- that ‘‘there are no plans for any addi- head.’’ And, there is reference to dress necessary changes relating to the tional executive withdrawals’’ during ‘‘roadless areas of 5,000 acres or more’’ new monument. the remaining years of the Clinton ad- in that section of FLPMA that author- Second, consideration of the trans- ministration. That is fine. However, as izes the 15-year Bureau of Land Man- portation improvements required to my colleagues know perfectly well, agement wilderness study process. improve the existing inadequate trans- Secretary Babbitt told me and other I am sure that any detractors of this portation system to access the new members of our congressional delega- bill will State that had our bill been monument for visitors to the area. tion last December that there was no enacted in the past, some of the Na- Third, increased visitation to the final decision to designate the Grand tion’s most gorgeous and long lasting area will place greater burden on serv- Staircase/Canyons of the Escalante monuments would never have been des- ices provided by local government, Monument and that we, the congres- ignated as a national monument. I such as law enforcement, fire, emer- sional delegation, would be consulted would say two things to this point. gency, search-and-rescue, and solid prior to any designation. Since then, First, our bill will not prevent the es- waste collection. we have learned from press reports tablishment of any monument con- Fourth, increased visitation to the that many decisions leading to the sisting of 5,000 acres or more. The bill area will place greater burden on the monument announcement had already simply modifies the process by which proper disposition of limited natural been made, if not finalized, prior to our proposed monuments of acreage above resources, such as water, both for cul- meeting with the Secretary. this amount can be designated. Second, inary and irrigation purposes. But, regardless of whether the Clin- and most importantly, I understand These are just a few items that are ton administration plans to designate that there are 72 national monuments currently being discussed and reviewed any more monuments, I do not think it in the United States. Of that number, by local leaders in the area of the new is unreasonable to look at the authori- only one-third, or 24, have a total acre- national monument. These are not ties contained in the Antiquities Act— age figure greater than 5,000 acres. En- trivial matters; they are critical to particularly the authority that permits actment of our bill will not bring a continuing the livelihood of the cities such sweeping and long-lasting changes halt to the ability of Congress—or even and towns in the area. So, no one for individual States and towns with- the President—to designate national should think that creating a new out State input and congressional ap- monuments. monument of this size, as endearing a proval. That is the issue. In addition, I realize that some of our concept as that is, does not create sig- That is why we are introducing this existing national parks, such as Arches nificant matters that must be ad- legislation today. This matter of due and Canyonlands National Parks in dressed. process for State and local officials—as Utah, were originally established as Of course, the other consequence the well as for small business people, national monuments, only to be des- creation of this monument has created ranchers, school systems, and many ignated a park afterward. It is not fair which continues to be of utmost con- others affected by locking up lands—is to say that had our bill been in law cern to me is the final disposition of an issue about which I believe all Sen- prior to the designation of these monu- the State school trust lands captured ators and Congressmen need to be con- ments that parks like Arches and within the monument’s boundaries. cerned. While Senators representing Canyonlands or the Grand Canyon Na- The inability to access the natural re- the so-called public lands States may tional Park would never have been des- sources contained on these lands will

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2565 have a devastating impact on providing of local and State officials prior to legislation. It doubtlessly will become crucial funds to Utah’s public school making large-scale changes in land the focus of the estate tax reform ef- educational system. The Utah Congress designation and management. forts in the Senate efforts. The list of of Parents and Teachers has indicated Finally, the requirement that mas- original cosponsors already includes that ‘‘the income from the mineral re- sive monument proposals be passed Senators BAUCUS, LOTT, BREAUX, NICK- sources within the Monument could through the Congress, under the stric- LES, MURKOWSKI, KERREY, HAGEL, have made a significant difference in tures of article I of the Constitution, TORRICELLI, LANDREIU, and Mr. HUTCH- the funding of Utah schools now and will ensure that all Americans have a INSON. for many generations to come.’’ It re- say in land policy decisions that fun- I will go about this introductory mains to be seen the manner in which damentally change the Nation. And, statement in two steps. First, I am the President will fulfill the promises this, Mr. President, may be the most going to discuss the importance of this he made to the children of Utah last compelling reason of all to enact this legislation to my state of Iowa. Then, I September when he created the new measure. will make some remarks about the spe- monument. Specifically, he said ‘‘cre- I invite Senators to join me in sup- cific provisions of the bill. ating this national monument should port of this legislation and ask unani- In nearly every area of my state and not and will not come at the expense of mous consent that the text of the bill the nation, we saw in the past decade Utah’s children.’’ He also added that it be printed in the RECORD. estate tax ultimately confiscate many is his desire to ‘‘both protect the nat- There being no objection, the bill was family farms. For example, in 1981, the ural heritage of Utah’s children and en- ordered to be printed in the RECORD, as children of two family farmers in Han- sure them a quality educational herit- follows: cock County, Iowa, inherited tracks of age.’’ I am eager to work with him to S. 477 land that were debt free. In both of fulfill these promises. Be it enacted by the Senate and House of Rep- these cases a father was passing the I mention these items to simply resentatives of the United States of America in farm to one of his children. The estate paint a picture for my colleagues that Congress assembled, was forced to borrow the amount to there are many pieces to the monu- section 1. short title. pay for both the state inheritance tax ment puzzle that remain to be resolved. This act may be cited as the ‘‘National and the federal estate tax. At the time, The President can come to town—or 75 Monument Fairness Act of 1997.’’ the profitability of farming was low, miles to the south in another State— sec. 2. consultation with the governor and state legis- and the value of farm land plummeted. and designate a monument, but Utahns lature. In both cases the estate tax unfortu- are left to pick up the pieces of his ac- Section 2 of the Act of June 8, 1906, com- nately brought about the foreclosure of tion to make sure that it works—and monly referred to as the ‘‘Antiquities Act’’ (34 Stat. 225; 16 U.S.C. 432) is amended by these farms which had been in each that it works properly. That is what I adding the following at the end thereof: ‘‘A family for four generations. want, and I am sure that is what the proclamation under this section issued by That was sixteen years ago, and the President wants. the President to declare any area in excess of Finally, Mr. President, I must point 5,000 acres to be a national monument shall estate tax has hardly improved since out that the adoption of this act will not be final and effective unless and until then. The general estate tax exemption likely result in more stringent environ- the Secretary of the Interior submits the has risen to $600,000, but that number is mental protection of Federal lands. Presidential proclamation to Congress as a over $200,000 behind the rate of infla- The most ironic fact of the administra- proposal and the proposal is passed as a law tion. The important thing to keep in pursuant to the procedures set forth in Arti- mind about estate tax reform is that tion’s monument designation in Utah cle 1 of the United States Constitution. Prior is that national monuments permit a estates do not pay taxes, surviving to the submission of the proposed proclama- families pay taxes. This bill is simply greater level of activity than does a tion to Congress, the Secretary of the Inte- wilderness designation. Last year, the rior shall consult with and obtain the writ- about fairness and equity for families. Utah delegation proposed that 2.1 mil- ten comments of the Governor of the State Furthermore, it is about correcting la- lion acres of land on and around the in which the area is located. The Governor tent defects in the estate tax rules that Grand Staircase/Escalante Canyons shall have 90 days to respond to the con- make tax lawyers rich, but also make area be declared wilderness, under the sultation concerning the area’s proposed families crazy. monument status. The proposed proclama- language of the Wilderness Act of 1964. Reform in this legislation comes in tion shall be submitted to Congress 90 days three major parts. First, we increase The wilderness designation is far more after receipt of the Governor’s written com- stringent than the administration’s ments or 180 days from the date of the con- the broad based estate tax exemption monument designation and prevents sultation if no comments were received.’’. from $600,000 to $1,000,000 over a period the construction of the roads and visi- of six years. Second, we grant family tors centers envisioned under the By Mr. GRASSLEY (for himself, owned businesses relief similar to what monument designation. The Utah pro- Mr. MURKOWSKI, Mr. was introduced by former Senators posal of the 104th Congress included TORRICELLI, Ms. LANDRIEU, Mr. Dole and Pryor. For businesses passed more area than BLM had officially rec- CRAIG, Mr. KERREY, Mr. HAGEL, down among the family, this bill pro- ommended to Congress following its 13- Mr. BAUCUS, Mr. LOTT, Mr. vides a complete exemption for the year inventory of the lands in South- BREAUX, Mr. NICKLES and Mr. first $1,500,000 of family business as- ern Utah. This is yet another compel- HUTCHINSON): sets. It also provides an additional 50 ling reason why it is vital for local and S. 479. A bill to amend the Internal percent exemption on the next State officials to be consulted prior to Revenue Code of 1986 to provide estate $8,500,000. Thus, there is a $10,000,000 national monument declarations. tax relief, and for other purposes; to cap on our family-owned business re- Mr. President, the Antiquities Act is the Committee on Finance. lief. This provision is therefore a antiquated. It needs to be updated. It THE ESTATE TAX RELIEF FOR THE AMERICAN smaller provision than the original can be amended in a manner consistent FAMILY ACT Dole/Pryor legislation. with today’s pressing land policy con- Mr. GRASSLEY. Mr. President, I rise Finally there is a section that I call cerns without destroying the original today to introduce a bipartisan effort repair and maintenance. Here we im- intent behind the act. That is what we to relieve the estate tax burden on the prove some popular existing provisions. have proposed in this legislation and American family. I want to thank the For example, housekeeping and im- why I urge passage of the National other original cosponsors and particu- provement is done to special use valu- Monument Fairness Act of 1997. This larly the Majority Leader. Estate tax ation. The Government financed estate bill will preserve the President’s abil- relief is on the respective top ten legis- tax deferral provision is improved. A ity to act to protect lands of historic lative objective lists of both parties. It generation skipping tax equity prob- and scientific significance that are is my honor to lead the effort for my lem is fixed that has already been threatened with development. How- party. I think that estate tax reform passed twice but vetoed for unrelated ever, the act will promote greater envi- will happen in this Congress. There- reasons. Finally, an IRS gift tax audit ronmental stewardship by forcing the fore, I encourage my colleagues to as- statute of limitations problem for fam- executive branch to consider the views sociate themselves with our bipartisan ilies is fixed.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2566 CONGRESSIONAL RECORD — SENATE March 19, 1997 Because it is especially complicated, As I listen to farmers, ranchers and some people believed it was the Gov- I want to discuss the generation skip- small business owners, one topic comes ernment’s job to determine who should ping transfer tax problem that is ad- up every time, and that is the estate be allowed to keep what they earn. dressed in the repair and maintenance and gift tax. I hear about the burden it They believed it was the Federal Gov- section of this bill. For reference pur- puts on agricultural producers and ernment’s job to confiscate the hard- poses, this legislation was known as small businesses, and about how dif- earned dollars of working Americans bill number S. 1170 in the 104th Con- ficult this tax makes it to hand down when they died. gress. It too was passed on the Bal- an operation to your sons and daugh- The estate tax is a monster that anced Budget Act of 1995 which was ters. must be exterminated. If it were up to subsequently vetoed. To avoid this tax, an operation today me, we would simply repeal the estate The GST tax is an extra tax that has to be under $600,000 in value. That tax in its entirety. Unfortunately, our families pay when a grandparent amount hasn’t budged since 1987. Our budget process does not allow us to makes a gift to a grandchild. The pro- State, one the other hand, has changed completely repeal this tax all at once. vision in our bill has the support of a lot in that time. In 1988, the average We must do it in stages. over 200 charities in the Nation includ- Montana farm was worth $579,735. In Therefore, the bill we are introducing ing the public universities in my State 1995, that amount was up to $867,769. If today will increase the amount of of Iowa. It has passed twice in the last we had figures for today, I am con- every estate that will be exempt from 10 years, but was not enacted because fident this amount would be even high- estate tax. When fully phased in, up to the greater legislation was vetoed for er. $1 million will be automatically ex- unrelated reasons. So if you’re an average fellow, you cluded from every estate before imposi- Our provision expands the current often have three choices when your tion of the estate tax. law predeceased parent exception. This farm goes on to the next generation. The bill also creates a new category is an exception to the GST tax where a You can subdivide the land and thus of excludable assets for family-owned grandparent gifts to a grandchild but decrease production. You can sell off businesses that are passed on to suc- the grandchild’s parent has already part of the farm to pay the taxes. Or, ceeding generations. No longer will died. The grandchild steps up into the you can sell the whole thing and get small business owners be forced to sell place of the parent. In our bill, this ex- out of farming altogether. None of part or all of their business assets ception is broadened to include gifts these options are good for the family, merely to feed the voracious tax appe- not only to grandchildren with pre- nor are they necessarily good for the tite of the Federal Government. Our deceased parents but also grandnieces community. Unbridled development bill allows an exclusion of $1.5 million and grandnephews. The expansion to brings with it its share of problems, of the assets of a family-owned busi- include these gifts that are affected by and changes the nature of Montana ness from the estate tax, and 50 percent trusts is necessary to promote chari- life—not always for the better. Our of the next $8.5 million. For many table giving and also protect families. farms, ranches and other small busi- small businesses this will make the dif- The White House supported this provi- nesses are a part of our heritage and ference between staying viable and sion during the debate of the Balanced valuable contributors to our economy closing their doors. It will preserve Budget Act of 1995, given the prospec- and the Montana way of life. It is sim- jobs, give many communities around tive effective date as in our bill. Humility requires me to admit that ply not right to destroy them with on- the country stability and certainty, each of these provisions passed as part erous estate taxes. and encourage entrepreneurship. It is The Estate Tax Relief for the Amer- of the vetoed Balanced Budget Act of the right thing to do for our farmers, 1995. In some places we have made ican Family Act of 1997 is the first step for our ranchers, for every American technical improvements suggested by toward bringing the estate tax up to who owns a small business that he or the tax experts, but by and large there date and making it more fair. Our bill she wishes to keep in the family. is little original thought here. If you raises the unified credit to cover es- These businesses are, after all, the have good legislation you don’t need to tates up to $1 million, which is roughly engines of prosperity in communities improve upon it. where the cap would be if the credit across America, and we must help Some will ask about how this estate had kept pace with inflation all these them to remain so. tax bill fits into the debate over a bal- years. We give folks a bit longer to pay This bill is the first step. The tax on anced budget. The answer is that the off the bill when they do have a tax death should be zero, and that is what balanced budget is still a No. 1 priority due, by lengthening the deferral from we will continue to work for. and this bill will need to fit in a bal- 10 years to 20. We provide additional I want to thank Senator GRASSLEY anced budget. Since the White House exemptions for family-owned small for his leadership on this bill, and Sen- has supported provisions in the Presi- businesses, by allowing them to ex- ator BAUCUS and Senator BREAUX as dent’s budget similar to these provi- clude completely the first $1.5 million well for joining in this bipartisan effort sions, we should expect the White in value of their estates, and one-half to reduce the crushing tax load on all House to offer assistance to us in re- of the next $8.5 million. We also make Americans. solving the estate tax problem. If the a few other common-sense changes to Mr. BREAUX. Mr. President, today I era of big government is over, then the make it easier to keep these business join with several of my colleagues to White House should step up to the operations in the family. introduce the Estate Tax Relief for the plate and aid us in eliminating estate That’s good news for farmers, ranch- American Family Act of 1997. tax theft upon surviving families. ers and small business owners. It’s Tax policy should meet two criteria. Mr. BAUCUS. Mr. President, I am good for the communities they live in. It should provide an effective and effi- very pleased to join with Senator And more than anything else, it’s the cient way to collect taxes for the oper- GRASSLEY and my other colleagues in right thing to do. So I’m very proud to ation of our Government and it should introducing the Estate Tax Relief for be a part of this effort today, and I encourage positive economic and social the American Family Act of 1997 today. look forward to working with my other policies. This tax does neither. After This bill is designed to provide farmers, colleagues, and with the administra- looking at the current system, I have ranchers, and others who own family tion, to get this relief enacted into law concluded that Federal estate and gift businesses and much needed relief from this year. taxes are not worth the cost to our the estate tax. Mr. LOTT. Mr. President, I am de- economy, to businesses and to Amer- Montana is a small-town, rural lighted to take part in introducing the ican families. State, Mr. President. People run farms, first bipartisan family tax relief bill of In 1995, the estate tax generated $14.8 ranches, and work in small businesses. the 105th Congress—the Estate Tax Re- billion in revenue, only 1.09 percent of One of the wonderful things about life lief for the American Family Act. total Federal revenues. Conversely, the in rural Montana is the way these oper- Today, the Government can con- cost of collecting and enforcing the es- ations stay in the family. It holds com- fiscate up to 55 percent of an estate in tate tax to the Government and tax- munities together, and creates a last- tax when a person dies. This tax is a payers was 65 cents of every dollar col- ing bond between generations. grotesque relic of an earlier era when lected.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2567 The effects of the estate tax are felt States of 2.9 percent, which is lower For families with their own small most by family-owned businesses. More than that of any other industrialized business, the bill would provide a new than 70 percent of family-owned busi- country, we should be encouraging in- small business exemption of $1.5 mil- nesses do not survive the second gen- dividuals, families, and businesses to lion of business-related assets above eration and 87 percent do not survive save and invest. the first $1 million in an estate as well the third generation. Many families are Since 1987, a unified tax credit for as 50 percent of the next $8.5 million of forced to liquefy their businesses in gifts and estate transfers has effec- such assets. This proposal would pro- order to pay the estate tax. tively exempted $600,000 worth of assets vide new safeguards for family business There is a definite need to remedy from estate taxes. This basic exemp- solvency that is not currently provided these problem and this bill takes steps tion has increased modestly over the under current law. in the right direction. The legislation years, from $60,000 in the 1940’s, 1950’s These changes are desperately needed would increase the estate tax exemp- and 1960’s to $225,000 in 1982. Unfortu- as our current estate tax policy has not tion from $600,000 to $1 million, and nately, the current estate exemption of been upgraded in a decade. Even worst, allow estate tax-free transfers of cer- $600,000 has been greatly eroded by in- the current policy has proven to be a tain qualified small business assets. flation. economic failure. Estate and gift taxes I hope that any tax bill we put forth The legislation I am introducing are one of the smallest sources of rev- this year will include estate tax relief today with the Senate majority leader, enue, collecting only $10 to $15 billion based on the principles we have put Senator GRASSLEY, Senator BREAUX, per year, mostly because Americans forth in this bill. Senator BAUCUS, and others addresses have found legal means of avoiding the Mr. NICKLES. Mr. President, I have the problems associated with the es- tax. Indeed, Prof. Douglas Bernheim of always believed that economic freedom tate tax in a thoughtful, bipartisan Stanford University has theorized that is a critical part of life, liberty, and the manner. It is not the perfect solution more income tax revenue may be lost pursuit of happiness. Unfortunately, to these problems, Mr. President, but it through clever estate planning than is the Internal Revenue Code does not al- is a good first step. I believe that ulti- actually collected through the estate ways promote or encourage economic mately we must radically restructure tax. freedom, and one area where this is the estate tax by reducing marginal Even worse, the current policy en- strikingly clear is the confiscatory, rates, which now exceed 55 percent for courages Americans to spend capital on anti-family, anti-growth estate tax. estates larger than $3 million, and I be- consumption items rather than save Most Americans work diligently lieve we must strive to treat all types because saving their money would in- throughout their lives to provide for of family businesses equally. However, crease the value of their estate and, ul- their families and give their children I recognize the budget constraints Con- timately, their estate tax liability. In- and grandchildren a better future. This gress is working under, and I believe it deed, it has been estimated that the work often results in the accumulation is important to move forward in a bi- tax cost of a dollar saved increases by of assets like homes, businesses, and partisan manner. an amount somewhere between 7.4 farms; all acquired with hard work and The legislation we are introducing cents and 55 cents because of current bought with after-tax dollars. Unfortu- today increases the estate tax exemp- estate tax law. nately, those without high-paid law- tion from $600,000 to $1,000,000, thus al- yers and accountants realize too late lowing more homeowners, farmers, and And for small business, the current that up to 55 percent of those assets small businesses to keep their hard- policy is devastating. The family- could be confiscated by the Federal earned wealth. Further, our bill would owned pizza parlor, dry cleaning store, Government upon their death. provide special relief for closely-held grocery and family farm are failing to Some people mistakenly believe es- family businesses. We would allow es- provide the kind of generational eco- tate taxes only affect the rich, but tate-tax free transfers of up to $1.5 mil- nomic continuity that national policy there are thousands of small businesses lion in small business assets to quali- should be encouraging. Indeed, more and farms throughout the country fied family members, and a 50 percent than 70 percent of family businesses owned and operated by middle-income exclusion for up to $8.5 million in as- don’t survive the second generation Americans that are affected by existing sets above that threshold, as long as and almost 90 percent don’t survive to estate tax laws. These small businesses the heirs continue to operate the busi- a third generation. Most of these fail- may appear to be economically signifi- ness. ures occur because current estate tax cant on paper, but often they have lit- The legislation we are introducing policy drains a family’s financial abil- tle liquid assets to cover estate tax li- today makes simple pro-family, pro- ity to keep a business afloat as it abilities. Historically, these businesses business, and pro-economy changes to passes from one generation to the next. have created most of the new jobs in our tax code. It will allow more home- The existing estate tax policy creates this country and fueled the growth of owners, farmers, and small businesses economic inefficiencies and places its the economy. to keep their hard-earned wealth. I en- heaviest burdens on the middle class. The unfortunate result of high estate courage my colleagues to join us as co- The rates of estate taxes are excessive, taxes is that families are frequently sponsors of this bill. unfair, punitive, and contrary to the forced to sell off part of the family Mr. TORRICELLI. Mr. President, I interests of both business owners and business to pay the taxes incurred by am proud to include my name as an their employees. Indeed, these taxes the deceased family member’s estate. original cosponsor of the Estate Tax destroy the work of a lifetime and the This liquidation of productive assets to Relief for the American Family Act of dreams of a generation of Americans. finance tax liabilities is anti-family 1997, which was introduced today. This The time to make genuine and sensible and anti-business. At the very least, is a critical tax reform bill that will changes is now. families and businesses are forced to modernize our antiquated estate tax Enactment of the Estate Tax Relief employ an army of expensive experts to policy, provide significantly improved for the American Family Act of 1997 is avoid the worst estate taxes, a make- economic security for family busi- an essential part of any plan to balance work exercise that exacerbates the in- nesses, promote efficient and pro- the budget by 2002. It would likely pro- efficiency of the system. growth economic policy and ensure vide a net increase in revenues while at Mr. President, I believe it is patently sound financial practices for millions the same time restore tax fairness for unfair for the Federal Government to of American working families. millions of Americans. I am proud to assume that it has the right to take an This legislation gradually increases be an original cosponsor of this legisla- individual’s hard-earned assets and re- over 6 years the estate and gift tax ex- tion and will be a tireless advocate for distribute them to others. If our goal emption from the current limit of its enactment into law. as a society and a government is to en- $600,000 to $1 million. The graduated courage long-term, private savings and time schedule would increase the ex- By Mr. WELLSTONE: investment we cannot continue the emption by $100,000 in each of the first S. 480. A bill to repeal the restric- policy of confiscating estates. With an 2 years following enactment and $50,000 tions on welfare and public benefits for average savings rate in the United in each of the next 4 years. aliens; to the Committee on Finance.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2568 CONGRESSIONAL RECORD — SENATE March 19, 1997 THE FAIRNESS TO IMMIGRANTS ACT ing for children in our Nation. Though is a violation of the spirit, arguably, ∑ Mr. WELLSTONE. Mr. President, on she paid taxes and followed all the the letter, of U.S. immigration law.’’ I April 1, the Nation will begin to see the rules of the United States, she will lose beg to differ. This country was based disastrous effects of the Personal Re- her SSI benefits in July. She does have on the dignity of the human spirit, sponsibility and Work Act of 1996, the option of struggling through forms fairness and equity. The spirit of this passed and signed into law in the 104th and tests to become a citizen. Sounds country is to give voice to the voice- Congress. When Congress debated the like a good option until you realize: less, to care for the elderly and to nur- bill, strong arguments were made for Gladys is 105 years old, blind and ture the children. getting people off welfare and back to housebound. Gladys spent a good share When we talk about reform, we work. I supported those intents. How- of her times caring for and nurturing should focus on change for the better, ever, I believed then as I do now that our children. She now needs the same. improvements to the system, revisions the bill we were debating went beyond Lucrecia has lived here for 17 years. on our mistakes. When we talk of re- what is humanly justifiable in terms of For 8 of them, she labored in a factory, form, we should not be discussing more repealing basic assistance to people assembling artificial Christmas trees. people in hunger, more people who are who are in need. This bill was not At 75, facing the loss of her sole means homeless, more people in poverty. That about able bodied people working. It of support, Lucrecia is desperate. is what this ‘‘reform’’ has led to. was about good people suffering. Under Rose, a 92-year-old, came from Leb- People who supported the welfare re- the guise of able bodied people work- anon 76 years ago. She has lived in a form bill said they ‘‘responded to the ing, we are forcing disabled and elderly nursing home for the past 30 years. She wishes of the American people and put people into hunger, into homelessness. has dementia. In December, she re- an end to the widespread use and abuse Beginning around April 1, roughly ceived a letter from the Government. of our welfare system.’’ I am asking 500,000 legal immigrants will lose their The letter said, in essence, Rose had you now to respond to the voice of the SSI benefits and about 1 million will been shirking her responsibilities and American people. A recent nationwide lose food stamps. By the year 2002, ap- she will no longer receive her benefits L.A. Times poll found that 56 percent proximately, 260,000 elderly immi- that support her stay in a nursing of the American people favor restoring grants and 140,000 children will lose home. She can’t speak for herself. I cuts to legal immigrants. Not too long Medicaid coverage. think we should speak for her. We ago, several Republican Governors The bill I am introducing today re- should send the message that this is were here. They are already antici- stores those benefits to elderly and dis- unacceptable. We must not let this pating the effects of this legislation. abled immigrants by repealing provi- happen to Rose. The American people do not want peo- sions of the Personal Responsibility During my many visits with commu- ple like Gladys and Lucrecia left hun- Act of 1996. nities in Minnesota and while talking When the American people supported gry and homeless. They want respon- with folks here, I have never seen more welfare reform, they supported that sible, ethical government. fear in the faces of so many people, so able bodied people would work. I want Responsible, ethical government many good people, people who came to that. You want that. However, I do not costs money. I know that. I propose this country and followed the rules. I think that the American people in- that instead of taking food from our hear stories every day of people so full tended the ensuing consequences. Nation’s elderly and children, we tax These consequences are people like of fear that they take their own lives. oil companies, we tax tobacco compa- Yanira, who, with her husband came to The Personal Responsibility and nies, we tax pharmaceutical compa- the United States legally 20 years ago Work Opportunity and Reconciliation nies. Why should wealthy corporations from her native El Salvador. For 20 Act has abjured the contributions the flourish and benefit from our policies years they raised three children. For 20 legal immigrants like Yanira have while hardworking, law abiding people years, they paid income taxes. For 20 made to our economic livelihood. I ask, go hungry? This is not reform. This is years, they paid sales taxes. For 20 How will their contributions be re- a sham. Furthermore, it is shameful. years they paid State taxes. For 20 warded? Taxation without benefits is People like Gladys and Lucrecia years, they paid their car registration. morally wrong. don’t have high-paid lobbyists. Privi- For 20 years, they abided by the laws Last year, we discussed and debated leged industries avoid paying their fair and rules here. the merits and failings of the welfare share of taxes because of the efforts of Then Yanira’s husband divorced her. reform law. As you know, I voted lobbyists. I propose that we take away So, Yanira got a job. For about 8 years against it. I did not vote against it be- the privileges of the wealthy and pro- she cleaned toilets, washed floors and cause I am against people working, vide necessities for the poor. laundered towels in a hotel near her people contributing to our country. I Today, I am imploring you to look home. Eventually, the work became did not vote against it because I am beyond politics and look beyond polls too demanding physically and she quit. against paychecks replacing welfare and see the faces and hear the stories At 64, Yanira has received SSI for a few checks. I voted against it because I am that this reform will portend. This is years. Soon, she will not. against pushing the unemployable into no longer a political issue. This is an Since her husband is no longer mar- poverty. I am talking about benefits issue concerning humanity. To dis- ried to her, she is not entitled to count for the disabled and elderly immi- regard this population, to turn our her husband’s work history toward the grants in our country. On April 1, we backs on those who are so vulnerable is required 40 quarters—10 years. In spite will see the first trickle in the torrent disgraceful and dishonorable. Tonight, of the fact that we willingly took her of suffering that this bill will inflict on you know where you are sleeping. To- taxes and other fiscal contributions, we our Nation’s most vulnerable. night, you know what you will eat. are denying her the basics for human Around this time last year, we heard Soon, Gladys and Lucrecia will not be survival, human dignity. How will testimony from Robert Rector of the able to say the same. Yanira survive? She doesn’t know. Nei- Heritage Foundation that ‘‘welfare is Mr. President, I ask unanimous con- ther do I. becoming a way of life for elderly im- sent that the text of the bill be printed Yanira’s situation is not isolated. migrants.’’ A picture was painted de- in the RECORD. There are Yaniras living in Minnesota, picting newly arrived immigrants There being no objection, the bill was in Ohio, in New York and Mississippi. being picked up by a sponsor at the air- ordered to be printed in the RECORD, as They are here legally but will not re- port and driven in a Cadillac directly follows: ceive SSI until they become U.S. citi- to the welfare office to sign up for ben- S. 480 efits such as SSI and food stamps. zens. Many of them are elderly and Be it enacted by the Senate and House of Rep- cannot work and considering their age, While I will not argue with you that resentatives of the United States of America in learn all that is necessary to become there has been some abuse, I think this Congress assembled, citizens. They will be denied benefits assertion is absurd. SECTION 1. REPEAL. for the rest of their lives. Last year, Robert Rector also testi- (a) IN GENERAL.—Title IV of the Personal Gladys has lived in the United States fied that ‘‘the presence of large num- Responsibility and Work Opportunity Rec- for 40 years, working as a nanny—car- bers of elderly immigrants on welfare onciliation Act of 1996 (Public Law 104–193;

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00078 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2569 110 Stat. 2260–2277), as amended by title V of 219, a bill to amend the Trade Act of sponsor of S. 440, a bill to deauthorize the Illegal Immigration Reform and Immi- 1974 to establish procedures for identi- the Animas-La Plata Federal reclama- grant Responsibility Act of 1996 (Public Law fying countries that deny market ac- tion project and to direct the Secretary 104–208; 110 Stat. 3009–1772–3009–1803), is re- cess for value-added agricultural prod- of the Interior to enter into negotia- pealed. (b) NOTICE AND REDETERMINATION.—Not ucts of the United States. tions to satisfy, in a manner consistent later than 30 days after the date of enact- S. 239 with all Federal laws, the water rights ment of this Act, any Federal or State offi- At the request of Mr. DASCHLE, the interests of the Ute Mountain Ute In- cial responsible for the administration of a name of the Senator from Mississippi dian Tribe and the Southern Ute Indian Federally funded program that provides ben- [Mr. COCHRAN] was added as a cospon- Tribe. efits or assistance to an individual who, as of sor of S. 239, a bill to amend the Inter- S. 447 such date, has been determined to be ineli- At the request of Mr. NICKLES, the gible for such program as a result of the pro- nal Revenue Code of 1986 relating to visions of title IV of the Personal Responsi- the treatment of livestock sold on ac- name of the Senator from Michigan bility and Work Opportunity Reconciliation count of weather-related conditions. [Mr. ABRAHAM] was added as a cospon- Act of 1996 (Public Law 104–193; 110 Stat. S. 295 sor of S. 447, a bill to amend title 18, 2260–2277) (as so amended), shall— At the request of Mr. JEFFORDS, the United States Code, to give further as- (1) notify the individual that the individ- names of the Senator from Colorado surance to the right of victims of crime ual’s eligibility for such program shall be re- to attend and observe the trials of determined; and [Mr. ALLARD], the Senator from South Carolina [Mr. HOLLINGS], and the Sen- those accused of the crime, and for (2) shall conduct such redetermination in a other purposes. timely manner.∑ ator from Arizona [Mr. MCCAIN] were At the request of Mr. HAGEL, his f added as cosponsors of S. 295, a bill to amend the National Labor Relations name was added as a cosponsor of S. ADDITIONAL COSPONSORS Act to allow labor management cooper- 447, supra. S. 28 ative efforts that improve economic S. 456 At the request of Mr. THURMOND, the competitiveness in the United States At the request of Ms. MOSELEY- name of the Senator from Wyoming to continue to thrive, and for other BRAUN, the name of the Senator from [Mr. ENZI] was added as a cosponsor of purposes. New York [Mr. MOYNIHAN] was added as S. 28, a bill to amend title 17, United S. 306 a cosponsor of S. 456, a bill to establish a partnership to rebuild and modernize States Code, with respect to certain ex- At the request of Mr. FORD, the name emptions from copyright, and for other of the Senator from Nebraska [Mr. America’s school facilities. purposes. HAGEL] was added as a cosponsor of S. SENATE JOINT RESOLUTION 19 S. 66 306, a bill to amend the Internal Rev- At the request of Mr. HELMS, the names of the Senator from Arkansas At the request of Mr. HATCH, the enue Code of 1986 to provide a decrease names of the Senator from Nebraska in the maximum rate of tax on capital [Mr. HUTCHINSON] and the Senator from New York [Mr. D’AMATO] were added as [Mr. HAGEL], and the Senator from gains which is based on the length of cosponsors of Senate Joint Resolution North Carolina [Mr. FAIRCLOTH] were time the taxpayer held the capital added as cosponsors of S. 66, a bill to asset. 19, a joint resolution to disapprove the certification of the President under amend the Internal Revenue Code of S. 314 section 490(b] of the Foreign Assistance 1986 to encourage capital formation At the request of Mr. THOMAS, the Act of 1961 regarding foreign assistance through reductions in taxes on capital name of the Senator from North Caro- for Mexico during fiscal year 1997. gains, and for other purposes. lina [Mr. FAIRCLOTH] was added as a co- SENATE JOINT RESOLUTION 20 S. 72 sponsor of S. 314, a bill to require that At the request of Mr. HELMS, the At the request of Mr. KYL, the name the Federal Government procure from names of the Senator from Arkansas of the Senator from Nebraska [Mr. the private sector the goods and serv- [Mr. HUTCHINSON] and the Senator from HAGEL] was added as a cosponsor of S. ices necessary for the operations and New York [Mr. D’AMATO] were added as 72, a bill to amend the Internal Rev- management of certain Government cosponsors of Senate Joint Resolution enue Code of 1986 to provide a reduc- agencies, and for other purposes. 20, a joint resolution to disapprove the tion in the capital gain rates for all S. 388 certification of the President under taxpayers, and for other purposes. At the request of Mr. LUGAR, the section 490(b] of the Foreign Assistance S. 75 name of the Senator from Iowa [Mr. Act of 1961 regarding foreign assistance At the request of Mr. KYL, the names HARKIN] was added as a cosponsor of S. for Mexico during fiscal year 1997. 388, a bill to amend the Food Stamp of the Senator from Missouri [Mr. SENATE JOINT RESOLUTION 21 ASHCROFT], the Senator from Idaho Act of 1977 to assist States in imple- At the request of Mr. COVERDELL, the menting a program to prevent pris- [Mr. CRAIG], the Senator from Ohio name of the Senator from Colorado [Mr. DEWINE], the Senator from Wyo- oners from receiving food stamps. [Mr. ALLARD] was added as a cosponsor ming [Mr. ENZI], the Senator from S. 400 of Senate Joint Resolution 21, a joint Utah [Mr. HATCH], the Senator from At the request of Mr. GRASSLEY, the resolution to disaprove the certifi- Oregon [Mr. SMITH], and the Senator names of the Senator from Michigan cation of the President under section from Wyoming [Mr. THOMAS] were [Mr. ABRAHAM] and the Senator from 490(b] of the Foreign Assistance Act of added as cosponsors of S. 75, a bill to Arkansas [Mr. HUTCHINSON] were added 1961 regarding assistance for Mexico repeal the Federal estate and gift taxes as cosponsors of S. 400, a bill to amend during fiscal year 1997, and to provide and the tax on generation-skipping rule 11 of the Federal Rules of Civil for the termination of the withholding transfers. Procedure, relating to representations of and opposition to assistance that re- S. 114 in court and sanctions for violating sults from the disapproval. At the request of Mr. INOUYE, the such rule, and for other purposes. At the request of Mr. HELMS, the name of the Senator from Idaho [Mr. S. 413 name of the Senator from New York CRAIG] was added as a cosponsor of S. At the request of Mrs. HUTCHISON, the [Mr. D’AMATO] was added as a cospon- 114, a bill to repeal the reduction in the name of the Senator from Arkansas sor of Senate Joint Resolution 21, deductible portion of expenses for busi- [Mr. HUTCHINSON] was added as a co- supra. ness meals and entertainment. sponsor of S. 413, a bill to amend the SENATE CONCURRENT RESOLUTION 11 S. 219 Food Stamp Act of 1977 to require At the request of Mr. GREGG, the At the request of Mr. DASCHLE, the States to verify that prisoners are not names of the Senator from Alaska [Mr. names of the Senator from South Da- receiving food stamps. STEVENS], the Senator from Nevada kota [Mr. JOHNSON], the Senator from S. 440 [Mr. REID], the Senator from North Da- North Dakota [Mr. CONRAD], and the At the request of Mr. FEINGOLD, the kota [Mr. DORGAN], and the Senator Senator from Illinois [Ms. MOSELEY- name of the Senator from New Hamp- from Nebraska [Mr. HAGEL] were added BRAUN] were added as cosponsors of S. shire [Mr. GREGG] was added as a co- as cosponsors of Senate Concurrent

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00079 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2570 CONGRESSIONAL RECORD — SENATE March 19, 1997 Resolution 11, a concurrent resolution tion was designed for a moral and reli- ing before court sessions and later recognizing the 25th anniversary of the gious people only. It is wholly inad- barred his display of the Ten Com- establishment of the first nutrition equate to any other.’’ mandments. The Supreme Court of program for the elderly under the Older But strangely today, there are those Alabama has since issued a stay of the Americans Act of 1965. who seem determined to drive all trace order barring display of the Ten Com- f of religion from the public sphere. mandments. They ignore the religious traditions on Judge Moore has refused to acknowl- SENATE CONCURRENT RESOLU- which this great Nation was founded edge the orders which stop him from TION 13—REGARDING A DISPLAY and work to drive religion and reli- praying and displaying the Ten Com- OF THE TEN COMMANDMENTS gious people out of public life. mandments. I support Judge Moore in Mr. SESSIONS (for himself and Mr. Many of my colleagues are aware his actions. I do not believe that his SHELBY) submitted the following con- Judge Roy Moore, circuit court judge convocation prayer or the presence of current resolution; which was referred in Gadsden, AL, has been ordered to the Ten Commandments in the court- to the Committee on Governmental Af- take down a two-plaque replica of the room violates the Constitution. fairs: Ten Commandments displayed in his As the Members of this body well S. CON. RES. 13 courtroom. know, a prayer, said from the floor of Whereas Judge Roy S. Moore, a lifelong The irrationality of the action is this Chamber, begins every day in resident of Etowah County, Alabama, grad- highlighted by the fact that the judge’s which the Senate is in session. This uate of the United States Military Academy display is consistent with other dis- practice is also followed in the House with distinguished service to his country in plays involving religious symbols and of Representatives. Furthermore, the Vietnam, and graduate of the University of art in our public property. In fact, a Marshal of the Supreme Court, in call- Alabama School of Law, has served his coun- door to the U.S. Supreme Court bears ing each session to order, implores try and his community with uncommon dis- two tablets numbered one to ten, which ‘‘God {to} save the United States and tinction; this honorable court.’’ It has also be- Whereas another circuit judge in Alabama, we interpret to represent the Ten Com- has ordered Judge Moore to remove a copy of mandments. And yet a judge in a small come a tradition for Presidents to con- the Ten Commandments posted in his court- Alabama town cannot hang a simple clude their State of the Union Address- room and the Alabama Supreme Court has display of the Ten Commandments on es with the simple prayer, ‘‘God Bless granted a stay to review the matter; the wall without being sued? America.’’ I believe these are just a few Whereas the Ten Commandments have had Mr. President, this resolution is not of the many instances where the Lord a significant impact on the development of just about Judge Moore and it is not is invoked during civil ceremonies and the fundamental legal principles of Western occasions. I believe that these exam- Civilization; and just about the display of the Ten Com- Whereas the Ten Commandments set forth mandments in Gadsden, AL. This reso- ples are entirely appropriate and in a code of moral conduct, observance of which lution provides a good opportunity to line with the provisions of the Con- is universally acknowledged to promote re- discuss this curious governmental hos- stitution. I feel that our history teach- spect for our system of laws and the good of tility towards the display of these es that the Founding Fathers were society: Now, therefore, be it plaques that are important to our law, against government making efforts to Resolved by the Senate (the House of Rep- our Nation, and our culture. promote specific religions at the ex- resentatives concurring), That it is the sense The Ten Commandments represent a pense of others. I do not think it was of Congress that— ever the view of the Founders that the (1) the Ten Commandments are a declara- key part of the foundation of western tion of fundamental principles that are the civilization of our legal system in government should adopt a position of cornerstones of a fair and just society; and America. To exclude a display of the Godless neutrality. It is constitutional, (2) the public display, including display in Ten Commandments because it sug- it is traditionally appropriate and it is government offices and courthouses, of the gests an establishment of religion is just simply right for our leaders to re- Ten Commandments should be permitted. not consistent with our national his- quest the assistance of God in their Mr. SESSIONS. Mr. President, I rise tory, let alone common sense itself. daily deliberations. to send a resolution to the desk on be- This Nation was founded on religious I believe that Judge Moore is also half of myself and my home state col- traditions that are an integral part of correct in refusing to remove the Ten league Senator SHELBY. the fabric of American cultural, polit- Commandments from his courtroom. Mr. President, this concurrent reso- ical, and societal life. The Judge’s display is consistent with lution we are introducing today ex- Mr. President, it is time for common other displays involving religious sym- presses the sense of the Congress that sense. No member of this body, on ei- bols and art in or on public property. the display of the Ten Commandments ther side of the aisle, should oppose the In fact, a door to the Supreme Court of in government offices and courthouses simple display of documents that are the United States bears two tablets should be permitted. This resolution is important to our law, to our Nation, numbered one to ten, which I interpret identical to House Concurrent Resolu- and to our culture. to represent the Ten Commandments. tion 31, sponsored by my good friend, Mr. SHELBY. Mr. President, I rise Moreover, there are friezes within the Representative ADERHOLT, which today to express support for Judge Roy Supreme Court which depict Moses, passed the House of Representatives on S. Moore. Judge Moore is a judge on King Solomon, Confucius, Mohammed, March 5, 295 to 125. the circuit court of the State of Ala- St. Louis and a figure called ‘‘Divine The Constitution guarantees freedom bama. Judge Moore is a lifelong resi- Inspiration.’’ I believe that these sym- of religion. This resolution does not en- dent of Etowah County, a graduate of bolic representations, just like Judge dorse any one religion but, rather, the United States Military Academy, a Moore’s, are appropriately placed with- states that a religious symbol which distinguished veteran of the Vietnam in our public spaces. Their very pres- has deep-rooted significance for our War, and a graduate of the University ence provides guidance and inspiration Nation and its history should not be of Alabama School of Law. Judge for our Nation’s leaders. excluded from public display. Moore has always and continues to f Mr. President, the Founders wisely serve his community, Alabama, and AMENDMENTS SUBMITTED realized that in a free society, it is im- this country with distinction and prin- perative that individuals practice for- ciple. bearance, respect, and temperance. It is because of his principles that DECENNIAL CENSUS CONCURRENT These are the very values taught by all Judge Moore has become an issue. Two RESOLUTION the world’s major religions. The years ago, Judge Moore was sued by Founders devised a Constitution that the Alabama chapter of the American depended on religion serving as a civil- Civil Liberties Union because he ABRAHAM AMENDMENT NO. 24 izing force in societal life. John Adams, opened his court with a prayer and be- (Ordered referred to the Committee our second President, and one of the in- cause he displayed the Ten Command- on Governmental Affairs.) tellectual forces behind the formation ments over his bench. A lower court Mr. ABRAHAM submitted an amend- of our Nation, said that ‘‘our Constitu- judge enjoined Judge Moore from pray- ment intended to be proposed by him

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00080 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2571 to the concurrent resolution (S. Con. The PRESIDING OFFICER. Without mittee on Armed Services be author- Res. 12) expressing the sense of the objection, it is so ordered. ized to meet at 2 p.m. on Wednesday, Congress with respect to the collection COMMITTEE ON THE JUDICIARY March 19, 1997, in open session, to re- on data on ancestry in the decennial The Senate Committee on the Judici- ceive testimony in review of the De- census; as follows: ary would request unanimous consent fense authorization request for fiscal In the preamble, in the fifth clause, insert to hold a hearing on Wednesday, March year 1998 and the future years defense ‘‘, but is not intended to be used for racial 19, 1997, at 2 p.m. in room 226 of the program. preference programs’’ before the colon. Senate Dirksen Building, on ‘‘What The PRESIDING OFFICER. Without Mr. ABRAHAM. Mr. President, I rise Works: The Efforts of Private Individ- objection, it is so ordered. today to offer my support as a co-spon- uals, Community Organizations, and SUBCOMMITTEE ON TRANSPORTATION AND sor to S. Con. Res 12. This resolution Religious Groups to Prevent Juvenile INFRASTRUCTURE expresses the sense of the Congress Crime.’’ Mr. NICKLES. Mr. President. I ask that the decennial census should col- The PRESIDING OFFICER. Without unanimous consent that the Sub- lect data on the ancestral backgrounds objection, it is so ordered. committee on Transportation and In- frastructure be granted permission to of all Americans. Ours is a nation of COMMITTEE ON LABOR AND HUMAN RESOURCES conduct a hearing Wednesday, March immigrants, of people with many dif- Mr. NICKLES. Mr. President, I ask 19, 9:30 a.m., hearing room (SD–406), on ferent ethnic origins and backgrounds. unanimous consent that the Com- the Intermodal Surface Transportation People came here from around the mittee on Labor and Human Resources Efficiency Act [ISTEA] and environ- world to become a part of a nation of be authorized to meet for a hearing on opportunity and freedom. They did not mental programs and statewide and Food and Drug Administration reform, metropolitan planning. come here to forget who they are and during the session of the Senate on The PRESIDING OFFICER. Without where they came from. Wednesday, March 19, 1997, at 9:30 a.m. objection, it is so ordered. The Census Bureau has collected in- The PRESIDING OFFICER. Without formation on ancestry and ethnic com- objection, it is so ordered. f position in the past two decennial cen- COMMITTEE ON VETERANS’ AFFAIRS ADDITIONAL STATEMENTS suses. Thus, it collects the only com- Mr. NICKLES. The Committee on plete information on the ethnic make- Veterans’ Affairs would like to request FAMILY HERITAGE up of the United States and provides unanimous consent to hold a joint PRESERVATION ACT OF 1997 very useful data pertaining to num- hearing with the House Committee on bers, household income, and edu- Veterans’ Affairs to receive the legisla- ∑ Mr. BURNS. Mr. President, as a co- cational status of Americans from nu- tive presentation of the Disabled Amer- sponsor of S. 75, the Family Heritage merous backgrounds. This data, in ican Veterans. The hearing will be held Preservation Act, I urge my colleagues turn, is used by a wide variety of peo- on March 19, 1997, at 9:30 a.m., in room to support the immediate passage of ple and organizations in both the pub- 345 of the Cannon House Office Build- this measure before more family busi- lic and the private sector—including ing. nesses and farms are lost. researchers, businesses, community or- The PRESIDING OFFICER. Without They say the only things that are ganizations, ethnic institutions, and objection, it is so ordered. certain in life are death and taxes. The Government has done a perverse job of policymakers. SUBCOMMITTEE ON ACQUISITION AND combining the two in the Federal es- It is important to note that the an- TECHNOLOGY tate and gift taxes and the tax on gen- cestry data does not relate in any way Mr. NICKLES. Mr. President, I ask eration-skipping transfers, known as to questions of race as defined by civil unanimous consent that the Sub- the death taxes. These are the taxes as- rights statutes, and therefore is not committee on Acquisition and Tech- sessed on assets passed from one gen- utilized for preference programs. To nology of the Committee on Armed eration to another, such as family busi- make this point crystal clear, I have Services be authorized to meet at 10 nesses, ranches, and farms. The tax offered an amendment to S. Con. Res. a.m. on Wednesday, March 19, 1997, in rate starts at 37 percent and quickly 12 stating that this data is not in- open session, to review the status of rises to a whopping 55 percent, often tended to be used for racial preference acquisition reform in the Department forcing the liquidation of assets just to programs. of Defense. When the Census Bureau approaches The PRESIDING OFFICER. Without pay the tax. S. 75, introduced by Senator KYL, Congress for approval of its rec- objection, it is so ordered. ommendations for the 2000 Census, I will repeal the death taxes. It is clear SUBCOMMITTEE ON COMMUNICATIONS that these taxes do more harm than and my colleagues who co-sponsored Mr. NICKLES. Mr. President, I ask this resolution hope that the ancestry good, raising only 1 percent of Federal unanimous consent that the Commu- revenues but consuming 8 percent of question will be included in the rec- nications Subcommittee of the Senate ommendations and contained on the annual savings. What’s more, enforce- Committee on Commerce, Science, and ment and compliance with these taxes long form the Census Bureau asks Transportation be authorized to meet Americans to fill out. takes up 65 cents for each dollar col- on March 19, 1997, at 9:30 a.m. on uni- lected. The effects of the taxes on the f versal service. economy are equally stark: Over an 8- The PRESIDING OFFICER. Without year period without the taxes, the AUTHORITY FOR COMMITTEES TO objection, it is so ordered. MEET gross domestic product would have SUBCOMMITTEE ON READINESS been $80 billion higher and 228,000 more COMMITTEE ON COMMERCE, SCIENCE, AND Mr. NICKLES. Mr. President, I ask jobs would have been created. TRANSPORTATION unanimous consent that the Sub- These death taxes punish hard work Mr. NICKLES. Mr. President, I ask committee on Readiness of the Com- and wealth accumulation and drive unanimous consent that the Senate mittee on Armed Services be author- many family businesses into the Committee on Commerce, Science, and ized to meet on Wednesday, March 19, ground by forcing them to sell assets Transportation be authorized to meet 1997, at 2 p.m. in open session, to re- to pay the tax. Family farms are hit on March 19, 1997, at 2 p.m. on PRO- ceive testimony on the President’s especially hard—over 90 percent of CODE (S. 377). budget request for the operation and farms and ranches are sole proprietor- The PRESIDING OFFICER. Without maintenance, spare parts, and ammuni- ships or family partnerships, sub- objection, it is so ordered. tion accounts for fiscal year 1998. jecting most to the taxes when owner- COMMITTEE ON FINANCE The PRESIDING OFFICER. Without ship is transferred. Mr. NICKLES. Mr. President, the Fi- objection, it is so ordered. I want to note that S. 75 is endorsed nance Committee requests unanimous SUBCOMMITTEE ON SEAPOWER by a broad range of small business consent to conduct a hearing on Mr. NICKLES. Mr. President, I ask groups as well as the American Farm Wednesday, March 19, 1997, beginning unanimous consent that the Sub- Bureau Federation. I thank Senator at 10 a.m. in room 215 Dirksen. committee on Seapower of the Com- KYL for his leadership on this issue.∑

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00081 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2572 CONGRESSIONAL RECORD — SENATE March 19, 1997 JUDGE FRED J. BORCHARD ster, recognized that the ideals of the taxpayer, but as a caring, involved ∑ Mr. LEVIN. Mr. President, I rise American Revolution—individual lib- resident. He has shown that he accepts today to pay tribute to one of the iron erty, representative democracy, and all the responsibilities of a citizen, and men of our judicial system, Judge Fred personal dignity—were also the founda- I am proud that he will now have the J. Borchard, who has served the State tion for Greece’s declaration of inde- rights of a citizen as well. of Michigan for over 50 years. Judge pendence. Americans in the 1820’s On behalf of the Senate, I would like Borchard’s tenure marks the longest quickly identified with the struggle of to welcome Arturo Hale as a citizen of ∑ term of service of any Michigan judge the Greek patriots because they knew the United States. in history. in their hearts that it was a continu- f ation of their own struggle for political Judge Borchard put himself through HOME-BASED BUSINESS FAIRNESS and religious freedom. The same spirit the University of Michigan and its law ACT OF 1997 of democracy that was born and flour- school by working various full time ∑ jobs. His law practice was postponed ished in Greece a thousand years ago, Mr. BURNS. Mr. President, as an while he served his country as a for- and which fanned the flames of the original cosponsor of the Home-Based ward gun observer in the Pacific the- American revolution, inspired the Business Fairness Act of 1997, intro- ater during World War II. In 1947, he Greek patriots to persevere in their duced yesterday by Senate Small Busi- was elected municipal judge and in struggle against their Turkish oppres- ness Committee Chairman BOND, I rise 1954, he was elected Probate Judge. sors. in strong support of this measure and In 1958, Gov. G. Mennen Williams ap- The United States and Greece are urge the Senate to approve it as soon pointed Judge Borchard to the Saginaw now old friends and trusted allies. Our as possible. circuit bench, where he served until his two nations and people are bound by This legislation is composed of three retirement in 1989. Since then, he has unbreakable bonds which link us vitally important provisions, and to- continued to serve Michigan by filling through common interests, values, and gether they make this measure one of in for judges away on vacations and political heritage. It is clear that our the most important the Senate will conferences. cherished ideals of democracy and free- consider during this Congress. First, Judge Borchard’s love of law has dom are as strong as ever and continue this legislation will increase the health kept him fully engaged during his long to inspire other countries to follow our insurance deduction for self-employed service on the bench. His court was example. One need look no further than individuals to 100 percent from the cur- known for its courteous and efficient to the fledgling democracies of Eastern rent 40 percent. Second, it will restore atmosphere where citizens could settle Europe and the New Independent the home-office tax deduction where a their disputes. He wholeheartedly be- States of the former Soviet Union to taxpayer performs essential business lieves in the ability of our legal system see the huge impact these ideals are functions in a home office used exclu- to make a positive difference in our still having on our world as we enter sively for business purposes. Finally, it lives. It is these traits that have made the 21st century. will clarify when a worker is an em- Judge Borchard a favorite among his Independence, of course, must be ployee versus an independent con- colleagues, constituents and contem- guarded vigilantly, and in the past 176 tractor, removing the uncertainty of poraries. Judge Borchard has been a years Greece’s independence has been the IRS’s current test which can hit leader in his community as well. He challenged by forces both external and small businesses retroactively with li- has served in the University of Michi- internal. Therefore, even as we recog- ability for back taxes, interest, and gan Club, Germania of Saginaw, and nize and celebrate Greece’s long inde- penalties. These measures are espe- the Kiwanis Club of Saginaw. He has pendence today, we must also be mind- cially important in Montana, where 98 served on the Board of Directors of ful of the threats which Greece faces in percent of our businesses are small both St. Luke’s Hospital and the Sagi- today’s world. The ongoing dispute businesses, accounting for 72.7 percent naw County Chamber of Commerce. He with Turkey over the islet of Imia and of all employment in our State. This 72 has also shown his commitment to the Albanian Government’s recent percent is considerably higher than the serving others through the work he has military action near the Greek border 53 percent for the United States as a done with his church. serve as troubling reminders of whole. And we’re growing: Montana Judge Borchard was married to the Greece’s vulnerability and the insta- leads the Nation in new business late Helen Fay Honeywell for almost 50 bility of the Balkan region. incorporations. So when we talk about years, and they had four children Fred, On this, the 176th anniversary of small business issues such as the home- Barb, Jim, and Sara. They have carried Greek independence, let us extend our office tax deduction, the health insur- on Judge Borchard’s ideals of service to warmest congratulations to the people ance deduction for the self-employed, the public in their own lives. Judge of Greece. And let us also rededicate the independent contractor classifica- Borchard has been married to Dorothy America’s commitment to Greece and tion, and other issues, these are the Denton for the past 5 years. to strengthening the solidarity that ex- issues affecting Montana businesses. I know my Senate colleagues will ists between our two great nations.∑ Many of today’s workers spend part join me in honoring Judge Fred J. f of their time working at home, often Borchard for his 50 historic years of performing administrative duties such ARTURO HALE service to the State of Michigan’s judi- as billing. These workers either have cial system.∑ ∑ Mr. LEAHY. Mr. President, one of no permanent office or perform their my duties as ranking member of the main duties in an unconventional envi- f Senate Judiciary Committee is over- ronment, such as an operating room. GREEK INDEPENDENCE DAY sight of Immigration and Naturaliza- For them, the work performed in a ∑ Ms. SNOWE. Mr. President, March 25, tion policy. It is a role to which I give home office is an essential part of their 1997, marks a special day for the Greek the highest importance. My own grand- job, even though it may not be the people and for all the friends of Greece parents came to the United States main part of their job. Back in 1993, the around the world. It is the 176th anni- from Italy and Ireland for a better life. Supreme Court in Commissioner versus versary of the day in 1821 when the peo- I am pleased that on April 9 we will Soliman created a restrictive test for ple of Greece declared their independ- welcome another new citizen. Arturo determining eligible home-based func- ence from centuries of political, reli- Hale came to the United States from tions. Functions such as billing, gious and cultural repression under the Mexico to attend the University of though essential, do not meet the Ottoman Empire. Greek independence Minnesota, where he earned a doc- Soliman test. The Court went well be- was recognized 8 years later only after torate in chemical engineering. He now yond congressional intent and even be- a long, hard-fought struggle during works at Bell Laboratories, conducting yond the IRS’s own interpretation of which the people of Greece made research on optical fibers. I have had the law. countless sacrifices for their freedom. the pleasure of meeting Arturo on a Shortly after the Soliman decision, I Contemporary American leaders, few occasions. He has contributed to introduced the Home Office Tax Deduc- such as James Monroe and Daniel Web- our Nation not only as a researcher and tion Bill, and I’ve been pushing for it

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00082 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2573 ever since. We must allow a tax deduc- In the national championship game, on seniors who continue to work. tion for essential activities, such as NNC broke open a tight contest and That’s why this bill is so important. billing, performed in the home when pulled away to claim the trophy. It was Let’s not discourage seniors from that is the only available place for just 25–24 at halftime, but a pressing working—let’s guarantee their freedom such activities. As the law now stands, and aggressive Crusader defense did the to work.∑ workers like Dr. Soliman who spend 15 trick and helped clinch the game. f hours per week doing billing in an ex- Staci Wilson paced the NNC attack, clusive home office are denied the de- with 22 points. She also was the leading APPOINTMENTS BY THE duction. That’s not right. Home offices rebounder with 13. Erica Walton scored DEMOCRATIC LEADER that are used regularly and solely for 12 points, and was named the tour- The PRESIDING OFFICER. The business purposes—whether it’s by phy- nament’s most valuable player. Kari Chair, on behalf of the Democratic sicians, salespeople, or mothers work- Smith added 11 points for the Lady leader, pursuant to Public Law 104–264, ing at home—should be an allowable Crusaders. appoints the following individuals to deduction. I am proud to be a cospon- Mr. President, I’m pleased to say the National Civil Aviation Review sor of Sen. HATCH’s bill which, like this that seven of the 12 players on the Commission: Linda Barker, of South bill, will restore the deduction for es- Northwest Nazarene College roster are Dakota, and William Bacon, of South sential functions. Idahoans. Here is the roster of this out- Dakota. I was very pleased that last Congress standing team: Christy Farrar of Hills- f we enacted an increase in the health boro, OR; Jessica Knowlton of insurance tax deduction for the self- ORDERS FOR THURSDAY, MARCH Craigmont, ID; Jennifer Myers of 20, 1997 employed to 80 percent by 2006. This is Parma, ID; Kimberly Riggs of Boise, a positive first step, but why should ID; Brooke Warren of Pomeroy, Wash- Mr. HELMS. Mr. President, I ask not small businesses receive a 100 per- ington; Kari Smith of Meridian, ID; unanimous consent that when the Sen- cent deduction just like big businesses? Ellen Duncan of McCall, ID; Chelsey ate completes its business today it Health care costs are one of the main Hall of Grangeville, ID; Staci Wilson of stand in adjournment until the hour of barriers to successful self-run busi- Molalla, OR; Staci Kirk of Boise, ID; 9:30 a.m., on Thursday, March 20. I fur- nesses, and this modest proposal will Sunshine Cecrle of Hillsboro, OR; and ther ask unanimous consent that on go a long way toward helping these Erica Walton of Ontario, OR. Thursday, immediately following the businesses survive and thrive. I also congratulate the head coach, prayer, the routine requests through Finally, the top priority of small Roger Schmidt, and his assistant the morning hour be granted, with the businesses is clarification of the inde- coaches, Becky Nichols and Duane time for the two leaders reserved un- pendent contractor definition. The cur- Slemmer. And my congratulations also less it is used. rent 20-part test used by the IRS to de- go to NNC President Dr. Richard The PRESIDING OFFICER. Without termine who is an employee, for which, Hagood and Athletic Director Eric objection, it is so ordered. of course, employers must pay Federal Forseth. f taxes, is confusing and imprecise. The I am sure all Idahoans join me in PROGRAM law is tough to follow when it is unpre- proudly recognizing the accomplish- dictable from case to case. This bill Mr. HELMS. Mr. President, for the ments of these young women and the information of all Senators, on Thurs- simply clarifies who is an independent support of the students, faculty, staff, contractor by applying a clear three- day the Senate may consider a resolu- alumni, and community at Northwest part test. Businesspeople need a simple tion relating to the decertification of Nazarene College. rule to follow, and this will provide it. Mexico. The Senate may also proceed No business should be subject to the f to the consideration of the nuclear whim of the IRS. OLDER AMERICANS FREEDOM TO waste legislation. Senators should be I thank Chairman BOND for his lead- WORK ACT aware that rollcall votes may occur at ership on this bill and I look forward to ∑ Mr. BURNS. Mr. President, I want to any time during Thursday’s session of working with him to get it to the the Senate. The Senate may also con- ∑ commend the majority leader for re- President’s desk. introducing the Older Americans Free- sider any other legislative or executive f dom to Work Act, S. 202, which I re- items that can be cleared. CONGRATULATING NORTHWEST cently have cosponsored. This bill will f NAZARENE COLLEGE’S NA- repeal the Social Security earnings ADJOURNMENT UNTIL 9:30 A.M. TIONAL CHAMPIONS limitation, which punishes seniors be- TOMORROW ∑ Mr. KEMPTHORNE. Mr. President, I tween the ages of 65 and 69 for working. Mr. HELMS. Mr. President, if there rise with great pride today to pay trib- That’s right—for working. is no further business to come before ute to an outstanding group of young The earnings limit, like so many the Senate, I now ask that the Senate women who have reached the pinnacle other Government policies, is outdated. stand in adjournment under the pre- of their sport. Northwest Nazarene Col- Back in the 1930’s, it may have made vious order. lege’s women’s basketball team last sense to encourage older workers to There being no objection, the Senate, night won its first-ever national title. leave the work force by reducing their at 8:20 p.m., adjourned until Thursday, The Lady Crusaders beat Black Hills Social Security benefits if they worked March 20, 1997, at 9:30 a.m. beyond age 65. But today, the opposite State 64–46 to claim the National Asso- f ciation of Intercollegiate Athletics Di- is true: With the baby boomers getting vision 2 tournament championship. It ready to retire, and with a higher life NOMINATIONS was the school’s first national cham- expectancy, we should be encouraging Executive nominations received by pionship in any sport. folks to work longer. Most important, the Senate, March 19, 1997: NNC, located in Nampa, ID, is one of workers should have the freedom to FEDERAL RETIREMENT THRIFT INVESTMENT America’s finest colleges. It consist- work longer if they want to. BOARD ently ranks among the top schools in Last year, after a long-fought effort JAMES H. ATKINS, OF ARKANSAS, TO BE A MEMBER OF academic national rankings. Now it by Majority Leader LOTT and many THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD FOR A TERM EXPIRING SEPTEMBER 25, 2000. (RE- proudly sits at the top in athletic others, we enacted a gradual increase APPOINTMENT) rankings as well. in the earnings limit from $13,500 today DEPARTMENT OF LABOR Coach Roger Schmidt’s Lady Cru- to $30,000 per year in 2002. That is, for KATHRYN O’LEARY HIGGINS, OF SOUTH DAKOTA, TO BE saders entered the 1996–97 season seniors between the ages of 65 and 69, DEPUTY SECRETARY OF LABOR, VICE THOMAS P. GLYNN, ranked 11th in the country. The team each $3 earned over $30,000 per year re- RESIGNED. finished the season with the most wins duces the worker’s Social Security ben- DEPARTMENT OF HOUSING AND URBAN in school history at 27–7, and also won efits by $1. While this increase is cer- DEVELOPMENT tainly helpful, there is no sound reason KEVIN EMANUAL MARCHMAN, OF COLORADO, TO BE AN the Cascade Collegiate Conference ASSISTANT SECRETARY OF HOUSING AND URBAN DE- title. for retaining any earnings limitation VELOPMENT, VICE JOSEPH SHULDINER.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00083 Fmt 0624 Sfmt 9801 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2574 CONGRESSIONAL RECORD — SENATE March 19, 1997 FOREIGN CLAIMS SETTLEMENT COMMISSION OF IN THE NAVY CONFIRMATION THE UNITED STATES THE FOLLOWING-NAMED OFFICER FOR APPOINTMENT IN THE RESERVE OF THE NAVY TO THE GRADE INDI- Executive nomination confirmed by RICHARD THOMAS WHITE, OF MICHIGAN, TO BE A MEM- CATED UNDER TITLE 10, UNITED STATES CODE, SECTION BER OF THE FOREIGN CLAIMS SETTLEMENT COMMIS- the Senate, March 19, 1997: 12203: SION OF THE UNITED STATES FOR A TERM EXPIRING THE JUDICIARY SEPTEMBER 30, 1999. (REAPPOINTMENT) To be rear admiral (lower half) MERRICK B. GARLAND, OF MARYLAND, TO BE U.S. CIR- CAPT. KAREN A. HARMEYER, 0000. CUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT.

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